As
filed with the Securities and Exchange Commission on July 2, 2009
Registration
No. 333-______
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
________________________
Form
S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
________________________
EMCORE
Corporation
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New Jersey
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3674
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22-2746503
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(State
or other jurisdiction of
incorporation
or organization)
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(Primary
Standard Industrial
Classification
Code Number)
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(I.R.S.
Employer
Identification
Number)
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EMCORE
Corporation
10420
Research Road, SE
Albuquerque,
New Mexico 87123
(505-332-5000)
Agent For
Service
KEITH
J. KOSCO, ESQ.
EMCORE
Corporation
10420
Research Road, SE
Albuquerque,
New Mexico 87123
(505-332-5000)
With
Copies To:
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TOBIAS
L. KNAPP, ESQ.
Jenner
& Block LLP
919
Third Avenue
37th
Floor
New
York, New York 10022
(212-891-1600)
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Approximate date of commencement of
proposed sale to the public: From time to time after
this registration statement becomes effective.
If the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box: 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, check
the following box. x
If this
form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. ¨
If this
form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. ¨
If this Form is a registration
statement pursuant to General Instruction I.D. or a post-effective amendment
thereto that shall become effective upon filing with the Commission pursuant to
Rule 462(e) under the Securities Act, check the following
box. o
If this Form is a post-effective
amendment to a registration statement filed pursuant to General Instruction I.D.
filed to register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the following
box. o
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Large
accelerated filer o
Accelerated filer x
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Non-accelerated
filer o
Smaller reporting company o
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CALCULATION
OF REGISTRATION FEE
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Title
of Each Class of
Securities
to be Registered (1)
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Amount
to
Be
Registered
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Proposed
Maximum
Offering
Price
Per
Unit
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Proposed
Maximum
Aggregate
Offering
Price
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Amount
of
Registration
Fee
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||||
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Offering:
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||||||||
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Common
Stock, no par value per share
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(1)
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(2)
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(2)
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—
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||||
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Preferred
Stock
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(1)
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(2)
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(2)
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—
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Debt
Securities
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(1)
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(2)
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(2)
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—
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Warrants
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(1)
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(2)
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(2)
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—
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||||
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Units
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(1)
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(2)
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(2)
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—
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||||
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Total
Offering
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(1)
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(2)
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$50,000,000
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$2,790(3)
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(1)
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There
are being registered hereunder such indeterminate number of shares of
common stock and preferred stock, such indeterminate principal amount of
debt securities, such indeterminate number of warrants to purchase common
stock, preferred stock or debt securities, and such indeterminate number
of units, as shall have an aggregate initial offering price not to exceed
$50,000,000. If any debt securities are issued at an original issue
discount, then the offering price of such debt securities shall be in such
greater principal amount as shall result in an aggregate initial offering
price not to exceed $50,000,000, less the aggregate dollar amount of all
securities previously issued hereunder. Any securities registered
hereunder may be sold separately or as units with other securities
registered hereunder. The proposed maximum initial offering price per unit
will be determined, from time to time, by the registrant in connection
with the issuance by the registrant of the securities registered
hereunder. The securities registered also include such indeterminate
number of shares of common stock and preferred stock and amount of debt
securities as may be issued upon conversion of or exchange for preferred
stock or debt securities that provide for conversion or exchange, upon
exercise of warrants or pursuant to the anti-dilution provisions of any
such securities. In addition, pursuant to Rule 416 under the
Securities Act of 1933, as amended, the shares being registered hereunder
include such indeterminate number of shares of common stock and preferred
stock as may be issuable with respect to the shares being registered
hereunder as a result of stock splits, stock dividends or similar
transactions.
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(2)
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The
proposed maximum aggregate offering price per class of security will be
determined from time to time by the registrant in connection with the
issuance by the registrant of the securities registered hereunder and is
not specified as to each class of security pursuant to General Instruction
II(D) of Form S-3 under the Securities Act of 1933, as
amended.
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(3)
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Calculated
pursuant to Rule 457(o) under the Securities Act of 1933, as amended,
based on the proposed maximum aggregate offering
price.
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The registrant hereby amends this
registration statement on such date as may be necessary to delay its effective
date until we shall further file a further amendment which specifically states
that this registration statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act or until this registration statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. We will not
sell the securities described in this document until the registration statement
filed with the Securities and Exchange Commission is declared effective. This
prospectus is not an offer to sell these securities, nor are we soliciting an
offer to buy these securities in any state where the offer or sale is not
permitted.
PRELIMINARY
PROSPECTUS
SUBJECT
TO COMPLETION, DATED July 2, 2009
EMCORE
Corporation
$50,000,000
Debt
Securities
Common
Stock
Preferred
Stock
Warrants
Units
This
prospectus provides you with a general description of debt and equity securities
that EMCORE Corporation may offer and sell from time to time. Each time we sell
securities we will provide a prospectus supplement that will contain specific
information about the terms of that sale and may add to or update the
information in this prospectus. You should carefully read this prospectus and
the applicable prospectus supplement as well as any documents incorporated or
deemed to be incorporated in this prospectus before you invest in any of our
securities offered hereby. This prospectus may not be used to sell securities
unless accompanied by a prospectus supplement.
EMCORE
Corporation may offer and sell securities to or through one or more
underwriters, dealers and/or agents on a continuous or delayed basis. For
additional information on the methods of sale, you should refer to the section
entitled “Plan of Distribution.” If any underwriters are involved in the sale of
any securities with respect to which this prospectus is being delivered, the
names of such underwriters and any applicable discounts or commissions and
over-allotment options will be set forth in the prospectus supplement. The price
to the public of such securities and the net proceeds we expect to receive from
such sale will also be set forth in a prospectus supplement.
Our
common stock is listed on The Nasdaq Global Market under the symbol “EMKR.” On
June 26, 2009, the last reported sale price of our common stock on The Nasdaq
Global Market was $1.47.
Investing in our common stock involves
risk. See “Risk Factors” on page 7. You should carefully
review the risks and uncertainties described under the heading “Risk Factors”
contained in the applicable prospectus supplement and under similar headings in
the documents that are incorporated by reference in 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.
The
date of this prospectus
is ,
2009
You
should rely only on the information contained or incorporated by reference in
this prospectus. We have not authorized anyone to provide you with
additional information or information different from that contained in this
prospectus. The information contained or incorporated by reference in this
prospectus is accurate only as of the date of this prospectus, regardless of the
time of delivery of this prospectus or of any sale of securities offered by this
prospectus. Our business, financial condition, results of operations and
prospects may have changed since that date.
In this
prospectus, the “Company”, “EMCORE”, “we”, “us”, and “our” refer to EMCORE
Corporation and its subsidiaries. Our fiscal year ends on September
30 of each calendar year. For example, fiscal year 2008 refers to the
year ended September 30, 2008. EMCORE is a registered trademark of
EMCORE Corporation. This prospectus contains product names, trade names and
trademarks of EMCORE and other organizations.
TABLE
OF CONTENTS
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Page
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About
this Prospectus
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4
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Special
Note Regarding Forward-Looking Statements
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5
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EMCORE
Corporation
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6
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Risk
Factors
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7
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Use
of Proceeds
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8
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Ratio
of Earnings to Fixed Charges and Preferred Stock Dividends
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8
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Description
of Common Stock
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9
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Description
of Preferred Stock
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9
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Description
of Debt Securities
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10
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Description
of Warrants
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17
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Description
of Units
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18
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Plan
of Distribution
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18
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Anti-takeover
Effects of Provisions of Our Restated Certificate of Incorporation and
Amended By-laws
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19
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New
Jersey Shareholders Protection Act
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20
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Legal
Matters
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20
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Experts
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20
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Where
You Can Find More Information
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20
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Information
Incorporated by Reference
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21
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ABOUT
THIS PROSPECTUS
This prospectus is part of a
registration statement that we have filed with the Securities and Exchange
Commission (the “SEC” or “Commission”) using a “shelf” registration process.
Under this shelf process, we may sell:
· Debt
securities;
· Common
stock;
· Preferred
stock;
· Warrants;
and
· Units
either
separately or in units, in one or more offerings. This prospectus provides you
with a general description of those securities. We will offer our securities in
amounts, at prices and on terms to be determined at the time we offer such
securities. Each time we sell securities, we will provide a prospectus
supplement that will contain specific information about the terms of that
offering. The prospectus supplement may also add, update or change information
contained in this prospectus. Before purchasing any securities, you should
carefully read this prospectus and the applicable prospectus supplement and any
applicable free writing prospectus together with the additional information
described under the heading "Where You Can Find More Information." Under no
circumstances should the delivery to you of this prospectus or any offering or
sales made pursuant to this prospectus create any implication that the
information contained in this prospectus is correct as of any time after the
date of this prospectus.
SPECIAL
NOTE REGARDING FORWARD LOOKING STATEMENTS
This
prospectus and the information incorporated by reference include forward-looking
statements, within the meaning of Section 27A of the Securities Act of
1933, or the Securities Act, and Section 21E of the Securities Exchange Act
of 1934, or the Exchange Act. These statements are based on management’s current
expectations or predictions of future results or events. We make these
forward-looking statements in reliance on the safe harbor provisions provided
under the Private Securities Litigation Reform Act of 1995.
All
statements, other than statements of historical fact, included in this
prospectus and information incorporated by reference which relate to
performance, development or activities that we expect or anticipate will or may
happen in the future, are forward-looking statements. Other forward-looking
statements may be identified by the use of forward-looking words such as
“believe,” “expect,” “may,” “might,” “will,” “should,” “seek,” “could,”
“approximately,” “intend,” “plan,” “estimate,” or “anticipate” or the negative
of those words or other similar expressions.
Forward-looking
statements involve inherent risks and uncertainties and are based on numerous
assumptions. They are not guarantees of future performance. A number of
important factors could cause actual results to differ materially from those in
the forward-looking statement. Some factors include:
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our
ability to obtain financing or sell assets and achieve levels of revenue
and cost reductions that are adequate to support our capital and operating
requirements in order to continue as a going
concern;
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·
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our
abilities to remain competitive and a leader in our industries and the
future growth of the Company, our industries, and the economy in
general;
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·
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our
ability to achieve structural and material cost reductions without
impacting product development or manufacturing
execution;
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expected
improvements in our product and technology development
programs;
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our
ability to successfully develop, introduce, market and qualify new
products, including our terrestrial solar
products;
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·
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our
ability to identify and acquire suitable acquisition targets and
difficulties in integrating recent or future acquisitions into our
operations;
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·
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other
risks and uncertainties described in our filings with the SEC such as:
cancellations, rescheduling, or delays in product shipments; manufacturing
capacity constraints; lengthy sales and qualification cycles; difficulties
in the production process; changes in semiconductor industry growth;
increased competition; delays in developing and commercializing new
products; and other factors.
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Forward-looking
statements contained herein are made only as of the date made, and we do not
undertake any obligation to update them to reflect events or circumstances after
the date of this prospectus to reflect the occurrence of unanticipated
events.
EMCORE
CORPORATION
We are a provider of compound
semiconductor-based components and subsystems for the broadband, fiber optic,
satellite, and terrestrial solar power markets. We were established
in 1984 as a New Jersey corporation. We have two reporting segments: Fiber
Optics and Photovoltaics. Our Fiber Optics segment offers optical
components, subsystems, and systems that enable the transmission of video,
voice, and data over high-capacity fiber optic cables for high-speed data and
telecommunications, cable television (“CATV”) and fiber-to-the-premises (“FTTP”)
networks. Our Photovoltaics segment provides solar products for
satellite and terrestrial applications. For satellite applications, we offer
high-efficiency compound semiconductor-based gallium arsenide (“GaAs”) solar
cells, covered interconnect cells (“CICs”) and fully integrated solar
panels. For terrestrial applications, we offer concentrating
photovoltaic (“CPV”) systems for utility scale solar applications as well as our
high-efficiency GaAs solar cells and CPV components for use in solar power
concentrator systems.
Our headquarters and principal
executive offices are located at 10420 Research Road, SE, Albuquerque, New
Mexico, 87123, and our main telephone number is (505) 332-5000. For
specific information about our company, our products or the markets we serve,
please visit our website at http://www.emcore.com. The information
contained in or linked to our website is not part of this
prospectus.
RISK
FACTORS
Investing
in our securities involves risks. You should carefully read and
consider the risk factors and other disclosures relating to any investment in
securities issued by EMCORE Corporation described in our Annual Report on Form
10-K for the fiscal year ended September 30, 2008, as updated by
annual, quarterly and other reports and documents we file with the SEC after the
date of this prospectus and that are incorporated by reference
herein. Before making an investment decision, you should carefully
consider those risks as well as other information we include or incorporate by
reference in this prospectus and the applicable prospectus
supplement. The risks and uncertainties we have described are not the
only ones facing our company. Additional risks and uncertainties not
presently known to us or that we currently consider immaterial may also affect
our business operations. To the extent a particular offering
implicates additional risk, we will include a discussion of those risks in the
applicable prospectus supplement.
USE
OF PROCEEDS
Unless
otherwise specified in the applicable prospectus supplement, we will use the net
proceeds from the sale of securities for one or more of the
following:
• repayment
of debt;
•
acquisitions;
• capital
expenditures;
•
redemption or repurchase of any preferred stock or debt outstanding;
and
• working
capital and general corporate purposes.
Pending
any specific application, we may initially invest funds in marketable
short-term, interest-bearing securities.
The
following table sets forth our ratio of earnings to fixed charges for the
periods indicated. No shares of preferred stock were outstanding during the
periods indicated and we did not pay preferred stock dividends during these
periods. Consequently, the ratio of earnings to fixed charges and preferred
stock dividends is the same as the ratio of earnings to fixed charges for the
periods indicated.
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Thirty-Nine
Weeks
Ended
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Fiscal
Year Ended September 30,
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March
31,
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2009
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2008
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2007
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2006
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2005
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2004
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N/M*
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N/M*
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N/M*
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9.0
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N/M*
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N/M*
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We are
presenting the ratios above pursuant to the requirements set forth in Item 503
of Regulation S-K under the Securities Act of 1933. The earnings and fixed
charges in the above ratios are calculated using the definitions set forth by
Regulation S-K under the Securities Act of 1933.
*The
ratio of earnings to fixed charges for the six-months ended March 31, 2009 and
for the years ended September 30, 2008, 2007, 2005 and 2004 are not meaningful
since earnings available for fixed charges is negative for those
periods. The shortfall in the earnings available for fixed charges to
achieve a ratio of earnings to fixed charges of 1.00 amounted to $77.1 million
for the six months ended March 31, 2009 and $80.9 million, $58.7 million, $24.7
million, and 28.4 million for the years ended September 30, 2008, 2007, 2005 and
2004 respectively.
DESCRIPTION
OF COMMON STOCK
The
following is a description of our common stock. It does not purport
to be complete and is subject to, and qualified in its entirety by, the
provisions of our Restated Certificate of Incorporation and Amended By-Laws,
forms of which have previously been filed and are incorporated by reference into
this prospectus, and by the applicable provisions of New Jersey
law. See “Anti-takeover Effects of Provisions of Our Restated
Certificate of Incorporation and Amended By-laws” for more information regarding
the provisions of our Restated Certificate of Incorporation and Amended By-laws
that could effect an extraordinary corporate transaction.
General
Matters
Our
authorized capital stock consists of 200,000,000 shares of common stock, no par
value and 5,882,352 shares of preferred stock, $0.0001 par value. As
of June 22, 2009, we had 79,942,052 shares of common stock issued and
outstanding and no shares of preferred stock issued and
outstanding.
Common
Stock
Holders
of common stock are entitled to one vote per share on matters to be voted upon
by the shareholders of the Company. Subject to the preferences that may be
applicable to any outstanding shares of preferred stock, the holders of common
stock are entitled to receive ratably such dividends, if any, as may be declared
by the Board of Directors out of funds legally available therefor. In the event
of liquidation, dissolution or winding up of the Company, the holders of common
stock are entitled to share ratably in all assets remaining after payment of
liabilities, subject to the prior liquidation rights of any outstanding shares
of preferred stock. The common stock has no preemptive, redemption, conversion
or other subscription rights. The outstanding shares of common stock are, and
the shares offered by the Company in the offering will be, when issued and paid
for, fully paid and nonassessable. The rights, preferences and privileges of
holders of common stock are subject to, and may be adversely affected by, the
rights of the holders of shares of any series of preferred stock currently
outstanding or which the Company may designate and issue in the
future.
Transfer
Agent and Registrar
The
Transfer Agent and Registrar for our common stock is American Stock Transfer
& Trust Company, New York, New York.
Listing
Our
shares of common stock are quoted on The Nasdaq National Market under the symbol
“EMKR”.
DESCRIPTION
OF PREFERRED STOCK
The Board
of Directors has the authority, without action by the stockholders, to designate
and issue preferred stock in one or more series and to designate the rights,
preferences and privileges of each series, which may be greater than the rights
of the common stock. It is not possible to state the actual effect of the
issuance of any shares of preferred stock upon the rights of holders of the
common stock until the Board of Directors determines the specific rights of the
holders of this preferred stock. However, the effects might include, among other
things:
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restricting
dividends on the common stock;
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•
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diluting
the voting power of the common stock;
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impairing
the liquidation rights of the common stock; or
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•
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delaying
or preventing a change in control of the company without further action by
the stockholders.
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No shares
of preferred stock are outstanding. The summary above is qualified by provisions
of applicable law. If we offer a specific series of preferred stock
under this prospectus, we will describe the terms of the preferred stock in the
prospectus supplement for such offering and will file a copy of the certificate
establishing the terms of the preferred stock with the SEC. To the extent
required, this description will include:
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the
title and stated value;
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the
number of shares offered, the liquidation preference per share and the
purchase price;
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the
dividend rate(s), period(s) and/or payment date(s), or method(s) of
calculation for such dividends;
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whether
dividends will be cumulative or non-cumulative and, if cumulative, the
date from which dividends will
accumulate;
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the
procedures for any auction and remarketing, if
any;
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the
provisions for a sinking fund, if
any;
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the
provisions for redemption, if
applicable;
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any
listing of the preferred stock on any securities exchange or
market;
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whether
the preferred stock will be convertible into our common stock, and, if
applicable, the conversion price (or how it will be calculated) and
conversion period;
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whether
the preferred stock will be exchangeable into debt securities, and, if
applicable, the exchange price (or how it will be calculated) and exchange
period;
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voting
rights, if any, of the preferred
stock;
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a
discussion of any material and/or special U.S. federal income tax
considerations applicable to the preferred
stock;
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the
relative ranking and preferences of the preferred stock as to dividend
rights and rights upon liquidation, dissolution or winding up of the
affairs of EMCORE; and
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any
material limitations on issuance of any class or series of preferred stock
ranking senior to or on a parity with the series of preferred stock as to
dividend rights and rights upon liquidation, dissolution or winding up of
EMCORE.
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DESCRIPTION
OF DEBT SECURITIES
The following description
of the terms of the debt securities sets forth certain general terms and
provisions of the debt securities to which any prospectus supplement may relate.
The particular terms of the debt securities offered by any prospectus supplement
and the extent, if any, to which these general provisions may apply to those
debt securities will be described in the prospectus supplement relating to those
debt securities. Accordingly, for a description of the terms of a particular
issue of debt securities, reference must be made to both the prospectus
supplement relating thereto and to the following description.
General
We may issue debt securities from time
to time in one or more series. The debt securities will be general obligations
of EMCORE Corporation. The debt securities may be fully and unconditionally
guaranteed on a secured or unsecured senior or subordinated basis, jointly and
severally, by guarantors, if any. In the event that any series of debt
securities will be subordinated to other indebtedness that we have outstanding
or may incur, the terms of the subordination will be set forth in the prospectus
supplement relating to the subordinated debt securities. Debt securities will be
issued under one or more indentures between us and one or more trustees named in
the prospectus supplement, which we refer to as the trustee. The statements made
in this prospectus relating to the indenture and the debt securities to be
issued under the indenture are summaries of certain terms and provisions of the
form of indenture that has been filed as Exhibit 4.2 to the registration
statement of which this prospectus forms a part and are not
complete. You should read the indenture for provisions that may be
important to you.
The prospectus supplement relating to a
particular series of debt securities will describe the terms of such debt
securities being offered, including:
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the
title;
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the
maturity date;
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the
interest rate, if any, and the method for calculating the interest
rate;
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the
interest payment dates and the record dates for the interest
payments;
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any
mandatory or optional redemption terms or prepayment, conversion, and
sinking fund terms;
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the
place where we will pay principal and
interest;
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if
other than denominations of $1,000 or multiples of $1,000 in excess
thereof, the denominations the debt securities will be issued
in;
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whether
the debt securities will be issued in the form of global securities or
certificates;
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additional
provisions, if any, relating to
defeasance;
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the
currency or currencies, if other than the currency of the United States,
in which principal and interest will be
paid;
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any
United States federal income tax
consequences;
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the
dates on which premium, if any, will be
paid;
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our
right, if any, to defer payment of interest and the maximum length of this
deferral period;
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any
listing on a securities exchange;
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limits
on aggregate principal amount;
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terms
of subordination of any subordinated debt
securities;
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the
initial public offering price; and
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other
specific terms, including any additional events of default or
covenants.
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We may, from time to time, without
notice to or the consent of registered holders of a particular series of debt
securities, create and issue further securities ranking pari passu with that series
of debt securities in all respects (or in all respects except for the payment of
interest accruing prior to the issue date of such further debt securities or
except for the first payment of interest following the issue date of such
further debt securities) and so that such further debt securities shall be
consolidated and form a single series with that particular series of debt
securities and shall have the same terms as to status, redemption or otherwise
as that series of debt securities.
We can issue an unlimited amount of
debt securities under the indenture that may be in one or more series with the
same or various maturities, at par, at a premium, or at a discount. The
indenture does not limit our ability to issue convertible or subordinated debt
securities. Any conversion or subordination provisions of a particular series of
debt securities will be set forth in the officer’s certificate or supplemental
indenture related to that series of debt securities and will be described in the
relevant prospectus supplement. Such terms may include provisions for
conversions, either mandatory, at the option of the holder or at our option, in
which case the number of shares of common stock, preferred stock or other
securities to be received by the holders of debt securities would be calculated
as of a time and in the manner stated in the prospectus supplement.
The debt securities will be issuable
only in fully registered form without coupons or in the form of one or more
global securities, as described below under “—Global Securities”. Unless the
prospectus supplement specifies otherwise, debt securities denominated in U.S.
dollars will be issued only in denominations of U.S.$1,000 and any integral
multiple of U.S.$1,000 in excess thereof. The prospectus supplement relating to
debt securities denominated in a foreign or composite currency will specify the
authorized denominations.
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 these debt securities and
this index or formula, securities or commodities will be described in the
relevant prospectus supplement.
If the principal of and premium, if
any, or any interest on debt securities of any series are payable in a foreign
or composite currency, the restrictions, elections, federal income tax
consequences, specific terms and other information with respect to such debt
securities and such currency will be described in the relevant prospectus
supplement.
Payment of principal of and premium, if
any, on debt securities will be made in the designated currency against
surrender of any debt securities at the Corporate Trust Office of the trustee in
The City of New York. Unless otherwise indicated in the prospectus supplement,
payment of any installment of interest on debt securities will be made to the
person in whose name a relevant debt security is registered at the close of
business on the regular record date for such interest. Unless otherwise
indicated in the prospectus supplement, payments of such interest will be made
at the Corporate Trust Office of the trustee in The City of New York or by a
check in the designated currency mailed to the holder at such holder’s
registered address.
Debt securities may be issued as
original issue discount securities to be offered and sold at a substantial
discount below their stated principal amount. Federal income tax consequences
and other special considerations applicable to any original issue discount
securities will be described in the relevant prospectus supplement. “Original
issue discount security” means any debt security that provides for an amount
less than the principal amount thereof to be due and payable upon a declaration
of acceleration of the maturity thereof upon the occurrence of an event of
default and the continuation thereof.
Covenants
Consolidation,
Merger and Sale of Assets
We will agree under the indenture that
we will not consolidate with or merge into, or convey, transfer or lease all or
substantially all of our properties and assets to, any Person (a “Successor
Person”), and will not permit any Person to merge into us in a transaction in
which we are not the surviving entity, unless:
(i) the
Successor Person (if not EMCORE) is a corporation, limited liability company,
partnership or trust organized and validly existing under the laws of any
domestic jurisdiction and assumes our obligations on any outstanding debt
securities and under the indenture;
(ii)
immediately after giving effect to the transaction, and treating any
Indebtedness which becomes our obligation as a result of the transaction as
having been incurred by us at the time of the transaction, no event of default
and no event which, after notice or lapse of time or both, would become an event
of default, shall have occurred and be continuing; and
(iii) the
trustee receives an officers’ certificate and an opinion of counsel stating that
such action complies with this covenant.
Events
of Default
The indenture specifies that each of
the following will constitute an event of default with respect to the debt
securities of a particular series:
(a)
failure to pay principal of any debt security of that series at its
maturity;
(b)
failure to pay any interest on any debt security of that series when due,
continued for 30 days;
(c)
failure to deposit any sinking fund payment, when and as due by the terms of
that series;
(d)
failure to perform any covenant of ours applicable to that series in the
indenture, continued for 60 days after written notice of such failure is given
by the trustee or the holders of at least 25% in principal amount of the
outstanding debt securities of that series, as provided in the indenture;
and
(e)
certain events in bankruptcy, insolvency or reorganization.
If an event of default (other than an
event of default described in clause (e) above) shall occur and be continuing,
either the trustee or the holders of at least 25% in aggregate principal amount
of the outstanding debt securities of that series by notice as provided in the
indenture may declare the principal amount of such series of the debt securities
to be due and payable immediately. If an event of default described in clause
(e) above shall occur, the principal amount of all the outstanding debt
securities of that series will automatically, and without any action by the
trustee or any holder, become immediately due and payable. After any such
acceleration, but before a judgment or decree for payment of the money due, the
holders of a majority in aggregate principal amount of the outstanding debt
securities of a particular series may, under certain circumstances, rescind and
annul such acceleration if all events of default, other than the non-payment of
accelerated principal, have been cured or waived as provided in the indenture.
For information as to waiver of defaults, see “—Modification and
Waiver.”
Subject to the provisions of the
indenture relating to the duties of the trustee in case an event of default
shall occur and be continuing, the trustee will be under no obligation to
exercise any of its rights or powers under the indenture at the request or
direction of any of the holders, unless such holders shall have offered to the
trustee reasonable indemnity. Subject to such provisions for the indemnification
of the trustee, the holders of a majority in aggregate principal amount of the
outstanding debt securities of that series will have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the trustee or exercising any trust or power conferred on the trustee with
respect to such series of the debt securities.
No holder of a debt security will have
any right to institute any proceeding with respect to the indenture, or for the
appointment of a receiver or a trustee, or for any other remedy thereunder,
unless:
(i) such
holder has previously given to the trustee written notice of a continuing event
of default with respect to such series of the debt securities;
(ii) the
holders of at least 25% in aggregate principal amount of the outstanding debt
securities of that series have made written request, and such holder or holders
have offered reasonable indemnity, to the trustee to institute such proceeding
as trustee; and
(iii) the
trustee has failed to institute such proceeding, and has not received from the
holders of a majority in aggregate principal amount of the outstanding debt
securities of that series a direction inconsistent with such request, within 60
days after such notice, request and offer. However, such limitations do not
apply to a suit instituted by a holder of a debt security for the enforcement of
payment of the principal of or interest on such debt security on or after the
applicable due date specified in such debt security.
Modification
and Waiver
Together with the trustee, we may
modify the indenture without the consent of any holder for certain purposes,
including evidencing the succession of another person to us and such person’s
assumption of our obligations under the indenture, adding to our covenants or
events of default, establishing forms or terms of debt securities, curing
ambiguities and other purposes which do not adversely affect the holders in any
material respect.
Other modifications and amendments of
the indenture may be made by us and the trustee with the consent of the holders
of at least a majority in aggregate principal amount of each series of the
outstanding debt securities that is affected by such modification or amendment,
all holders of all such affected series voting together as one
class.
No such modification or amendment may,
without the consent of the holder of each outstanding debt security affected
thereby:
(a)
change the stated maturity of the principal of, or any installment of interest
on, or the redemption price of, any such debt security;
(b)
reduce the principal amount of or interest on, any such debt
security;
(c)
change currency of payment of principal of or interest on, any such debt
security;
(d)
impair the right to institute suit for the enforcement of any payment on any
such debt security;
(e)
reduce the percentage in principal amount of outstanding debt securities of a
particular series, the consent of whose holders is required for modification or
amendment of the indenture, or for waiver of compliance with certain provisions
of the indenture or waiver of certain defaults; or
(f)
modify such provisions with respect to modification and waiver.
The holders of at least a majority in
principal amount of each series of the outstanding debt securities that is
affected by such waiver, all holders of all such affected series voting together
as one class, may waive our compliance with certain restrictive provisions of
the indenture, and may waive any past default under the indenture, except a
default in the payment of principal or interest and certain covenants and
provisions of the indenture which cannot be amended without the consent of the
holder of each outstanding debt security affected by such default.
Defeasance
and Discharge; Covenant Defeasance
Unless the terms of a particular series
provide otherwise, we may elect, at our option at any time, to have the
indenture provisions relating to defeasance and discharge of indebtedness, or
relating to defeasance of certain restrictive covenants in the indenture,
applied to any series of the outstanding debt securities.
Defeasance
and Discharge
The indenture provides that upon our
exercise of our option to have the provisions relating to defeasance and
discharge applied to a particular series of the debt securities, we will be
discharged from all our obligations with respect to such series of the debt
securities (except for certain obligations to exchange or register the transfer
of debt securities, to replace stolen, lost or mutilated debt securities, to
maintain paying agencies and to hold moneys for payment in trust) upon the
deposit in trust for the benefit of the holders of the debt securities of such
series of money or U.S. government obligations, or both, which, through the
payment of principal and interest in respect thereof in accordance with their
terms, will provide money in an amount sufficient to pay the principal of and
interest on the debt securities of such series at maturity in accordance with
the terms of the indenture and such debt securities. Such defeasance or
discharge may occur only if, among other things, we have delivered to the
trustee an opinion of counsel to the effect that we have received from, or there
has been published by, the United States Internal Revenue Service a ruling, or
there has been a change in tax law, in either case to the effect that holders of
the debt securities of such series will not recognize gain or loss for federal
income tax purposes as a result of such deposit, defeasance and discharge and
will be subject to federal income tax on the same amount, in the same manner and
at the same times as would have been the case if such deposit, defeasance and
discharge were not to occur.
Defeasance
of Certain Covenants
The indenture provides that, upon our
exercise of our option to have the provisions relating to defeasance of certain
restrictive covenants applied to a particular series of the debt securities, we
may, with respect to such series, omit to comply with certain restrictive
covenants, including those described under “—Consolidation, Merger and Sale of
Assets,” and the occurrence of certain events of default, which are described
above in clause (d) under “Events of Default,” will be deemed not to be or
result in an event of default, in each case with respect to such
series.
We, in
order to exercise such option, will be required, among other
things:
(1) to
deposit, in trust for the benefit of the holders of such series of the debt
securities, money or U.S. government obligations, or both, which, through the
payment of principal and interest in respect thereof in accordance with their
terms, will provide money in an amount sufficient to pay the principal of and
interest on such series of the debt securities at maturity in accordance with
the terms of the indenture and such debt securities, and
(2) to
deliver to the trustee an opinion of counsel to the effect that holders of such
series of the debt securities will not recognize gain or loss for federal income
tax purposes as a result of such deposit and defeasance of certain obligations
and will be subject to federal income tax on the same amount, in the same manner
and at the same times as would have been the case if such deposit and defeasance
were not to occur.
In the event we exercise this option
and the debt securities are declared due and payable because of the occurrence
of any event of default, the amount of money and U.S. government obligations so
deposited in trust would be sufficient to pay amounts due on that series of the
debt securities at maturity but may not be sufficient to pay amounts due on that
series of the debt securities upon any acceleration resulting from such event of
default. In such case, we would remain liable for such payments.
Regarding
the Trustee
The indenture provides that, except
during the continuance of an event of default, the trustee will perform only
such duties as are specifically set forth in the indenture. During the existence
of an event of default, the trustee will exercise such rights and powers vested
in it under the indenture and use the same degree of care and skill in its
exercise as a prudent person would exercise under the circumstances in the
conduct of such person’s own affairs.
The indenture and provisions of the
Trust Indenture Act incorporated by reference therein contain limitations on the
rights of the trustee, should it become a creditor of us, to obtain payment of
claims in certain cases or to realize on certain property received by it in
respect of any such claim as security or otherwise. The trustee is permitted to
engage in other transactions with us or any affiliate of us; provided, however,
that if it acquires any conflicting interest (as defined in the indenture or in
the Trust Indenture Act), it must eliminate such conflict or
resign.
The trustee for any debt securities
will be set forth in the applicable prospectus supplement.
Form of Debt
Securities
Each debt security will be represented
either by a certificate issued in definitive form to a particular investor or by
one or more global securities representing the entire issuance of securities.
Certificated securities in definitive form and global securities will be issued
in registered form.
Definitive securities name you or your
nominee as the owner of the security, and in order to transfer or exchange these
securities or to receive payments other than interest or other interim payments,
you or your nominee must physically deliver the securities to the trustee,
registrar, paying agent or other agent, as applicable.
Global securities name a depositary or
its nominee as the owner of the debt securities represented by these global
securities. The depositary maintains a computerized system that will reflect
each investor’s beneficial ownership of the securities through an account
maintained by the investor with its broker/dealer, bank, trust company or other
representative, as we explain more fully below.
Global
Securities
We may issue the debt securities in
whole or in part in the form of one or more fully registered global securities
that will be deposited with a depositary or its nominee identified in the
prospectus supplement relating to that series and registered in the name of that
depositary or nominee. In those cases, one or more registered global securities
will be issued in a denomination or aggregate denominations equal to the portion
of the aggregate principal or face amount of the securities to be represented by
registered global securities. Unless and until it is exchanged in whole for
securities in definitive registered form, a registered global security may not
be transferred except as a whole by and among the depositary for the registered
global security, the nominees of the depositary or any successors of the
depositary or those nominees.
If not described below, any specific
terms of the depositary arrangement with respect to any securities to be
represented by a registered global security will be described in the prospectus
supplement relating to those securities. We anticipate that the following
provisions will apply to all depositary arrangements.
Ownership of beneficial interests in a
registered global security will be limited to persons, called participants, that
have accounts with the depositary or persons that may hold interests through
participants. Upon the issuance of a registered global security, the depositary
will credit, on its book-entry registration and transfer system, the
participants’ accounts with the respective principal or face amounts of the
securities beneficially owned by the participants. Any dealers, underwriters or
agents participating in the distribution of the securities will designate the
accounts to be credited. Ownership of beneficial interests in a registered
global security will be shown on, and the transfer of ownership interests will
be effected only through, records maintained by the depositary, with respect to
interests of participants, and on the records of participants, with respect to
interests of persons holding through participants. The laws of some states may
require that some purchasers of securities take physical delivery of these
securities in definitive form. These laws may impair your ability to own,
transfer or pledge beneficial interests in registered global
securities.
So long as the depositary, or its
nominee, is the registered owner of a registered global security, that
depositary or its nominee, as the case may be, will be considered the sole owner
or holder of the securities represented by the registered global security for
all purposes under the indenture. Except as described below, owners of
beneficial interests in a registered global security will not be entitled to
have the securities represented by the registered global security registered in
their names, will not receive or be entitled to receive physical delivery of the
securities in definitive form and will not be considered the owners or holders
of the securities under the indenture. Accordingly, each person owning a
beneficial interest in a registered global security must rely on the procedures
of the depositary for that registered global security and, if that person is not
a participant, on the procedures of the participant through which the person
owns its interest, to exercise any rights of a holder under the indenture. We
understand that under existing industry practices, if we request any action of
holders or if an owner of a beneficial interest in a registered global security
desires to give or take any action that a holder is entitled to give or take
under the indenture, the depositary for the registered global security would
authorize the participants holding the relevant beneficial interests to give or
take that action, and the participants would authorize beneficial owners owning
through them to give or take that action or would otherwise act upon the
instructions of beneficial owners holding through them.
Principal, premium, if any, and
interest payments on debt securities represented by a registered global security
registered in the name of a depositary or its nominee will be made to the
depositary or its nominee, as the case may be, as the registered owner of the
registered global security. None of EMCORE, the trustee or any agent of EMCORE
or agent of the trustee will have any responsibility or liability for any aspect
of the records relating to payments made on account of beneficial ownership
interests in the registered global security or for maintaining, supervising or
reviewing any records relating to those beneficial ownership
interests.
We expect that the depositary for any
of the securities represented by a registered global security, upon receipt of
any payment of principal, premium or interest to holders on that registered
global security, will immediately credit participants’ accounts in amounts
proportionate to their respective beneficial interests in that registered global
security as shown on the records of the depositary. We also expect that payments
by participants to owners of beneficial interests in a registered global
security held through participants will be governed by standing customer
instructions and customary practices, as is now the case with the securities
held for the accounts of customers in bearer form or registered in “street
name,” and will be the responsibility of those participants.
If the depositary for any of these
securities represented by a registered global security is at any time unwilling
or unable to continue as depositary or ceases to be a clearing agency registered
under the Exchange Act and a successor depositary registered as a clearing
agency under the Exchange Act is not appointed by us within 90 days, we will
issue securities in definitive form in exchange for the registered global
security that had been held by the depositary. In addition, we may at any time
and in our sole discretion decide not to have any of the securities represented
by one or more registered global securities. If we make that decision, we will
issue securities in definitive form in exchange for all of the registered global
security or securities representing those securities. Any securities issued in
definitive form in exchange for a registered global security will be registered
in the name or names that the depositary gives to the trustee or other relevant
agent of ours or theirs. It is expected that the depositary’s instructions will
be based upon directions received by the depositary from participants with
respect to ownership of beneficial interests in the registered global security
that had been held by the depositary.
DESCRIPTION
OF WARRANTS
We
may issue warrants to purchase shares of our common stock, preferred stock
and/or debt securities in one or more series together with other securities or
separately, as described in the applicable prospectus supplement. Below is a
description of certain general terms and provisions of the warrants that we may
offer. Particular terms of the warrants will be described in the warrant
agreements and the prospectus supplement to the warrants.
The
applicable prospectus supplement will contain, where applicable, the following
terms of and other information relating to the warrants:
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the
title of the warrants;
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the
offering price of the warrants;
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the
aggregate number of the warrants;
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the
currency or currency units in which the offering price, if any, and the
exercise price are payable;
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the
designation, amount and terms of the securities purchasable upon exercise
of the warrants;
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if
applicable, the exercise price for shares of our common stock and the
number of shares of common stock to be received upon exercise of the
warrants;
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if
applicable, the exercise price for shares of our preferred stock, the
number of shares of preferred stock to be received upon exercise, and a
description of that series of our preferred
stock;
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if
applicable, the exercise price for our debt securities, the amount of debt
securities to be received upon exercise, and a description of that series
of debt securities;
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the
date on which the right to exercise the warrants will begin and the date
on which that right will expire or, if you may not continuously exercise
the warrants throughout that period, the specific date or dates on which
you may exercise the warrants;
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whether
the warrants will be issued in fully registered form or bearer form, in
definitive or global form or in any combination of these forms, although,
in any case, the form of a warrant included in a unit will correspond to
the form of the unit and of any security included in that
unit;
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any
applicable material U.S. federal income tax
consequences;
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the
identity of the warrant agent for the warrants and of any other
depositaries, execution or paying agents, transfer agents, registrars or
other agents;
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the
proposed listing, if any, of the warrants or any securities purchasable
upon exercise of the warrants on any securities
exchange;
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if
applicable, the date from and after which the warrants and the common
stock, preferred stock and/or debt securities will be separately
transferable;
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if
applicable, the minimum or maximum amount of the warrants that may be
exercised at any one time;
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information
with respect to book-entry procedures, if
any;
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the
anti-dilution provisions of the warrants, if
any;
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any
redemption or call provisions;
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whether
the warrants are to be sold separately or with other securities as parts
of units; and
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any
additional terms of the warrants, including terms, procedures and
limitations relating to the exchange and exercise of the
warrants.
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Transfer
Agent and Registrar
The
transfer agent and registrar for any warrants will be set forth in the
applicable prospectus supplement.
DESCRIPTION
OF UNITS
We
may issue units consisting of common stock, preferred stock, debt securities
and/or warrants for the purchase of common stock, preferred stock and/or debt
securities in one or more series. In this prospectus, we have summarized certain
general features of the units. We urge you, however, to read the prospectus
supplements related to the series of units being offered, as well as the unit
agreements that contain the terms of the units. We will file as exhibits to an
amendment to the registration statement of which this prospectus is a part, or
will incorporate by reference from a current report on Form 8-K that we file
with the SEC, as applicable, the form of unit agreement and any supplemental
agreements that describe the terms of the series of units we are offering before
the issuance of the related series of units.
We
will evidence each series of units by unit certificates that we will issue under
a separate agreement. We will enter into the unit agreements with a unit agent.
Each unit agent will be a bank or trust company that we select. We will indicate
the name and address of the unit agent in the applicable prospectus supplement
relating to a particular series of units.
PLAN
OF DISTRIBUTION
Any of
the securities being offered hereby and in any accompanying prospectus
supplement may be sold in any one or more of the following ways from time to
time:
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directly
to purchasers;
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through
agents;
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to
or through underwriters;
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through
dealers;
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directly
to our stockholders; or
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through
a combination of any such methods of
sale.
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The
distribution of the securities may be effected from time to time in one or more
transactions at a fixed price or prices, which may be changed, at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at negotiated prices.
We may
solicit offers to purchase directly. Offers to purchase securities also may be
solicited by agents designated by us from time to time. Any such agent involved
in the offer or sale of the securities in respect of which this prospectus is
delivered will be named, and any commissions payable by us to such agent will be
set forth, in the applicable prospectus supplement. Unless otherwise indicated
in such prospectus supplement, any such agent will be acting on a reasonable
best efforts basis for the period of its appointment. Any such agent may be
deemed to be an underwriter, as that term is defined in the Securities Act, of
the securities so offered and sold.
If
securities are sold by means of an underwritten offering, we will execute an
underwriting agreement with an underwriter or underwriters at the time an
agreement for such sale is reached, and the names of the specific managing
underwriter or underwriters, as well as any other underwriters, the respective
amounts underwritten and the terms of the transaction, including commissions,
discounts and any other compensation of the underwriters and dealers, if any,
will be set forth in the applicable prospectus supplement which will be used by
the underwriters to make resales of the securities in respect of which this
prospectus is being delivered to the public. If underwriters are utilized in the
sale of any securities in respect of which this prospectus is being delivered,
such securities will be acquired by the underwriters for their own account and
may be resold from time to time in one or more transactions, including
negotiated transactions, at fixed public offering prices, at market prices
prevailing at the time of sale or at varying prices determined by the
underwriters at the time of sale. Securities may be offered to the public either
through underwriting syndicates represented by managing underwriters or directly
by one or more underwriters. If any underwriter or underwriters are utilized in
the sale of securities, unless otherwise indicated in the applicable prospectus
supplement, the underwriting agreement will provide that the obligations of the
underwriters are subject to certain conditions precedent and that the
underwriters with respect to a sale of such securities will be obligated to
purchase all such securities if any are purchased.
We may
grant to the underwriters options to purchase additional securities, to cover
over-allotments, if any, at the initial public offering price (with additional
underwriting commissions or discounts), as may be set forth in the prospectus
supplement relating thereto. If we grant any over-allotment option, the terms of
such over-allotment option will be set forth in the prospectus supplement for
such securities.
If a
dealer is used in the sale of the securities in respect of which this prospectus
is delivered, we will sell such securities to the dealer, as principal. The
dealer may then resell such securities to the public at varying prices to be
determined by such dealer at the time of resale. Any such dealer may be deemed
to be an underwriter, as such term is defined in the Securities Act, of the
securities so offered and sold. The name of the dealer and the terms of the
transaction will be set forth in the prospectus supplement relating
thereto.
Offers to
purchase securities may be solicited directly by us and the sale thereof may be
made by us directly to institutional investors or others, who may be deemed to
be underwriters within the meaning of the Securities Act with respect to any
resale thereof. The terms of any such sales will be described in the prospectus
supplement relating thereto.
We may
offer our equity securities into an existing trading market on the terms
described in the applicable prospectus supplement. Underwriters and dealers who
may participate in any at-the-market offerings will be described in the
prospectus supplement relating thereto.
Agents,
underwriters and dealers may be entitled under relevant agreements with us to
indemnification by us against certain liabilities, including liabilities under
the Securities Act, or to contribution with respect to payments which such
agents, underwriters and dealers may be required to make in respect
thereof.
Any
underwriter may engage in stabilizing and syndicate covering transactions in
accordance with Rule 104 under Regulation M. Rule 104 permits stabilizing bids
to purchase the underlying security so long as the stabilizing bids do not
exceed a specified maximum. The underwriters may over-allot shares of the
securities in connection with an offering of securities, thereby creating a
short position in the underwriters’ account. Syndicate covering transactions
involve purchases of the securities in the open market after the distribution
has been completed in order to cover syndicate short positions. Stabilizing and
syndicate covering transactions may cause the price of the securities to be
higher than it would otherwise be in the absence of such transactions. These
transactions, if commenced, may be discontinued at any time.
We may
elect to list any series of securities on an exchange but, unless otherwise
specified in the applicable prospectus supplement, we shall not be obligated to
do so. No assurance can be given as to the liquidity of the trading market for
any of the securities.
Agents,
underwriters and dealers may be customers of, engage in transactions with, or
perform services for, us and our subsidiaries in the ordinary course of
business.
The anticipated date of delivery of
securities will be set forth in the applicable prospectus supplement relating to
each offer.
ANTITAKEOVER
EFFECTS OF PROVISIONS OF OUR RESTATED CERTIFICATE OF INCORPORATION AND AMENDED
BY-LAWS
Our Board
of Directors is divided into three classes. As a result of this provision, at
least two annual meetings of shareholders may be required for shareholders to
change a majority of the Board of Directors. Our by-laws provide that the Board
of Directors shall consist of not less than six nor more than twelve members,
with the exact number to be determined by the vote of not less than 66 2/3 % of
the Board of Directors from time to time. Directors are elected to serve
staggered three-year terms and are not subject to removal except for cause by
the vote of the holders of at least 80% of our capital stock. Unless otherwise
required by law, vacancies on the Board of Directors, including vacancies
resulting from an increase in the number of directors or the removal of
directors, may only be filled by an affirmative vote of 66 2/3% of the directors
then in office. The classification of directors, the ability of the
Board of Directors to increase the number of directors, the inability of the
shareholders to remove directors without cause or fill vacancies on the Board of
Directors and the inability of holders of less than 80% of our capital stock to
remove directors even with cause will make it more difficult to change the Board
of Directors, and will promote the continuity of existing
management.
These and
other provisions also may have the effect of deterring, preventing or delaying
changes in control or management. These provisions are intended to enhance the
likelihood of continued stability in the composition of the Board of Directors
and in the policies furnished by the Board of Directors and to discourage types
of transactions that may involve an actual or threatened change of control.
These provisions are designed to reduce our vulnerability to an unsolicited
acquisition proposal. The provisions also are intended to discourage tactics
that may be used in proxy fights. However, such provisions could have the effect
of discouraging others from making tender offers for our shares and, as a
consequence, they also may inhibit fluctuations in the market price of our
shares that could result from actual or rumored takeover attempts. These
provisions also may have the effect of preventing changes in our
management.
NEW
JERSEY SHAREHOLDERS PROTECTION ACT
The New
Jersey Shareholders Protection Act, NJSA 14A:10A−1 et seq., which we refer to as
New Jersey Act, prohibits certain New Jersey corporations, such as us following
this offering, from entering into certain “business combinations” with an
“interested shareholder” (any person who is the beneficial owner of 10% or more
of such corporation’s outstanding voting securities) for five years after such
person became an interested shareholder, unless the business combination or the
interested shareholder’s acquisition of stock was approved by the corporation’s
Board of Directors prior to such interested shareholder’s stock acquisition
date. After the five-year waiting period has elapsed, a business combination
between such corporation and an interested shareholder will be prohibited unless
the business combination is approved by the holders of at least two-thirds of
the voting stock not beneficially owned by the interested shareholder, or unless
the business combination satisfies the New Jersey Act’s fair price provision
intended to provide that all shareholders (other than the interested
shareholders) receive a fair price for their shares.
The New
Jersey Act defines “business combination” to include the following transactions
between a corporation or a subsidiary and an interested shareholder or such
interested shareholder’s affiliates: (1) the merger or consolidation of the
corporation with the interested shareholder or any corporation that after the
merger or consolidation would be an affiliate or associate of the interested
shareholder; (2) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition to or with the interested shareholder, which has an aggregate market
value equal to 10% or more of the aggregate market value of all of the assets or
of the outstanding stock, or 10% or more of the income of the corporation or its
subsidiaries; (3) the issuance or transfer to the interested shareholder of any
stock of the corporation having an aggregate market value equal to or greater
than 5% of the corporation’s outstanding stock; (4) the adoption of a plan or
proposal for the liquidation or dissolution of the corporation proposed by the
interested shareholder; (5) any reclassification of securities proposed by the
interested shareholder that has the effect, directly or indirectly, of
increasing any class or series of stock that is owned by the interested
shareholder; and (6) the receipt by the interested shareholder of any loans or
other financial assistance from the corporation.
The New
Jersey Act does not apply to certain business combinations, including those with
persons who acquired 10% or more of the voting power of the corporation prior to
the time the corporation was required to file periodic reports pursuant to the
Exchange Act or prior to the time the corporation’s securities began to trade on
a national securities exchange.
LEGAL
MATTERS
The
validity of the shares of common stock and matters governed by New Jersey law
will be passed upon by Dillon, Bitar & Luther, L.L.C.
EXPERTS
The consolidated financial statements
incorporated in this Prospectus by reference from the Company’s Annual Report on
Form 10-K, and the effectiveness of EMCORE Corporation's internal control over
financial reporting have been audited by Deloitte & Touche LLP, an
independent registered public accounting firm, as stated in their reports which
are incorporated herein by reference (which reports (1) express an unqualified
opinion on the consolidated financial statements and include an explanatory
paragraph relating to the Company’s ability to continue as a going concern and
(2) express an unqualified opinion on the effectiveness of internal control over
financial reporting). Such financial statements have been so
incorporated in reliance upon the reports of such firm given upon their
authority as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We file annual, quarterly, and current
reports, proxy statements and other information with the Securities and Exchange
Commission. You may read and copy any document that we file at the Public
Reference Room of the SEC located at 100 F Street, N.E., Washington, D.C. 20549.
You may obtain information on the operation of the Public Reference Room by
calling the SEC at 1-800-SEC-0330. In addition, the SEC maintains an Internet
site at www.sec.gov that contains reports, proxy and information statements and
other information regarding registrants that file electronically, including
EMCORE. Except as expressly set forth under “Information Incorporated by
Reference,” we are not incorporating the contents of the SEC website into this
prospectus.
We have
filed with the SEC a registration statement on Form S-3 (together with all
amendments and exhibits, the “registration statement”) under the Securities Act
of 1933, as amended with respect to the offering of common stock. This
prospectus, which constitutes part of the registration statement, does not
contain all of the information set forth in the registration statement. Certain
parts of the registration statement are omitted from the prospectus in
accordance with the rules and regulations of the SEC.
Our
common stock is listed on The NASDAQ Global Market and similar information can
be inspected and copied at the offices of the Financial Industry
Regulatory Authority, 1735 K Street, N.W., Washington, D.C. 20006.
INFORMATION
INCORPORATED BY REFERENCE
The SEC
allows us to incorporate by reference in this prospectus the information in
documents we file with the SEC, which means that we can disclose important
information to you by referring you to those documents. The
information in this prospectus updates (and, to the extent of any conflict,
supersedes) information incorporated by reference that we have filed with the
SEC prior to the date of this prospectus. You should read all of the
information incorporated by reference because it is an important part of this
prospectus.
We
incorporate by reference the documents listed below and any future filings made
with the SEC by us under Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934 until we sell all of the securities (other than filings or
portions of filings that are furnished under applicable SEC rules rather than
filed):
|
•
|
Annual
report on Form 10-K for the fiscal year ended September 30, 2008, filed
with the SEC on December 30, 2008, as amended by the Form 10-K/A filed on
January 28, 2009.
|
|
•
|
Definitive
Proxy Statement pursuant to Section 14(a) of the Exchange Act, filed with
the SEC on March 27, 2009.
|
||
|
•
|
Quarterly
Reports on Form 10-Q for the quarters ended December 31, 2008, and March
31, 2009, filed with the SEC on February 17, 2009 and May 11, 2009,
respectively.
|
||
|
•
|
Current
Reports on Forms 8-K filed with the SEC on February 10, 2009, March 6,
2009, May 6, 2009, May 15, 2009, and June 4, 2009.
|
||
|
•
|
The
description of our common stock contained in our Registration Statement on
Form 8-A filed with the SEC on February 26,
1997.
|
You may
also find additional information about us, including the documents mentioned
above, on our website at www.emcore.com. The information included or
linked to this website is not a part of this prospectus.
We hereby
undertake to provide without charge to each person, including any beneficial
owner, to whom a copy of this prospectus is delivered, upon written or oral
request of any such person, a copy of any and all of the reports or documents
that have been incorporated by reference in this prospectus, other than exhibits
to such documents unless such exhibits have been specifically incorporated by
reference thereto. Requests for such copies should be directed to our Investor
Relations department, at the following address:
EMCORE
Corporation
10420
Research Road, SE
Albuquerque,
New Mexico 87123
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution
The
following table sets forth the estimated costs and expenses of the sale and
distribution of the securities being registered, all of which are being borne by
the Registrant.
|
SEC
registration fee
|
$
|
2,790
|
|
Printing
and engraving fees
|
10,000
|
|
|
Legal
fees and expenses
|
20,000
|
|
|
Accounting
fees and expenses
|
10,000
|
|
|
Total
|
$
|
42,790
|
Item
15. Indemnification of Directors and Officers
The
Company’s Restated Certificate of Incorporation and By-Laws include provisions
(i) to reduce the personal liability of the Company’s directors for monetary
damage resulting from breaches of their fiduciary duty, and (ii) to permit the
Company to indemnify its directors and officers to the fullest extent permitted
by New Jersey law. The Company has obtained directors’ and officers’ liability
insurance that insures such persons against the costs of defense, settlement, or
payment of a judgment under certain circumstances.
Subject
to certain limitations, we are obligated to indemnify our current and former
directors, officers and employees in connection with the investigation of our
historical stock option granting practices, related government investigation and
shareholder litigation. These obligations arise under the terms of our
certificate of incorporation, our by-laws, applicable contracts, and New Jersey
law. The obligation to indemnify generally means that we are required to pay or
reimburse the individuals’ reasonable legal expenses and possibly damages and
other liabilities incurred in connection with these matters. We are currently
paying or reimbursing legal expenses being incurred in connection with these
matters by a number of our current and former directors, officers and employees.
The maximum potential amount of future payments the Company could be required to
make under these indemnification agreements is unlimited; however, the Company
has a director and officer liability insurance policies that limits its exposure
and enables it to recover a portion of any future amounts paid.
Item
16. Exhibits and Financial Statement Schedules
(a)
Exhibits.
|
3.1
|
Restated
Certificate of Incorporation, dated April 4, 2008 (incorporated by
reference to Exhibit 3.1 to Registrant's Current Report on Form 8-K filed
on April 4, 2008).
|
|
3.2
|
Amended
By-Laws, as amended through August 7, 2008 (incorporated by reference to
Exhibit 3.1 to Registrant’s Current Report on Form 8-K filed on August 13,
2008).
|
|
4.1
|
Specimen
certificate for shares of common stock (incorporated by reference to
Exhibit 4.1 to Amendment No. 3 to the Registration Statement on Form S-1
(File No. 333-18565) filed with the Commission on February 24,
1997).
|
|
4.2
|
Form
of Indenture.*
|
|
4.3
|
Form
of Debt Security (included in Exhibit 4.2).*
|
|
4.4
|
Form
of Warrant.**
|
|
4.5
|
Form
of Warrant Agreement.**
|
|
5.1
|
Opinion
of Dillon, Bitar & Luther, L.L.C.*
|
|
12.1
|
Statement
of Computation of Ratios of Earnings to Fixed Charges.*
|
|
21.1
|
Subsidiaries
of Registrant.*
|
|
23.1
|
Consent
of Deloitte & Touche LLP.*
|
|
23.3
|
Consent
of Dillon, Bitar & Luther, L.L.C. (contained in Exhibit
5.1).*
|
|
25.1
|
Statement
of Eligibility of Trustee for the Debt
Securities.***
|
_________
* Filed herewith.
** To be filed, if necessary, on an
exhibit to a post-effective amendment to this registration statement or as on
exhibit to a Current Report on Form 8-K to be filed by the registrant in
connection with a specific offering, and incorporated herein by
reference.
*** To be filed pursuant to Section
305(b)(2) of the Trust Indenture Act.
(b) Financial
Statement Schedules. Not
applicable.
Item
17. Undertakings
(a) The
undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post−effective amendment to this registration statement:
(i) To
include any prospectus required by section 10(a)(3) of the Securities Act of
1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of this 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 this registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% 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.
(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 the 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 purposes 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 of
1933 shall be deemed to be part of and included in the registration statement as
of the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an underwriter, such
date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Provided, however, that no statement
made in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference
into the registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration statement
or made in any such document immediately prior to such effective
date.
(5) That,
for the purpose of determining liability of the registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities: The
undersigned registrant undertakes that in a primary offering of securities of
the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424 under the Securities Act
of 1933;
(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 an behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(b) The
undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant’s
annual report pursuant to section 13(a) or section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of
1934), that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under Item 15 above, or
otherwise, the registrant has been advised that in the opinion of Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
(d) The
undersigned registrant hereby undertakes to file an application for the purpose
of determining the eligibility of the trustee to act under subsection (a) of
section 310 of the Trust Indenture Act (“Act”) in accordance with the rules and
regulations prescribed by the Commission under section 305(b)(2) of the
Act.
Pursuant
to the requirements of the Securities Act of 1933, the registrant, EMCORE
Corporation, 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 Albuquerque, State of New Mexico, on the 2nd day
of July, 2009.
|
EMCORE
CORPORATION
|
||
|
Date:
July 2,
2009
|
By:
|
/s/
Reuben F. Richards
|
|
Reuben
F. Richards, Jr.
|
||
|
Executive
Chairman & Chairman of the Board
(Principal
Executive Officer)
|
||
|
Date:
July 2,
2009
|
By:
|
/s/
Hong Q. Hou
|
|
Hong
Q. Hou, Ph.D.
|
||
|
Chief
Executive Officer
(Principal
Executive Officer)
|
||
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed by the following persons on behalf of the registrant in the
capacities indicated, on July 2, 2009.
|
Signature
|
Title
|
|
/s/
Reuben F. Richards
|
|
|
Reuben
F. Richards, Jr.
|
Executive
Chairman and Chairman of the Board (Principal Executive
Officer)
|
|
/s/
Hong Q. Hou
|
|
|
Hong
Q. Hou, Ph.D.
|
President,
Chief Executive Officer, and Director (Principal Executive
Officer)
|
|
/s/
John M. Markovich
|
|
|
John
M. Markovich
|
Chief
Financial Officer (Principal Financial and Accounting
Officer)
|
|
/s/
Thomas J. Russell
|
|
|
Thomas
J. Russell, Ph.D.
|
Director
|
|
/s/
Charles T. Scott
|
|
|
Charles
T. Scott
|
Director
|
|
/s/
John Gillen
|
|
|
John
Gillen
|
Director
|
|
/s/
Robert Bogomolny
|
|
|
Robert
Bogomolny
|
Director
|
EXHIBIT
4.2
EMCORE
CORPORATION
as
Issuer
AND
_______________________
as
Trustee
Indenture
Dated as
of ,
2009
Certain
Sections of this Indenture relating to Sections 310 through 318 of the Trust
Indenture Act of 1939:
|
Trust
Indenture
Act
Section
|
Indenture
Section
|
||||
|
§
310
|
(a)
(1)
|
6.09
|
|||
|
(a)
(2)
|
6.09
|
||||
|
(a)
(3)
|
Not
Applicable
|
||||
|
(a)
(4)
|
Not
Applicable
|
||||
|
(b)
|
6.08
|
||||
|
6.10
|
|||||
|
§
311
|
(a)
|
6.13
|
|||
|
(b)
|
6.13
|
||||
|
§
312
|
(a)
|
3.13
|
|||
|
7.01
|
|||||
|
7.02
(a)
|
|||||
|
(b)
|
7.02(b)
|
||||
|
(c)
|
Not
Applicable
|
||||
|
§
313
|
(a)
|
7.03(a)
|
|||
|
(b)
(1)
|
7.03(a)
|
||||
|
(b)
(2)
|
7.03(a)
|
||||
|
(c)
(1)
|
7.03(a)
|
||||
|
(d)
|
7.03(b)
|
||||
|
§
314
|
(a)
|
10.05
|
|||
|
(b)
|
Not
Applicable
|
||||
|
(c)
(1)
|
1.02
|
||||
|
(c)
(2)
|
1.02
|
||||
|
(c)
(3)
|
Not
Applicable
|
||||
|
(d)
|
Not
Applicable
|
||||
|
(e)
|
1.02
|
||||
|
(f)
|
Not
Applicable
|
||||
|
§
315
|
(a)
|
6.01
|
|||
|
(b)
|
6.02
|
||||
|
(c)
|
6.01
|
||||
|
(d)
|
6.01
|
||||
|
(e)
|
5.14
|
||||
|
§
316
|
(a)
(1) (A)
|
5.12
|
|||
|
(a)
(1) (B)
|
5.13
|
||||
|
(a)
(2)
|
Not
Applicable
|
||||
|
(b)
|
5.08
|
||||
|
(c)
|
1.04(c)
|
||||
|
§
317
|
(a)
(1)
|
5.03
|
|||
|
(a)
(2)
|
5.04
|
||||
|
(b)
|
10.03
|
||||
|
§
318
|
(a)
|
1.07
|
|||
Note:
This reconciliation and tie shall not, for any purpose, be deemed to be a part
of the Indenture.
TABLE
OF CONTENTS
| Page | ||
|
ARTICLE
1.
|
DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
|
1
|
|
SECTION
1.01
|
Definitions
|
1
|
|
SECTION
1.02
|
Compliance
Certificates and Opinions
|
9
|
|
SECTION
1.03
|
Form
of Documents Delivered to Trustee
|
9
|
|
SECTION
1.04
|
Acts
of Holders; Record Dates
|
10
|
|
SECTION
1.05
|
Notices,
Etc., to Trustee and Company
|
11
|
|
SECTION
1.06
|
Notice
to Holders; Waiver
|
11
|
|
SECTION
1.07
|
Conflict
with Trust Indenture Act
|
11
|
|
SECTION
1.08
|
Effect
of Headings and Table of Contents
|
12
|
|
SECTION
1.09
|
Successors
and Assigns
|
12
|
|
SECTION
1.10
|
No
Recourse Against Others
|
12
|
|
SECTION
1.11
|
Separability
Clause
|
12
|
|
SECTION
1.12
|
Benefits
of Indenture
|
12
|
|
SECTION
1.13
|
Governing
Laws
|
12
|
|
SECTION
1.14
|
Legal
Holidays
|
12
|
|
SECTION
1.15
|
Patriot
Act
|
12
|
|
ARTICLE
2.
|
SECURITY
FORMS
|
13
|
|
SECTION
2.01
|
Forms
Generally
|
13
|
|
SECTION
2.02
|
Form
of Face of Security
|
13
|
|
SECTION
2.03
|
Form
of Reverse of Security
|
15
|
|
SECTION
2.04
|
Form
of Trustee’s Certificate of Authentication
|
18
|
|
ARTICLE
3.
|
THE
SECURITIES
|
18
|
|
SECTION
3.01
|
Amount
Unlimited; Issuable in Series
|
18
|
|
SECTION
3.02
|
Denominations
|
22
|
|
SECTION
3.03
|
Execution,
Authentication, Delivery and Dating
|
22
|
|
SECTION
3.04
|
Temporary
Securities
|
23
|
|
SECTION
3.05
|
Registration;
Registration of Transfer and Exchange
|
23
|
|
SECTION
3.06
|
Mutilated,
Destroyed, Lost and Stolen Securities
|
24
|
|
SECTION
3.07
|
Payment
of Interest; Interest Rights Preserved
|
25
|
|
SECTION
3.08
|
Persons
Deemed Owners
|
26
|
|
SECTION
3.09
|
Book-entry
Provisions for Global Securities
|
26
|
|
SECTION
3.10
|
Cancellation
|
28
|
|
SECTION
3.11
|
Treasury
Securities
|
28
|
|
SECTION
3.12
|
CUSIP
Numbers
|
28
|
|
SECTION
3.13
|
Holder
Lists
|
28
|
|
SECTION
3.14
|
Computation
of Interest
|
28
|
|
ARTICLE
4.
|
SATISFACTION
AND DISCHARGE
|
29
|
|
SECTION
4.01
|
Satisfaction
and Discharge of Indenture
|
29
|
|
SECTION
4.02
|
Application
of Trust Money
|
30
|
|
ARTICLE
5.
|
REMEDIES
|
30
|
|
SECTION
5.01
|
Events
of Default
|
30
|
|
SECTION
5.02
|
Acceleration
of Maturity; Rescission and Annulment
|
31
|
|
SECTION
5.03
|
Collection
of Indebtedness and Suits for Enforcement by Trustee
|
32
|
|
SECTION
5.04
|
Trustee
May File Proofs of Claim
|
33
|
|
SECTION
5.05
|
Trustee
May Enforce Claims Without Possession of Securities
|
33
|
|
SECTION
5.06
|
Application
of Money Collected
|
33
|
|
SECTION
5.07
|
Limitation
on Suits
|
34
|
|
SECTION
5.08
|
Unconditional
Right of Holders to Receive Principal and Interest
|
34
|
|
SECTION
5.09
|
Restoration
of Rights and Remedies
|
34
|
|
SECTION
5.10
|
Rights
and Remedies Cumulative
|
35
|
|
SECTION
5.11
|
Delay
or Omission Not Waiver
|
35
|
|
SECTION
5.12
|
Control
by Holders
|
35
|
|
SECTION
5.13
|
Waiver
of Past Defaults
|
35
|
|
SECTION
5.14
|
Undertaking
for Costs
|
35
|
|
SECTION
5.15
|
Waiver
of Stay or Extension Laws
|
36
|
|
ARTICLE
6.
|
THE
TRUSTEE
|
36
|
|
SECTION
6.01
|
Certain
Duties and Responsibilities
|
36
|
|
SECTION
6.02
|
Notice
of Defaults
|
36
|
|
SECTION
6.03
|
Certain
Rights of Trustee
|
36
|
|
SECTION
6.04
|
Trustee’s
Disclaimer
|
38
|
|
SECTION
6.05
|
May
Hold Securities
|
38
|
|
SECTION
6.06
|
Money
Held in Trust
|
38
|
|
SECTION
6.07
|
Compensation
and Reimbursement. The Company agrees
|
38
|
|
SECTION
6.08
|
Disqualification;
Conflicting Interests
|
39
|
|
SECTION
6.09
|
Corporate
Trustee Required; Eligibility
|
39
|
|
SECTION
6.10
|
Resignation
and Removal; Appointment of Successor
|
39
|
|
SECTION
6.11
|
Acceptance
of Appointment by Successor
|
40
|
|
SECTION
6.12
|
Merger,
Conversion, Consolidation or Succession to Business
|
41
|
|
SECTION
6.13
|
Preferential
Collection of Claims Against
|
42
|
|
ARTICLE
7.
|
HOLDERS’
LISTS AND REPORTS BY TRUSTEE
|
42
|
|
SECTION
7.01
|
Company
to Furnish Trustee Names and Addresses of Holders
|
42
|
|
SECTION
7.02
|
Preservation
of Information; Communications to Holders
|
42
|
|
SECTION
7.03
|
Reports
by Trustee
|
42
|
|
ARTICLE
8.
|
CONSOLIDATION,
MERGER, CONVEYANCE, TRANSFER OR LEASE
|
43
|
|
SECTION
8.01
|
Company
May Consolidate, Etc., Only on Certain Terms
|
43
|
|
SECTION
8.02
|
Successor
Substituted
|
43
|
|
ARTICLE
9.
|
SUPPLEMENTAL
INDENTURES
|
44
|
|
SECTION
9.01
|
Supplemental
Indentures Without Consent of Holders
|
44
|
|
SECTION
9.02
|
Supplemental
Indentures with Consent of Holders
|
44
|
|
SECTION
9.03
|
Limitations
|
45
|
|
SECTION
9.04
|
Execution
of Supplemental Indentures
|
45
|
|
SECTION
9.05
|
Effect
of Supplemental Indentures
|
45
|
|
SECTION
9.06
|
Conformity
with Trust Indenture Act
|
46
|
|
SECTION
9.07
|
Reference
in Securities to Supplemental Indentures
|
46
|
|
SECTION
9.08
|
Trustee
Protected
|
46
|
|
ARTICLE
10.
|
COVENANTS
SECTION
|
46
|
|
SECTION
10.01
|
Payment
of Principal and Interest
|
46
|
|
SECTION
10.02
|
Maintenance
of Office or Agency
|
46
|
|
SECTION
10.03
|
Money
for Security Payments to Be Held in Trust
|
47
|
|
SECTION
10.04
|
Existence
|
48
|
|
SECTION
10.05
|
Reports
and Delivery of Certain Information
|
48
|
|
SECTION
10.06
|
Resale
of Certain Securities
|
48
|
|
SECTION
10.07
|
Book-Entry
System
|
48
|
|
ARTICLE
11.
|
OPTIONAL
REDEMPTION OF SECURITIES
|
48
|
|
SECTION
11.01
|
Applicability
of Article
|
48
|
|
SECTION
11.02
|
Election
to Redeem; Notice to Trustee
|
49
|
|
SECTION
11.03
|
Selection
by Trustee of Securities to Be Redeemed
|
49
|
|
SECTION
11.04
|
Notice
of Redemption
|
49
|
|
SECTION
11.05
|
Deposit
of Redemption Price
|
50
|
|
SECTION
11.06
|
Securities
Payable on Redemption Date
|
50
|
|
SECTION
11.07
|
Securities
Redeemed in Part
|
51
|
|
ARTICLE
12.
|
DEFEASANCE
AND COVENANT DEFEASANCE
|
51
|
|
SECTION
12.01
|
Company’s
Option to Effect Defeasance or Covenant Defeasance
|
51
|
|
SECTION
12.02
|
Defeasance
and Discharge
|
51
|
|
SECTION
12.03
|
Covenant
Defeasance
|
52
|
|
SECTION
12.04
|
Conditions
to Defeasance or Covenant Defeasance
|
52
|
|
SECTION
12.05
|
Deposited
Money and U.S. Government Obligations to be Held in Trust; Miscellaneous
Provisions
|
54
|
|
SECTION
12.06
|
Reinstatement
|
54
|
|
ARTICLE
13.
|
SINKING
FUNDS
|
54
|
|
SECTION
13.01
|
Applicability
of Article
|
54
|
|
SECTION
13.02
|
Satisfaction
of Sinking Fund Payments with Securities
|
55
|
|
SECTION
13.03
|
Redemption
of Securities for Sinking Fund
|
55
|
INDENTURE,
dated as
of ,
2009, between EMCORE Corporation, a corporation duly organized and existing
under the laws of the State of New Jersey, as Issuer (herein called the
“Company”), having its principal office at 10420 Research Road, SE, Albuquerque,
New Mexico 87123, and ______________, a __________ duly organized under the laws
of the State of _________, as Trustee (herein called the
“Trustee”).
RECITALS
OF THE COMPANY
The
Company has duly authorized the execution and delivery of this Indenture to
provide for the issuance from time to time of its debentures, notes or other
evidences of indebtedness (herein called the “Securities”), to be issued in one
or more series as provided in this Indenture.
All
things necessary to make this Indenture a valid agreement of the Company, in
accordance with its terms, have been done.
NOW,
THEREFORE, THIS INDENTURE WITNESSETH:
For and
in consideration of the premises and the purchases of the Securities by the
Holders thereof, it is mutually agreed, for the equal and proportionate benefit
of all Holders of the Securities or of series thereof, as follows:
ARTICLE
1.
DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION
1.01 Definitions.
For all
purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(i) the terms
defined in this Article have the meanings assigned to them in this Article and
include the plural as well as the singular;
(ii) all other
terms used herein which are defined in the Trust Indenture Act, either directly
or by reference therein, have the meanings assigned to them
therein;
(iii) all
accounting terms not otherwise defined herein have the meanings assigned to them
in accordance with GAAP; and
(iv) 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.
“Act,”
when used with respect to any Holder, has the meaning specified in Section
1.04.
“Affiliate”
of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified Person. For the purposes of this definition, “control” when used
with respect to any specified Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
“controlling” and “controlled” have meanings correlative to the
foregoing.
“Board of
Directors” means, with respect to any Person, either the board of directors of
such Person or any duly authorized committee of that board.
“Board
Resolution” means, with respect to any Person, a copy of a resolution certified
by the Secretary or an Assistant Secretary of such Person to have been duly
adopted by the Board of Directors, or alternatively, in the case of the Company,
by any committee of the Board of Directors or a committee of other officers or
representatives of the Company pursuant to authority duly delegated to it by the
Board of Directors of the Company, and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
“Business
Day”, when used with respect to any Place of Payment, means each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in that Place of Payment or the Corporate Trust Office are
authorized or obligated by law to close.
“Capital
Stock” means any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock, including, without
limitation, with respect to partnerships, partnership interests (whether general
or limited) and 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, such partnership.
“Commission”
means the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act, or, if at any time after the execution of this
instrument such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such
duties at such time.
“Company”
means the Person named as the “Company” in the first paragraph of this
instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter “Company” shall mean
such successor Person.
“Company
Request” or “Company Order” means a written request or order signed in the name
of the Company by both (i) any of its Chairman of the Board, its Chief Executive
Officer, its Chief Financial Officer, its Chief Legal Officer or any Vice
President, and (ii) any of its Treasurer, its Secretary, any Assistant Secretary
or any Vice President (other than a Vice President signing pursuant to clause
(i) above), and delivered to the Trustee.
“Comparable
Treasury Issue” means the United States Treasury security selected by an
Independent Investment Banker as having a maturity comparable to the remaining
term of the Securities that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of corporate
debt securities of comparable maturity to the remaining term of the Securities.
“Independent Investment Banker” means one of the Reference Treasury Dealers
appointed by the Company.
“Comparable
Treasury Price” means, with respect to any Redemption Date, as determined by the
Company (i) the average of the Reference Treasury Dealer Quotations for such
Redemption Date, after excluding the highest and lowest such Reference Treasury
Dealer Quotations, or (ii) if the Company obtains fewer than four such Reference
Treasury Dealer Quotations, the average of all such quotations.
“Consolidated
Net Tangible Assets” means the total assets which under United States Generally
Accepted Accounting Principles (“GAAP”) would be included on the most recent
audited annual consolidated balance sheet of the Company, after deducting
therefrom, without duplication, the sum of (i) all current liabilities and (ii)
all goodwill, trade names, trademarks, patents, unamortized debt discount and
related expense and other like intangibles, which in each case under GAAP would
be included on such consolidated balance sheet.
“Corporate
Trust Office” means the office of the Trustee at which the corporate trust
business of the Trustee shall, at any particular time, be principally
administered, which office is, at the date of this Indenture, located at 60 Wall
Street, MSNYC, 60-2710, New York, New York 10005.
“corporation”
means a corporation, association, company, joint-stock company or business
trust.
“Default”
means any event that is or with the passage of time or the giving of notice or
both would become an Event of Default.
“Defaulted
Interest” has the meaning specified in Section 3.07.
“Defeasance”
has the meaning specified in Section 12.02.
“Depositary”
means The Depository Trust Company until a successor Depositary shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter “Depositary” shall mean such successor Depositary.
“Dollars”
and “$”means the currency of The United States of America.
“ECU”
means the European Currency Unit as determined by the Commission of the European
Union.
“Equity
Interests” means Capital Stock and all warrants, options or other rights to
acquire Capital Stock (but excluding any debt security that is convertible into,
or exchangeable for, Capital Stock).
“Event of
Default” has the meaning specified in Section 5.01.
“Exchange
Act” means the U.S. Securities Exchange Act of 1934, as amended.
“Foreign
Currency” means any currency or currency unit issued by a government other than
the government of The United States of America.
“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, in
each case, as in effect in the United States on the date hereof.
“Global
Security” means a Security in global form registered in the Security Register in
the name of a Depositary or a nominee thereof.
“Holder”
means a Person in whose name a Security is registered in the Security
Register.
“Indebtedness”
means, with respect to any Person, any indebtedness of such Person, whether or
not contingent, in respect of (i) borrowed money evidenced by bonds, notes,
debentures or similar instruments, (ii) indebtedness secured by a mortgage,
pledge, lien, charge, encumbrance of any security interest existing on property
owned by such Person, (iii) the reimbursement obligations, contingent or
otherwise, in connection with any letters of credit actually issued or amounts
representing the balance that constitutes an accrued expense or trade payable or
(iv) any lease of property by such Person as lessee which is reflected in such
Person’s consolidated balance sheet as a capitalized lease in accordance with
GAAP, in the case of items of Indebtedness under (i) through (iii) above to the
extent that any such items (other than letters of credit) would appear as a
liability on such Person’s consolidated balance sheet in accordance with GAAP,
and also includes, to the extent not otherwise included, any obligation by such
Person to be liable for, or to pay, as obligor, guarantor or otherwise (other
than for purposes of collection in the ordinary course of business),
Indebtedness of another Person.
“Indenture”
means this instrument as originally executed or 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, the terms of a
particular series of Securities established pursuant to the applicable
provisions hereof, and for all purposes of this instrument and any such
supplemental indenture or terms of a particular series, the provisions of the
Trust Indenture Act that are deemed to be a part of and govern this instrument
and any such supplemental indenture, respectively.
“Interest”,
when used with respect to an Original Issue Discount Security which by its terms
bears interest only upon Maturity, means interest payable after
Maturity.
“Interest
Payment Date” means, with respect to any Security, the Stated Maturity of an
installment of interest on such Security.
“Investments”
means, with respect to any Person, all investments by such Person in other
Persons (including Affiliates) in the forms of loans, advances or capital
contributions, purchases or other acquisitions for consideration of
Indebtedness, Equity Interests or other securities and all other items that are
or would be classified as investments on a balance sheet prepared in accordance
with GAAP.
“Investment
Company Act” means the Investment Company Act of 1940 and any statute successor
thereto, in each case as amended from time to time.
“Issue
Date” means, with respect to any series of Securities, the date such series of
Securities is originally issued under this Indenture.
“Lien”
means, with respect to any asset, any mortgage, lien, pledge, charge, security
interest or 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).
“Maturity”,
when used with respect to any Security, means the date on which the principal of
such Security becomes due and payable as therein or herein provided, whether at
the Stated Maturity, on a Redemption Date or by declaration of acceleration or
otherwise.
“Officers’
Certificate” means a certificate signed by both (i) any of the Chairman of the
Board, a Vice Chairman of the Board, the Chief Executive Officer, the Chief
Financial Officer, the Chief Legal Officer or any Vice President, and (ii) any
of the Treasurer, the Secretary, any Assistant Secretary, or any Vice President
(other than a Vice President signing pursuant to clause (i) above), of the
Company, and delivered to the Trustee.
“Opinion
of Counsel” means a written opinion of counsel, who may be external or in-house
counsel for the Company, and who shall be acceptable to the
Trustee.
“Original
Issue Discount Security” means any Security which provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.02.
“Outstanding,”
when used with respect to any Securities, means, as of the date of
determination, all Securities theretofore authenticated and delivered under this
Indenture, except:
(i) Securities
theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;
(ii) Securities,
or portions thereof, for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the Holders of
such Securities; provided that if such
Securities are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given to the Holders as herein provided, or provision
satisfactory to a Responsible Officer of the Trustee shall have been made for
giving such notice; and
(iii) Securities
which have been paid or in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a protected
purchaser in whose hands such Securities are valid obligations of the
Company;
provided, however, that, in
determining whether the Holders of the requisite principal amount of the
Outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, (i) the principal amount of an Original
Issue Discount Security which shall be deemed to be Outstanding shall be the
amount of the principal thereof which would be due and payable as of such date
upon acceleration of the Maturity thereof to such date pursuant to Section 5.02,
(ii) the principal amount of a Security denominated in one or more foreign
currencies or currency units which shall be deemed to be Outstanding shall be
the U.S. dollar equivalent, determined as of such date in the manner provided as
contemplated by Section 3.01, of the principal amount of such Security and (iii)
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which a Responsible
Officer of the Trustee knows to be so owned shall be so disregarded. Securities
so owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee’s right
so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the Company
or of such other obligor.
“Paying
Agent” means any Person authorized by the Company to pay the principal of,
interest on or Redemption Price of any Securities on behalf of the Company. The
Trustee shall initially be the Paying Agent.
“Permitted
Liens” means any of the following: (a) Liens on any Principal Property acquired
by the Company or a Subsidiary after the date of this Indenture to secure or
provide for the payment or financing of all or any part of the purchase price
thereof or construction of fixed improvements thereon (prior to, at the time of
or within 180 days after the latest of the acquisition, completion of
construction or commencement of commercial operation thereof); (b) Liens on any
shares of stock or Principal Property acquired by the Company or a Subsidiary
after the date of this Indenture existing at the time of such acquisition; (c)
Liens on any shares of stock or Principal Property of a corporation which is
merged into or consolidated with the Company or a Subsidiary or substantially
all of the assets of which are acquired by the Company or a Subsidiary; (d)
Liens securing Indebtedness of a Subsidiary owing to the Company or another
Subsidiary; (e) Liens existing at the date of the Indenture; (f) Liens on any
Principal Property being constructed or improved securing loans to finance such
construction or improvements; (g) Liens in favor of governmental bodies of the
United States or any State thereof or any other country or political subdivision
thereof to secure partial, progress or advance payments pursuant to any contract
or statute, or to secure any Indebtedness incurred or guaranteed for the purpose
of financing all or any part of the cost of acquiring, constructing or improving
the property subject to such Liens; (h) Liens securing taxes, assessments or
governmental charges or levies not yet delinquent, or already delinquent but the
validity of which is being contested in good faith; (i) Liens arising by reason
of deposits necessary to qualify the Company or any Subsidiary to conduct
business, maintain self-insurance, or obtain the benefit of, or comply with, any
law; (j) Liens arising out of judgments or awards against the Company or any
Subsidiary with respect to which the Company or such Subsidiary shall in good
faith be prosecuting an appeal or proceedings for review; provided that the
Company or such Subsidiary shall have secured, within 60 days after the creation
thereof, an effective stay of execution pending such appeal or review; and (k)
extensions, renewals or replacement of Liens referred to in the foregoing
clauses provided that the Indebtedness secured is not increased nor the Lien
extended to any additional assets.
“Person”
means any individual, corporation, partnership, limited liability company, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
“Physical
Securities” has the meaning specified in Section 2.01.
“Place of
Payment”, when used with respect to the Securities of any series, means the
place or places where the principal of and any premium or interest on the
Securities of that series are payable specified as required by Section
3.01.
“Predecessor
Security” of any particular Security means every previous Security evidencing
all or a portion of the same debt as that evidenced by such particular Security;
and, for the purposes of this definition, any Security authenticated and
delivered under Section 3.06 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security.
“Principal
Property” means any manufacturing plant, testing or research and development
facility, distribution facility, processing plant or warehouse (including,
without limitation, land, fixtures and equipment), owned or leased by the
Company or any domestic Subsidiary (including any of the foregoing acquired or
leased after the date of this Indenture) and located within the United States of
America, its territories and possessions, unless the Board of Directors of the
Company determines in good faith that such plant or facility is not of material
importance to the total business conducted by the Company and its consolidated
Subsidiaries.
“Redemption
Date” when used with respect to any Security to be redeemed, means any date
which is a Business Day fixed for such redemption by the Company pursuant to
Section 11.04 of this Indenture.
“Redemption
Price” when used with respect to any Security to be redeemed, means the price at
which it is to be redeemed pursuant to this Indenture.
“Reference
Treasury Dealer Quotations” means, with respect to each Reference Treasury
Dealer and any Redemption Date, the average, as determined by the Company, of
the bid and asked prices for the Comparable Treasury Issue (expressed in each
case as a percentage of its principal amount) quoted in writing to the Company
by such Reference Treasury Dealer, at 5:00 p.m., New York City time, on the
third Business Day preceding such Redemption Date.
“Reference
Treasury Dealers” means any four nationally recognized investment banking firms,
and their successors, selected by the Company that are each also a primary U.S.
Government securities dealer (a “Primary Treasury Dealer”); provided, however, that if
any Reference Treasury Dealer shall cease to be a primary U.S. Government
securities dealer, the Company shall substitute another nationally recognized
investment banking firm that is a Primary Treasury Dealer.
“Remaining
Scheduled Payments” means, with respect to each Security to be redeemed, the
remaining scheduled payments of principal thereof and interest thereon that
would be due after the related Redemption Date but for that redemption; provided, however, that if
such Redemption Date is not an Interest Payment Date with respect to such
Security, the amount of the next succeeding scheduled interest payment thereon
shall be reduced by the amount of interest accrued thereon to such Redemption
Date.
“Regular
Record Date” for the interest payable on any Interest Payment Date with respect
to any Security, means such date or dates specified in the Security (whether or
not a Business Day), as the case may be, immediately preceding the relevant
Interest Payment Date relating to such Security.
“Responsible
Officer” means any officer of the Trustee within the Corporate Trust Office of
the Trustee with direct responsibility for the administration of this Indenture
and also, with respect to a particular matter, any other officer of the Trustee
to whom such matter is referred because of such officer’s knowledge and
familiarity with the particular subject.
“Securities”
has the meaning specified in the first paragraph of the Recitals of the
Company.
“Securities
Act” means the U.S. Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
“Security
Register” and “Security Registrar” have the respective meanings specified in
Section 3.05.
“Significant
Subsidiary” means any direct or indirect Subsidiary of the Company that
generates 5% (five percent) or more of the Company’s revenue or income or that
holds 5% (five percent) or more of the Company’s assets.
“Special
Record Date” for the payment of Defaulted Interest means a date fixed by the
Trustee pursuant to Section 3.07.
“Stated
Maturity,” when used with respect to the Securities or any installment of
interest thereon, means the date specified in the Securities as the fixed date
on which the principal thereof or such installment of interest is due and
payable.
“Subsidiary”
means a corporation more than 50% of the outstanding voting stock of which is
owned, directly or indirectly, by the Company or by one or more other
Subsidiaries, or by the Company and one or more other Subsidiaries. For the
purposes of this definition, “voting stock” means stock which ordinarily has
voting power for the election of directors, whether at all times or only so long
as no senior class of stock has such voting power by reason of any
contingency.
“Treasury
Rate” means, with respect to any Redemption Date, the rate per annum equal to
the semiannual equivalent yield to maturity (computed as of the second Business
Day immediately preceding that Redemption Date) of the Comparable Treasury
Issue, assuming a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
that Redemption Date.
“Trust
Indenture Act” means the Trust Indenture Act of 1939 as in force at the date as
of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, “Trust
Indenture Act” means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
“Trustee”
means the Person named as the “Trustee” in the first paragraph of this
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; provided, however, that if at
any time there is more than one such Person, “Trustee” as used with respect to
the Securities of any series shall mean only the Trustee with respect to
Securities of that series.
“U.S.
Government Obligation” has the meaning specified in Section 12.04.
“Vice
President,” when used with respect to the Company, means any vice president,
whether or not designated by a number or a word or words added before or after
the title “vice president”.
SECTION
1.02 Compliance Certificates and
Opinions.
Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee such
certificates and opinions as may be required under the Trust Indenture Act. Each
such certificate or opinion shall be given in the form of an Officers’
Certificate, if to be given by an officer of the Company, or an Opinion of
Counsel, if to be given by counsel, stating that in the opinion of the signers
or such counsel, as the case may be, all conditions precedent, if any, provided
for in this Indenture and the requirements of the Trust Indenture Act relating
to the proposed action have been complied with.
Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include
(i) a
statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;
(ii) 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;
(iii) a
statement that, in the opinion of each such individual, such individual has made
such examination or investigation as is necessary to enable such individual to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(iv) a
statement as to whether, in the opinion of each such individual, such condition
or covenant has been complied with.
SECTION
1.03 Form of Documents Delivered
to Trustee.
In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any
certificate or opinion of an officer of the Company may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
the matters upon which his certificate or opinion is based are erroneous. Any
such certificate or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information with respect to
such factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are
erroneous.
Where any
Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one
instrument.
SECTION
1.04 Acts of Holders; Record
Dates.
(a) Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such Holders in person or by agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where it is
hereby expressly required, to the Company. If any Securities are denominated in
a currency other than that of the United States, then for the purposes of
determining whether the Holders of the requisite principal amount of Securities
have taken any action with respect to the Securities of more than one series as
herein described, the principal amount of such Securities shall be deemed to be
that amount of United States dollars that could be obtained for such principal
amount on the basis of the spot rate of exchange into United States dollars for
the currency in which such Securities are denominated (as evidenced to the
Trustee by an Officers’ Certificate) as of the date the taking of such action by
the Holders of such requisite principal amount is evidenced to the Trustee as
provided in the immediately preceding sentence. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the “Act” of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and (subject to
Section 6.01) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
(b) The
fact and date of the execution by any Person of any such instrument or writing
may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The
Company may fix any day as the record date for the purpose of determining the
Holders entitled to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Holders. If not set by the Company prior to
the first solicitation of a Holder made by any Person in respect of any such
action, or, in the case of any such vote, prior to such vote, the record date
for any such action or vote shall be the 30th day (or, if later, the date of the
most recent list of Holders required to be provided pursuant to Section 7.01)
prior to such first solicitation or vote, as the case may be. With regard to any
record date, only the Holders on such date (or their duly designated proxies)
shall be entitled to give or take, or vote on, the relevant action.
(d) The
ownership of Securities shall be proved by the Security Register.
(e) Any
request, demand, authorization, direction, notice, consent, waiver or other Act
of the Holder of any Security shall bind every future Holder of the same
Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION
1.05 Notices, Etc., to Trustee
and Company.
Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(i) the
Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with the Trustee
at 60 Wall Street, New York, NY 10005, with a copy to __________________,
or
(ii) the
Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to the Company addressed to it at the address of
its principal office specified in the first paragraph of this instrument or at
any other address previously furnished in writing to the Trustee by the Company,
Attention: Office of the Chief Legal Officer.
SECTION
1.06 Notice to Holders;
Waiver.
Where
this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder affected by such event,
at his address as it appears in the Security Register not later than the latest
date (if any), and not earlier than the earliest date (if any), prescribed for
the giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. If a notice or communication is mailed or published in
the manner provided for above, within the time prescribed, it is duly given,
whether or not the Holder receives it.
Where
this Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case
by reason of the suspension of regular mail service or by reason of any other
cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
SECTION
1.07 Conflict with Trust
Indenture Act.
If any
provision hereof limits, qualifies or conflicts with a provision of the Trust
Indenture Act that is required under such Act to be a part of and govern this
Indenture, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may
be.
SECTION
1.08 Effect of Headings and Table
of Contents.
The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION
1.09 Successors and
Assigns.
All
covenants and agreements in this Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
SECTION
1.10 No Recourse Against
Others.
A
director, officer, employee or stockholder, as such, of the Company shall not
have any liability for any obligations of the Company under the Securities or
the Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
SECTION
1.11 Separability
Clause.
In case
any provision in this Indenture or in the Securities shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION
1.12 Benefits of
Indenture.
Nothing
in this Indenture or in the Securities, express or implied, shall give to any
Person, other than the parties hereto and their respective successors hereunder
and the Holders of Securities, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION
1.13 Governing
Laws.
THE INTERNAL LAW OF THE STATE OF NEW
YORK WILL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE SECURITIES AND ANY
GUARANTEES OF THE SECURITIES 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
1.14 Legal
Holidays.
In any
case where any Interest Payment Date or Stated Maturity of any Security shall
not be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities) payment of interest or
principal need not be made at such Place of Payment on such date, but may be
made on the next succeeding Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date or at the Stated
Maturity, provided that
no interest shall accrue with respect to such payment for the period from and
after such Interest Payment Date or Stated Maturity or, as the case may
be.
SECTION
1.15 Patriot
Act.
The
parties hereto acknowledge that in accordance with Section 326 of the USA
Patriot Act, _______________, like all financial institutions and in order to
help fight the funding of terrorism and money-laundering, are required to
obtain, verify, and record information that identifies each person or legal
entity that establishes a relationship or opens an account. The parties to this
Agreement agree that they will provide ______________ with such information as
it may request in order for _______________ to satisfy the requirements of the
USA Patriot Act.
ARTICLE
2.
SECURITY
FORMS
SECTION
2.01 Forms
Generally.
The
Securities of each series and the Trustee’s certificates of authentication shall
be in substantially the forms set forth in this Article, or in such other form
as shall be established by or pursuant to (i) a Board Resolution of the Company,
or (ii) in one or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as
may be required to comply with the rules of any securities exchange or
Depositary therefor, the Internal Revenue Code of 1986, as amended, and
regulations thereunder, or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution
thereof.
Unless it
is determined pursuant to a Company Order or as otherwise provided in this
Indenture that non-Global Securities (“Physical Securities”) are to be issued,
the Securities of each series shall be issued in the form of Global
Securities.
SECTION
2.02 Form of Face of
Security.
[THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.
THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY
REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE].
[UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (“DTC”), A NEW YORK CORPORATION, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF) DTC,
ANY TRANSFER, PLEDGE OR OTHER USE THEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.]
EMCORE
Corporation
[Title of
Security]
|
CUSIP
No.
|
$
|
EMCORE
Corporation, a corporation duly organized and existing under the laws of New
Jersey (herein called the “Company”, which term includes any successor Person
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to __________, or registered assigns, the principal sum of Dollars [
INCLUDE IF SECURITY IS A GLOBAL SECURITY — (which amount may from time to time
be increased or decreased by adjustments made on the records of the Trustee, as
custodian for the Depositary, in accordance with the rules and procedures of the
Depositary)] on , and to pay
interest thereon from or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, [semiannually] on and in each year,
commencing at the rate of % per annum,
until the principal hereof is paid or made available for payment.
The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the or
(whether
or not a Business Day), as the case may be, immediately preceding such Interest
Payment Date. Any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture. Payment of the
principal of and interest on this Security will be made at the office or agency
of the Company maintained for that purpose in The City of New York (which may be
an office of the Trustee or an affiliate of the Trustee), in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that at
the option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register. If this Security is a Global Security, then notwithstanding
the foregoing, each such payment will be made in accordance with the procedures
of the Depositary as then in effect.
Reference
is hereby made to the further provisions of this Security set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless
the certificate of authentication hereon has been executed by the Trustee
referred to on the reverse hereof by manual signature, this Security shall not
be entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN
WITNESS WHEREOF, the Company has caused this instrument to be duly executed
under its corporate seal.
Dated:
|
EMCORE
Corporation
|
||
|
By
|
_______________________________________
|
|
|
Name:
|
||
|
Title:
|
||
Attest:
___________________________________
|
Name:
|
||
|
Title:
|
SECTION
2.03 Form of Reverse of
Security.
This
Security is one of a duly authorized issue of Securities of the Company (herein
called the “Securities”), issued and to be issued in one or more series under an
Indenture, dated as of [ ], 2009 (herein
called the “Indenture”), between the Company and _____________, as Trustee
(herein called the “Trustee”, which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered.
[The
Securities are redeemable in whole or in part, at the option of the Company at
any time and from time to time, on not less than 30 or more than 60 days’ prior
notice mailed to the Holders of the Securities, at a Redemption Price equal to
the greater of (i) 100% of the principal amount of the Securities to be redeemed
and (ii) the sum of the present values of the Remaining Scheduled Payments
thereon discounted to the Redemption Date on a [semiannual] basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury Rate plus basis points,
together in either case with accrued interest on the principal amount being
redeemed to the Redemption Date.
Subject
to payment by the Company of a sum sufficient to pay the amount due on
redemption, interest on this Security (or portion hereof if this Security is
redeemed in part) shall cease to accrue upon the Redemption Date of this
Security (or portion hereof if this Security is redeemed in part).]
[The
Securities do not have the benefit of a sinking fund.]
[INCLUDE
IF SECURITY IS A GLOBAL SECURITY — In the event of a deposit or withdrawal of an
interest in this Security, including an exchange, transfer, repurchase or
conversion of this Security in part only, the Trustee, as custodian for the
Depositary, shall make an adjustment on its records to reflect such deposit or
withdrawal in accordance with the rules and procedures of the
Depositary.]
[INCLUDE
IF THE SECURITY IS NOT AN ORIGINAL ISSUE DISCOUNT SECURITY — If an Event of
Default with respect to Securities of this series shall occur and be continuing,
the principal of the Securities of this series may be declared due and payable
in the manner and with the effect provided in the Indenture.]
[INCLUDE
IF THE SECURITY IS AN ORIGINAL ISSUE DISCOUNT SECURITY — If an Event of Default
with respect to Securities of this series shall occur and be continuing, an
amount of principal of the Securities of this series may be declared due and
payable in the manner and with the effect provided in the Indenture. Such amount
shall be equal to [— insert formula for determining the amount]. Upon payment
(i) of the amount of principal so declared due and payable and (ii) of interest
on any overdue principal, premium and interest (in each case to the extent that
the payment of such interest shall be legally enforceable), all of the Company’s
obligations in respect of the payment of the principal of and premium and
interest, if any, on the Securities of this series shall
terminate.]
[INCLUDE
IF THE SECURITY IS AN ORIGINAL ISSUE DISCOUNT SECURITY — This Security was
issued with Original Issue Discount under Section 1272, 1273 and 1275 of the
Internal Revenue Code of 1986, as amended. You may contact the Chief Financial
Officer of the Company, at EMCORE Corporation, 10420 Research Road, SE,
Albuquerque, NM 87123, (505) 332-5000, who will provide you with any required
information regarding the Original Issue Discount.]
The
Indenture contains provisions for defeasance at any time, upon compliance with
certain conditions set forth therein, of (i) the entire Indebtedness evidenced
by this Security or (ii) certain restrictive covenants and Events of Default
with respect to this Security.
The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Holders of the Securities of each series to be affected under
the Indenture at any time by the Company and the Trustee with the consent of the
Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities of each series to be affected. The Indenture also
contains provisions permitting the Holders of specified percentages in aggregate
principal amount of the Outstanding Securities of each series, on behalf of the
Holders of all the Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As
provided in and subject to the provisions of the Indenture, the Holder of this
Security shall not have the right to institute any proceeding with respect to
the Indenture or for the appointment of a receiver or trustee or for any other
remedy thereunder, unless such Holder shall have previously given the Trustee
written notice of a continuing Event of Default with respect to the Securities
of this series, the Holders of not less than 25% in principal amount of the
Outstanding Securities of this series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default as Trustee
and offered the Trustee indemnity satisfactory to the Trustee, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Outstanding Securities of this series a direction inconsistent with such
request, and shall have failed to institute any such proceeding, for 60 days
after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or interest hereon on or after
the respective due dates expressed herein.
No
reference herein to the Indenture and no provision of this Security or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and interest on this Security at the
times, rate, and in the currency, herein prescribed.
As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Security is registrable in the Security Register, upon
surrender of this Security for registration of transfer at the office or agency
of the Company in The City of New York, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The
Securities are issuable only in registered form without coupons in denominations
of $1,000 and any integral multiple of $1,000 in excess thereof. As provided in
the Indenture and subject to certain limitations therein set forth, Securities
of this series are exchangeable for a like aggregate principal amount of
Securities of this series of a different authorized denomination, as requested
by the Holder surrendering the same.
No
service charge shall be made for any such registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
Prior to
due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name this Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.
All terms
used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
ASSIGNMENT
FORM
If you
want to assign this Security, fill in the form below and have your signature
guaranteed:
I or we
assign and transfer this Security to:
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(Print
or type name, address and zip code and social security or tax ID number of
assignee)
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|
and
irrevocably appoint
_________________________________________________________ agent to
transfer this Security on the books of the Company. The agent may
substitute another to act for him.
|
||||
|
Date:
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Signed:
|
|||
|
(Sign
exactly as your name appears on the other side of this
Security)
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Signature
Guarantee:
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|
NOTICE:
To be executed by an executive officer.
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SECTION
2.04 Form of Trustee’s
Certificate of Authentication.
This is
one of the Securities referred to in the within-mentioned
Indenture.
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____________________,
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as
Trustee
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By
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Authorized
Officer
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ARTICLE
3.
THE
SECURITIES
SECTION
3.01 Amount Unlimited; Issuable
in Series.
The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The
Securities may be issued in one or more series. Securities may differ between
series in respect of any matters, provided that all series of
Securities shall be equally and ratably entitled to the benefits of this
Indenture. There shall be (i) established in or pursuant to a Board Resolution
and (subject to Section 3.03) set forth, or determined in the manner provided,
in an Officers’ Certificate, or (ii) established in one or more indentures
supplemental hereto, at or prior to the issuance of Securities of any
series:
(a) the title
of the Securities of the series (which shall distinguish the Securities of that
particular series from the Securities of any other series);
(b) the price
or prices (expressed as a percentage of the principal amount thereof) at which
the Securities of the series will be issued;
(c) any limit
upon the aggregate principal amount of the Securities of the series which may be
authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of the series pursuant to Section 3.04,
3.05, 3.06, 9.07 or 11.07 and except for any Securities which, pursuant to
Section 3.03 of the Indenture, shall have not been issued and sold by the
Company and are therefore deemed never to have been authenticated and delivered
hereunder);
(d) the date
or dates on which the principal and premium, if any, of the Securities of the
series is payable;
(e) the
Person to whom any interest, if any, on any Security of the series shall be
payable if other than as set forth in Section 3.07; the rate or rates (which may
be fixed or variable) per annum or, if applicable, the method used to determine
such rate or rates (including, but not limited to, any commodity, commodity
index, stock exchange index or financial index) at which the Securities of the
series shall bear interest, if any, the date or dates from which such interest,
if any, shall accrue, the Interest Payment Dates on which any such interest
shall be payable and the Regular Record Date, for the interest payable on any
Interest Payment Date;
(f) the place
or places where the principal of and any premium or interest, if any, on the
Securities of the series shall be payable, where the Securities of such series
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the Securities of such series
and this Indenture may be served, and the method of such payment, if by wire
transfer, mail or other means;
(g) if
applicable, the period or periods within which, the price or prices at which and
the terms and conditions upon which Securities of the series may be redeemed, in
whole or in part, at the option of the Company and, if other than by a Board
Resolution, the manner in which any election by the Company to redeem the
Securities shall be evidenced;
(h) the
obligation, if any, of the Company to permit the Securities of such Series to be
converted into or exchanged for common stock of the Company or other Securities
or property of the Company and the terms and conditions upon which such
conversion or exchange shall be effected (including, without limitation, the
initial conversion or exchange price or rate, the conversion or exchange period,
any adjustment of the applicable conversion or exchange price or rate and any
requirements relative to the reservation of such shares for purposes of
conversion or exchange);
(i) if
convertible or exchangeable, any applicable limitations on the ownership or
transferability of the Securities or property into which such Securities are
convertible or exchangeable;
(j) the
obligation, if any, of the Company to redeem or purchase Securities of the
series pursuant to any sinking fund or analogous provisions or at the option of
a Holder thereof and the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series shall be
redeemed or purchased in whole or in part, pursuant to such
obligation;
(k) the dates,
if any, on which the price or prices at which the Securities of the series will
be repurchased by the Company at the option of the Holders thereof and other
detailed terms and provisions of such repurchase obligations;
(l) if other
than denominations of $1,000 and any integral multiple of $1,000 in excess
thereof, the denominations in which Securities of the series shall be
issuable;
(m) the forms
of the Securities of the series in fully registered form (and whether the
Securities will be issuable as Global Securities);
(n) if other
than the principal amount thereof, the portion of the principal amount of
Securities of the series which shall be payable upon declaration of acceleration
of the Maturity thereof pursuant to Section 3.10;
(o) if
applicable, that the Securities of the series, in whole or any specified part,
shall be defeasible pursuant to Article 12 and if other than a Board Resolution,
the manner in which any election by the Company to defease those Securities
shall be evidenced;
(p) whether
the Securities of the series are to be issuable in whole or in part in permanent
global form, without coupons, and, if so, (i) the form of any legend or legends
which shall be borne by any such permanent Global Security in addition to or in
lieu of that set forth in Section 2.02, (ii) any circumstances in addition to or
in lieu of those set forth in Clause (2) of the last paragraph of Section 3.05
in which such permanent Global Security may be exchanged in whole or in part for
Securities registered, and in which any transfer of such permanent Global
Security in whole or in part may be registered, in the name of Persons other
than the Depositary for such permanent Global Security or a nominee thereof and
(iii) the Depositary with respect to any such permanent Global Security or
Securities;
(q) the
currency of denomination of the Securities of the series, which may be Dollars
or any Foreign Currency, including, but not limited to, the ECU, and if such
currency of denomination is a composite currency other than the ECU, the agency
or organization, if any, responsible for overseeing such composite
currency;
(r) if the
principal of, or any premium or interest on, any Securities of the series is to
be payable, at the election of the Company or the Holder thereof, in one or more
currencies or currency units other than that or those in which such Securities
are stated to be payable, the currency, currencies or currency units in which
the principal of or any premium or interest on such Securities as to which such
election is made shall be payable, the periods within which and the terms and
conditions upon which such election is to be made and the amount so payable (or
the manner in which such amount shall be determined);
(s) the
manner in which the amounts of payment of principal of or interest, if any, on
the Securities of the series will be determined, if such amounts may be
determined by reference to an index based on a currency or currencies or by
reference to a commodity, commodity index, stock exchange index or financial
index;
(t) the
provisions, if any, relating to any security or guarantee provided for the
Securities of the series, and any subordination in right of payment, if any, of
the Securities of the series;
(u) if the
principal amount payable at the Stated Maturity of any Securities of the series
will not be determinable as of any one or more dates prior to the Stated
Maturity, the amount which shall be deemed to be the principal amount of such
Securities as of any such date for any purpose thereunder or hereunder,
including the principal amount thereof which shall be due and payable upon any
Maturity other than the Stated Maturity or which shall be deemed to be
Outstanding as of any date prior to the Stated Maturity (or, in any such case,
the manner in which such amount deemed to be the principal amount shall be
determined);
(v) any
addition to or change in the Events of Default which applies to any Securities
of the series and any change in the right of the Trustee or the requisite
Holders of such Securities to declare the principal amount thereof due and
payable pursuant to Section 5.01;
(w) any
addition to or change in the covenants set forth in Article Ten which applies to
any Securities of the series;
(x) any
depositories, interest rate calculation agents, exchange rate calculation agents
or other agents with respect to Securities of such series if other than those
appointed herein;
(y) the
terms, if any, on which Holders of Securities may convert or exchange any
Securities of the series into any securities of any Person; and
(z) any other
terms of the series (which terms shall not be inconsistent with the provisions
of this Indenture, except as permitted by Section 9.01(e)).
All
Securities of any one series shall be substantially identical except as to
denomination and except as may otherwise be provided in or pursuant to the Board
Resolution referred to above and (subject to Section 3.03) set forth in the
Officers’ Certificate referred to above or in any such indenture supplemental
hereto. All Securities of any one series need not be issued at the same time and
may be issued from time to time, consistent with the terms of this Indenture, if
so provided by or pursuant to the Board Resolution, supplemental indenture
hereto or Officers’ Certificate referred to above, and the authorized principal
amount of any series may not be increased to provide for issuance of additional
Securities of such series, unless otherwise provided in such Board Resolution,
supplemental indenture or Officers’ Certificate.
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
3.02 Denominations.
The
Securities shall be issuable only in registered form and, unless otherwise
provided as contemplated by Section 3.01 with respect to any series of
Securities, without coupons and in denominations of $1,000 and any integral
multiple of $1,000 in excess thereof.
SECTION
3.03 Execution, Authentication,
Delivery and Dating.
The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its Vice Chairman of the Board, its Chief Executive Officer, its Chief
Financial Officer, its Chief Legal Officer or one of its Vice Presidents,
attested by its Secretary or one of its Assistant Secretaries. The signature of
any of these officers on the Securities may be manual or facsimile.
Securities
bearing the manual or facsimile signatures of individuals who were at any time
the proper officers of the Company shall bind the Company, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices at
the date of such Securities.
At any
time and from time to time after the execution and delivery of this Indenture,
the Company may deliver Securities of any series executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities. If the form or terms of
the Securities of the series have been established by or pursuant to one or more
Board Resolutions as permitted by Sections 2.01 and 3.01, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 6.01) shall be fully protected in relying upon, an Opinion
of Counsel stating:
(a) if the
form of such Securities has been established by or pursuant to Board Resolution
as permitted by Section 2.01, that such form has been established in conformity
with the provisions of this Indenture;
(b) if the
terms of such Securities have been established by or pursuant to Board
Resolution as permitted by Section 3.01, that such terms have been established
in conformity with the provisions of this Indenture; and
(c) that such
Securities, 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 3.01 and of the preceding paragraph, if all Securities
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 3.01 or the Company Order and Opinion of Counsel otherwise required
pursuant to such preceding paragraph at or prior to the time of authentication
of each Security of such series if such documents are delivered at or prior to
the time of authentication upon original issuance of the first Security of such
series to be issued.
Each
Security shall be dated the date of its authentication.
No
Security shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security a certificate
of authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Indenture.
Notwithstanding
the foregoing and subject, in the case of a Security in permanent global form,
to Section 2.02, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section
3.10 together with a written statement (which need not comply with Section 1.02
and need not be accompanied by an Opinion of Counsel) directing such
cancellation and stating that such Security has never been issued and sold by
the Company, for all purposes of this Indenture such Security shall be deemed
never to have been authenticated and delivered hereunder and shall never be
entitled to the benefits of this Indenture.
SECTION
3.04 Temporary
Securities.
Pending
the preparation of definitive Securities, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of such
Securities.
If
temporary Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company in a Place of Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of any
series the Company shall execute and the Trustee shall authenticate and deliver
in exchange therefor a like principal amount of definitive Securities of the
same series and of like tenor of authorized denominations. Until so exchanged
the temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such
series.
SECTION
3.05 Registration; Registration
of Transfer and Exchange.
(a) The
Company shall cause to be kept at the Corporate Trust Office of the Trustee a
register (the register maintained in such office and in any other office or
agency in a Place of Payment being herein sometimes collectively referred to as
the “Security Register”) in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of Securities and
of transfers of Securities. The Trustee is hereby appointed “Security Registrar”
(the “Security Registrar”) for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon
surrender for registration of transfer of any Security of any series at an
office or agency of the Company in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series of any authorized denominations and of a like aggregate
principal amount and tenor.
At the
option of the Holder, Securities may be exchanged for other Securities of the
same series, of any authorized denominations and of a like aggregate principal
amount and tenor, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to
receive.
All
Securities issued upon any registration of transfer or exchange of Securities
shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every
Security presented or surrendered for registration of transfer or for exchange
shall (if so required by the Company or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed, by the Holder thereof or his
attorney duly authorized in writing. As a condition to the registration of
transfer of any Restricted Securities, the Company or the Trustee may require
evidence satisfactory to them as to the compliance with the restrictions set
forth in the legend on such securities.
No
service charge shall be made for any registration of transfer or exchange of
Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 3.04, 9.06 or 11.07 not involving any transfer.
The
Company shall not be required to exchange or register a transfer of any Security
of a series (i) during the 15-day period immediately preceding the mailing of
any notice of redemption of any Security of that series, or (ii) after any
notice of redemption has been given to Holders of Securities of that series,
except, where such notice provides that such Security is to be redeemed only in
part, the Company shall be required to exchange or register a transfer of the
portion thereof not to be redeemed.
(b) Neither
the Trustee nor any of its agents shall (i) have any duty to monitor compliance
with or with respect to any federal or state or other securities or tax laws or
(ii) have any duty to obtain documentation on any transfers or exchanges other
than as specifically required hereunder.
SECTION
3.06 Mutilated, Destroyed, Lost
and Stolen Securities.
If any
mutilated Security is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there
shall be delivered to the Company and the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security and (ii) such
security or indemnity as may be required by them to save each of them and any
agent of either of them harmless, then, in the absence of notice to the Company
or the Trustee that such Security has been acquired by a protected purchaser,
the Company shall execute and the Trustee shall authenticate and deliver, in
lieu of any such destroyed, lost or stolen Security, a new Security of the same
series and of like tenor and principal amount and bearing an identification
number not contemporaneously outstanding.
In case
any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, or has been called for redemption in full, the Company
in its discretion may, instead of issuing a new Security, pay such
Security.
Upon the
issuance of any new Security under this Section, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith.
Every new
Security issued pursuant to this Section in lieu of any destroyed, lost or
stolen Security shall constitute an original additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen Security shall be
at any time enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Securities
duly issued hereunder.
The
provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities.
SECTION
3.07 Payment of Interest;
Interest Rights Preserved.
Unless
otherwise provided as contemplated by Section 3.01 with respect to any series of
Securities, interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such
interest.
Any
interest on any Security of any series which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
“Defaulted Interest”) shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (a) or (b) below:
(a) The
Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Securities of such series at his
address as it appears in the Security Register, not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the Securities of
such series (or their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (b).
(b) The
Company may make payment of any Defaulted Interest in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject
to the foregoing provisions of this Section, each Security delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any
other Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
SECTION
3.08 Persons Deemed
Owners.
Prior to
due presentment of a Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name such Security is registered as the owner of such Security for the
purpose of receiving payment of principal of and (subject to Section 3.07)
interest on such Security and for all other purposes whatsoever, whether or not
such Security be overdue, and neither the Company, the Trustee nor any agent of
the Company or the Trustee shall be affected by notice to the
contrary.
SECTION
3.09 Book-entry Provisions for
Global Securities.
(a) The Global
Securities initially shall (i) be registered in the name of the Depositary or
the nominee of such Depositary, (ii) be delivered to the Trustee as custodian
for the Depositary and (iii) bear legends as set forth on the face of the form
of Security in Section 2.02.
Members
of, or participants in, the Depositary (“Agent Members”) shall have no rights
under this Indenture with respect to any Global Security held on their behalf by
the Depositary, or the Trustee as its custodian, or under the Global Security,
and the Depositary may be treated by the Company, the Trustee and any agent of
the Company or the Trustee as the absolute owner of the Global Security for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Depositary or impair, as between the Depositary and its Agent Members, the
operation of customary practices governing the exercise of the rights of any
Holder.
(b) Transfers
of the Global Securities shall be limited to transfers in whole, but not in
part, to the Depositary, its successors or their respective nominees. Interests
of beneficial owners in a Global Security may be transferred or exchanged, in
whole or in part, for Physical Securities in accordance with the rules and
procedures of the Depositary. In addition, Physical Securities shall be
transferred to all beneficial owners in exchange for their beneficial interests
in the Global Securities if (A) such Depositary has notified the Company (or the
Company becomes aware) that the Depositary (i) is unwilling or unable to
continue as Depositary for such Global Security or (ii) has ceased to be a
clearing agency registered under the Exchange Act when the Depositary is
required to be so registered to act as such Depositary and, in both such cases,
no successor Depositary shall have been appointed within 90 days of such
notification or of the Company becoming aware of such event, (B) there shall
have occurred and be continuing an Event of Default with respect to such Global
Security and the Outstanding Securities of such series shall have become due and
payable pursuant to Section 5.02 and the Trustee has requested that Physical
Securities be issued or (C) the Company has decided to discontinue use of
book-entry transfers through the Depositary (or a successor
Depositary).
(c) In
connection with any transfer or exchange of a portion of the beneficial interest
in the Global Security to beneficial owners pursuant to paragraph (b), the
Security Registrar shall (if one or more Physical Securities are to be issued)
reflect on its books and records the date and a decrease in
the principal amount of the Global Security in an amount equal to the principal
amount of the beneficial interest in the Global Security to be transferred, and
the Company shall execute, and the Trustee shall authenticate and deliver, one
or more Physical Securities of like tenor and amount.
(d) In
connection with the transfer of the entire Global Security to beneficial owners
pursuant to paragraph (b), the Global Security shall be deemed to be surrendered
to the Trustee for cancellation, and the Company shall execute, and the Trustee
shall authenticate and deliver, to each beneficial owner identified by the
Depositary in exchange for its beneficial interest in the Global Security, an
equal aggregate principal amount of Physical Securities of authorized
denominations and the same tenor.
(e) Any
Global Security issued hereunder shall bear a legend in substantially the
following form:
“This
Security is a Global Security within the meaning of the Indenture hereinafter
referred to and is registered in the name of a Depositary or a nominee thereof.
This Security may not be exchanged in whole or in part for a security
registered, and no transfer of this security in whole or in part may be
registered, in the name of any person other than such Depositary or a nominee
thereof, except in the limited circumstances described in the
Indenture.”
(f) The
Holder of the Global Securities may grant proxies and otherwise authorize any
Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under this
Indenture or the Securities.
(g) Notwithstanding
the other provisions of this Indenture, unless otherwise specified as
contemplated by Section 3.01, payment of the principal of and interest, if any,
on any Global Security shall be made to the Holder thereof.
(h) Except
as provided in Section 3.09(g), the Company, the Trustee and any Agent shall
treat a person as the Holder of such principal amount of Outstanding Securities
of such series represented by a Global Security as shall be specified in a
written statement of the Depositary with respect to such Global Security, for
purposes of obtaining any consents, declarations, waivers or directions required
to be given by the Holders pursuant to this Indenture.
SECTION
3.10 Cancellation.
The
Company at any time may deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold. The Trustee shall cancel all Securities surrendered for
registration of transfer, exchange, payment, redemption or cancellation and
shall dispose of such cancelled Securities, all in accordance with its customary
practices. If the Company shall acquire any of the Securities, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are delivered to the
Trustee for cancellation. The Company may not issue new Securities to replace
Securities it has paid in full or delivered to the Trustee for
cancellation.
SECTION
3.11 Treasury
Securities.
In
determining whether the Holders of the required principal amount of Securities
of a series have concurred in any request, demand, authorization, direction,
notice, consent or waiver, Securities of a series owned by the Company or an
Affiliate of the Company shall be disregarded, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
request, demand, authorization, direction, notice, consent or waiver only
Securities of a series that the Trustee knows are so owned shall be so
disregarded.
SECTION
3.12 CUSIP
Numbers.
The
Company in issuing the Securities may use “CUSIP” numbers (if then generally in
use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption
as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other elements of
identification printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers.
SECTION
3.13 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 Holders of each
series of Securities and shall otherwise comply with Trust Indenture Act. If the
Trustee is not the Registrar, the Company shall furnish to the Trustee at least
ten days before each interest payment date and at such other times as the
Trustee may request in writing a list, in such form and as of such date as the
Trustee may reasonably require, of the names and addresses of Holders of each
series of Securities.
SECTION
3.14 Computation of
Interest.
Except as
otherwise specified as contemplated by Section 3.01 for Securities of any
series, interest on the Securities of each series shall be computed on the basis
of a 360-day year of twelve 30-day months.
ARTICLE
4.
SATISFACTION
AND DISCHARGE
SECTION
4.01 Satisfaction and Discharge
of Indenture.
This
Indenture shall cease to be of further effect (except as to any surviving rights
of registration of transfer or exchange of Securities herein expressly provided
for), and the Trustee, on demand of and at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when
(a) either
(i) all
Securities theretofore authenticated and delivered (other than (A) Securities
which have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.06 and (B) Securities for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as provided in
Section 10.03) have been delivered to the Trustee for cancellation;
or
(ii) all such
Securities not theretofore delivered to the Trustee for
cancellation
(A) have
become due and payable, or
(B) will
become due and payable at their Stated Maturity within one year, or
(C) will be
called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company,
and the
Company, in the case of (A), (B) or (C) above, has deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose an amount
sufficient to pay and discharge the entire indebtedness evidenced by such
Securities not theretofore delivered to the Trustee for cancellation, for
principal and interest to the date of such deposit (in the case of Securities
which have become due and payable) or to the Stated Maturity or Redemption Date,
as the case may be;
(b) no
Default or Event of Default has occurred and is continuing 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 deposit will not result in a
breach or violation of, or constitute a default under, any other instrument to
which the Company or any guarantor, as applicable, of such Securities is a party
or by which the Company or any such guarantor, as applicable, is
bound;
(c) the
Company or any guarantor of such Securities has paid or caused to be paid all
other sums payable hereunder by the Company;
(d) the
Company has delivered irrevocable instructions to the Trustee for such
Securities under this Indenture to apply the deposited money toward the payment
of such Securities at maturity or on the redemption date, as the case may be;
and
(e) Company
has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied
with.
Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the Company
to the Trustee under Section 6.07 and, if money shall have been deposited with
the Trustee pursuant to subclause (ii) of Clause (a) of this Section, the
obligations of the Trustee under Section 4.02 and the last paragraph of Section
10.03 shall survive.
SECTION
4.02 Application of Trust
Money.
Subject
to the provisions of the last paragraph of Section 10.03, all money deposited
with the Trustee pursuant to Section 4.01 shall be held in trust and applied by
it, in accordance with the provisions of the Securities and this Indenture, to
the payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal and interest for whose payment such money has
been deposited with the Trustee; but such money need not be segregated from
other funds except to the extent required by law.
If such
Trustee or Paying Agent is unable to apply any proceeds in accordance with
Section 4.01 hereof by reason of any legal proceeding or by reason of any order
or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company’s and any applicable
guarantor’s obligations under this Indenture and the applicable Securities shall
be revived and reinstated as though no deposit had occurred pursuant to Section
4,01 hereof; provided
that if the Company has made any payment of principal of, premium, if any, or
interest on, any Securities because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the funds held by the Trustee or Paying
Agent.
ARTICLE
5.
REMEDIES
SECTION
5.01 Events of
Default.
“Event of
Default”, wherever used herein with respect to Securities of any series, means
any one of the following events (whatever the reason for such Event of Default
and whether it shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or any order, rule
or regulation of any administrative or governmental body):
(a) default
in the payment of the principal of any Security of that series at its Maturity;
or
(b) default
in the payment of any interest upon any Security of that series when it becomes
due and payable, and continuance of such default for a period of 30 days;
or
(c) default
in the deposit of any sinking fund payment, when and as due by the terms of a
Security of that series; or
(d) default
in the performance of any covenant, agreement or condition of the Company in
this Indenture or the Securities of that series (other than a covenant,
agreement or condition a default in whose performance or whose breach is
specifically dealt with elsewhere in this section or which has been expressly
included in this Indenture solely for the benefit of series of Securities other
than that series), and continuance of such default for a period of 60 days after
there has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series a written notice
specifying such default and requiring it to be remedied and stating that such
notice is a “Notice of Default” hereunder; or
(e) the entry
by a court having jurisdiction in the premises of (i) a decree or order for
relief in respect of the Company of a voluntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or (ii) a decree or order adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company under any
applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company or of any substantial part of its property, or ordering the winding up
or liquidation of its affairs, and the continuance of any such decree or order
for relief or any such other decree or order unstayed and in effect for a period
of 60 consecutive days; or
(f) the
commencement by the Company of a voluntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree or order for relief in
respect of the Company in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar law or
to the commencement of any bankruptcy or insolvency case or proceeding against
it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or the
consent by it to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of creditors, or
the admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company in furtherance
of any such action; or
(g) the
occurrence of any other event of default with respect to the Securities of that
series as provided in a supplemental indenture applicable to such series of
Securities or a Board Resolution pursuant to which such series of Securities is
established.
SECTION
5.02 Acceleration of Maturity;
Rescission and Annulment.
(a) If an
Event of Default (other than those specified in Sections 5.01(f) and 5.01(g))
occurs with respect to any series of Outstanding Securities and is continuing,
then and in every such case the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities of such series may declare the
principal amount (or, if the Securities of any such series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of that series) of all the Securities to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal shall become
immediately due and payable.
Notwithstanding
the foregoing, in the case of an Event of Default specified in Sections 5.01(f)
or 5.01(g), the principal amount (or, if the Securities of any such series are
Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of that series) of all Outstanding Securities will
ipso facto become due and payable without any declaration or other Act on the
part of the Trustee or any Holder.
(b) At
any time after such a declaration of acceleration with respect to the Securities
of any series has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a
majority in principal amount of the Outstanding Securities of that series, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(i) the
Company has paid or deposited with the Trustee a sum sufficient to
pay
(A) all
overdue interest on all Securities of the series,
(B) the
principal of any Securities of that series which have become due otherwise than
by such declaration of acceleration and interest thereon at the rate borne by
such Securities,
(C) to the
extent that payment of such interest is lawful, interest upon overdue interest
at the rate borne by such Securities, and
(D) all sums
paid or advanced by the Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 6.07;
and
(ii) all
Events of Default, other than the non-payment of the principal of Securities of
that series which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 5.13.
No such
rescission shall affect any subsequent default or impair any right consequent
thereon.
SECTION
5.03 Collection of Indebtedness
and Suits for Enforcement by Trustee.
The
Company covenants that if
(i) default
is made in the payment of any interest on any Security when such interest
becomes due and payable and such default continues for a period of 30 days,
or
(ii) default
is made in the payment of the principal of any Security at the Maturity
thereof,
the
Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest, and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal and on
any overdue interest, at the rate borne by the Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If an
Event of Default with respect to the Securities of any series occurs and is
continuing, the Trustee may in its discretion, subject to applicable law,
proceed to protect and enforce its rights and the rights of the Holders of
Securities of such series by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION
5.04 Trustee May File Proofs of
Claim.
In case
of any judicial proceeding relative to the Company (or any other obligor upon
the Securities), its property or its creditors, the Trustee shall be entitled
and empowered, by intervention in such proceeding or otherwise, to take any and
all actions authorized under the Trust Indenture Act in order to have claims of
the Holders and the Trustee allowed in any such proceeding. In particular, the
Trustee shall be authorized to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.07.
No
provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION
5.05 Trustee May Enforce Claims
Without Possession of Securities.
All
rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 6.07, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
SECTION
5.06 Application of Money
Collected.
Any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal or interest, upon
presentation of the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To
the payment of all amounts due the Trustee under Section 6.07; and
SECOND:
To the payment of the amounts then due and unpaid for principal of and interest
on the Securities in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities for principal and interest,
respectively.
SECTION
5.07 Limitation on
Suits.
No Holder
of any Security shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless
(i) such
Holder has previously given written notice to the Trustee of a continuing Event
of Default with respect to the Securities of that series;
(ii) the
Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities of that series shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(iii) such
Holder or Holders have offered to the Trustee reasonable indemnity satisfactory
to the Trustee against the costs, expenses and liabilities to be incurred in
compliance with such request;
(iv) the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding; and
(v) no
direction inconsistent with such written request has been given to the Trustee
during such 60-day period by the Holders of a majority in aggregate principal
amount of the Outstanding Securities of that series;
it being
understood and intended that no one or more Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture
to affect, disturb or prejudice the rights of any other Holders, or to obtain or
to seek to obtain priority or preference over any other Holders or to enforce
any right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all the Holders.
SECTION
5.08 Unconditional Right of
Holders to Receive Principal and Interest.
Notwithstanding
any other provision in this Indenture, the Holder of any Security shall have the
right, which is absolute and unconditional, to receive payment of the principal
of and (subject to Section 3.07) interest on such Security on the respective
Stated Maturities expressed in such Security and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
SECTION
5.09 Restoration of Rights and
Remedies.
If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION
5.10 Rights and Remedies
Cumulative.
Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.06, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION
5.11 Delay or Omission Not
Waiver.
No delay
or omission of the Trustee or of any Holder of any Security to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION
5.12 Control by
Holders.
The
Holders of a majority in principal amount of the Outstanding Securities of any
series shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee, with respect to the Securities of such
series, provided
that
(i) such
direction shall not be in conflict with any rule of law or with this Indenture,
and
(ii) the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION
5.13 Waiver of Past
Defaults.
The
Holders of not less than a majority in principal amount of the Outstanding
Securities affected by any past default hereunder (all voting together as one
class) may, on behalf of the Holders of all the Securities affected by such past
default, waive such past default and its consequences, subject to the payment of
the amounts required under Section 5.02(b) (i) (D), except a
default
(i) in the
payment of the principal of or interest on any Security, or
(ii) in
respect of a covenant or provision hereof which under Article Nine cannot be
modified or amended without the consent of the Holder of each Outstanding
Security affected.
Upon any
such waiver, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
SECTION
5.14 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 Trustee, in
either case in respect to the Securities, a court may require any party litigant
in such suit to file an undertaking to pay the costs of the suit, and the court
may assess reasonable costs, including reasonable attorney’s fees, against any
party litigant in the suit having due regard to the merits and good faith of the
claims or defenses made by the party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Company, to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 25% in principal amount of the
Outstanding Securities of any series, or to any suit instituted by any Holder
for the enforcement of the payment of the principal of or interest on any
Security on or after the maturity of such Security.
SECTION
5.15 Waiver of Stay or Extension
Laws.
The
Company covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE
6.
THE
TRUSTEE
SECTION
6.01 Certain Duties and
Responsibilities.
The
duties and responsibilities of the Trustee shall be as provided by the Trust
Indenture Act. Notwithstanding the foregoing, no provision of this Indenture
shall require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it. Whether or not therein expressly
so provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION
6.02 Notice of
Defaults.
The
Trustee shall give the Holders notice of any default hereunder as and to the
extent provided by the Trust Indenture Act; provided, however, that in
the case of any default of the character specified in Section 5.01(d), no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term “default” means any event
which is, or after notice or lapse of time or both would become, an Event of
Default.
SECTION
6.03 Certain Rights of
Trustee.
Subject
to the provisions of Section 6.01:
(a) the
Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties, and the Trustee need not investigate any fact or matter stated in the
document;
(b) any
request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order and any resolution of the Board
of Directors of the Company or of any committee acting pursuant to authority
duly delegated to it by the Board of Directors may be sufficiently evidenced by
a Board Resolution;
(c) whenever
in the administration of this Indenture the Trustee shall deem it desirable that
a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon an Officers’
Certificate;
(d) the
Trustee may consult with counsel of its selection and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) 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 reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(f) the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, 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;
(g) the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee
shall not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder;
(h) the
Trustee shall not be charged with knowledge of any Default or Event of Default
(except as provided in Section 5.01(e)) with respect to the Securities unless
either (i) a Responsible Officer shall have actual knowledge of such Default or
Event of Default or (ii) written notice of such Default or Event of Default
shall have been given to the Trustee by the Company or any other obligor on such
Securities or by any Holder of such Securities and such notice references the
Securities generally or the Securities of a particular series and this
Indenture;
(i) the
Trustee may act through agents, attorneys, custodians, or nominees and shall not
be responsible for the misconduct or negligence of any agent, attorney,
custodian, or nominee appointed with due care. No Depositary shall be deemed an
agent, attorney, custodian, or nominee of the Trustee and the Trustee shall not
be responsible for any act or omission by any Depositary;
(j) in no
event shall the Trustee be liable for the selection of investments or for
investment losses incurred thereon. The Trustee shall have no liability in
respect of losses incurred as a result of the liquidation of any investment
prior to its stated maturity or failure to provide timely written direction;
and
(k) the
Trustee shall not be liable for any action taken, suffered or omitted by it in
good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture; provided that the Trustee’s
conduct does not constitute negligence or bad faith.
SECTION
6.04 Trustee’s
Disclaimer.
The
Trustee makes no representation as to the validity or adequacy of this Indenture
or the Securities, it shall not be accountable for the Company’s use of the
proceeds from the Securities, and it shall not be responsible for any statement
in the Securities other than its authentication.
SECTION
6.05 May Hold
Securities.
The
Trustee, any Paying Agent, any Security Registrar or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 6.08 and 6.13, may otherwise deal
with the Company with the same rights it would have if it were not Trustee,
Paying Agent, Security Registrar or such other agent.
SECTION
6.06 Money Held in
Trust.
Money
held by the Trustee in trust hereunder need not be segregated from other funds
except to the extent required by law. The Trustee shall be under no liability
for interest on any money received by it hereunder except as otherwise agreed in
writing with the Company.
SECTION
6.07 Compensation and
Reimbursement.
The Company agrees:
(i) to pay to
the Trustee from time to time such compensation as the Company and the Trustee
shall from time to time agree in writing for all services rendered by it
hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(ii) except as
otherwise expressly provided herein, to reimburse the Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(iii) to
indemnify the Trustee (including its directors and officers) for, and to hold it
harmless against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the acceptance or
administration of this trust, including the reasonable costs and expenses of
defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder.
The
obligations of the Company under this Section 6.07 shall survive the
satisfaction and discharge of this Indenture and the resignation or removal of
the Trustee. To secure the Company’s payment obligations in this Section 6.07,
the Trustee shall have a Lien prior to the Securities on all money or property
held or collected by the Trustee, except that held in trust to pay principal and
interest on the Securities. Such Lien shall survive the satisfaction and
discharge of this Indenture. When the Trustee incurs expenses or renders
services after a Default or an Event of Default specified in Sections 5.01(f) or
5.01(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 U.S. Code, Title 11 or any other
similar foreign, federal or state law for the relief of debtors.
In no
event shall the Trustee be liable for any indirect, special or consequential
loss or damage of any kind whatsoever, including, but not limited to, lost
profits.
In no
event shall the Trustee be liable for any failure or delay in the performance of
its obligations hereunder because of circumstances beyond its control,
including, but not limited to, acts of God, flood, natural catastrophes, riot,
loss or malfunctions of utilities, or government action, which delay, restrict
or prohibit the providing of the services contemplated by this
Agreement.
SECTION
6.08 Disqualification;
Conflicting Interests.
If the
Trustee has or shall acquire a conflicting interest within the meaning of the
Trust Indenture Act, the Trustee shall either eliminate such interest or resign,
to the extent and in the manner provided by, and subject to the provisions of,
the Trust Indenture Act and this Indenture.
SECTION
6.09 Corporate Trustee Required;
Eligibility.
There
shall at all times be a Trustee hereunder which shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000. If such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION
6.10 Resignation and Removal;
Appointment of Successor.
(a) No resignation or
removal of the Trustee and no appointment of a successor Trustee pursuant to
this Article shall become effective until the acceptance of appointment by the
successor Trustee under Section 6.11.
(b) The
Trustee may resign at any time with respect to the Securities of one or more
series by giving written notice thereof to the Company. If an instrument of
acceptance by a successor Trustee shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee with respect to the Securities of such series.
(c) The
Trustee may be removed at any time with respect to the Securities of any series
by Act of the Holders of a majority in principal amount of the Outstanding
Securities of such series, delivered to the Trustee and to the
Company.
(d) If
at any time:
(i) the
Trustee shall fail to comply with Section 6.08 after written request therefor by
the Company or by any Holder who has been a bona fide Holder of a Security for
at least six months, or
(ii) the
Trustee shall cease to be eligible under Section 6.09 and shall fail to resign
after written request therefor by the Company or by any such Holder,
or
(iii) the
Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent, or
(iv) a
receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in
any such case, (A) the Company by a Company Order may remove the Trustee, or (B)
subject to Section 5.14, any Holder who has been a bona fide Holder of a
Security of any series for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to such series of Securities and the
appointment of a successor Trustee.
(e) If
the Trustee shall resign, be removed or become incapable of acting, or if a
vacancy shall occur in the office of Trustee for any cause, with respect to the
Securities of one or more series, the Company, by a Company Order, shall
promptly appoint a successor Trustee with respect to the Securities of such
series (it being understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of any
particular series) . If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee with respect to Securities of such series and supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner hereinafter provided, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to Securities of such series.
(f) The
Company shall give notice of each resignation and each removal of the Trustee
with respect to Securities of any series and each appointment of a successor
Trustee with respect to Securities of such series to all Holders of Securities
of such series in the manner provided in Section 1.06. Each notice shall include
the name of the successor Trustee and the address of its Corporate Trust
Office.
SECTION
6.11 Acceptance of Appointment by
Successor.
(a) In case
of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee so appointed shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
(b) In case
of the appointment hereunder of a successor Trustee with respect to the
Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees to be co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon
request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts referred to in paragraph
(a) or (b) of this Section, as the case may be.
(d) No such
successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article.
SECTION
6.12 Merger, Conversion,
Consolidation or Succession to Business.
Any
corporation into which the Trustee may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such
Securities.
SECTION
6.13 Preferential Collection of
Claims Against.
If and
when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the Securities), the Trustee shall be subject to the provisions of
the Trust Indenture Act regarding the collection of claims against the Company
(or any such other obligor).
ARTICLE
7.
HOLDERS’
LISTS AND REPORTS BY TRUSTEE
SECTION
7.01 Company to Furnish Trustee
Names and Addresses of Holders.
The
Company will furnish or cause to be furnished to the Trustee
(a) with
respect to the Securities of any series, not more than 15 days after each
Regular Record Date, if any, for such series, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders of the
Securities of such series as of such Regular Record Date, and
(b) at
such other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content
as of a date not more than 15 days prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar; provided, however, that no
such list need be furnished so long as the Trustee is acting as Security
Registrar.
SECTION
7.02 Preservation of Information;
Communications to Holders.
(a) The Trustee shall
preserve, in as current a form as is reasonably practicable, the names and
addresses of Holders contained in the most recent list furnished to the Trustee
as provided in Section 7.01 and the names and addresses of Holders received by
the Trustee in its capacity as Security Registrar. The Trustee may destroy any
list furnished to it as provided in Section 7.01 upon receipt of a new list so
furnished.
(b) The
rights of Holders to communicate with other Holders with respect to their rights
under this Indenture or under the Securities, and the corresponding rights and
duties of the Trustee, shall be as provided by the Trust Indenture
Act.
(c) Every
Holder of Securities, by receiving and holding the same, agrees with the Company
and the Trustee that neither the Company nor the Trustee nor any agent of either
of them shall be held accountable by reason of any disclosure of information as
to names and addresses of Holders made pursuant to the Trust Indenture
Act.
SECTION
7.03 Reports by
Trustee.
(a) Within 60 days
after May 15 in each year, the Trustee shall transmit by mail to all Holders, as
their names and addresses appear on the register kept by the Registrar, a brief
report dated as of such May 15, in accordance with, and to the extent required
under the Trust Indenture Act.
(b) The
Trustee shall transmit to Holders such other reports concerning the Trustee and
its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant
thereto.
(c) A
copy of each such report shall, at the time of such transmission to Holders, be
filed by the Trustee with each stock exchange upon which the Securities are
listed, with the Commission and with the Company. The Company will notify the
Trustee when the Securities are listed on any stock exchange.
ARTICLE
8.
CONSOLIDATION,
MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION
8.01 Company May Consolidate,
Etc., Only on Certain Terms.
The
Company shall not consolidate with or merge into any other Person or convey,
transfer or lease all or substantially all of its properties and assets to any
Person, and the Company shall not permit any Person to consolidate with or merge
into the Company, in a transaction in which the Company is not the surviving
entity, unless:
(i) in case
the Company shall consolidate with or merge into another Person or convey,
transfer or lease all or substantially all of its properties and assets to any
Person, the Person formed by such consolidation or into which the Company is
merged or the Person which acquires by conveyance or transfer, or which leases,
the properties and assets of the Company shall be a corporation, limited
liability company, partnership or trust, shall be organized and validly existing
under the laws of the United States of America, any State thereof or the
District of Columbia and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of and interest, if any,
on all the outstanding Securities and the performance or observance of every
covenant of this Indenture on the part of the Company to be performed or
observed;
(ii) immediately
after giving effect to such transaction and treating any Indebtedness which
becomes an obligation of the Company as a result of such transaction as having
been incurred by the Company at the time of such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would become
an Event of Default, shall have happened and be continuing; and
(iii) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance, transfer or
lease and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article.
SECTION
8.02 Successor
Substituted.
Upon any
consolidation of the Company with, or merger of the Company into, any other
Person or any conveyance, transfer or lease of all or substantially all of the
properties and assets of the Company in accordance with Section 8.01, the
successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had been
named as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE
9.
SUPPLEMENTAL
INDENTURES
SECTION
9.01 Supplemental Indentures
Without Consent of Holders.
Notwithstanding
Section 9.02 of this Indenture, the Company and the Trustee may amend or
supplement this Indenture or the Securities of one or more series without the
consent of any Holder for certain purposes, including:
(a) evidencing
the succession of another Person to the Company and such Person’s assumption of
the Company’s obligations under the Indenture;
(b) adding to
the Company’s covenants or Events of Default;
(c) establishing
forms or terms of the Securities of a particular series; and
(d) curing
ambiguities and other purposes which do not adversely affect the Holders of the
Outstanding Securities of a particular series in any material
respect.
Upon the
request of the Company authorizing the execution of any such amended or
supplemental indenture, and upon receipt by the Trustee of the documents
described in Section 6.03 hereof, the Trustee will join with the Company in the
execution of any amended or supplemental indenture authorized or permitted by
the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee will not be
obligated to enter into such amended or supplemental indenture that affects its
own rights, duties or immunities under this Indenture or otherwise.
SECTION
9.02 Supplemental Indentures with
Consent of Holders.
The
Company and the Trustee may enter into a supplemental indenture with the written
consent of the Holders of at least a majority in aggregate principal amount of
the Outstanding Securities of each series affected by such supplemental
indenture (including consents obtained in connection with a tender offer or
exchange offer for the Securities of such series), for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of any supplemental indenture or of modifying in any manner
the rights of the Holders of each such series. Except as provided in Section
5.13, the Holders of at least a majority in principal amount of the Outstanding
Securities of each series by notice to the Trustee (including consents obtained
in connection with a tender offer or exchange offer for the Securities of such
series) may waive compliance by the Company with any provision of this Indenture
or the Securities with respect to such series.
It shall
not be necessary for the consent of the Holders of Securities under this Section
9.02 to approve the particular form of any proposed supplemental indenture or
waiver, but it shall be sufficient if such consent approves the substance
thereof. Upon the request of the Company authorizing the execution of any such
amended or supplemental indenture, and upon the filing with the Trustee of
evidence satisfactory to the Trustee of the consent of the Holders of Securities
as aforesaid, and upon receipt by the Trustee of the documents described in
Section 6.03 hereof, the Trustee will join with the Company in the execution of
such amended or supplemental indenture unless such amended or supplemental
indenture directly affects the Trustee’s own rights, duties or immunities under
this Indenture or otherwise, in which case the Trustee may in its discretion,
but will not be obligated to, enter into such amended or supplemental
Indenture.
After a
supplemental indenture or waiver under this section becomes effective, the
Company shall mail to the Holders of Securities affected thereby, a notice
briefly describing the supplemental indenture or waiver. Any failure by the
Company to mail or publish such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture or waiver.
SECTION
9.03 Limitations.
Without
the consent of each Holder affected, an amendment or waiver may not (with
respect to any Securities held by a non-consenting Holder):
(a) change
the Stated Maturity of the principal of, or any installment of interest on, or
the redemption price of, any such Security;
(b) reduce
the principal amount of or interest on, any such Security;
(c) change
currency of payment of principal of or interest on, any such
Security;
(d) impair
the right to institute suit for the enforcement of any payment on any such
Security;
(e) reduce
the percentage in principal amount of Outstanding Securities of a particular
series, the consent of whose Holders is required for modification or amendment
of the Indenture, or for waiver of compliance with certain provisions of the
Indenture or waiver of certain defaults; or
(f) modify
such provisions with respect to modification and waiver.
SECTION
9.04 Execution of Supplemental
Indentures.
In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 6.01) shall be fully protected in relying upon, in addition
to the documents required by Section 1.02, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture.
SECTION
9.05 Effect of Supplemental
Indentures.
Until an
amendment or waiver becomes effective, a consent to it by a Holder of a Security
is a continuing consent by the Holder and every subsequent Holder of a Security
or portion of a Security that evidences the same debt as the consenting Holder’s
Security, even if notation of the consent is not made on any Security. However,
any such Holder or subsequent Holder may revoke the consent as to his Security
or portion of a Security if the Trustee receives the notice of revocation before
the date the amendment or waiver becomes effective.
Any
amendment or waiver once effective shall bind every Holder of each series
affected by such amendment or waiver unless it is of the type described in any
of clauses (a) through (f) of Section 9.03. In that case, the amendment or
waiver shall bind each Holder of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder’s Security.
SECTION
9.06 Conformity with Trust
Indenture Act.
Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act.
SECTION
9.07 Reference in Securities to
Supplemental Indentures.
Securities
of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
SECTION
9.08 Trustee
Protected.
In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 6.01) shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee shall sign all
supplemental indentures, except that the Trustee need not sign any supplemental
indenture that adversely affects its rights.
ARTICLE
10.
COVENANTS
SECTION
SECTION
10.01 Payment of Principal and
Interest.
The
Company covenants and agrees for the benefit of each series of Securities that
it will duly and punctually pay the principal of and any premium or interest on
the Securities of that series in accordance with the terms of the Securities of
that series and this Indenture.
SECTION
10.02 Maintenance of Office or
Agency.
The
Company shall maintain in each Place of Payment for any series of Securities an
office or agency (which may be an office of the Trustee or an affiliate of the
Trustee) where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that 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.
The
Company may also from time to time designate one or more other offices or
agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designation; provided,
however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in each
Place of Payment for Securities of any series for such purposes. The Company
will give prompt written notice to the Trustee and the Holders of any such
designation or rescission and of any change in the location of any such other
office or agency.
SECTION
10.03 Money for Security Payments
to Be Held in Trust.
If the
Company shall at any time act as its own Paying Agent with respect to any series
of Securities, it shall, on or before each due date of the principal of or
interest on any of the Securities of that series, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient to pay the
principal or interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and shall promptly notify
the Trustee of its action or failure so to act.
Whenever
the Company shall have one or more Paying Agents for any series of Securities,
it will, prior to 10:00 a.m., New York City time, on each due date of the
principal of or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to
act.
The
Company shall cause each Paying Agent for any series of Securities other than
the Trustee to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will (i) comply with the provisions of the Trust
Indenture Act applicable to it as a Paying Agent and (ii) during the continuance
of any default by the Company (or any other obligor upon the Securities of that
series) in the making of any payment in respect of the Securities of that
series, upon the written request of the Trustee, forthwith pay to the Trustee
all sums held in trust by such Paying Agent as such.
The
Company may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such
money.
Any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of or interest on any Security of any
series and remaining unclaimed for two years after such principal or interest
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; 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 a newspaper
published in the English language, customarily published on each New York City
Business Day and of general circulation in The City of New York, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining shall be repaid to the
Company.
SECTION
10.04 Existence.
Subject
to Article Eight, the Company shall do or cause to be done all things necessary
to preserve and keep in full force and effect its existence, rights (charter and
statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors of the Company shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and that
the loss thereof is not disadvantageous in any material respect to the
Holders.
SECTION
10.05 Reports and Delivery of
Certain Information.
The
Company shall file with to the Trustee all quarterly and annual reports on Forms
10-Q and 10-K and all current reports on Form 8-K and all proxy statements which
the Company is then required to file with the Commission pursuant to Section 13
or 15(d) of the Exchange Act; provided, that any such information or reports
required to be filed with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act shall be filed with the Trustee within 15 days after the same is
required to be filed with the Commission, and provided further that if the
Company files the reports required by this Section 10.05 with the Commission and
such reports are publicly available, it shall be deemed to have satisfied its
obligation to furnish such reports pursuant to this Section 10.05.
SECTION
10.06 Resale of Certain
Securities.
During
the period beginning on the Issue Date and ending on the date that is two years
from the Issue Date, the Company shall not, and shall not permit any of its
“affiliates” (as defined under Rule 144 under the Securities Act or any
successor provision thereto) to, resell any Securities which constitute
“restricted securities” under Rule 144 that have been reacquired by any of them.
The Trustee shall have no responsibility in respect of the Company’s performance
of its agreement in the preceding sentence.
SECTION
10.07 Book-Entry
System.
If the
Securities cease to trade in the Depositary’s book-entry settlement system, the
Company covenants and agrees that it shall use reasonable efforts to make such
other book-entry arrangements that it determines are reasonable for the
Securities.
ARTICLE
11.
OPTIONAL
REDEMPTION OF SECURITIES
SECTION
11.01 Applicability of
Article.
Securities
of any series which are redeemable before their Stated Maturity shall be
redeemable in accordance with their terms and (except as otherwise specified as
contemplated by Section 3.01 for Securities of any series) in accordance with
this Article.
SECTION
11.02 Election to Redeem; Notice
to Trustee.
The
election of the Company to redeem any Securities shall be evidenced by a Board
Resolution. In case of any redemption at the election of the Company of less
than all the Securities of any series, the Company shall, at least 60 days prior
to the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the
tenor, if applicable, of the Securities to be redeemed, and of the principal
amount of Securities of such series to be redeemed. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers’ Certificate
evidencing compliance with such restriction.
SECTION
11.03 Selection by Trustee of
Securities to Be Redeemed.
If less
than all the Securities of any series are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities of that
series or any integral multiple thereof) of the principal amount of Securities
of such series of a denomination larger than the minimum authorized denomination
for Securities of that series.
The
Trustee shall promptly notify the Company in writing of the Securities selected
for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all
purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case of
any Securities redeemed or to be redeemed only in part, to the portion of the
principal amount of such Securities which has been or is to be
redeemed.
SECTION
11.04 Notice of
Redemption.
Notice of
redemption shall be given by first-class mail, postage prepaid, mailed not less
than 30 nor more than 60 days prior to the Redemption Date to each Holder of
Securities to be redeemed, at the address appearing in the Security
Register.
All
notices of redemption shall state:
(a) the
Redemption Date,
(b) the
Redemption Price,
(c) if less
than all the Outstanding Securities of any series are to be redeemed, the
identification (and, in the case of partial redemption, the principal amounts)
of the particular Securities to be redeemed,
(d) that on
the Redemption Date the Redemption Price will become due and payable upon each
such Security to be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(e) the place
or places where such Securities are to be surrendered for payment of the
Redemption Price,
(f) the CUSIP
numbers, if any, of such Security,
(g) for any
Securities that by their terms may be converted, the terms of conversion, the
date on which the right to convert the Security to be redeemed will terminate
and the place or places where such Securities may be surrendered for conversion,
and
(h) that the
redemption is for a sinking fund, if such is the case.
Notice of
redemption of Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Company’s request, by the Trustee in the name
and at the expense of the Company, and shall be irrevocable. The notice of
redemption mailed in the manner herein provided shall be conclusively presumed
to have been duly given whether or not the Holder receives such notice. In any
case, failure to give such notice by mail or any defect in the notice to the
Holder of any Security shall not affect the validity of the proceeding for the
redemption of any other Security.
SECTION
11.05 Deposit of Redemption
Price.
Prior to
10:00 a.m. New York City time on any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 10.03) an
amount of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all the
Securities which are to be redeemed on that date, other than any Securities
called for redemption on that date which have been converted prior to the date
of such deposit.
If any
Security called for redemption is converted, any money deposited with the
Trustee or with any Paying Agent or so segregated and held in trust for the
redemption of such Security shall (subject to any right of the Holder of such
Security or any Predecessor Security to receive interest as provided in the last
paragraph of Section 3.07 or in the terms of such Security) be paid to the
Company upon Company Request or, if then held by the Company, shall be
discharged from such trust.
SECTION
11.06 Securities Payable on
Redemption Date.
Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest), such
Securities shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided,
however, that installments of interest whose Stated Maturity is on or
prior to the Redemption Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 3.07.
If any
Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal and any premium shall, until paid, bear interest from
the Redemption Date at the rate prescribed therefor in the
Security.
SECTION
11.07 Securities Redeemed in
Part.
Any
Security which is to be redeemed only in part shall be surrendered at a Place of
Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge to the Holder, a new Security or Securities of the same series and of
like tenor, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
ARTICLE
12.
DEFEASANCE
AND COVENANT DEFEASANCE
SECTION
12.01 Company’s Option to Effect
Defeasance or Covenant Defeasance.
The
Company may elect, at its option at any time, to have Section 12.02 or Section
12.03 applied to any series of the Outstanding Securities upon compliance with
the conditions set forth below in this Article. Any such election shall be
evidenced by a Board Resolution.
SECTION
12.02 Defeasance and
Discharge.
Upon the
Company’s exercise of its option (if any) to have this Section applied to the
Outstanding Securities of any series, the Company shall be deemed to have been
discharged from its obligations with respect to such series of Securities as
provided in this Section on and after the date the conditions set forth in
Section 12.04 are satisfied (hereinafter called “Defeasance”) . For this
purpose, such Defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding Securities of
such series and to have satisfied all its other obligations under such series of
Securities and this Indenture insofar as such series of Securities are concerned
(and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), subject to the following which shall
survive until otherwise terminated or discharged hereunder: (a) the rights of
Holders of such series of Securities to receive, solely from the trust fund
described in Section 12.04 and as more fully set forth in such Section, payments
in respect of the principal of and interest on such Securities when payments are
due, (b) the Company’s obligations with respect to such series of Securities
under Sections 3.04, 3.05, 3.06, 10.02 and 10.03, (c) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (d) this Article.
Subject to compliance with this Article, the Company may exercise its option (if
any) to have this Section applied to the Outstanding Securities of any series
notwithstanding the prior exercise of its option (if any) to have Section 12.03
applied to such series of Securities.
SECTION
12.03 Covenant
Defeasance.
Upon the
Company’s exercise of its option (if any) to have this Section applied to any
series of the Securities, (a) the Company shall, with respect to such series of
Securities, be released from its obligations under Article 8 and (b) the
occurrence of any event specified in Sections 5.01(d) (with respect to Article
8) or 5.01(e) shall be deemed not to be or result in an Event of Default, in
each case with respect to such series of Securities as provided in this Section
on and after the date the conditions set forth in Section 12.04 are satisfied
(hereinafter called “Covenant Defeasance”) . For this purpose, such Covenant
Defeasance means that, with respect to such series of Securities, the Company
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such specified Section (to the extent
so specified in the case of Section 5.01(d)), whether directly or indirectly by
reason of any reference elsewhere herein to any such Section or by reason of any
reference in any such Section to any other provision herein or in any other
document, but the remainder of this Indenture and such series of Securities
shall be unaffected thereby.
SECTION
12.04 Conditions to Defeasance or
Covenant Defeasance.
The
following shall be the conditions to the application of Section 12.02 or Section
12.03 to the then Outstanding Securities of any series:
(a) The
Company shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee which satisfies the requirements contemplated by
Section 6.09 and agrees to comply with the provisions of this Article applicable
to it) as trust funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefits of
the Holders of such series of Securities, (i) money in an amount, or (ii) U.S.
Government Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, money in an amount, or
(iii) a combination thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or any such other qualifying trustee)
to pay and discharge, the principal of and interest, if any, on such series of
Securities on the respective Stated Maturities, in accordance with the terms of
this Indenture and such series of Securities. As used herein, “U.S. Government
Obligation” means (x) any security which is (1) a direct obligation of the
United States of America for the payment of which the full faith and credit of
the United States of America is pledged or (2) an obligation of a Person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of America, which, in
either case (1) or (2), is not callable or redeemable at the option of the
issuer thereof, and (y) any depositary receipt issued by a bank (as defined in
Section 3(a) (2) of the Securities Act) as custodian with respect to any U.S.
Government Obligation which is specified in Clause (x) above and held by such
bank for the account of the holder of such depositary receipt, or with respect
to any specific payment of principal of or interest on any U.S. Government
Obligation which is so specified and held, provided that (except as
required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depositary receipt from any amount received
by the custodian in respect of the U.S. Government Obligation or the specific
payment of principal or interest evidenced by such depositary
receipt.
(b) In the
event of an election to have Section 12.02 apply to such series of Securities,
the Company shall have delivered to the Trustee an Opinion of Counsel stating
that (i) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (ii) since the date of this instrument,
there has been a change in the applicable Federal income tax law, in either case
(i) or (ii) to the effect that, and based thereon such opinion shall confirm
that, the Holders of such series of Securities will not recognize gain or loss
for Federal income tax purposes as a result of the deposit, Defeasance and
discharge to be effected with respect to such series of Securities and will be
subject to Federal income tax on the same amount, in the same manner and at the
same times as would be the case if such deposit, Defeasance and discharge were
not to occur.
(c) In the
event of an election to have Section 12.03 apply to such series of Securities,
the Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of such series of Securities will not recognize gain or
loss for Federal income tax purposes as a result of the deposit and Covenant
Defeasance to be effected with respect to such series of Securities and will be
subject to Federal income tax on the same amount, in the same manner and at the
same times as would be the case if such deposit and Covenant Defeasance were not
to occur.
(d) The
Company shall have delivered to the Trustee an Officers’ Certificate to the
effect that such series of Securities, if then listed on any securities
exchange, will not be delisted as a result of such deposit.
(e) No event
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to such series of Securities shall have occurred and be
continuing at the time of such deposit or, with regard to any such event
specified in Sections 5.01(f) and 5.01(g), at any time on or prior to the
90th
day after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until after such 90th
day).
(f) Such
Defeasance or Covenant Defeasance shall not cause the Trustee to have a
conflicting interest within the meaning of the Trust Indenture Act (assuming all
Securities are in default within the meaning of such Act).
(g) Such
Defeasance or Covenant Defeasance shall not result in a breach or violation of,
or constitute a default under, any other agreement or instrument to which the
Company is a party or by which the Company is bound.
(h) Such
Defeasance or Covenant Defeasance shall not result in the trust arising from
such deposit constituting an investment company within the meaning of the
Investment Company Act unless such trust shall be registered under such Act or
exempt from registration thereunder.
(i) The
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent with respect to
such Defeasance or Covenant Defeasance have been complied with.
SECTION
12.05 Deposited Money and U.S.
Government Obligations to be Held in Trust; Miscellaneous
Provisions.
Subject
to the provisions of the last paragraph of Section 10.03, all money and U.S.
Government Obligations (including the proceeds thereof) deposited with the
Trustee or other qualifying trustee (solely for purposes of this Section and
Section 12.06, the Trustee and any such other trustee are referred to
collectively as the “Trustee”) pursuant to Section 12.04 in respect of the
Outstanding Securities of such series shall be held in trust and applied by the
Trustee, in accordance with the provisions of such series of Securities and this
Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such series of Securities, of all sums due and to
become due thereon in respect of principal and interest, but money so held in
trust need not be segregated from other funds except to the extent required by
law.
The
Company shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 12.04 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of Outstanding Securities.
Anything
in this Article to the contrary notwithstanding, the Trustee shall deliver or
pay to the Company from time to time upon Company Request any money or U.S.
Government Obligations held by it as provided in Section 12.04 with respect to
the Outstanding Securities of any series which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect the Defeasance or
Covenant Defeasance, as the case may be, with respect to such series of
Securities.
SECTION
12.06 Reinstatement.
If the
Trustee or the Paying Agent is unable to apply any money in accordance with this
Article with respect to the Outstanding Securities of any series by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the obligations
under this Indenture and such series of Securities from which the Company has
been discharged or released pursuant to Section 12.02 or 12.03 shall be revived
and reinstated as though no deposit had occurred pursuant to this Article with
respect to such series of Securities, until such time as the Trustee or Paying
Agent is permitted to apply all money held in trust pursuant to Section 12.05
with respect to such series of Securities in accordance with this Article; provided, however, that if
the Company makes any payment of principal of or interest on any such Security
of that series following such reinstatement of its obligations, the Company
shall be subrogated to the rights (if any) of the Holders of such series of
Securities to receive such payment from the money so held in trust.
ARTICLE
13.
SINKING
FUNDS
SECTION
13.01 Applicability of
Article.
The
provisions of this Article shall be applicable to any sinking fund for the
retirement of Securities of any series if so specified as contemplated by
Section 3.01 for Securities of such series.
The
minimum amount of any sinking fund payment provided for by the terms of the
Securities of any series is herein referred to as a “mandatory sinking fund
payment”, and any payment in excess of such minimum amount provided for by the
terms of the Securities of any series is herein referred to as an “optional
sinking fund payment”. If provided for by the terms of the Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 13.02. Each sinking fund payment shall be applied to the
redemption of the Securities of any series as provided for by the terms of the
Securities of such series.
SECTION
13.02 Satisfaction of Sinking Fund
Payments with Securities.
The
Company (1) may deliver Outstanding Securities of a series (other than any
previously called for redemption) and (2) may apply as a credit Securities of a
series which have been converted in accordance with their terms or which have
been redeemed either at the election of the Company pursuant to the terms of
such Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case in satisfaction
of all or any part of any sinking fund payment with respect to the Securities of
such series required to be made pursuant to the terms of the Securities of such
series as provided for by the terms of such series; provided that the Securities
to be so credited have not been previously so credited. The Securities to be so
credited shall be received, together with an Officers’ Certificate with respect
thereto, not later than 15 days prior to the date on which the Trustee begins
the process of selecting Securities for redemption, and shall be credited for
such purpose by the Trustee at the Redemption Price, as specified in the
Securities to be so redeemed (or at such other prices as may be specified for
such Securities as contemplated in Section 3.01), for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
If as a
result of the delivery or credit of Securities in lieu of cash payments pursuant
to this Section 13.02, the principal amount of Securities of such series to be
redeemed in order to exhaust the aforesaid cash payment shall be less than
$100,000, the Trustee need not call Securities of such series for redemption,
except upon receipt of a Company Order that such action be taken, and such cash
payment shall be held by the Trustee or a Paying Agent and applied to the next
succeeding sinking fund payment, provided, however, that the Trustee or such
Paying Agent shall from time to time upon receipt of a Company Order pay over
and deliver to the Company any cash payment so being held by the Trustee or such
Paying Agent upon delivery by the Company to the Trustee of Securities of that
series purchased by the Company having an unpaid principal amount equal to the
cash payment required to be released to the Company.
SECTION
13.03 Redemption of Securities for
Sinking Fund.
Not less
than 60 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers’ Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of such Securities, the portion thereof, if any, which is
to be satisfied by payment of cash and the portion thereof, if any, which is to
be satisfied by delivering and crediting Securities of that series pursuant to
Section 13.02 stating that such Securities have not been previously used as a
credit against any sinking fund payment and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 days before each such sinking
fund payment date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 11.03 and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 11.04. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Section 11.05, 11.06 and 11.07.
This
instrument may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed as of the day and year first above written.
|
EMCORE
Corporation
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By
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________________________________
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______________________,
as
Trustee,
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By
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_______________________________
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By
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_______________________________
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Exhibit
5.1
DILLON,
BITAR & LUTHER L.L.C.
53 MAPLE
AVENUE
MORRISTOWN,
NJ 07960
June 30,
2009
Emcore
Corporation
10420
Research Road, S.E.
Albuquerque,
NM 87123
Re: Emcore
Corporation
Registration Statement on
Form S-3
Ladies
and Gentlemen:
We are providing this opinion letter in
our capacity as special counsel to Emcore Corporation, a New Jersey corporation
(the "Company"), in connection with the filing by the Company of a registration
statement on Form S-3 (the "Registration Statement") under the Securities Act of
1933, as amended (the "Securities Act"), with the United States Securities and
Exchange Commission (the "Commission"). The Registration Statement
relates to the sale by the Company of (a) Common Stock, no par value per share,
(b) Preferred Stock, (c) Debt Securities, (d) Warrants, (e) Units, and (f) any
combination of the foregoing (collectively, the “Securities”) to be issued by
the Company in the future upon the filing of an appropriate amendment to the
Registration Statement and/or Supplement to the Prospectus contained
therein. The Debt Securities will be issued pursuant to an indenture
by and among the Company, as issuer, and a trustee to be selected by the
Company(the “Trustee”), in the form included as Exhibit 4.2 to the Registration
Statement, as such indenture may be amended or supplemented from time to time
(the “Indenture”).
You have requested that we render the
opinion set forth in this letter and we are furnishing this opinion in
accordance with the requirements of Part II, Item 16 of Form S-3 and Item
601(b)(5)(i) of Regulation S-K promulgated by the Commission under the
Securities Act.
In connection with the foregoing
registration, we have examined originals, or copies certified or otherwise
identified to our satisfaction of, (i) the form of Registration Statement and
the form of Indenture, each as provided to us by the Company, (ii) the Company's
Restated Certificate of Incorporation, as amended and restated to date (the
"Certificate of Incorporation"), (iii) the Company's By-Laws, as amended and/or
restated to date (the "By-Laws"), (iv) certain resolutions of the Board of
Directors of the Company relating to the Registration Statement, and (v) such
other documents as we have deemed necessary or appropriate for purposes of
rendering the opinion set forth herein.
In our examination, we have assumed the
legal capacity of all natural persons, the genuineness of all signatures, the
authenticity of all documents submitted to us as certified or photostatic copies
and the authenticity of the originals of such latter documents. With
your consent, we have also assumed (a) that each of the Debt Securities and the
Indenture, and any other documents executed by parties other than the Company
with respect to the Securities (collectively, the “Documents”) have been duly
authorized, executed and delivered by the parties thereto other than the
Company, (b) that the Documents constitute legally valid and binding obligations
of the parties thereto other than the Company, enforceable against each of them
in accordance with their respective terms, and (c) that the status of the
Documents as legally valid and binding obligations of the parties is not
affected by any (i) breaches of, or defaults under, agreements or instruments,
(ii) violations of statutes, rules, regulations or court or governmental orders,
or (iii) failures to obtain required consents, approvals or authorizations from,
or to make required registrations, declarations or filings with, governmental
authorities. As to any facts material to the opinion expressed herein that were
not independently established or verified, we have relied upon statements and
representations of officers and other representatives of the Company and
others.
Based upon and subject to the
foregoing, we are of the opinion that:
1. When
an issuance of Common Stock has been duly authorized by all necessary corporate
action of the Company, upon issuance, delivery and payment therefor and in an
amount not less than the par value thereof, in an amount less than or equal to
the number of shares of Common Stock authorized by the Company’s certificate of
Incorporation remaining available for issuance and in the manner contemplated by
the Registration Statement and Prospectus Documents and by such corporate
action, such shares of Common Stock will be validly issued, fully paid and
nonassessable.
2. When
a series of Preferred Stock has been duly established in accordance with the
terms of the Company’s Certificate of Incorporation, and authorized by all
necessary corporate action of the Company, in an amount less than or equal to
the number of shares of Preferred Stock authorized by the Company’s certificate
of Incorporation remaining available for issuance, and upon issuance, delivery
and payment therefor in the manner contemplated by the Registration Statement
and Prospectus Documents and by such corporate action, such shares of such
series of Preferred Stock will be validly issued, fully paid and
nonassessable.
3. When
an appropriately qualified trustee has been selected and agrees to act as
Trustee under the Indenture, the Indenture has been duly authorized, executed
and delivered by the Company, and when the specific terms of any particular
series of Debt Securities have been duly established in accordance with the
Indenture and applicable law and authorized by all necessary corporate action of
the Company (including, without limitation, by the adoption by the Board of
Directors of the Company of resolutions duly authorizing the issuance and
delivery of such Debt Securities), and when any such Debt Securities have been
duly executed and issued by the Company, duly authenticated by the Trustee and
duly delivered by or on behalf of the Company against payment therefor in
accordance with the Indenture and in the manner contemplated by the Registration
Statement and Prospectus Documents and by such corporate action, such Debt
Securities will be the legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms.
4. When
a Warrant Agreement has been duly authorized, executed and delivered by the
Company in accordance with applicable law, the specific terms of a particular
issuance of Warrants have been duly established in accordance with the Warrant
Agreement and authorized by all necessary corporate action of the Company, and
the Warrants have been duly executed, authenticated, issued and delivered
against payment therefor in accordance with the Warrant Agreement and in the
manner contemplated by the Registration Statement and Prospectus Documents and
by such corporate action (assuming the securities issuable upon exercise of the
Warrants have been duly authorized and reserved for issuance by all necessary
corporate action and in accordance with applicable law), the Warrants will be
legally valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms.
5. When
Units have been duly authorized, executed and delivered by the Company in
accordance with applicable law, the specific terms of a particular issuance of
Units have been duly established and authorized by all necessary corporate
action of the Company, and the Units have been duly executed, authenticated,
issued and delivered against payment therefor in accordance with the Warrant
Agreement and in the manner contemplated by the Registration Statement and
Prospectus Documents and by such corporate action (assuming the securities
issuable upon exercise of the Units have been duly authorized and reserved for
issuance by all necessary corporate action and in accordance with applicable
law), the Units will be legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms.
Our
opinions are limited to the laws of the State of New Jersey. Our
opinions are subject to: (i) the effect of bankruptcy, insolvency,
reorganization, preference, fraudulent transfer, moratorium or other similar
laws relating to or affecting the rights and remedies of creditors; (ii) the
effect of general principles of equity, whether considered in a proceeding in
equity or at law (including the possible unavailability of specific performance
or injunctive relief), concepts of materiality, reasonableness, good faith and
fair dealing, and the discretion of the court before which a proceeding is
brought; (iii) the invalidity under certain circumstances under law or court
decisions of provisions providing for the indemnification of or contribution to
a party with respect to a liability where such indemnification or contribution
is contrary to public policy; and (iv) we express no opinion as to (a) any
provision for liquidated damages, default interest, late charges, monetary
penalties, make-whole premiums or other economic remedies to the extent such
provisions are deemed to constitute a penalty, (b) consents to, or restrictions
upon, governing law, jurisdiction, venue, arbitration, remedies or judicial
relief, (c) any waiver of rights or defenses under usury laws; (d) any provision
requiring the payment of attorneys’ fees, where such payment is contrary to law
or public policy; (e) any provision permitting, upon acceleration of the Debt
Securities, collection of that portion of the stated principal amount thereof
which might be determined to constitute unearned interest thereon; and (f) the
severability, if invalid, of provisions to the foregoing effect.
We hereby consent to the filing of this
opinion with the Commission as Exhibit 5. In giving this consent, we
do not hereby admit that we are in the category of persons whose consent is
required under Section 7 of the Securities Act or the rules and regulations of
the Commission promulgated thereunder.
This opinion is limited to the specific
issues addressed herein, and no opinion may be inferred or implied beyond that
expressly stated herein. We assume no obligation to revise or
supplement this opinion should the present laws of the State of New Jersey be
changed by legislative action, judicial decision or otherwise.
Very truly yours,
//s/ Dillon, Bitar &
Luther, L.L.C.
DILLON,
BITAR & LUTHER, L.L.C.
Exhibit
12.1
|
EMCORE
CORPORATION AND SUBSIDIARIES
|
||||||||||||||||||||
|
Ratio
of Earnings to Fixed Charges
|
||||||||||||||||||||
|
(In
thousands, except ratio)
|
||||||||||||||||||||
|
Year
Ended September 30,
|
||||||||||||||||||||
|
2008
|
2007
|
2006
|
2005
|
2004
|
||||||||||||||||
|
Fixed
charges, as defined by the Securities and Exchange
Commission:
|
||||||||||||||||||||
|
|
||||||||||||||||||||
|
Interest
on long-term debt
|
$
|
1,580
|
$
|
4,985
|
$
|
5,352
|
$
|
4,844
|
$
|
6,156
|
||||||||||
|
Imputed
interest in rents
|
|
533
|
|
533
|
|
700
|
|
633
|
|
767
|
||||||||||
|
Total
Fixed Charges*
|
$
|
2,113
|
$
|
5,518
|
$
|
6,052
|
$
|
5,477
|
$
|
6,923
|
||||||||||
|
Earnings,
as defined by the Securities and Exchange Commission:
|
||||||||||||||||||||
|
|
||||||||||||||||||||
|
Earnings
from continuing operations before income taxes
|
$
|
(80,860
|
)
|
$
|
(58,722
|
)
|
$
|
46,891
|
$
|
(24,685
|
)
|
$
|
(28,376
|
)
|
||||||
|
Fixed
charges as above
|
2,113
|
5,518
|
6,052
|
5,477
|
6,923
|
|||||||||||||||
|
Earnings
Available for Fixed Charges
|
$
|
(78,747
|
)
|
$
|
(53,204
|
)
|
$
|
52,943
|
$
|
(19,208
|
)
|
$
|
(21,453
|
)
|
||||||
|
Ratio
of Earnings to Fixed Charges
|
N/M
|
**
|
N/M
|
**
|
10
|
N/M
|
**
|
N/M
|
**
|
|||||||||||
|
*Fixed
Charges consist of interest expense and our estimate of an appropriate
portion of rentals representative of the interest factor. The estimate of
interest within rental expense is estimated to be one-third of rental
expense.
**The
ratio of earnings to fixed charges for the six-months ended March 31, 2009
and for the years ended September 30, 2008, 2007, 2005 and 2004 are not
meaningful since earnings available for fixed charges is negative for
those periods. The shortfall in the earnings available for
fixed charges to achieve a ratio of earnings to fixed charges of 1.00
amounted to $77.1 million for the six months ended March 31, 2009 and
$80.9 million, $58.7 million, $24.7 million, and 28.4 million for the
years ended September 30, 2008, 2007, 2005 and 2004
respectively.
|
||||||||||||||||||||
Exhibit
21.1
SUBSIDIARIES
OF REGISTRANT*
Corona
Optical Systems, Inc., a Delaware corporation
K2
Optronics, Inc., a Delaware corporation
EMCORE
IRB Company, Inc., a New Mexico corporation
EMCORE
Hong Kong, Limited, a Hong Kong corporation
Langfang
EMCORE Optoelectronics Company, Limited, a Chinese corporation
Opticomm
Corporation, a Delaware corporation
EMCORE
Solar Power, Inc., a Delaware corporation
EMCORE
Netherlands B.V.
EMCORE
Spain S.L.
EMCORE
IRB Company, LLC, a New Mexico limited liability company
*As
of June 30, 2009
Exhibit
23.1
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
consent to the incorporation by reference in this Registration Statement on Form
S-3 of our reports dated December 30, 2008, relating to the consolidated
financial statements of EMCORE Corporation and subsidiaries (which report
expresses an unqualified opinion and includes an explanatory paragraph relating
to EMCORE Corporation’s ability to continue as a going concern), and the
effectiveness of EMCORE Corporation and subsidiaries' internal control over
financial reporting, appearing in the Annual Report on Form 10-K of EMCORE
Corporation for the year ended September 30, 2008, and to the reference to us
under the heading “Experts” in the Prospectus, which is part of this
Registration Statement.
/s/ Deloitte & Touche
LLP
Deloitte
& Touche LLP
Dallas,
Texas
June 30,
2009