As filed with the Securities and Exchange Commission on June 29, 2026.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VISHAY INTERTECHNOLOGY, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware | 38-1686453 | ||
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) | ||
63 Lancaster Avenue
Malvern, Pennsylvania 19355-2143
(610) 644-1300
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Joel Smejkal
President and Chief Executive Officer
Vishay Intertechnology, Inc.
63 Lancaster Avenue
Malvern, Pennsylvania 19355
(610) 644-1300
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
Brian M. Katz
David S. Wolpa
Betty Linkenauger Segaar
Troutman Pepper Locke LLP
3000 Two Logan Square
Eighteenth and Arch Streets
Philadelphia, PA 19103-2799
(215) 981-4000
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☒
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer | ☒ | Accelerated filer | ☐ | ||||||
Non-accelerated filer | ☐ | Smaller reporting company | ☐ | ||||||
Emerging growth company | ☐ | ||||||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
PROSPECTUS
Vishay Intertechnology, Inc.
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
Subscription Rights
We may, from time to time, offer and sell in one or more series or issuances:
• | shares of our common stock; |
• | shares of preferred stock; |
• | warrants to purchase shares of our common stock, preferred stock and/or debt securities; |
• | debt securities consisting of debentures, notes or other evidences of indebtedness (which may be issued as convertible or exchangeable debt securities); |
• | units consisting of a combination of the foregoing securities; |
• | subscription rights to purchase common stock, preferred stock or debt securities; or |
• | any combination of these securities. |
This prospectus provides a general description of the securities that we may offer. Each time that we offer securities under this prospectus, we will provide the specific terms of the securities offered, including the public offering price, in a supplement to this prospectus. We may also authorize one or more free writing prospectuses to be provided to you in connection with any offering. Any prospectus supplement may add to, update or change information contained in this prospectus. If information in any prospectus supplement or any related free writing prospectus is inconsistent with the information in this prospectus, then the information in that prospectus supplement or any related free writing prospectus will apply and will supersede the information in this prospectus. In addition, we may supplement, update or change any information contained in this prospectus by incorporating information by reference. You should read this prospectus, any applicable prospectus supplement and any related free writing prospectus, together with any additional information described under the headings “Where You Can Find More Information” and “Incorporation of Certain Information by Reference” carefully before you make your investment decision.
The securities offered pursuant to this prospectus may be sold at prevailing market prices or at prices different than prevailing market prices. We may offer or sell these securities to or through underwriters or dealers, directly to purchasers or through agents designated from time to time, or a combination of such methods, on a continuous or delayed basis. For additional information on the methods of sale, you should refer to the section titled “Plan of Distribution” in this prospectus and the comparable section of any applicable prospectus supplement. If any underwriters are involved in the sale of the 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 applicable prospectus supplement.
This prospectus may not be used to offer or sell any securities unless accompanied by a prospectus supplement.
Our common stock is listed on the New York Stock Exchange under the symbol “VSH.” On June 26, 2026, the last reported sale price of our common stock was $56.35 per share. If we decide to list or seek a quotation for any other securities offered hereunder, the applicable prospectus supplement or free writing prospectus will disclose the exchange or market on which those securities will be listed or quoted.
Investing in our securities involves risks. you should carefully consider the risks described under “Risk Factors” on page 5 of this prospectus, as well as the other information contained or incorporated by reference in this prospectus, any applicable prospectus supplement and any related free writing prospectus, before making a decision to invest in our securities.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is June 29, 2026.
This prospectus is part of an automatic shelf registration statement on Form S-3 that we filed with the U.S. Securities and Exchange Commission (the “SEC”) as a “well-known seasoned issuer,” as defined in Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”), utilizing a “shelf” registration process. Under this shelf registration process, we may offer and sell, from time to time in one or more offerings, any combination of the securities described in this prospectus. Because we are a “well-known seasoned issuer,” we may also add to and offer additional securities by filing a prospectus supplement with the SEC at the time of any such offer.
This prospectus provides you with a general description of the securities we may offer. It does not contain all of the information set forth in the registration statement, certain parts of which are omitted in accordance with the rules and regulations of the SEC. Each time we offer and sell securities under this shelf registration statement, we will provide a prospectus supplement. We may also authorize one or more free writing prospectuses to be provided to you in connection with the offering. For the purposes of the discussion in this prospectus, the term “prospectus supplement” shall also include any related free writing prospectus. The prospectus supplement will contain specific information about the terms of the securities being offered and the terms of that offering, including the type and amount of securities being offered, the offering price, and the names of any underwriters, dealers or agents and any applicable commissions, discounts or over-allotment options. A prospectus supplement may also include a discussion of any risk factors or other special considerations applicable to those securities or to us. Any prospectus supplement may also add, update or change information contained or incorporated by reference in this prospectus. If there is any inconsistency between the information in this prospectus and the applicable prospectus supplement, you should rely on the information in the document with the most recent date. Wherever references are made in this prospectus to information that will be included in a prospectus supplement, to the extent permitted by applicable law, rules or regulations, we may instead include such information or add, update or change the information contained in this prospectus by means of a post-effective amendment to the registration statement of which this prospectus is a part, through filings we make with the SEC that are incorporated by reference in this prospectus, or by any other method as may then be permitted under applicable law, rules or regulations.
We have not authorized any other person to provide you with any information other than what is contained or incorporated by reference in this prospectus, any applicable prospectus supplement or any free writing prospectus prepared by or on behalf of us or to which we have referred you. We take no responsibility for, and provide no assurance as to, the reliability of any other information that others may give you. You should not assume that the information contained or incorporated by reference in this prospectus or any applicable prospectus supplement is accurate as of any date subsequent to the date set forth on the front of the document, or that any information we have incorporated by reference is correct on any date subsequent to the date of the document incorporated by reference, even though this prospectus or any accompanying prospectus supplement is delivered or securities are sold on a later date. Our business, financial condition, results of operations and prospects may have changed since those dates. This prospectus and any accompanying prospectus supplement do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the securities to which they relate, nor do this prospectus and any accompanying prospectus supplement constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction.
You should read this prospectus, any applicable prospectus supplement, the related exhibits filed with the SEC, and the documents incorporated by reference herein and therein carefully and in their entirety before making an investment decision. In particular, you should carefully consider the risks and uncertainties described under the section titled “Risk Factors” in any applicable prospectus supplement or incorporated by reference in this prospectus before deciding whether to purchase any securities. Please also refer to the additional information described under the headings “Where You Can Find More Information” and “Incorporation of Certain Information by Reference” in this prospectus.
References in this prospectus to the terms “we,” “us,” “our,” the “Company” and “Vishay” or other similar terms refer to Vishay Intertechnology, Inc. and its consolidated subsidiaries, unless expressly stated or the context otherwise indicates.
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This prospectus and the documents incorporated herein by reference contain forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) that are based on our management’s beliefs and assumptions and on information available to our management as of the date hereof or as of the date of any such document incorporated herein by reference, as the case may be. Forward-looking statements are inherently subject to risks and uncertainties, some of which cannot be predicted or quantified. All statements other than present and historical facts and conditions contained in this prospectus and the documents incorporated herein by reference, including statements regarding our future results of operations and financial position, business strategy, plans and our objectives for future operations, are forward-looking statements. In some cases, you can identify forward-looking statements because they contain words such as “anticipate,” “believe,” “contemplate,” “continue,” “could,” “estimate,” “expect,” “intend,” “may,” “plan,” “potential,” “predict,” “project,” “should,” “target,” “will” or “would” or the negative of these words or other similar terms or expressions.
We have based the forward-looking statements contained in this prospectus and the documents incorporated herein by reference primarily on our expectations and projections about future events and trends as of the date hereof or as of the date of the applicable document incorporated herein by reference, as the case may be, that we believe may affect our business, financial condition, results of operations, prospects, business strategy and financial needs. Such statements are based on current expectations only, and are subject to certain risks, uncertainties and assumptions, many of which are beyond our control. Should one or more of these risks or uncertainties materialize, or should underlying assumptions prove incorrect, actual results, performance, or achievements may vary materially from those anticipated, estimated or projected. Among the factors that could cause actual results to materially differ include:
• | general business and economic conditions; manufacturing or supply chain interruptions or changes in customer demand; |
• | delays or difficulties in implementing our cost reduction strategies; |
• | delays or difficulties in expanding our manufacturing capacities; |
• | an inability to attract and retain highly qualified personnel; |
• | changes in foreign currency exchange rates; uncertainty related to the effects of changes in foreign currency exchange rates; |
• | competition and technological changes in our industries; |
• | difficulties in new product development; difficulties in identifying suitable acquisition candidates, consummating a transaction on terms which we consider acceptable, and integration and performance of acquired businesses; |
• | changes in U.S. and foreign trade regulations and tariffs, and uncertainty regarding the same; |
• | volatility in prices for metals and materials; |
• | changes in applicable domestic and foreign tax regulations, and uncertainty regarding the same; |
• | changes in applicable accounting standards; and |
• | other factors described in the section titled “Risk Factors” in this prospectus, our Annual Report on Form 10-K for the year ended December 31, 2025 and our Quarterly Report on Form 10-Q for the quarter ended April 4, 2026. |
Additionally, we operate in a very competitive and rapidly changing environment. New risks and uncertainties emerge from time to time and it is not possible for us to predict all risks and uncertainties that could have an impact on the forward-looking statements contained in this prospectus and the documents incorporated herein by reference. We cannot assure you that the results, events and circumstances reflected in the forward-looking statements will be achieved or occur, and actual results, events or circumstances could differ materially from those described in the forward-looking statements. In light of the significant uncertainties in these forward-looking statements, you should not regard these statements as a representation or warranty by us or any other person that we will achieve our objectives and plans in any specified time frame or at all.
In addition, statements that “we believe” and similar statements reflect our beliefs and opinions on the relevant subject. These statements are based upon information available to us as of the date of this prospectus or the applicable
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document incorporated herein by reference, as the case may be, and while we believe such information forms a reasonable basis for such statements, such information may be limited or incomplete, and our statements should not be read to indicate that we have conducted an exhaustive inquiry into, or review of, all potentially available relevant information. These statements are inherently uncertain and investors are cautioned not to unduly rely upon these statements.
The forward-looking statements made in this prospectus and the documents incorporated herein by reference relate only to events as of the date on which such statements are made. We undertake no obligation to update any forward-looking statements after the date of this prospectus or to conform such statements to actual results or revised expectations, except as required by law. All forward-looking statements attributable to us are expressly qualified by these cautionary statements.
This prospectus and the documents incorporated herein by reference may contain market data and industry forecasts that were obtained from industry publications. Any such data and forecasts involve a number of assumptions and limitations, and you are cautioned not to give undue weight to such information. We have not independently verified any third-party information.
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This summary highlights selected information contained elsewhere or incorporated by reference in this prospectus and may not contain all the information that you need to consider in making your investment decision. You should read the entire prospectus, any applicable prospectus supplement and the information incorporated herein by reference before making an investment decision. You should pay special attention to the “Risk factors” contained in this prospectus, the applicable prospectus supplement and under similar headings in the other documents that are incorporated into this prospectus to determine whether an investment in the common stock is appropriate for you. References in the offering memorandum to “the Company,” “we,” “us,” “our” and “Vishay” refer to Vishay Intertechnology, Inc. and its consolidated subsidiaries, except where the context otherwise requires or as otherwise indicated. You should read the following summary together with the more detailed information and consolidated financial statements and the notes to those statements included in the documents filed by us with the SEC, which are incorporated herein by reference.
Overview
Vishay manufactures one of the world’s largest portfolios of discrete semiconductors and passive electronic components that support innovative designs in the automotive, industrial, computing, consumer, telecommunications, military, aerospace, and healthcare markets. Serving customers worldwide, Vishay brands itself as The DNA of tech.®
Semiconductors include MOSFETs, diodes, and optoelectronic components. Passive components include resistors, inductors, and capacitors. Our semiconductor components are used for a wide variety of functions, including power control, power conversion, power management, signal switching, signal routing, signal blocking, signal amplification, two-way data transfer, one-way remote control, and circuit isolation. Our passive components are used to restrict current flow, suppress voltage increases, store and discharge energy, control alternating current and voltage, filter out unwanted electrical signals, and perform other functions.
Corporate Information
Vishay is a Delaware corporation founded in 1962 by the late Dr. Felix Zandman. Our principal executive offices are located at 63 Lancaster Avenue, Malvern, Pennsylvania 19355, and our main telephone number is (610) 644-1300. We maintain a website at www.vishay.com where general information about us is available. The information contained on or accessible through our website is not incorporated herein by reference and does not constitute a part of this prospectus.
To find more information about us, please see the sections entitled “Where You Can Find More Information” and “Incorporation of Certain Information by Reference.”
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Investing in our securities involves a high degree of risk. Before making an investment decision, you should carefully consider the risks and uncertainties described under the heading “Risk Factors” in Item 1A of our Annual Report on Form 10-K for the fiscal year ended December 31, 2025, which is incorporated by reference into this prospectus, as well as the risk factors and other information described in any accompanying prospectus supplement and any other filings with the SEC or other documents we incorporate by reference herein or therein (including future filings we make with the SEC that are also incorporated by reference in this prospectus). Each of the risks described in these documents could materially and adversely affect our business, financial condition, results of operations, cash flows and prospects, and could result in a partial or complete loss of your investment. The risks and uncertainties we have described are not the only risks we face. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our business and operations. See “Where You Can Find More Information” and “Incorporation of Certain Information by Reference.”
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Unless we otherwise specify in the applicable prospectus supplement, we currently intend to use the net proceeds from the sale of the securities offered by this prospectus for general corporate purposes, which may include working capital, capital expenditures, manufacturing expenditures, commercial expenditures, repayment and refinancing of debt, acquisitions of new technologies or businesses, investments and other corporate purposes. Additional information on the use of net proceeds from the sale of any securities by us under this prospectus shall be set forth in the prospectus supplement relating to the specific offering.
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General
The following description of our common stock is a summary and does not purport to be complete. It is subject to and qualified in its entirety by reference to our Corrected Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”) and our Amended and Restated Bylaws (the “Bylaws”), in each case, as may be amended from time to time, copies of which are incorporated by reference as exhibits to the registration statement of which this prospectus is a part. Please refer to “Where You Can Find More Information” below for directions on obtaining these documents. We encourage you to read our Certificate of Incorporation, our Bylaws and the applicable provisions of the Delaware General Corporation Law (the “DGCL”) for additional information.
Authorized Shares
As of June 26, 2026, pursuant to our Certificate of Incorporation, we are authorized to issue up to 341,000,000 shares of capital stock, consisting of 1,000,000 shares of preferred stock, par value $1.00 per share, 300,000,000 shares of common stock, par value $0.10 per share, and 40,000,000 shares of Class B common stock, par value $0.10 per share.
As of June 26, 2026, we had 124,030,756 shares of common stock issued and outstanding, 12,097,148 shares of Class B common stock issued and outstanding, and no shares of preferred stock issued and outstanding.
Voting Rights
The holders of common stock are entitled to one vote for each share held. Holders of Class B common stock are entitled to 10 votes for each share held. The common stock and the Class B common stock vote together as one class on all matters subject to stockholder approval, except as set forth in the following sentence. The approval of the holders of common stock and of Class B common stock, each voting separately as a class, is required to authorize issuances of additional shares of Class B common stock other than in connection with stock splits and stock dividends.
Dividend Rights
After any required payment on shares of preferred stock, holders of common stock and Class B common stock are entitled to receive, and share ratably on a per share basis in, all dividends and other distributions declared by the board of directors of Vishay. In the event of a stock dividend or stock split, holders of common stock will receive shares of common stock and holders of Class B common stock will receive shares of Class B common stock. Neither the common stock nor the Class B common stock may be split, divided or combined unless the other is split, divided or combined equally.
Liquidation Rights
In the event of our liquidation or dissolution, the holders of common stock are entitled to receive proportionately all assets available for distribution to stockholders after the payment of all debts and other liabilities and subject to the prior rights of any outstanding preferred stock. Except as otherwise required by the DGCL or as otherwise described herein and provided in our Certificate of Incorporation, each share of common stock and each share of Class B common stock shall have identical powers, preferences and rights, including rights in liquidation.
Class B Common Stock Conversion Rights
Holders of common stock have no conversion rights. Shares of Class B common stock are convertible into shares of our common stock on a one-for-one basis at any time at the option of the holder thereof. The Class B common stock is not transferable except to the holder’s spouse, certain of such holder’s relatives, certain trusts established for the benefit of the holder, the holder’s spouse or relatives, corporations and partnerships beneficially owned and controlled by such holder, such holder’s spouse or relatives, charitable organizations and such holder’s estate. Upon any transfer made in violation of those restrictions, shares of Class B common stock will be automatically converted into shares of our common stock on a one-for-one basis.
Preemptive Rights
Neither the holders of common stock nor the holders of Class B common stock have any preemptive rights to subscribe for additional shares of our capital stock.
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Listing
Our common stock is listed on the New York Stock Exchange under the trading symbol “VSH.” There is no public market for shares of our Class B common stock.
Transfer Agent and Registrar
Computershare Limited is the transfer agent and registrar of our common stock and Class B common stock.
Anti-takeover Provisions Contained in Our Certificate of Incorporation and Bylaws
Certain provisions of our Certificate of Incorporation and Bylaws may make it less likely that our management would be changed or someone would acquire control of our Company without the board of directors’ consent. These provisions may delay, defer, or prevent a change in control or takeover attempts that stockholders may consider to be in their best interests, including tender offers or attempts that might allow stockholders to receive premiums over the market price of our common stock.
Dual-Class Capital Structure
Our Certificate of Incorporation authorizes two classes of common stock: common stock, each share of which is entitled to one vote, and Class B common stock, each share of which is entitled to ten votes. This dual-class structure concentrates voting power in the holders of Class B common stock, which may make it more difficult for third parties to acquire control of our company without the consent of those holders, even if they acquire a majority of the economic interest represented by our outstanding common stock. Transfers of Class B common stock are restricted to “Permitted Transferees” as defined in our Certificate of Incorporation, which include certain family members, trusts, and entities controlled by Class B holders. Any transfer to a non-Permitted Transferee results in automatic conversion of the transferred shares into common stock. In addition, if the number of outstanding shares of Class B common stock falls below 300,000 shares (as adjusted for stock splits and stock dividends), all outstanding shares of Class B common stock will automatically convert into shares of common stock.
Classified Board of Directors
Our Certificate of Incorporation provides that the Board of Directors is divided into three classes of directors, as nearly equal in number as possible, with each class serving a staggered three-year term. As a result, approximately one-third of the board of directors is elected at each annual meeting of stockholders. The staggered board makes it more difficult for a third party to gain control of our board of directors through a single proxy contest, since only one class of directors is up for election at any given annual meeting. As a consequence, directors may not be removed other than for cause.
Director Nomination and Election Procedures
In order to nominate candidates for the Board of Directors, a stockholder must follow the advance notice procedures described in our Bylaws. In general, a stockholder must give written notice of such nomination to our Secretary at least 90 calendar days prior to the first anniversary of the preceding year’s annual meeting of stockholders, together with required information regarding the stockholder proponent and the nominee and the written consent of the nominee to serve as director. Directors are elected by a plurality of the voting power of the shares present and entitled to vote on the election of directors at a meeting at which a quorum is present, meaning that the candidates receiving the greatest number of votes are elected, regardless of whether or not they receive a majority of the votes cast. As a result, “vote no” campaigns to unseat incumbent directors may be ineffective in uncontested elections.
Stockholder Proposal Procedures
Stockholders can propose that business other than nominations to the Board of Directors be considered at an annual meeting of stockholders only if a stockholder follows the advance notice procedures described in our Bylaws. In general, a stockholder must submit a written notice of the proposal together with required information regarding the stockholder and the stockholder’s interest in the proposal to the Board of Directors or our secretary at least 90 calendar days prior to the first anniversary of the preceding year’s annual meeting of stockholders. Stockholders seeking to have a proposal, other than director nominations, considered for inclusion in our annual proxy statement must comply with the requirements of Rule 14a-8 of the proxy rules under the federal securities laws.
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Exclusive Forum
Our Bylaws designate the Court of Chancery of the State of Delaware as the sole and exclusive forum for: (i) any derivative action or proceeding brought on behalf of the Company; (ii) any action asserting a claim of breach of fiduciary duty owed by any director, officer or other employee of the Company to the Company or its stockholders; (iii) any action asserting a claim against the Company or any director, officer or other employee of the Company arising pursuant to the DGCL, our Certificate of Incorporation or our Bylaws; or (iv) any action asserting a claim governed by the internal affairs doctrine, in each case unless the Company determines in writing that it is in the best interests of the Company to select an alternative forum. This exclusive forum provision does not apply to any claim (A) as to which the Court of Chancery determines that there is an indispensable party not subject to the jurisdiction of the Court of Chancery (and such indispensable party does not consent to the personal jurisdiction of the Court of Chancery within ten days following such determination), (B) which is vested in the exclusive jurisdiction of a court or forum other than the Court of Chancery, or (C) for which the Court of Chancery does not have subject matter jurisdiction. If the Court of Chancery dismisses any such action for lack of jurisdiction, the action may be brought in another state court sitting in the State of Delaware or, if no state court located within the State of Delaware has jurisdiction, in the federal district court for the District of Delaware. Although our Bylaws contain this choice of forum provision, it is possible that a court could find the provision to be inapplicable or unenforceable, and our stockholders will not be deemed to have waived our compliance with the federal securities laws and the rules and regulations thereunder.
Related Person Transactions
Our Certificate of Incorporation provides that no contract or transaction between the Company and one or more of its directors or officers, or between the Company and any other entity in which one or more directors or officers have a financial interest, shall be void or voidable solely for that reason, or solely because the interested director’s or officer’s vote was counted, if: (a) the material facts of the relationship or interest are disclosed to and approved in good faith by a majority of the disinterested members of the board of directors or the relevant committee; (b) the material facts are disclosed to and approved in good faith by the stockholders entitled to vote thereon; or (c) the contract or transaction is fair to the Company at the time it is authorized, approved, or ratified. Interested directors may be counted in determining the presence of a quorum at a meeting authorizing such a contract or transaction.
In addition to the provisions contained in our Certificate of Incorporation and Bylaws, we are subject to Section 203 of the DGCL. In general, Section 203 prohibits a publicly held Delaware corporation from engaging in a “business combination” with an “interested stockholder” for a period of three years following the date the person became an interested stockholder, unless:
• | prior to the date the person became an interested stockholder, our board of directors approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder; |
• | upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of our voting stock outstanding at the time the transaction commenced, excluding for purposes of determining the number of shares of voting stock outstanding (but not the outstanding voting stock owned by the interested stockholder) those shares owned by (i) persons who are directors and also officers and (ii) employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or |
• | at or subsequent to the date the person became an interested stockholder, the business combination is approved by our board of directors and authorized at an annual or special meeting of our stockholders, and not by written consent, by the affirmative vote of at least 662∕3% of the outstanding voting stock that is not owned by the interested stockholder. |
For purposes of Section 203, a “business combination” includes, among other things, mergers, asset sales, and other transactions resulting in a financial benefit to the interested stockholder. An “interested stockholder” is generally a person who, together with affiliates and associates, owns, or within the three years prior to the determination of interested stockholder status did own, 15% or more of a corporation’s outstanding voting stock.
A Delaware corporation may “opt out” of Section 203 with an express provision in its original certificate of incorporation or an amendment thereto duly adopted by stockholders. We have not opted out of Section 203. As a result, Section 203 may make it more difficult and expensive for a third party to acquire control of us, and could discourage attempts to acquire us, even if such an acquisition would be beneficial to our stockholders.
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We are authorized, pursuant to our Certificate of Incorporation, to issue, from time to time, up to an aggregate of 1,000,000 shares of preferred stock in one or more series. As of June 26, 2026, there were no shares of our preferred stock outstanding.
Our board of directors may, without further action by our stockholders, from time to time, direct the issuance of shares of preferred stock in one or more series. Our board of directors may fix or alter the designation, preferences, rights and any qualification, limitations, or restrictions of the shares of any series, including the dividend rights, dividend rates, conversion rights, voting rights, redemption terms and prices, liquidation preferences and the number of shares constituting any series. Satisfaction of any dividend preferences of outstanding shares of our preferred stock would reduce the amount of funds available for the payment of dividends on shares of our common stock. Holders of shares of our preferred stock may be entitled to receive a preference payment in the event of any liquidation, dissolution or winding-up of the Company before any payment is made to the holders of shares of our common stock. In some circumstances, the issuance of shares of preferred stock may render more difficult or tend to discourage a merger, tender offer or proxy contest, the assumption of control by a holder of a large block of our securities or the removal of incumbent management. Upon the affirmative vote of our board of directors, without stockholder approval, we may issue shares of preferred stock with voting and conversion rights which could adversely affect the holders of shares of our common stock.
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:
• | the title and stated value; |
• | the number of shares offered, the liquidation preference per share and the purchase price; |
• | the dividend rate(s), period(s) and/or payment date(s), or method(s) of calculation for such dividends; |
• | whether dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate; |
• | the procedures for any auction and remarketing, if any; |
• | the provisions for a sinking fund, if any; |
• | the provisions for redemption, if applicable; |
• | any listing of the preferred stock on any securities exchange or market; |
• | whether the preferred stock will be convertible into our common stock or other securities of the Company, and, if applicable, the conversion price (or how it will be calculated), the conversion period and any other terms of conversion (including any anti-dilution provisions, if any); |
• | whether the preferred stock will be exchangeable into debt securities, and, if applicable, the exchange price (or how it will be calculated), the exchange period and any other terms of exchange (including any anti-dilution provisions, if any); |
• | voting rights, if any, of the preferred stock; |
• | a discussion of any material U.S. federal income tax considerations applicable to the preferred stock; |
• | the relative ranking and preferences of the preferred stock as to dividend rights and rights upon liquidation, dissolution or winding up of the affairs of the Company; |
• | any material limitations on issuance of any 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 the Company; and |
• | any other affirmative, negative or other covenants or contractual rights which might be attendant with the specific series of preferred stock. |
The preferred stock offered by this prospectus, when issued, will not have, or be subject to, any preemptive or similar rights.
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Transfer Agent and Registrar
The transfer agent and registrar for any series of preferred stock will be set forth in each applicable prospectus supplement.
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This section describes the general terms and provisions of the debt securities that we may offer under this prospectus, any of which may be issued as convertible or exchangeable debt securities. We will set forth the particular terms of the debt securities we offer in a prospectus supplement. The extent, if any, to which the following general provisions apply to particular debt securities will be described in the applicable prospectus supplement. The following description of general terms relating to the debt securities and the indenture under which the debt securities will be issued are summaries only and therefore are not complete. You should read the indenture and the prospectus supplement regarding any particular issuance of debt securities.
We will issue any debt securities under an indenture to be entered into between us and the trustee identified in the applicable prospectus supplement. The terms of the debt securities will include those stated in the indenture any amendment or supplement thereto and those made part of the indenture by reference to the Trust Indenture Act of 1939 (the “Trust Indenture Act”), as in effect on the date of the indenture. We have filed or will file a copy of the form of indenture as an exhibit to the registration statement in which this prospectus is included.
The following statements relating to the debt securities and the indenture are summaries, qualified in their entirety by reference to the detailed provisions of the indenture and the final form indenture which will be filed with a future prospectus supplement and any amendment or supplement thereto.
General
We may issue the debt securities in one or more series with the same or various maturities, at par, at a premium, or at a discount. We will describe the particular terms of each series of debt securities in a prospectus supplement relating to that series, which we will file with the SEC.
The applicable prospectus supplement will set forth, to the extent required, the following terms of the debt securities in respect of which the prospectus supplement is delivered:
• | the title of the series; |
• | the aggregate principal amount; |
• | the issue price or prices, expressed as a percentage of the aggregate principal amount of the debt securities; |
• | any limit on the aggregate principal amount; |
• | the date or dates on which principal is payable; |
• | the interest rate or rates (which may be fixed or variable) or, if applicable, the method used to determine such rate or rates; |
• | the date or dates from which interest, if any, will be payable and any regular record date for the interest payable; |
• | the place or places where principal and, if applicable, premium and interest, is payable; |
• | the terms and conditions upon which we may, or the holders may require us to, redeem or repurchase the debt securities; |
• | the denominations in which such debt securities may be issuable, if other than denominations of $1,000 or any integral multiple of that number; |
• | whether the debt securities are to be issuable in the form of certificated securities (as described below) or global securities (as described below); |
• | the portion of principal amount that will be payable upon declaration of acceleration of the maturity date if other than the principal amount of the debt securities; |
• | the currency of denomination; |
• | the designation of the currency, currencies or currency units in which payment of principal and, if applicable, premium and interest, will be made; |
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• | if payments of principal and, if applicable, premium or interest, on the debt securities are to be made in one or more currencies or currency units other than the currency of denomination, the manner in which the exchange rate with respect to such payments will be determined; |
• | if amounts of principal and, if applicable, premium and interest 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, then the manner in which such amounts will be determined; |
• | the provisions, if any, relating to any collateral provided for such debt securities; |
• | any addition to or change in the covenants and/or the acceleration provisions described in this prospectus or in the indenture; |
• | any events of default, if not otherwise described below under “ - Defaults and Notice”; |
• | the terms and conditions, if any, for conversion into or exchange for shares of our common stock or preferred stock; |
• | any depositaries, interest rate calculation agents, exchange rate calculation agents or other agents; |
• | any guarantees of the debt securities; |
• | the terms and conditions, if any, upon which the debt securities shall be subordinated in right of payment to other indebtedness of the Company; and |
• | the terms and conditions, if any, pursuant to which the debt securities, in whole or in part, shall be defeasible. |
All debt securities of one series need not be issued at the same time and, unless otherwise provided, a series may be reopened, without the consent of any holder, for issuances of additional debt securities of that series with the same terms as the original debt securities of that series (other than the issue price and the interest accrued prior to the issue date of the additional debt securities). We may issue discount debt securities that provide for an amount less than the stated principal amount to be due and payable upon acceleration of the maturity of such debt securities in accordance with the terms of the indenture. We may also issue debt securities in bearer form, with or without coupons. If we issue discount debt securities or debt securities in bearer form, we will describe material U.S. federal income tax considerations and other material special considerations which apply to these debt securities in the applicable prospectus supplement. We may issue debt securities denominated in or payable in a foreign currency or currencies or a foreign currency unit or units. If we do, we will describe the restrictions, elections, and general tax considerations relating to the debt securities and the foreign currency or currencies or foreign currency unit or units in the applicable prospectus supplement.
Exchange and/or Conversion Rights
We may issue debt securities which can be exchanged for or converted into shares of our common stock or preferred stock. If we do, we will describe the terms of exchange or conversion in the prospectus supplement relating to these debt securities.
Transfer and Exchange
We may issue debt securities that will be represented by either:
• | “book-entry securities,” which means that there will be one or more global securities registered in the name of a depositary or a nominee of a depositary; or |
• | “certificated securities,” which means that they will be represented by a certificate issued in definitive registered form. |
We will specify in the prospectus supplement applicable to a particular offering whether the debt securities offered will be book-entry or certificated securities.
If you hold debt securities issued under an indenture, you may transfer or exchange such debt securities in accordance with the terms of the indenture. You will not be charged a service charge for any transfer or exchange of debt securities but may be required to pay an amount sufficient to cover any transfer tax or other governmental charge payable in connection with such transfer or exchange.
Global Securities
The debt securities of a series may be issued in the form of one or more global securities that will be deposited with a depositary or its nominees identified in the prospectus supplement relating to the debt securities. In such a case, one or
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more global securities will be issued in a denomination or aggregate denominations equal to the portion of the aggregate principal amount of outstanding debt securities of the series to be represented by such global security or securities.
Unless and until it is exchanged in whole or in part for debt securities in definitive registered form, a global security may not be registered for transfer or exchange except as a whole by the depositary for such global security to a nominee of the depositary and except in the circumstances described in the prospectus supplement relating to the debt securities. The specific terms of the depositary arrangement with respect to a series of debt securities will be described in the prospectus supplement relating to such series.
Protection in the Event of Change of Control
Any provision in an indenture that governs our debt securities covered by this prospectus that includes any covenant or other provision providing for a put or increased interest or that would otherwise afford holders of our debt securities additional protection in the event of a recapitalization transaction, a change of control of the Company, or a highly leveraged transaction will be described in the applicable prospectus supplement.
Covenants
Unless otherwise indicated in this prospectus or the applicable prospectus supplement, our debt securities may not have the benefit of any covenant that limits or restricts our business or operations, the pledging of our assets or the incurrence by us of indebtedness. We will describe in the applicable prospectus supplement any material covenants in respect of a series of debt securities.
Consolidation, Merger and Sale of Assets
We may agree in any indenture that governs the debt securities of any series covered by this prospectus that we will not consolidate with or merge with or into any other person or convey, transfer, sell or lease our properties and assets substantially as an entirety to any person while such debt securities are outstanding, unless:
• | we are the surviving entity of any such transaction or the successor entity (if other than the Company) formed by such transaction is a corporation, partnership, trust or other entity organized and validly existing under the laws of the United States of America, or any state thereof or the District of Columbia, and expressly assumes by a supplemental indenture or otherwise all of our obligations related to such debt securities under the indenture; and |
• | immediately after giving effect to the merger or consolidation, no default or event of default shall have occurred and be continuing. |
Notwithstanding the foregoing, the indenture may permit any of our subsidiaries to consolidate with, merge into or transfer all or part of its properties to us. Neither an officer’s certificate nor an opinion of counsel will be required to be delivered in connection with any such transaction.
Defaults and Notice
The debt securities of any series will contain events of default to be specified in the applicable prospectus supplement, which may include, without limitation:
• | failure to pay the principal of, or premium, if any, on any debt security of such series when due and payable (whether at maturity, upon redemption, acceleration or otherwise); |
• | failure to make a payment of any interest on any debt security of such series when due and payable and such failure continues for a period of 30 days (unless the entire amount of such payment is deposited with the trustee or with a paying agent prior to the expiration of the 30-day period); |
• | our failure to perform or observe any other covenant or warranty in the indenture with respect to the debt securities of such series (other than defaults pursuant to a covenant or warranty that has been included in the indenture solely for the benefit of a different series of the debt securities), which failure continues uncured for a period of 60 days after we receive written notice of such failure from the trustee, or from the holders of at least 25% in aggregate principal amount of the then-outstanding debt securities of such series, specifying the default and requiring it to be remedied; |
• | certain events relating to our or any guarantor’s bankruptcy, insolvency or reorganization; and |
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• | any other event of default provided with respect to the debt securities of such series, which is specified in a board resolution, a supplemental indenture thereto or an officer’s certificate delivered in connection therewith. |
If an event of default with respect to debt securities of any series (other than an event of default resulting from certain events relating to our or any guarantor’s bankruptcy, insolvency or reorganization) shall occur and be continuing, the trustee or the holders of at least 25% in aggregate principal amount of the then-outstanding debt securities of such series may declare the principal amount of all debt securities of such series (or such lesser amount as may be provided for in the case of discount securities), together with accrued and unpaid interest, if any, thereon, to be due and payable immediately by written notice to us. If an event of default resulting from certain events of our or any guarantor’s bankruptcy, insolvency or reorganization occurs, the principal amount of, and accrued and unpaid interest, if any, on, all outstanding debt securities will become due and payable immediately without any declaration or other act on the part of the trustee or any holder. Any provisions pertaining to events of default and any remedies associated therewith will be described in the applicable prospectus supplement.
Any indenture that governs our debt securities covered by this prospectus may require that the trustee under such indenture shall, within 90 days after a default occurs with respect to debt securities of any series or, if later, after a responsible officer of the trustee has knowledge of such default, give to holders of debt securities of such series notice of such default known to it. However, except in the case of a default that results from the failure to make any payment of the principal of, or interest or premium, if any, on the debt securities of any series, the trustee may withhold such notice if it in good faith determines that the withholding of such notice is in the interest of the holders of debt securities of such series. Any terms and provisions relating to the foregoing types of provisions will be described in further detail in the applicable prospectus supplement.
Any indenture that governs our debt securities covered by this prospectus will contain a provision entitling the trustee to be indemnified by holders of debt securities before instituting a proceeding or pursuing a remedy under the indenture at the request of such holders. Any such indenture may provide that the holders of at least a majority in aggregate principal amount of the then-outstanding debt securities of any series may direct the time, method and place of conducting any proceedings for any remedy available to the trustee, or of exercising any trust or power conferred upon the trustee with respect to the debt securities of such series. However, the trustee under any such indenture may decline to follow any such direction if, among other reasons, the trustee determines that the actions or proceedings as directed may not lawfully be taken, would involve the trustee in personal liability or would be unduly prejudicial to the holders of the debt securities of such series not joining in such direction.
Any indenture that governs our debt securities covered by this prospectus may permit the holders of such debt securities to institute a proceeding with respect to such indenture, subject to certain conditions, which will be specified in the applicable prospectus supplement and which may include that the holders of at least 25% in aggregate principal amount of the debt securities of such series then-outstanding make a prior written request upon the trustee to exercise its power under the indenture, and offer reasonable indemnity to the trustee. Even so, such holders may have an absolute right to receipt of the principal of, or premium, if any, and interest when due, to require conversion or exchange of debt securities if such indenture provides for convertibility or exchangeability at the option of the holder and to institute suit for the enforcement of such rights. Any terms and provisions relating to the foregoing types of provisions will be described in further detail in the applicable prospectus supplement.
Modification of the Indenture
We, any guarantors and the trustee may amend or supplement any indenture that governs our debt securities, or the debt securities of one or more series, without the consent of any holder of any such debt security for certain limited purposes, including, without limitation:
• | to cure any ambiguity, defect or inconsistency; |
• | to provide for the assumption of our obligations by a successor in the event of merger, consolidation or other transfer of properties or assets; |
• | to surrender any of our rights or powers under the indenture; |
• | to add covenants or events of default for the benefit of holders of our debt securities; |
• | to add guarantors or to secure the debt securities; |
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• | to provide for the issuance of and establish the form and terms of a new series of debt securities as permitted by the indenture; or |
• | to make any change that does not adversely affect the rights of any holder. |
We, any guarantors and the trustee may also amend or supplement any such indenture, and holders may waive compliance with any provision of the indenture or the debt securities, with the written consent of the holders of at least a majority in aggregate principal amount of the then-outstanding debt securities of each series affected by such amendment, supplement or waiver. However, without the consent of each holder affected, no amendment, supplement or waiver may;
• | reduce the principal amount of debt securities whose holders must consent to an amendment, supplement or waiver; |
• | reduce the rate of, or extend the time for payment of, interest on any debt security, including default interest; |
• | reduce the principal of or change the stated maturity of any debt security, or reduce the amount of, or postpone the date fixed for, any sinking fund payment or analogous obligation; |
• | reduce the principal amount of discount securities payable upon acceleration of the maturity thereof; |
• | waive a default or event of default in the payment of principal of or interest on any debt security (except a rescission of acceleration by the holders of at least of majority in principal of the then-outstanding debt securities of such series and a waiver of the related payment default); |
• | make the principal of, or interest on (if any), any debt security payable in any currency other than that stated in such debt security; |
• | make any change to any holder’s unconditional right to receive payment of the principal of, or interest on (if any), any debt security on its stated maturity and to institute suit for the enforcement of any such payment; |
• | make any change to the right of the holders of at least a majority in aggregate principal amount of the then- outstanding debt securities of each series to waive a past default and its consequences as provided in the indenture; |
• | make any change to the limitations on amendments as provided in the indenture; |
• | waive a redemption payment with respect to any debt security (provided, that such redemption is made at our option); or |
• | if the debt securities of a series are entitled to the benefit of a guarantee, release any guarantor other than as provided in the indenture or modify the guarantee in any manner adverse to the holders. |
Defeasance; Satisfaction and Discharge
The prospectus supplement relating to the applicable debt securities will outline the conditions under which we may elect to have certain of our obligations under the indenture discharged and under which the indenture obligations will be deemed to be satisfied.
Any indenture that governs our debt securities covered by this prospectus may provide that we may discharge our obligations under such debt securities and the indenture with respect to such debt securities if:
• | either (A) there shall have been canceled by the trustee under the indenture, or delivered to the trustee for cancellation, all debt securities of such series theretofore authenticated and delivered (other than debt securities that have been destroyed, lost or stolen and that have been replaced or paid); or (B) all such debt securities not theretofore delivered to the trustee for cancellation (i) have become due and payable (ii) will become due and payable within one year, (iii) have been called for redemption, (iv) are to be called for redemption within one year under arrangements satisfactory to the trustee, for the giving of notice of redemption by the trustee, or (v) have been deemed paid and discharged pursuant to the indenture; |
• | we have irrevocably deposited or caused to be deposited with the trustee funds in an amount sufficient to pay and discharge the entire indebtedness on the debt securities not theretofore delivered to the trustee for cancellation, for principal, premium, if any, and interest to the maturity or date of redemption; |
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• | we have paid all other sums payable by us under the indenture or deposited all other required sums with the trustee; and |
• | we have delivered to the trustee an officer’s certificate and an opinion of counsel, each stating that all conditions precedent relating to the satisfaction and discharge of this indenture have been complied with. |
Any indenture that governs our debt securities covered by this prospectus may provide that we may be discharged from our obligations with respect to any debt securities, subject to certain exceptions. Further, any indenture that governs our debt securities covered by this prospectus may provide that we may be released from our obligations under certain sections of such indenture, subject to certain exceptions. In either case, such indenture may provide that certain conditions must be satisfied prior to such discharge or release, including, but not limited to:
• | we shall have irrevocably deposited with the trustee, in trust, for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the holders of the debt securities, (a) money, (b) U.S. or foreign government obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money, or (c) a combination thereof, in an amount sufficient to pay the entire indebtedness on such debt securities in respect of principal, accrued interest and premium, if any; |
• | there shall be no continuing default or event of default with respect to such debt securities at the time of the deposit or after giving effect thereto; |
• | such actions shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which we are bound; and |
• | we shall have delivered an officer’s certificate and an opinion of counsel relating to certain tax matters and that all conditions precedent relating to the defeasance have been complied with. |
Regarding the Trustee
We will identify the trustee and any relationship that we may have with such trustee, with respect to any series of debt securities, in the prospectus supplement relating to the applicable debt securities. You should note that if the trustee becomes a creditor of the Company, the indenture and the Trust Indenture Act limit the rights of the trustee to obtain payment of claims in certain cases, or to realize on certain property received in respect of any such claim, as security or otherwise. The trustee and its affiliates may engage in, and will be permitted to continue to engage in, other transactions with us and our affiliates. If, however, the trustee acquires any “conflicting interest” within the meaning of the Trust Indenture Act, it must eliminate such conflict or resign.
Governing Law
The law governing the indenture and the debt securities will be governed by, and construed in accordance with, the internal laws of the State of New York.
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General
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 each 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 applicable warrant agreements and the applicable prospectus supplement for the warrants.
The applicable prospectus supplement will contain, where applicable, the following terms of and other information relating to the warrants:
• | the specific designation and aggregate number of, and the price at which we will issue, the warrants; |
• | the currency or currency units in which the offering price, if any, and the exercise price are payable; |
• | the designation, amount and terms of the securities purchasable upon exercise of the warrants; |
• | 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; |
• | if applicable, the exercise price for shares of our preferred stock, the number of shares of preferred stock to be received upon exercise of the warrants and a description of that series of our preferred stock; |
• | if applicable, the exercise price for our debt securities, the amount of our debt securities to be received upon exercise of the warrants, and a description of that series of debt securities; |
• | the date on which the right to exercise the warrants will begin and the date on which that right will expire or, if the warrants may not be continuously exercised throughout that period, the specific date or dates on which the warrants may be exercised; |
• | 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; |
• | any applicable material U.S. federal income tax consequences; |
• | the identity of the warrant agent for the warrants and of any other depositaries, execution or paying agents, transfer agents, registrars or other agents; |
• | the proposed listing, if any, of the warrants or any securities purchasable upon exercise of the warrants on any securities exchange or market; |
• | if applicable, the date from and after which the warrants and the common stock, preferred stock and/or debt securities will be separately transferable; |
• | if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; |
• | information with respect to book-entry procedures, if any; |
• | the anti-dilution provisions of the warrants, if any; |
• | any redemption or call provisions; |
• | whether the warrants are to be sold separately or with other securities as parts of units; and |
• | any additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants. |
Transfer Agent and Registrar
The transfer agent and registrar for any warrants will be set forth in the applicable prospectus supplement.
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The following description, together with the additional information we include in any applicable prospectus supplement, summarizes the material terms and provisions of the units that we may offer under this prospectus. Units may be offered independently or together with common stock, preferred stock, debt securities, warrants and/or subscription rights offered by any prospectus supplement, and may be attached to or separate from those securities. While the terms we have summarized below will generally apply to any future units that we may offer under this prospectus, we will describe the particular terms of any series of units that we may offer in more detail in the applicable prospectus supplement. The terms of any units offered under a prospectus supplement may differ from the terms described below.
We will incorporate by reference into the registration statement of which this prospectus is a part the form of unit agreement, including a form of unit certificate if any, that describes the terms of the series of units we are offering before the issuance of the related series of units. The following summaries of material provisions of the units, and the unit agreements, are subject to, and qualified in their entirety by reference to, all the provisions of the unit agreement applicable to a particular series of units. We urge you to read the applicable prospectus supplements related to the units that we sell under this prospectus, as well as the complete unit agreements that contain the terms of the units.
General
We may issue units comprised of one or more shares of common stock or preferred stock, debt securities, warrants and/or subscription rights in any combination. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately, at any time or at any time before a specified date.
We will describe in the applicable prospectus supplement the terms of the series of units, including:
• | the designation and terms of the units and of the securities comprising the units, including whether, and under what circumstances, those securities may be held or transferred separately; |
• | the rights and obligations of the unit agent, if any; |
• | any provisions of the governing unit agreement that differ from those described below; and |
• | any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units. |
The provisions described in this section, as well as those described under “Description of Our Common Stock,” “Description of Our Preferred Stock,” “Description of Our Debt Securities,” “Description of Our Warrants” and “Description of Our Subscription Rights,” will apply to each unit and to any common stock, preferred stock, debt securities, warrants or subscription rights included in each unit, respectively.
Issuance in Series
We may issue units in such amounts and in numerous distinct series as we determine.
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We may issue subscription rights to purchase shares of our common stock, preferred stock or debt securities in one or more series together with other securities or separately, as described in each applicable prospectus supplement. Below is a description of certain general terms and provisions of the subscription rights that we may offer. Particular terms of the subscription rights will be described in the applicable subscription rights certificate or subscription rights agreement and the applicable prospectus supplement for the subscription rights.
The applicable prospectus supplement will contain, where applicable, the following terms of and other information relating to the subscription rights:
• | the price, if any, for the subscription rights; |
• | the exercise price payable for shares of our common stock, preferred stock or debt securities; |
• | the number of subscription rights issued to each securityholder; |
• | the number and terms of the shares of our common stock, preferred stock or debt securities which may be purchased per each subscription right; |
• | the extent to which the subscription rights are transferable; |
• | any provisions for adjustment of the number or amount of securities receivable upon exercise of the subscription rights or the exercise price of the subscription rights; |
• | any other terms of the subscription rights, including the terms, procedures and limitations relating to the exchange and exercise of the subscription rights; |
• | the date on which the right to exercise the subscription rights shall commence, and the date on which the subscription rights shall expire; |
• | the extent to which the subscription rights may include an over-subscription privilege with respect to unsubscribed securities; |
• | if applicable, the material terms of any standby underwriting or purchase arrangement entered into by us in connection with the offering of subscription rights; and |
• | a discussion of any material U.S. federal income tax considerations applicable to the subscription rights. |
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We may sell the offered securities from time to time in one or more of the following ways, or in any combination thereof, or in any other way set forth in an applicable prospectus supplement:
• | to or through underwriters or dealers; |
• | through one or more agents; |
• | directly to purchasers or to a single purchaser; |
• | directly to stockholders; |
• | through block trades; |
• | through forward contracts, hedging transactions or other derivative transactions; or |
• | through a combination of any of these methods of sale. |
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 from time to time; |
• | at market prices prevailing at the time of sale; |
• | at prices related to such prevailing market prices, including in “at the market offerings” within the meaning of Rule 415(a)(4) of the Securities Act; or |
• | at negotiated prices. |
In connection with each offering, a prospectus supplement will describe the method of distribution of the securities and any applicable restrictions. Such prospectus supplement will also describe the specific terms of the offering of the securities, including the following:
• | the name or names of any underwriters, dealers or agents and the amounts of securities underwritten or purchased by each of them; |
• | the public offering price of the securities and the proceeds to us from the sale of the securities; |
• | any underwriting discounts, agency fees or other items constituting underwriters’ or agents’ compensation, and any discounts or concessions allowed, reallowed or paid to dealers; and |
• | any securities exchanges on which the securities may be listed. |
Any offering price and any discounts or concessions allowed, reallowed or paid to dealers may be changed from time to time. The maximum compensation to underwriters or dealers in connection with any offering pursuant to this prospectus and the accompanying prospectus supplement may not exceed the limits specified in the applicable guidelines of the Financial Industry Regulatory Authority.
Only the agents or underwriters named in each prospectus supplement are agents or underwriters in connection with the securities being offered thereby.
By Underwriters
If underwriters are used in the sale, the 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 a fixed public offering price, at market prices prevailing at the time of sale, at prices related to prevailing market prices or at negotiated prices. Underwriters may offer the securities directly or through underwriting syndicates represented by one or more managing underwriters. Unless otherwise set forth in the applicable prospectus supplement, the obligations of the underwriters to purchase the securities will be subject to certain conditions precedent.
By Dealers
If dealers are used in the sale, unless otherwise specified in the applicable prospectus supplement, we will sell the securities to the dealers as principals. The dealers may then resell the securities to the public at varying prices to be determined by the dealers at the time of resale. The applicable prospectus supplement will contain more information about the dealers, including the names of the dealers and the terms of our agreement with them.
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By Agents and Direct Sales
We may sell the securities directly to the public, without the use of underwriters, dealers or agents. We may also sell the securities through agents designated by us from time to time. Any agent involved in the offer or sale of the securities will be named, and any commissions payable by us to such agents will be set forth, in the applicable prospectus supplement. Agents will be acting on a best efforts basis to solicit purchases for the period of their appointment, unless otherwise stated in the applicable prospectus supplement.
We also may engage a broker-dealer from time to time to act as agent or principal for the offer of the securities in one or more placements pursuant to a distribution agreement. If we and the broker-dealer agree, we will sell to the broker-dealer as agent or as principal, and the broker-dealer will seek to solicit offers to purchase on an agency basis and/or will purchase on a principal basis, the securities. The number and purchase price (less an underwriting discount) of the securities we sell to the broker-dealer will be mutually agreed on the relevant trading day. The securities sold under the distribution agreement will be sold at prices related to the prevailing market price for such securities, and therefore exact figures regarding the price, proceeds that will be raised or commissions to be paid will be described in a prospectus supplement to this prospectus or in other filings made in accordance with and as permitted by the Securities Act and the Exchange Act. The broker-dealer may make sales of the securities pursuant to the distribution agreement in privately negotiated transactions and/or any other method permitted by law deemed to be an “at-the-market” offering as defined in Rule 415 promulgated under the Securities Act including sales made on the New York Stock Exchange, the current trading market for our common stock.
General Information
Underwriters, dealers and agents that participate in the distribution of the securities may be deemed underwriters as defined in the Securities Act, and any discounts or commissions we pay to them and any profit made by them on the resale of the securities may be treated as underwriting discounts and commissions under the Securities Act. Any underwriters, dealers or agents will be identified and their compensation from us will be described in the applicable prospectus supplement. Any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.
We may agree with the underwriters, dealers and agents to indemnify them against certain civil liabilities, including liabilities under the Securities Act, or to contribute with respect to payments which the underwriters, dealers or agents may be required to make.
Trading Market
Underwriters, dealers and agents may be customers of, engage in transactions with or perform services for, us in the ordinary course of their businesses. We will describe in the applicable prospectus supplement naming the underwriters, dealers or agents, the nature of any material relationship between us and the underwriters, dealers or agents, respectively. Unless otherwise specified in the applicable prospectus supplement, each class or series of securities will be a new issue with no established trading market, other than our common stock, which is listed on the New York Stock Exchange. We may elect to list any other class or series of securities on any exchange, but we are not obligated to do so. It is possible that one or more underwriters may make a market in a class or series of securities, but the underwriters will not be obligated to do so and may discontinue any market making at any time without notice. We cannot give any assurance as to the liquidity of the trading market for any of the securities.
22
Unless otherwise indicated in the applicable prospectus supplement, the validity of the securities offered by the Company will be passed upon for us by Troutman Pepper Locke LLP, Philadelphia, Pennsylvania. As appropriate, legal counsel representing the underwriters, dealers or agents will be named in the accompanying prospectus supplement and may opine to certain legal matters.
Ernst & Young LLP, independent registered public accounting firm, has audited our consolidated financial statements included in our Annual Report on Form 10-K for the year ended December 31, 2025, and the effectiveness of our internal control over financial reporting as of December 31, 2025, as set forth in their reports, which are incorporated by reference in this prospectus and elsewhere in the registration statement. Our financial statements are incorporated by reference in reliance on Ernst & Young LLP's reports, given on their authority as experts in accounting and auditing.
This prospectus is part of the registration statement on Form S-3 we filed with the SEC under the Securities Act and does not contain all the information set forth in the registration statement. Whenever a reference is made in this prospectus to any of our contracts, agreements or other documents, the reference may not be complete and you should refer to the exhibits that are a part of the registration statement or the exhibits to the reports or other documents incorporated herein by reference for a copy of such contract, agreement or other document. Because the prospectus may not contain all the information that you may find important, you should review the full text of these documents.
We file annual, quarterly and current reports, proxy statements and other information with the SEC. You can read our SEC filings, including the registration statement, over the Internet at the SEC’s website at www.sec.gov. We also maintain a website at www.vishay.com, at which you may access these materials free of charge as soon as reasonably practicable after they are electronically filed with, or furnished to, the SEC. Information contained on, or that can be accessed through, our website is not incorporated by reference into this prospectus and does not constitute part of this prospectus.
In addition, you may request copies of these filings at no cost, by writing or telephoning us at the following address or telephone number:
Office of the Corporate Secretary
Vishay Intertechnology, Inc.
63 Lancaster Avenue
Malvern, Pennsylvania 19355
(610) 644-1300
23
The SEC allows us to incorporate by reference information into this document. This means that we can disclose important information to you by referring you to another document filed separately with the SEC. Our Commission filing number is 011-07416. The information incorporated by reference is considered a part of this prospectus, and information that we file later with the SEC will automatically update and supersede this information.
We are incorporating by reference the filings listed below and any additional documents that we may file with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, on or after the date hereof and prior to the termination of any offering (other than documents or information deemed to have been furnished and not filed in accordance with SEC rules):
• | our Annual Report on Form 10-K for the year ended December 31, 2025, filed with the SEC on February 13, 2026; |
• | the portions of our Definitive Proxy Statement on Schedule 14A, filed with the SEC on April 8, 2026, that were incorporated by reference into Part III of our Annual Report on Form 10-K for the fiscal year ended December 31, 2025; |
• | our Quarterly Report on Form 10-Q for the quarter ended April 4, 2026, filed with the SEC on May 13, 2026; |
• | our Current Reports on Form 8-K filed with the SEC on January 9, 2026, February 12, 2026, February 25, 2026 and May 18, 2026, in each case only to the extent the information in such report is filed and not furnished; and |
• | the description of our common stock registered under Section 12 of the Exchange Act contained in Exhibit 4.1 to our Quarterly Report on Form 10-Q for the quarter ended October 1, 2022, filed with the SEC on November 2, 2022, including any amendment or report filed for the purpose of updating such description. |
In addition, we also incorporate by reference additional documents that we may file with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus and until the termination of this offering. These documents include periodic reports, such as Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as well as proxy statements. Nothing in this prospectus shall be deemed to incorporate information furnished but not filed with the SEC pursuant to Item 2.02 or Item 7.01 (or corresponding information furnished under Item 9.01 or included as an exhibit) of Form 8-K, unless such Form 8-K expressly provides to the contrary.
We encourage you to read our periodic and current reports. We believe these reports provide additional information about our company which prudent investors find important. You may request a copy of these filings as well as any future filings incorporated by reference, at no cost, by writing or telephoning us at our principal executive offices. To obtain copies of these filings, see “Where You Can Find More Information” on page 23 of this prospectus.
You should rely only on the information incorporated by reference or provided in this prospectus or any prospectus supplement. We have not authorized anyone else to provide you with different information. We are not making an offer of these securities in any jurisdiction where the offer or sale is not permitted. You should not assume that the information in this prospectus or any prospectus supplement is accurate as of any date other than the date on the front of those documents.
Any statement contained herein or in a document incorporated or deemed to be incorporated by reference into this prospectus supplement will be deemed to be modified or superseded for purposes of the document to the extent that a statement contained in this prospectus supplement or any other subsequently filed document that is deemed to be incorporated by reference into this prospectus supplement modifies or supersedes the statement.
24
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. | Other Expenses of Issuance and Distribution. |
The estimated fees and expenses (not including underwriting discounts and commissions) payable by the Registrant in connection with the issuance and distribution of the securities being registered hereby are set forth in the following table:
SEC registration fee | $ (1) | ||
FINRA fees | $(2) | ||
Trustee’s fees | $(2) | ||
Printing expenses | $(2) | ||
Rating agency fees | $(2) | ||
Accounting fees and expenses | $(2) | ||
Legal fees and expenses | $(2) | ||
Blue Sky fees and expenses | $(2) | ||
Miscellaneous | $ (2) | ||
Total | $ (2) | ||
(1) | Deferred in reliance upon Rules 456(b) and 457(r) of the Securities Act of 1933, as amended. |
(2) | These fees and expenses are calculated based on the securities offered and the number of issuances and accordingly are not known at the time of filing this registration statement. |
Item 15. | Indemnification of Directors and Officers. |
The Company is organized under the laws of the State of Delaware. Section 145 of the Delaware General Corporation Law (the “DGCL”) empowers a corporation to indemnify its directors and officers and to purchase insurance with respect to liability arising out of their capacity or status as directors and officers. The indemnity may include expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit, or proceeding, provided that the person acted in good faith and in a manner the person reasonably believed to be in the best interests of the corporation, and, with respect to any criminal action, had no reasonable cause to believe the person’s actions were unlawful. A Delaware corporation may indemnify officers and directors in an action by or in the right of the corporation under the same conditions, except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation in the performance of their duty. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify the officer or director against the expenses which such officer or director actually and reasonably incurred. The DGCL further provides that the indemnification permitted thereunder shall not be deemed exclusive of any other rights to which the directors and officers may be entitled under the corporation’s bylaws, any agreement, a vote of stockholders or otherwise.
Section 102(b)(7) of the DGCL provides that a corporation’s certificate of incorporation may contain a provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision shall not eliminate or limit the liability of a director (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL or (iv) for any transaction from which the director derived an improper personal benefit.
Article Ninth of our Certificate of Incorporation provides for broad indemnification of our directors, officers, employees and agents (and their heirs, executors and administrators), as well as persons serving in such capacities for other enterprises at our request. Subject to certain conditions, indemnification is available where the indemnitee is wholly successful in defending the relevant action or, in the judgment of a court, the board of directors or independent legal counsel, the indemnitee acted in good faith and in what he or she reasonably believed to be in our best interests (and, in any criminal action, had no reasonable cause to believe the action was unlawful). Article Ninth also authorizes the advancement of expenses to directors, officers and employees prior to final disposition of a proceeding, to the extent permitted under Delaware law. The foregoing indemnification rights are in addition to any other rights to which any indemnitee may be entitled under our Certificate of Incorporation, any agreement, a vote of stockholders, or otherwise.
II-1
Article Ninth of our Certificate of Incorporation further provides that no director shall have any personal liability to the Company or its stockholders for any monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of such director’s duty of loyalty to the Company or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which such director derived an improper personal benefit.
Pursuant to Article Tenth of our Certificate of Incorporation, we maintain directors’ and officers’ insurance to reimburse the directors and officers of the Company and its subsidiaries for charges and expenses incurred by them for wrongful acts claimed against them by reason of their being or having been directors or officers of the Company or any of its subsidiaries. Such insurance specifically excludes reimbursement of any director or officer for any charge or expense incurred in connection with various designated matters, including libel or slander, illegally obtained personal profits, profits recovered by us pursuant to Section 16(b) of the Securities Exchange Act of 1934, as amended, and deliberate dishonesty.
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Item 16. | Exhibits. |
Exhibit No. | Description | ||
1.1** | Form of Underwriting / Agency Agreement. | ||
4.1** | Form of Certificate of Designations. | ||
4.2** | Specimen Stock Certificate evidencing shares of preferred stock. | ||
4.3** | Form of Warrant Agreement. | ||
4.5** | Form of Note. | ||
4.6** | Form of Unit Agreement. | ||
4.7** | Form of Subscription Rights Agreement. | ||
25.1** | Statement of Eligibility of Trustee Under Debt Indenture. | ||
* | Filed herewith. |
** | To be filed by amendment or as an exhibit to a document to be incorporated by reference in connection with the offering of the securities registered hereunder. |
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, as amended;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate,
II-3
represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (i), (ii) and (iii) above do not apply if the registration statement is on Form S-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended, that are incorporated by reference in the registration statement, or contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, as amended, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933, as amended, to any purchaser:
(i) Each prospectus filed by a 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 the prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of a Registrant under the Securities Act of 1933, as amended, to any purchaser in the initial distribution of the securities, the undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant;
II-4
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
(b) The undersigned Registrant hereby further undertakes that, for purposes of determining any liability under the Securities Act of 1933, as amended, each filing of the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (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, as amended) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933, as amended, 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, as amended, and will be governed by the final adjudication of such issue.
(d) The undersigned Registrant hereby further undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all 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 Malvern, Commonwealth of Pennsylvania, on June 29, 2026.
VISHAY INTERTECHNOLOGY, INC. | ||||||
By: | /s/ David L. Tomlinson | |||||
Name: | David L. Tomlinson | |||||
Title: | Senior Vice President and Chief Accounting Officer | |||||
Each person whose signature appears below constitutes and appoints Joel Smejkal, David McConnell, Michael O’Sullivan and David Tomlinson, or any of them, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for such person and in such person’s name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement (including post-effective amendments) and any related registration statements filed pursuant to Rule 462(b) under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and to perform each and every act and thing requisite and necessary to be done in and about the premises, as fully and to all intents and purposes as he might or would do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, his Registration Statement has been signed below by the following persons in the capacities indicated on June 29, 2026.
Signature | Title | ||
/s/ Joel Smejkal | President, Chief Executive Officer and Director (Principal Executive Officer) | ||
Joel Smejkal | |||
/s/ David E. McConnell | Executive Vice President and Chief Financial Officer (Principal Financial Officer) | ||
David E. McConnell | |||
/s/ David L. Tomlinson | Senior Vice President and Chief Accounting Officer (Principal Accounting Officer) | ||
David L. Tomlinson | |||
/s/ Marc Zandman | Executive Chairman of the Board of Directors | ||
Marc Zandman | |||
/s/ Dr. Renee B. Booth | Director | ||
Dr. Renee B. Booth | |||
/s/ Michael J. Cody | Director | ||
Michael J. Cody | |||
/s/ Dr. Michiko Kurahashi | Director | ||
Dr. Michiko Kurahashi | |||
/s/ Dr. Abraham Ludomirski | Director | ||
Dr. Abraham Ludomirski | |||
/s/ John Malvisi | Director | ||
John Malvisi | |||
/s/ Ruta Zandman | Director | ||
Ruta Zandman | |||
/s/ Raanan Zilberman | Director | ||
Raanan Zilberman | |||
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Exhibit 4.4
VISHAY INTERTECHNOLOGY, INC.
INDENTURE
Dated as of [ ], [ ]
[___________]
Trustee
TABLE OF CONTENTS
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Page(s)
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ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE
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1
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Section 1.1.
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Definitions.
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1
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Section 1.2.
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Other Definitions.
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5
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Section 1.3.
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Incorporation by Reference of Trust Indenture Act.
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5
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Section 1.4.
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Rules of Construction,
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6
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ARTICLE II. THE SECURITIES
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6
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Section 2.1.
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Issuable in Series
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6
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Section 2.2.
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Establishment of Terms of Series of Securities.
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6
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Section 2.3.
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Execution and Authentication.
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9
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Section 2.4.
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Registrar and Paying Agent.
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10
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Section 2.5.
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Paying Agent to Hold Money in Trust.
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11
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Section 2.6.
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Securityholder Lists.
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11
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Section 2.7.
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Transfer and Exchange.
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12
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Section 2.8.
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Mutilated, Destroyed, Lost and Stolen Securities.
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12
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Section 2.9.
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Outstanding Securities.
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13
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Section 2.10.
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Treasury Securities.
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13
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Section 2.11.
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Temporary Securities.
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13
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Section 2.12.
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Cancellation.
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14
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Section 2.13.
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Defaulted Interest.
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14
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Section 2.14.
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Global Securities.
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14
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Section 2.15.
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CUSIP Numbers.
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16
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ARTICLE III. REDEMPTION
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16
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Section 3.1.
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Notice to Trustee.
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16
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Section 3.2.
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Selection of Securities to be Redeemed.
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17
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Section 3.3.
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Notice of Redemption.
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17
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Section 3.4.
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Effect of Notice of Redemption.
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18
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Section 3.5.
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Deposit of Redemption Price.
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18
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Section 3.6.
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Securities Redeemed in Part.
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18
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ARTICLE IV. COVENANTS
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18
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Section 4.1.
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Payment of Principal and Interest.
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18
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Section 4.2.
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SEC Reports.
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19
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Section 4.3.
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Compliance Certificate.
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19
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Section 4.4.
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Stay, Extension and Usury Laws.
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19
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ARTICLE V. SUCCESSORS
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20
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Section 5.1.
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When Company May Merge, Etc.
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20
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Section 5.2.
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Successor Entity Substituted.
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20
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ARTICLE VI. DEFAULTS AND REMEDIES
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20
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Section 6.1.
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Events of Default.
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20
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i
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Section 6.2.
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Acceleration of Maturity; Rescission and Annulment.
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22
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Section 6.3.
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Collection of Indebtedness and Suits for Enforcement by Trustee.
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22
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Section 6.4.
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Trustee May File Proofs of Claim.
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23
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Section 6.5.
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Trustee May Enforce Claims Without Possession of Securities.
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24
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Section 6.6.
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Application of Money Collected.
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24
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Section 6.7.
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Limitation on Suits.
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25
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Section 6.8.
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Unconditional Right of Holders to Receive Principal and Interest.
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25
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Section 6.9.
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Restoration of Rights and Remedies.
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26
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Section 6.10.
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Rights and Remedies Cumulative.
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26
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Section 6.11.
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Delay or Omission Not Waiver.
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26
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Section 6.12.
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Control by Holders.
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26
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Section 6.13.
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Waiver of Past Defaults.
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27
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Section 6.14.
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Undertaking for Costs.
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27
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ARTICLE VII. TRUSTEE
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27
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Section 7.1.
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Duties of Trustee.
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27
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Section 7.2.
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Rights of Trustee.
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29
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Section 7.3.
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Individual Rights of Trustee.
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31
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Section 7.4.
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Trustee’s Disclaimer.
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31
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Section 7.5.
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Notice of Defaults.
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31
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Section 7.6.
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Reports by Trustee to Holders.
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31
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Section 7.7.
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Compensation and Indemnity.
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31
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Section 7.8.
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Replacement of Trustee.
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32
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Section 7.9.
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Successor Trustee by Merger, Etc.
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33
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Section 7.10.
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Eligibility; Disqualification.
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33
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Section 7.11.
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Preferential Collection of Claims Against Company.
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34
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ARTICLE VIII. SATISFACTION AND DISCHARGE; DEFEASANCE
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34
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Section 8.1.
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Satisfaction and Discharge of Indenture.
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34
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Section 8.2.
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Application of Trust Funds; Indemnification.
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35
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Section 8.3.
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Legal Defeasance of Securities of any Series.
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36
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Section 8.4.
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Covenant Defeasance.
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37
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Section 8.5.
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Repayment to Company.
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39
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Section 8.6.
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Reinstatement.
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39
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ARTICLE IX. AMENDMENTS AND WAIVERS
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39
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Section 9.1.
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Without Consent of Holders.
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39
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Section 9.2.
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With Consent of Holders.
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40
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Section 9.3.
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Limitations.
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41
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Section 9.4.
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Compliance with Trust Indenture Act.
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41
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Section 9.5.
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Revocation and Effect of Consents.
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42
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Section 9.6.
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Notation on or Exchange of Securities.
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42
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Section 9.7.
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Trustee Protected.
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42
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ii
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ARTICLE X. MISCELLANEOUS
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43 | ||
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Section 10.1.
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Trust Indenture Act Controls.
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43
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Section 10.2.
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Notices.
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43
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Section 10.3.
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Communication by Holders with Other Holders.
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44
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Section 10.4.
|
Certificate and Opinion as to Conditions Precedent.
|
44
|
|
|
Section 10.5.
|
Statements Required in Certificate or Opinion.
|
44
|
|
|
Section 10.6.
|
Rules by Trustee and Agents.
|
45
|
|
|
Section 10.7.
|
Legal Holidays.
|
45
|
|
|
Section 10.8.
|
No Recourse Against Others.
|
45
|
|
|
Section 10.9.
|
Counterparts.
|
45
|
|
|
Section 10.10.
|
Governing Law; Waiver of Jury Trial; Consent to Jurisdiction.
|
46
|
|
|
Section 10.11.
|
No Adverse Interpretation of Other Agreements.
|
47
|
|
|
Section 10.12.
|
Successors.
|
47
|
|
|
Section 10.13.
|
Severability.
|
47
|
|
|
Section 10.14.
|
Table of Contents, Headings, Etc.
|
47
|
|
|
Section 10.15.
|
Securities in a Foreign Currency.
|
47
|
|
|
Section 10.16.
|
Judgment Currency.
|
48
|
|
|
Section 10.17.
|
USA Patriot Act.
|
48
|
|
|
Section 10.18.
|
Force Majeure.
|
48
|
|
|
ARTICLE XI. SINKING FUNDS
|
49
|
||
|
Section 11.1.
|
Applicability of Article.
|
49
|
|
|
Section 11.2.
|
Satisfaction of Sinking Fund Payments with Securities.
|
49
|
|
|
Section 11.3.
|
Redemption of Securities for Sinking Fund.
|
50
|
|
|
ARTICLE XII. GUARANTEE
|
50
|
||
|
Section 12.1.
|
Unconditional Guarantee.
|
50
|
|
|
Section 12.2.
|
Execution and Delivery of Notation of Guarantee.
|
51
|
|
|
Section 12.3.
|
Limitation on Guarantors’ Liability.
|
52
|
|
|
Section 12.4.
|
Release of Guarantors from Guarantee.
|
52
|
|
iii
EXHIBITS
Exhibit A Form of Notation of Guarantee
iv
VISHAY INTERTECHNOLOGY, INC.
Reconciliation and tie between Trust Indenture Act of 1939 and Indenture,
dated as of [_________], [_____]
|
§ 310(a)(1)
|
7.10
|
||
|
(a)(2)
|
7.10
|
||
|
(a)(3)
|
Not Applicable
|
||
|
(a)(4)
|
Not Applicable
|
||
|
(a)(5)
|
7.10
|
||
|
(b)
|
7.10
|
||
|
§ 311(a)
|
7.11
|
||
|
(b)
|
7.11
|
||
|
(c)
|
Not Applicable
|
||
|
§ 312(a)
|
2.6
|
||
|
(b)
|
10.3
|
||
|
(c)
|
10.3
|
||
|
§ 313(a)
|
7.6
|
||
|
(b)(1)
|
7.6
|
||
|
(b)(2)
|
7.6
|
||
|
(c)(1)
|
7.6
|
||
|
(c)(2)
|
7.6
|
||
|
(c)(3)
|
7.6
|
||
|
(d)
|
7.6
|
||
|
§ 314 (a)
|
4.2, 10.5
|
||
|
(b)
|
Not Applicable
|
||
|
(c)(1)
|
10.4
|
||
|
(c)(2)
|
10.4
|
||
|
(c)(3)
|
Not Applicable
|
||
|
(d)
|
Not Applicable
|
||
|
(e)
|
10.5
|
||
|
(f)
|
Not Applicable
|
||
|
§ 315(a)
|
7.1
|
||
|
(b)
|
7.5
|
||
|
(c)
|
7.1
|
||
|
(d)
|
7.1
|
||
|
(e)
|
6.14
|
||
|
§ 316(a)
|
2.10
|
||
|
(a)(1)(A)
|
6.12
|
||
|
(a)(1)(B)
|
6.13
|
||
|
(b)
|
6.8
|
||
|
(c)
|
9.5
|
||
|
§ 317(a)(1)
|
6.3
|
||
|
(a)(2)
|
6.4
|
||
|
(b)
|
2.5
|
||
|
§ 318(a)
|
10.1
|
Note: This reconciliation and tie shall not, for any purpose, be deemed to be part of the Indenture.
v
Indenture, dated as of [_______], [____], among VISHAY INTERTECHNOLOGY, INC., a Delaware corporation (the “Company”), the Guarantors (as defined herein) party
hereto and [________], a [__________], as trustee (the “Trustee”).
Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Securities issued under this Indenture.
ARTICLE I.
| Section 1.1. |
Definitions.
|
“Additional Amounts” means any additional amounts which are required hereby or by any
Security, under circumstances specified herein or therein, to be paid by the Company in respect of certain taxes imposed on Holders specified herein or therein and which are owing to such Holders.
“Affiliate” of any specified person means any other
person directly or indirectly controlling or controlled by or under common control with such specified person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any person, shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the management or policies of such person, whether through the ownership of voting securities or by agreement
or otherwise.
“Agent” means any Registrar, Paying Agent or Notice Agent.
“Board of Directors” means the board of directors of the Company or any duly authorized committee thereof.
“Board Resolution” means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the Company to have been adopted by the Board of Directors or pursuant to authorization by the Board of Directors and
to be in full force and effect on the date of the certificate and delivered to the Trustee.
“Business Day” means, unless otherwise provided by Board Resolution, Officer’s Certificate or supplemental indenture hereto for a particular Series, any day except a Saturday, Sunday, a day on which banking institutions in the state in which the Corporate Trust Office is located or a legal holiday in The City of New York (or in connection with any payment, the place of payment) on which banking institutions
are authorized or required by law, regulation or executive order to close.
“Capital Stock” means (a) in the case of a corporation, corporate stock; (b)
in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated and whether or not voting) of corporate stock, including each class of common stock and preferred stock
of such person; and (c) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited).
“Code” means the Internal Revenue Code of 1986, as amended.
“Company” means the party named as such above until a successor replaces it and thereafter means the successor.
“Company Order” means a written order signed in the name of the Company by an Officer.
“Corporate Trust Office” means the office of the
Trustee at which at any particular time its corporate trust business related to this Indenture shall be principally administered, which office at the date of the Indenture is
located at the address set forth in Section 10.2, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company.
“CUSIP” means the Committee on Uniform Security Identification Procedures and will be used pursuant to Section 2.15.
“Default” means any event which is, or after notice or passage of time or both would be, an Event of Default.
“Depositary” means, with respect to the Securities
of any Series issuable or issued in whole or in part in the form of one or more Global Securities, the person designated as Depositary for such Series by the Company, which Depositary shall be a clearing agency registered under the Exchange Act; and if at any time there is more than one such person, “Depositary” as used with respect to the Securities of any Series shall mean the Depositary with respect to the Securities of such Series.
“Discount Security” means any Security that
provides for an amount less than the stated principal amount thereof to be due and payable upon declaration of acceleration of the maturity thereof pursuant to Section
6.2.
“Dollars” and “$” means the currency of The United States of America.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Foreign Currency” means any currency or currency unit issued by a government
other than the government of the United States of America, including the Euro.
“Foreign Government Obligations” means, with
respect to Securities of any Series that are denominated in a Foreign Currency, direct obligations of, or obligations guaranteed by, the government that issued or caused to
be issued such currency for the payment of which obligations its full faith and credit is pledged and which are not callable or redeemable at the option of the issuer thereof.
“GAAP” means accounting principles generally
accepted in the United States of America set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting
profession, which are in effect as of the date of determination.
2
“Global Security” or “Global Securities” means a Security or Securities, as the case may be, in the form established pursuant to Section 2.2
evidencing all or part of a Series of Securities, issued to the Depositary for such Series or its nominee, and registered in the name of such Depositary or nominee.
“Guarantor” means each person that executes this
Indenture as a guarantor and its respective successors and assigns, in each case until the Guarantee of such person has been released in accordance with the provisions of this Indenture; provided, however, that such person shall be a Guarantor only with respect to a Series of Securities for which such person
has executed a Notation of Guarantee with respect to such Series.
“Holder” or “Securityholder” means a person in whose name a Security is registered.
“Indenture” means this Indenture as amended or supplemented from time to time
and shall include the form and terms of particular Series of Securities established as contemplated hereunder.
“interest” with respect to any Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.
“Maturity,” when used with respect to any Security,
means the date on which the principal of such Security becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
“Notation of Guarantee” means a notation, substantially in the form of Exhibit
A, executed by a Guarantor and affixed to each Security of any Series to which the Guarantee of such Guarantor under Article XII of this Indenture applies.
“Officer” means the Chief Executive Officer, the
President and Chief Financial Officer, the General Counsel or any Assistant General Counsel, the Treasurer or any Assistant Treasurer, the Secretary or any Assistant Secretary, and any Vice President of the Company.
“Officer’s Certificate” means a certificate signed by any Officer which
complies with Section 10.4.
“Opinion of Counsel” means a written opinion of legal counsel. The counsel may be an employee of or counsel to the Company. The opinion may contain customary limitations, conditions and exceptions.
“person” means any individual, corporation,
partnership, joint venture, association, limited liability company, joint-stock company, trust, unincorporated organization or government or any agency or political
subdivision thereof.
“principal” of a Security means the principal of the Security plus, when
appropriate, the premium, if any, on, and any Additional Amounts in respect of, the Security.
“Responsible Officer” means any officer of the
Trustee in its Corporate Trust Office having responsibility for administration of this Indenture and also means, with respect to a particular corporate trust matter, any
other officer to whom any corporate trust matter relating to this Indenture is referred because of his or her knowledge of and familiarity with a particular subject.
3
“SEC” means the Securities and Exchange Commission.
“Securities” means the debentures, notes or other
debt instruments of the Company of any Series authenticated and delivered under this Indenture; provided, however, that, if at any time there is more than one person acting as Trustee under this Indenture, “Securities,”
with respect to any such person, shall mean Securities authenticated and delivered under this Indenture, exclusive, however, of Securities of any Series as to which such person is not Trustee.
“Series” or “Series of Securities” means
each series of debentures, notes or other debt instruments of the Company created pursuant to Sections 2.1 and 2.2 hereof.
“Stated Maturity” when used with respect to any
Security, means the date specified in such Security as the fixed date on which the principal of such Security or interest is due and payable.
“Subsidiary” of any specified person means any
corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such person or one or more of the other Subsidiaries of that person or a combination thereof.
“TIA” means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) as in effect on the date of this Indenture; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, “TIA” means,
to the extent required by any such amendment, the Trust Indenture Act as so amended.
“Trustee” means the person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or
include each person who is then a Trustee hereunder, and if at any time there is more than one such person, “Trustee” as used with respect to
the Securities of any Series shall mean the Trustee with respect to Securities of that Series.
“U.S. Government Obligations” means securities
which are direct obligations of, or guaranteed by, The United States of America for the payment of which its full faith and credit is pledged and which are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest on or principal of any
such U.S. Government Obligation held by such custodian for the account of the holder of a depositary receipt; provided, that (except as
required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation evidenced by such
depositary receipt.
4
| Section 1.2. |
Other Definitions.
|
|
Term
|
Defined in Section
|
|
|
“Bankruptcy Law”
|
6.1
|
|
|
“Custodian”
|
6.1
|
|
|
“Guarantee”
|
12.1(b)
|
|
|
“Event of Default”
|
6.1
|
|
|
“Judgment Currency”
|
10.16
|
|
|
“Legal Holiday”
|
10.7
|
|
|
“mandatory sinking fund payment”
|
11.1
|
|
|
“New York Banking Day”
|
10.16
|
|
|
“Notice Agent”
|
2.4
|
|
|
“optional sinking fund payment”
|
11.1
|
|
|
“Paying Agent”
|
2.4
|
|
|
“Registrar”
|
2.4
|
|
|
“Required Currency”
|
10.16
|
|
|
“successor person”
|
5.1
|
|
|
“USA Patriot Act”
|
10.17
|
| Section 1.3. |
Incorporation by Reference of Trust Indenture Act.
|
Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this
Indenture have the following meanings:
| • |
“Commission” means the SEC.
|
| • |
“indenture securities” means the Securities.
|
| • |
“indenture security holder” means a Securityholder.
|
| • |
“indenture to be qualified” means this Indenture.
|
| • |
“indenture trustee” or “institutional trustee” means the Trustee.
|
| • |
“obligor” on the indenture securities means the Company and any successor obligor upon the Securities.
|
All other terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA and not otherwise defined
herein are used herein as so defined.
5
| Section 1.4. |
Rules of Construction,
|
Unless the context otherwise requires:
| a. |
a term has the meaning assigned to it;
|
| b. |
an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
|
| c. |
“or” is not exclusive;
|
| d. |
words in the singular include the plural, and in the plural include the singular; and
|
| e. |
provisions apply to successive events and transactions.
|
ARTICLE II.
| Section 2.1. |
Issuable in Series
|
The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more Series. All Securities of a Series
shall be identical except as may be set forth or determined in the manner provided in a Board Resolution, a supplemental indenture or an Officer’s Certificate detailing the adoption of the terms thereof pursuant to authority granted under a Board
Resolution. In the case of Securities of a Series to be issued from time to time, the Board Resolution, Officer’s Certificate or supplemental indenture detailing the adoption of the terms thereof pursuant to authority granted under a Board Resolution
may provide for the method by which specified terms (such as interest rate, maturity date, record date or date from which interest shall accrue) are to be determined. Securities may differ between Series in respect of any matters; provided, that all Series of Securities shall be equally and ratably entitled to the benefits of the Indenture.
| Section 2.2. |
Establishment of Terms of Series of Securities.
|
At or prior to the issuance of any Securities within a Series, the following shall be established (as to the Series generally, in
the case of Subsection 2.2.1 and either as to such Securities within the Series or as to the Series generally in the case of Subsections 2.2.2 through 2.2.30)
by or pursuant to a Board Resolution, and set forth or determined in the manner provided in a Board Resolution, supplemental indenture hereto or Officer’s Certificate:
Section 2.2.1. the title (which shall distinguish the Securities of that particular Series from the Securities of any other Series) and ranking (including the terms of any
subordination provisions) of the Series;
Section 2.2.2. the price or prices (expressed as a percentage of the principal amount thereof) at which the Securities of the Series will be issued;
6
Section 2.2.3. any limit upon the aggregate principal amount of the Securities of the Series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or 9.6) and whether
additional Securities of that Series may be issued without the consent of Holders of outstanding Securities of that Series or any other Series; provided, that in the event that additional Securities of such
Series may be so issued, the terms thereof shall indicate whether any such additional Securities shall have the same terms as the prior Securities of such Series or whether the Issuer may establish additional or different terms with respect to such
additional Securities;
Section 2.2.4. the date or dates on which the principal of the Securities of the Series is payable;
Section 2.2.5. the rate or rates (which may be fixed or variable) per annum or, if applicable, the method used
to determine such rate or rates (including, but not limited to, any commodity, commodity index, stock exchange index or financial index) at which the Securities of the Series
shall bear interest, if any, the date or dates from which such interest, if any, shall accrue, the date or dates on which such interest, if any, shall commence and be payable, any regular record date for the interest payable on any interest
payment date and the basis upon which interest shall be calculated if other than that of a 360-day year of twelve 30-day months;
Section 2.2.6. the place or places where the principal of and 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 delivered, and the method of such payment, if by wire
transfer, mail or other means;
Section 2.2.7. if applicable, the
period or periods within which the price or prices at which and the terms and conditions upon which the Securities of the Series may be redeemed, in whole or in part, at the option of the Company;
Section 2.2.8. the obligation, if any, of the Company to redeem or purchase the Securities of the Series
pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which,
the price or prices at which and the terms and conditions upon which Securities of the Series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
Section 2.2.9. the dates, if any, on
which and the price or prices at which the Securities of the Series will be repurchased by the Company at the option of the Holders thereof and other detailed terms and provisions of such repurchase obligations;
Section 2.2.10. if other than denominations of $1,000 and any integral multiple thereof, the denominations in
which the Securities of the Series shall be issuable;
Section 2.2.11. the forms of the
Securities of the Series and whether the Securities will be issuable as Global Securities;
Section 2.2.12. if other than the principal amount thereof, the portion of the principal amount of the
Securities of the Series that shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.2;
7
Section 2.2.13. the currency of denomination of the Securities of the Series, which may be Dollars or any
Foreign Currency, and if such currency of denomination is a composite currency, the agency or organization, if any, responsible for overseeing such composite currency;
Section 2.2.14. the designation of
the currency, currencies or currency units in which payment of the principal of and interest, if any, on the Securities of the Series will be made;
Section 2.2.15. if payments of principal of or interest, if any, on the Securities of the Series are to be made in one or more currencies or currency units
other than that or those in which such Securities are denominated, the manner in which the exchange rate with respect to such payments will be determined;
Section 2.2.16. the manner in which the amounts of payment of principal of or interest, if any, on the Securities of the Series will be determined, if such
amounts may be determined by reference to an index based on a currency or currencies or by reference to a commodity, commodity index, stock exchange index or financial index;
Section 2.2.17. the provisions, if any, relating to any security provided for the Securities of the Series or the Guarantees;
Section 2.2.18. any addition to, deletion of or change in the Events of Default which applies to any Securities of the Series and any change in the right of
the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 6.2;
Section 2.2.19. any addition to, deletion of or change in the covenants and terms set forth in Articles IV, V or IX which applies to
Securities of the Series;
Section 2.2.20. any Depositaries, interest rate calculation agents, exchange rate calculation agents or other agents with respect to Securities of such Series
if other than those appointed herein;
Section 2.2.21. the provisions, if any, relating to conversion or exchange of any Securities of such Series, including, if applicable, the conversion or
exchange price, the conversion or exchange period, provisions as to whether conversion or exchange will be mandatory, at the option of the Holders thereof or at the option of the Company, the events requiring an adjustment of the conversion price or
exchange price and provisions affecting conversion or exchange if such Series of Securities are redeemed;
Section 2.2.22. any other terms of the Series (which may supplement, modify or delete any provision of this Indenture insofar as it applies to such Series),
including any terms that may be required under applicable law or regulations or advisable in connection with the marketing of Securities of that Series;
Section 2.2.23. whether the Securities of such Series are entitled to the benefits of the Guarantee of any Guarantor pursuant to this Indenture, whether any
such Guarantee shall be made on a senior or subordinated basis and, if applicable, a description of the subordination terms of any such Guarantee;
8
Section 2.2.24. if a person other than [ ] is to act as Trustee for the Securities of that
Series, the name and location of the designated corporate trust office of such Trustee;
Section 2.2.25. the securities exchanges, if any, on which the Securities of the Series may be listed;
Section 2.2.26. if the Securities of that Series do not bear interest, the applicable dates for purposes of Section 2.6;
Section 2.2.27. if Securities of the Series are to be issuable initially in the form of a temporary Global Security, the circumstances under which the
temporary Global Security can be exchanged for definitive Securities;
Section 2.2.28. whether Securities of that Series are to be issuable in bearer form and any additions or changes to any of the provisions of this Indenture as
shall be necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons;
Section 2.2.29. the applicability, if any, of Sections 8.3 and/or 8.4 to the Securities of the Series and any provisions in modification of,
in addition to or in lieu of any of the provisions of Article VIII; and
Section 2.2.30. any change in the right of the Trustee or the right of the requisite Holders of Securities to declare the principal amount thereof due and
payable.
All Securities of any particular Series shall be substantially identical except as to denomination and the date from which interest, if any, shall accrue, and except as may otherwise be provided in
or pursuant to such Board Resolutions and set forth in such Officer’s Certificate relating thereto or provided in or pursuant to any supplemental indenture 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 Officer’s Certificate referred to above.
| Section 2.3. |
Execution and Authentication.
|
Any Officer shall sign the Securities for the Company by manual, facsimile or other electronic (including .pdf) signature (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other
applicable law, e.g., www.docusign.com).
If an Officer whose signature is on a Security no longer holds that office at the time the Security is authenticated, the Security shall nevertheless be valid.
9
A Security shall not be valid until authenticated by the manual signature of an authorized signatory of the Trustee or an authenticating agent. The signature shall be conclusive
evidence that the Security has been authenticated under this Indenture.
The Trustee shall at any time, and from time to time, authenticate Securities for original issue in the principal amount provided in the Board Resolution, supplemental indenture
hereto or Officer’s Certificate, upon receipt by the Trustee of a Company Order. Each Security shall be dated the date of its authentication.
The aggregate principal amount of Securities of any Series outstanding at any time may not exceed any limit upon the maximum principal amount for such Series set forth in the
Board Resolution, supplemental indenture hereto or Officer’s Certificate delivered pursuant to Section 2.2, except as provided in Section 2.8.
Prior to the issuance of Securities of any Series, the Trustee shall have received and (subject to Section 7.2) shall be fully protected in relying on: (a) the Board
Resolution, supplemental indenture hereto or Officer’s Certificate establishing the form of the Securities of that Series or of Securities within that Series and the terms of the Securities of that Series or of Securities within that Series, (b) an
Officer’s Certificate complying with Section 10.4, and (c) an Opinion of Counsel complying with Section 10.4.
The Trustee shall have the right to decline to authenticate and deliver any Securities of such Series: (a) if the Trustee, being advised by counsel, determines that such action
may not be taken lawfully; or (b) if the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to Holders of any then outstanding Series of Securities.
The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Securities. An authenticating agent may authenticate Securities whenever the Trustee may
do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with the Company or an Affiliate of the Company.
| Section 2.4. |
Registrar and Paying Agent.
|
The Company shall maintain, with respect to each Series of Securities, at the place or places specified with respect to such Series pursuant to Section 2.2, an office or
agency where Securities of such Series may be presented or surrendered for payment (“Paying Agent”), where Securities of such Series may be surrendered for registration of transfer or exchange (“Registrar”) and where notices and demands to or upon the Company in respect of the Securities of such Series and this Indenture may be delivered (“Notice Agent”). The
Registrar shall keep a register with respect to each Series of Securities and to their transfer and exchange. The Company will give prompt written notice to the Trustee of the name and address, and any change in the name or address, of each
Registrar, Paying Agent or Notice Agent. If at any time the Company shall fail to maintain any such required Registrar, Paying Agent or Notice Agent or shall fail to furnish the Trustee with the name and address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands; provided, that the Corporate Trust Office of the Trustee shall not be a place of service of legal process on the Company.
10
The Company may also from time to time designate one or more co-registrars, additional paying agents or additional notice agents and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligations to maintain a Registrar, Paying Agent and Notice Agent in each place so
specified pursuant to Section 2.2 for Securities of any Series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the name or address of any such
co-registrar, additional paying agent or additional notice agent. The term “Registrar” includes any co-registrar; the term “Paying Agent” includes any additional
paying agent; and the term “Notice Agent” includes any additional notice agent. The Company or any of its Affiliates may serve as Registrar or Paying Agent.
The Company hereby appoints the Trustee the initial Registrar, Paying Agent and Notice Agent for each Series unless another Registrar, Paying Agent or Notice Agent, as the case
may be, is appointed prior to the time Securities of that Series are first issued.
| Section 2.5. |
Paying Agent to Hold Money in Trust.
|
The Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust, for the benefit of Securityholders of any Series
of Securities, or the Trustee, all money held by the Paying Agent for the payment of principal of or interest on the Series of Securities, and will notify the Trustee in writing of any default by the Company in making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent
(if other than the Company or a Subsidiary of the Company) shall have no further liability for the money. If the Company or a Subsidiary of the Company acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of
Securityholders of any Series of Securities all money held by it as Paying Agent. Upon any bankruptcy, reorganization or similar proceeding with respect to the Company, the Trustee shall serve as Paying Agent for the Securities.
| Section 2.6. |
Securityholder Lists.
|
The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Securityholders of each Series of
Securities and shall otherwise comply with TIA Section 312(a). If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least ten days before each interest payment date and at such other times as the Trustee may request in
writing a list, in such form and as of such date as the Trustee may reasonably require, of the names and addresses of Securityholders of each Series of Securities.
11
| Section 2.7. |
Transfer and Exchange.
|
Where Securities of a Series are presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal principal amount of
Securities of the same Series, the Registrar shall register the transfer or make the exchange if its requirements for such transactions are met. To permit registrations of transfers and exchanges, the Trustee shall authenticate Securities at the
Registrar’s request. No service charge shall be made for any registration of transfer or exchange (except as otherwise expressly permitted herein), but the Company may require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such transfer tax or similar governmental charge payable upon exchanges pursuant to Section 2.11, 3.6 or 9.6).
Neither the Company nor the Registrar shall be required (a) to issue, register the transfer of, or exchange Securities of any Series for the period beginning at the opening of
business 15 days immediately preceding the sending of a notice of redemption of Securities of that Series selected for redemption and ending at the close of business on the day such notice is sent, or (b) to register the transfer of or exchange
Securities of any Series selected, called or being called for redemption as a whole or the portion being redeemed of any such Securities selected, called or being called for redemption in part.
| Section 2.8. |
Mutilated, Destroyed, Lost and Stolen Securities.
|
If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same
Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a) evidence to their satisfaction of the destruction, loss or theft of any Security and (b) such security or indemnity
bond as may be required by each of them to hold itself and any of its agents harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon
receipt of a Company Order the Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen Security, a new Security of the same Series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new
Security, pay such Security following delivery of the documents and security or indemnity required in the preceding paragraph.
Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any Series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that Series
duly issued hereunder.
12
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
| Section 2.9. |
Outstanding Securities.
|
The Securities outstanding at any time are all the Securities authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those
reductions in the interest on a Global Security effected by the Trustee in accordance with the provisions hereof and those described in this Section as not outstanding, including those paid in accordance with the third-to-last paragraph of Section
2.8.
If a Security is replaced pursuant to Section 2.8, it ceases to be outstanding until the Trustee receives proof satisfactory to it that the replaced Security is held by a
bona fide purchaser.
If the Paying Agent (other than the Company, a Subsidiary of the Company or an Affiliate of the Company) holds on the Maturity of Securities of a Series money sufficient to pay
such Securities payable on that date as provided in this Indenture, then on and after that date such Securities of the Series cease to be outstanding and interest on them ceases to accrue.
The Company may purchase or otherwise acquire the Securities, whether by open market purchases, negotiated transactions or otherwise. A Security does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Security (but see Section 2.10 below).
In determining whether the Holders of the requisite principal amount of outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver
hereunder, the principal amount of a Discount Security that shall be deemed to be outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of
acceleration of the Maturity thereof pursuant to Section 6.2.
| Section 2.10. |
Treasury Securities.
|
In determining whether the Holders of the requisite principal amount of outstanding Securities of a Series have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Securities of a Series owned by the Company or any 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 a Responsible Officer of the Trustee knows are so owned shall be so disregarded.
| Section 2.11. |
Temporary Securities.
|
Until definitive Securities are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary Securities upon a Company Order. Temporary Securities
shall be substantially in the form of definitive Securities but may have variations that the Company considers appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee upon receipt of a Company Order
shall authenticate definitive Securities of the same Series and date of maturity in exchange for temporary Securities. Until so exchanged, temporary securities shall have the same rights under this Indenture as the definitive Securities.
13
Any temporary Global Security and any permanent Global Security shall, unless otherwise provided therein, be delivered to the Depositary designated pursuant to Section 2.2
or shall be held by the Custodian on behalf of such Depositary.
| Section 2.12. |
Cancellation.
|
The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered to them
for registration of transfer, exchange or payment. The Trustee shall cancel all Securities surrendered for transfer, exchange, payment, replacement or cancellation and shall dispose of such canceled Securities in accordance with its then customary
procedures (subject to the record retention requirement of the Exchange Act and the Trustee) and deliver a certificate of such cancellation to the Company upon written request of the Company. The Company may not issue new Securities to replace
Securities that it has paid or delivered to the Trustee for cancellation.
| Section 2.13. |
Defaulted Interest.
|
If the Company defaults in a payment of interest on a Series of Securities, it shall pay the defaulted interest, plus, to the extent permitted by law, any interest payable on the
defaulted interest, to the persons who are Securityholders of the Series on a subsequent special record date. The Company shall fix the record date and payment date. At least ten days before the special record date, the Company shall send to the
Trustee and to each Securityholder of the Series a notice that states the special record date, the payment date and the amount of interest to be paid. The Company may pay defaulted interest in any other lawful manner.
| Section 2.14. |
Global Securities.
|
Section 2.14.1. Terms of Securities. A Board Resolution, a supplemental indenture hereto or an Officer’s Certificate shall establish whether the Securities of a Series
shall be issued in whole or in part in the form of one or more Global Securities and the Depositary for such Global Security or Securities.
Section 2.14.2. Transfer and Exchange. Notwithstanding any provisions to the contrary contained in Section 2.7 of the Indenture and in addition thereto, any Global
Security shall be exchangeable pursuant to Section 2.7 of the Indenture for Securities registered in the names of Holders other than the Depositary for such Security or its nominee only if (a) such Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for such Global Security or if at any time such Depositary ceases to be a clearing agency registered under the Exchange Act, and, in either case, the Company fails to appoint a successor Depositary
registered as a clearing agency under the Exchange Act within 90 days of such event or (b) the Company executes and delivers to the Trustee an Officer’s Certificate stating that such Global Security shall be so exchangeable. Any Global Security that
is exchangeable pursuant to the preceding sentence shall be exchangeable for Securities registered in such names as the Depositary shall direct in writing in an aggregate principal amount equal to the principal amount of the Global Security with like
tenor and terms.
14
Except as provided in this Section 2.14.2, a Global Security may not be transferred except as a whole by the Depositary with respect to such Global Security to a nominee of
such Depositary, by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such a successor Depositary.
Section 2.14.3. Legend. Any Global Security issued hereunder shall bear a legend in substantially the following form:
“THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF
THE DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY.”
In addition, so long as The Depository Trust Company (“DTC”) is the Depositary, each Global Note registered in the name of DTC or its nominee shall
bear a legend in substantially the following form:
“UNLESS THIS GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY GLOBAL NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (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 HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”
15
Section 2.14.4. Acts of Holders. The Depositary, as a Holder, may appoint agents and otherwise
authorize participants to give or take any request, demand, authorization, direction, notice, consent, waiver or other action which a Holder is entitled to give or take under
the Indenture.
Section 2.14.5. Payments. Notwithstanding the other provisions of this Indenture, unless otherwise specified as contemplated by Section 2.2,
payment of the principal of and interest, if any, on any Global Security shall be made to the Holder thereof.
Section 2.14.6. Consents, Declaration and Directions. The Company, the Trustee and any Agent
shall be entitled to conclusively treat a person as the absolute owner 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 or by the applicable procedures of the Depositary with respect to such Global Security, for purposes of obtaining any consents, declarations, waivers or directions required to be given
by the Holders pursuant to this Indenture.
| Section 2.15. |
CUSIP Numbers.
|
The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders; provided, that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance
may be placed only on the other elements of identification printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company shall promptly notify the Trustee in writing of any change
in CUSIP numbers.
ARTICLE III.
| Section 3.1. |
Notice to Trustee.
|
The Company may, with respect to any Series of Securities, reserve the right to redeem and pay the Series of Securities or may covenant to redeem and pay the Series of Securities or any part thereof
prior to the Stated Maturity thereof at such time and on such terms as provided for in such Securities. If a Series of Securities is redeemable and the Company wants or is obligated to redeem prior to the Stated Maturity thereof all or part of the
Series of Securities pursuant to the terms of such Securities, it shall notify the Trustee in writing of the redemption date and the principal amount of the Series of Securities to be redeemed. The Company shall give the notice at least 15 days
before the redemption date (or such shorter period as may be acceptable to the Trustee).
16
| Section 3.2. |
Selection of Securities to be Redeemed.
|
Unless otherwise indicated for a particular Series by a Board Resolution, supplemental indenture hereto or Officer’s Certificate, if less than all the Securities of a Series are
to be redeemed, the Trustee shall select the Securities of the Series to be redeemed in any manner that the Trustee deems fair and appropriate, including by lot or other method, unless otherwise required by law or applicable stock exchange
requirements (as certified by the Company to the Trustee), subject, in the case of Global Securities, to the applicable rules and procedures of the Depositary. The Trustee shall make the selection from Securities of the Series outstanding not
previously called for redemption. The Trustee may select for redemption portions of the principal of Securities of the Series that have denominations larger than $1,000. Securities of the Series and portions of them it selects shall be in minimum
amounts of $1,000 or whole multiples of $1,000 thereof or, with respect to Securities of any Series issuable in other denominations pursuant to Section 2.2.10, the minimum principal denomination for each Series and the authorized integral
multiples thereof. Provisions of this Indenture that apply to Securities of a Series called for redemption also apply to portions of Securities of that Series called for redemption.
| Section 3.3. |
Notice of Redemption.
|
Unless otherwise indicated for a particular Series by Board Resolution, a supplemental indenture hereto or an Officer’s Certificate, at least 15 days but not more than 60 days
before a redemption date, the Company shall send or cause to be sent by first class mail or electronically, in accordance with the procedures of the Depositary, a notice of redemption to each Holder whose Securities are to be redeemed, with a copy to
the Trustee.
The notice shall identify the Securities of the Series to be redeemed and shall state:
| a. |
the redemption date;
|
| b. |
the redemption price;
|
| c. |
the name and address of the Paying Agent;
|
| d. |
if any Securities are being redeemed in part, the portion of the principal amount of such Securities to be redeemed and that, after the redemption date and upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion of the original Security shall be issued in the name of the Holder thereof upon cancellation of the original Security;
|
| e. |
that Securities of the Series called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
|
| f. |
that interest on Securities of the Series called for redemption ceases to accrue on and
after the redemption date;
|
| g. |
the CUSIP number, if any; and
|
| h. |
any other information as may be required by the terms of the particular Series or the
Securities of a Series being redeemed.
|
17
At the Company’s written request, the Trustee shall give the notice of redemption in the Company’s name and at its expense; provided, however, that the
Company has delivered to the Trustee, at least five days (unless a shorter time shall be acceptable to the Trustee) prior to the notice date, such notice and an Officer’s Certificate requesting that the Trustee give such notice and setting forth the
information to be stated in such notice in the form of such notice.
| Section 3.4. |
Effect of Notice of Redemption.
|
Once notice of redemption is sent as provided in Section 3.3, Securities of a Series called for redemption become due and payable on the redemption date and at the
redemption price. Except as otherwise provided in the supplemental indenture, Board Resolution or Officer’s Certificate for a Series, a notice of redemption may not be conditional. Upon surrender to the Paying Agent, such Securities shall be paid at
the redemption price plus accrued interest, if any, to the redemption date.
| Section 3.5. |
Deposit of Redemption Price.
|
On or before 11:00 a.m., New York City time, on the redemption date, the Company shall deposit with the Paying Agent money sufficient to pay the redemption price of and accrued
interest, if any, on all Securities to be redeemed on that date.
| Section 3.6. |
Securities Redeemed in Part.
|
In connection with any Security held in physical form, upon surrender of a Security that is redeemed in part, the Company shall execute and, upon receipt of a Company Order in
accordance with Section 2.3 and the other deliverables required hereunder from the Company, the Trustee shall authenticate for the Holder at the expense of the Company a new Security of the same Series and the same Maturity equal in principal
amount to the unredeemed portion of the Security surrendered; provided, that each new Security will be issued in a minimum principal amount of $1,000 or an integral multiple of $1,000 in excess thereof. In
the case of any Security held in global form, the records of the Trustee and/or Registrar shall reflect that the Security has been redeemed in part.
ARTICLE IV.
| Section 4.1. |
Payment of Principal and Interest.
|
The Company covenants and agrees for the benefit of the Holders of each Series of Securities that it shall duly and punctually pay or cause to be paid when due the principal of
and interest, if any, on the Securities of that Series in accordance with the terms of such Securities and this Indenture. On or before 11:00 a.m., New York City time, on the applicable payment date, the Company shall deposit with the Paying Agent
money sufficient to pay the principal of and interest, if any, on the Securities of each Series in accordance with the terms of such Securities and this Indenture.
18
| Section 4.2. |
SEC Reports.
|
The Company shall, so long as any Securities are outstanding, deliver to the Trustee within 15 days after it files them with the SEC copies of the annual reports and of the
information, documents, and other reports (or copies of such portions of any of the foregoing as the SEC may by rules and regulations prescribe) which the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act,
as in effect from time to time. The Company shall also comply with the other provisions of TIA Section 314(a). Reports, information and documents filed with the SEC via the EDGAR system (or its successor) will be deemed to be delivered to the Trustee
as of the time of such filing for purposes of this Section 4.2; provided, however, that the Trustee shall have no obligation whatsoever to determine whether or not such information, documents or
reports have been filed via EDGAR.
Delivery of reports, information and documents to the Trustee under this Section 4.2 is for informational purposes only and the Trustee’s receipt of the foregoing shall
not constitute constructive or actual notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officer’s Certificates). The Trustee shall have no responsibility for the filing, timeliness or content of any reports, information or documents. The Trustee shall have no obligation to determine whether or not such reports,
information or documents have been filed pursuant to the SEC’s EDGAR filing system (or its successor) or postings to any website have occurred, and the Trustee shall have no duty to participate in or monitor any conference calls.
| Section 4.3. |
Compliance Certificate.
|
The Company and each Guarantor (to the extent that such Guarantor is so required under the TIA) shall, so long as any Securities are outstanding, deliver to the Trustee, within
120 days after the end of each fiscal year of the Company, an Officer’s Certificate stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing
Officer with a view to determining whether the Company and any Guarantor has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to such Officer signing such certificate, that to the best of such
Officer’s knowledge the Company and any Guarantor has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions
hereof (or, if a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default of which such Officer may have knowledge and the nature and status thereof).
The Company will, so long as any of the Securities are outstanding, deliver to the Trustee, promptly upon becoming aware of any Default or Event of Default, an Officer’s
Certificate specifying such Default or Event of Default and what action the Company is taking or proposes to take with respect thereto.
| Section 4.4. |
Stay, Extension and Usury Laws.
|
The Company and the Guarantors covenant (to the extent that they may lawfully do so) that they will not at any time insist upon, plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture or the Securities and the Company and the Guarantors (to the
extent they may lawfully do so) hereby expressly waive all benefit or advantage of any such law and covenants that they will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law has been enacted.
19
ARTICLE V.
| Section 5.1. |
When Company May Merge, Etc.
|
The Company shall not consolidate with or merge with or into, or convey, transfer or lease all or substantially all of its properties and assets to, any person (a “successor person”) unless:
| a. |
the Company is the surviving entity or the successor person (if other than the Company) is a corporation, partnership, trust or other entity organized and validly existing under the laws of any U.S. domestic
jurisdiction and expressly assumes the Company’s obligations on the Securities and under this Indenture; and
|
| b. |
immediately after giving effect to the transaction, no Default or Event of Default, shall have occurred and be continuing.
|
The Company shall deliver to the Trustee prior to the consummation of the proposed transaction an Officer’s Certificate to the foregoing effect and an Opinion of Counsel stating
that the proposed transaction and any supplemental indenture comply with this Indenture.
Notwithstanding the above, any Subsidiary of the Company may consolidate with, merge into or transfer all or part of its properties to the Company. Neither an Officer’s
Certificate nor an Opinion of Counsel shall be required to be delivered in connection therewith.
| Section 5.2. |
Successor Entity Substituted.
|
Upon any consolidation or merger, or any sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company in accordance with Section 5.1,
the successor entity formed by such consolidation or into or with which the Company is merged or to which such sale, lease, conveyance or other disposition is made shall succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor entity had has been named as the Company herein; provided, however, that the predecessor Company in the case of a sale, conveyance
or other disposition (other than a lease) shall be released from all obligations and covenants under this Indenture and the Securities.
ARTICLE VI.
| Section 6.1. |
Events of Default.
|
“Event of Default,” wherever used herein with respect to Securities of any
Series, means any one of the following events, unless in the establishing Board Resolution, supplemental indenture or Officer’s Certificate, it is provided that such Series shall not have the benefit of said Event of Default:
20
| a. |
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 (unless the entire amount of such payment is
deposited by the Company with the Trustee or with a Paying Agent prior to the expiration of the 30-day period); or
|
| b. |
default in the payment of principal of any Security of that Series at its Maturity; or
|
| c. |
default in the performance or breach of any covenant or warranty of the Company in the Securities of that Series or this Indenture (other than defaults pursuant to paragraph (a) or (b) above or
pursuant to a covenant or warranty that has been included in this Indenture solely for the benefit of a Series of Securities other than that Series), which default continues uncured for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of not less than 25% in principal amount of the outstanding Securities of that Series a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or
|
| d. |
the Company or any Guarantor pursuant to or within the meaning of any Bankruptcy Law:
|
| i. |
commences a voluntary case,
|
| ii. |
consents to the entry of an order for relief against it in an involuntary case,
|
| iii. |
consents to the appointment of a Custodian of it or for all or substantially all of its property,
|
| iv. |
makes a general assignment for the benefit of its creditors, or
|
| v. |
generally is unable to pay its debts as the same become due; or
|
| e. |
a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
|
| i. |
is for relief against the Company or any Guarantor in an involuntary case,
|
| ii. |
appoints a Custodian of the Company, any Guarantor or for all or substantially all of its property, or
|
21
| iii. |
orders the liquidation of the Company or any Guarantor, and the order or decree remains unstayed and in effect for 60 days; or
|
| f. |
any other Event of Default provided with respect to Securities of that Series, which is specified in a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate, in accordance with Section
2.2.18.
|
The term “Bankruptcy Law” means title 11, U.S. Code or any similar federal or state law for the relief of debtors. The term “Custodian” means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
| Section 6.2. |
Acceleration of Maturity; Rescission and Annulment.
|
If an Event of Default with respect to Securities of any Series at the time outstanding occurs and is continuing (other than an Event of Default referred to in Section 6.1(d)
or (e)), then in every such case the Trustee or the Holders of not less than 25% in principal amount of the outstanding Securities of that Series may declare the principal amount (or, if any Securities of that Series are Discount Securities,
such portion of the principal amount as may be specified in the terms of such Securities) of and accrued and unpaid interest, if any, on all of the Securities of that Series to be due and payable immediately, by a notice in writing to the Company
(and to the Trustee if given by Holders), and upon any such declaration such principal amount (or such specified amount) and accrued and unpaid interest, if any, shall become immediately due and payable. If an Event of Default specified in Section
6.1(d) or (e), shall occur, the principal amount (or specified amount) of and accrued and unpaid interest, if any, on all outstanding Securities shall ipso facto become and be immediately due and payable without any declaration or other act on
the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with respect to any Series has been made and before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the outstanding Securities of that Series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its
consequences, including any related payment default that resulted from such acceleration, if all Events of Default with respect to Securities of that Series, other than the non-payment of the principal and interest, if any, of Securities of that
Series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 6.13.
No such rescission shall affect any subsequent Default or impair any right consequent thereon.
| Section 6.3. |
Collection of Indebtedness and Suits for Enforcement by Trustee.
|
The Company covenants that if:
| a. |
default is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period of 30 days, or
|
22
| b. |
default is made in the payment of principal of any Security at the Maturity thereof, or
|
| c. |
default is made in the deposit of any sinking fund payment when and as due by the terms of a Security,
|
then, the Company and the Guarantors shall, 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 any overdue interest at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company or the Guarantors fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial
proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company, any Guarantor or any other obligor upon such Securities and collect the moneys
adjudged or deemed to be payable in the manner provided by law out of the property of the Company, any Guarantor or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to any Securities of any Series occurs and is continuing, the Trustee may proceed to protect and enforce its rights and the rights of the
Holders of Securities of such Series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper remedy.
| Section 6.4. |
Trustee May File Proofs of Claim.
|
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any
other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
| a. |
to file and prove a claim for the whole amount of principal or, if the Securities of such Series are Discount Securities, such amounts as may be due and payable with respect to such Securities pursuant to an
acceleration in accordance with Section 6.2, and interest owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including
any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and
|
23
| b. |
to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same, and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that such payments shall be made directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.7.
|
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
| Section 6.5. |
Trustee May Enforce Claims Without Possession of Securities.
|
All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the
Holders of the Securities in respect of which such judgment has been recovered.
| Section 6.6. |
Application of Money Collected.
|
Any money or property 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 or property 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
(acting in any capacity hereunder) under Section 7.7; and
Second: To the payment of the amounts then due and unpaid for principal of and interest on the Securities in respect of which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and payable on such Securities for principal and interest, respectively; and
Third: To the Company or the Guarantors, as applicable.
24
| Section 6.7. |
Limitation on Suits.
|
No Holder of any Security of any Series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any remedy hereunder, unless
| a. |
such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that Series;
|
| b. |
the Holders of not less than 25% in principal amount of the outstanding Securities of that Series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
|
| c. |
such Holder or Holders have offered to the Trustee indemnity or security reasonably satisfactory to the Trustee against the costs, claims, expenses and liabilities which might be incurred by the Trustee in
compliance with such request;
|
| d. |
the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
|
| e. |
no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the outstanding Securities of that Series;
|
it being understood, intended and expressly covenanted by the Holder of every Security with every other Holder and the Trustee that no one or more of such Holders shall have any right in any manner whatever by virtue
of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders of the applicable Series (it being expressly understood that the Trustee shall not have an affirmative duty to ascertain whether such action is
prejudicial).
| Section 6.8. |
Unconditional Right of Holders to Receive Principal and Interest.
|
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and interest, if
any, on such Security on the Maturity of such Security, including the Stated Maturity expressed in such Security (or, in the case of redemption, on the redemption date) and to institute suit for the enforcement of any such payment, and such rights
shall not be impaired without the consent of such Holder.
25
| Section 6.9. |
Restoration of Rights and Remedies.
|
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Guarantors, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
| Section 6.10. |
Rights and Remedies Cumulative.
|
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in Section 2.8, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not, to the extent permitted by law, prevent the concurrent assertion or employment of
any other appropriate right or remedy.
| Section 6.11. |
Delay or Omission Not Waiver.
|
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
| Section 6.12. |
Control by Holders.
|
The Holders of a majority in principal amount of the outstanding Securities of any Series shall have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such Series; provided, that:
| a. |
such direction shall not be in conflict with any rule of law or with this Indenture;
|
| b. |
the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction;
|
| c. |
the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith shall, by a Responsible Officer of the Trustee, determine that the proceeding so directed would involve the
Trustee in personal liability, the direction is in conflict with any law or this Indenture, or the direction would be unduly prejudicial to the Holders of such Series not joining therein provided, however, that
the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction (it being expressly understood that the Trustee shall not have an affirmative duty to ascertain whether such action is
prejudicial); and
|
26
| d. |
prior to taking any action as directed under this Section 6.12, the Trustee shall receive indemnity or security satisfactory to it against the costs, claims, expenses and liabilities which might be
incurred by it in compliance with such request or direction.
|
| Section 6.13. |
Waiver of Past Defaults.
|
The Holders of not less than a majority in principal amount of the outstanding Securities of any Series may on behalf of the Holders of all the Securities of such Series, by written notice to the
Trustee and the Company, waive any past Default hereunder with respect to such Series and its consequences, except a Default in the payment of the principal of or interest on any Security of such Series (provided,
however, that the Holders of a majority in principal amount of the outstanding Securities of any Series may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration). Upon any
such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.
| Section 6.14. |
Undertaking for Costs.
|
All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the outstanding Securities of any Series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of or interest on any Security on or after the Maturity of such Security, including the Stated Maturity
expressed in such Security (or, in the case of redemption, on the redemption date).
ARTICLE VII.
| Section 7.1. |
Duties of Trustee.
|
| a. |
If an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise as a prudent
person would exercise or use under the circumstances in the conduct of such person’s own affairs.
|
27
| b. |
Except during the continuance of an Event of Default:
|
| i. |
The Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee.
|
| ii. |
In the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon Officer’s Certificates or Opinions of Counsel furnished to the
Trustee and conforming to the requirements of this Indenture; however, in the case of any such Officer’s Certificates or Opinions of Counsel which by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee
shall examine such Officer’s Certificates and Opinions of Counsel to determine whether or not they conform to the form requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other
facts stated therein). 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 may require and
conclusively rely upon an Officer’s Certificate and/or an Opinion of Counsel.
|
| c. |
The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
|
| i. |
This paragraph does not limit the effect of paragraph (b) of this Section.
|
| ii. |
The Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts.
|
| iii. |
The Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it with respect to Securities of any Series in good faith in accordance with the direction of the Holders of a majority in principal
amount of the outstanding Securities of such Series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture
with respect to the Securities of such Series in accordance with Section 6.12.
|
| d. |
Every provision of this Indenture that in any way relates to the Trustee is subject to paragraph (a), (b) and (c) of this Section.
|
| e. |
The Trustee may refuse to perform any duty or exercise any right or power unless it receives security or indemnity satisfactory to it against the losses, costs,
claims, expenses and liabilities which might be incurred by it in performing such duty or exercising such right or power (including, but in no way limited to, the
fees and disbursements of agents and attorneys).
|
28
| f. |
The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
|
| g. |
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, or in the exercise of any of its
rights or powers. The Trustee shall not be required to give any bond or surety in respect of the performance of its powers or duties hereunder.
|
| h. |
The Paying Agent, the Registrar and any authenticating agent shall be entitled to the
protections and immunities as are set forth in paragraphs (e), (f) and (g) of this Section, each with respect to the Trustee.
|
| Section 7.2. |
Rights of Trustee.
|
| a. |
The Trustee shall be entitled to conclusively rely on and shall be protected in acting or refraining from acting upon any document (whether in its original, facsimile or electronic (including .pdf) form)
reasonably believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document.
|
| b. |
Before the Trustee acts or refrains from acting, it may require and shall be entitled to receive an Officer’s Certificate and an Opinion of Counsel, or both, which shall conform to the provisions of Section
10.5. The Trustee shall be protected and shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate and Opinion of Counsel.
|
| c. |
The Trustee may act through agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care. No Depositary shall be deemed an agent of the Trustee and the Trustee shall
not be responsible for any act or omission by any Depositary.
|
| d. |
The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers; provided, that
the Trustee’s conduct does not constitute willful misconduct or negligence.
|
| e. |
The Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action
taken, suffered or omitted by it hereunder without willful misconduct or negligence, and in reliance on the advice or opinion of such counsel.
|
| f. |
The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be compensated, reimbursed and indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder (including, but not limited to, as Registrar and Paying Agent), each Agent, and each agent, custodian and other person employed to act hereunder.
|
29
| g. |
The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities unless such Holders shall have
offered, and, if requested, provided to the Trustee security or indemnity satisfactory to it against the losses, costs, claims, expenses and liabilities which might be incurred by it in compliance with such request or direction.
|
| h. |
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 may make such further inquiry or investigation into such facts or matters as it may see fit.
|
| i. |
The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact
such a default is actually received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities generally or the Securities of a particular Series and this Indenture.
|
| j. |
Any permissive right or authority granted to the Trustee shall not be construed as a mandatory duty.
|
| k. |
The Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this
Indenture, which Officer’s Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.
|
| l. |
In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of
whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action arising in connection with the Indenture.
|
| m. |
The Trustee shall not be required to give any bond or surety in respect of the execution of the trusts and powers or otherwise in respect of the Indenture.
|
| n. |
Under no circumstances shall the Trustee be liable in its individual capacity for the obligations evidenced by the Securities.
|
| o. |
The Trustee is not responsible for monitoring the performance by any third party of their duties or for their failure to perform.
|
30
| p. |
Nothing herein shall be construed to impose an obligation on the part of the Trustee to monitor, recalculate, evaluate or verify any report, certificate or information received from the Company or any other
person (unless and except to the extent expressly set forth herein), or to monitor, verify or independently determine compliance by the Company with the terms hereof.
|
| Section 7.3. |
Individual Rights of Trustee.
|
The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or an Affiliate of the Company with the same rights it would
have if it were not Trustee. Any Agent may do the same with like rights. The Trustee is also subject to Sections 7.10 and 7.11.
| Section 7.4. |
Trustee’s Disclaimer.
|
The Trustee makes no representation as to the validity or adequacy of this Indenture or the Securities, it shall not be accountable for the Company’s use of the proceeds from the Securities, and it
shall not be responsible for any statement in the Securities other than its authentication.
| Section 7.5. |
Notice of Defaults.
|
If a Default or Event of Default occurs and is continuing with respect to the Securities of any Series and if it is actually known to a Responsible Officer of the Trustee, the Trustee shall deliver
to each Securityholder of the Securities of that Series, in the manner set forth in Section 10.2, notice of a Default or Event of Default within 90 days after it occurs or, if later, after a Responsible Officer of the Trustee has knowledge of
such Default or Event of Default. Except in the case of a Default or Event of Default in payment of principal of or interest on any Security of any Series, the Trustee may withhold the notice if and so long as the Trustee in good faith determines
that withholding the notice is in the interests of Securityholders of that Series.
| Section 7.6. |
Reports by Trustee to Holders.
|
Within 60 days after May 15 of each year, the Trustee shall transmit to all Securityholders, as their names and addresses appear on the register kept by the Registrar, a brief report dated as of such
anniversary date, in accordance with, and to the extent required under, TIA Section 313.
A copy of each report at the time of its delivery to Securityholders of any Series shall be filed with the SEC and each national securities exchange on which the Securities of that Series are listed.
The Company shall promptly notify the Trustee in writing when Securities of any Series are listed or de-listed on any national securities exchange and of any delisting thereof.
| Section 7.7. |
Compensation and Indemnity.
|
The Company shall pay to the Trustee (acting in any capacity hereunder) from time to time compensation for its services as the Company and the Trustee shall from time to time agree upon in writing.
The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee and Agents upon request for all reasonable disbursements, out-of-pocket expenses and advances
incurred or made by it. Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.
31
The Company shall indemnify each of the Trustee (acting in any capacity hereunder) and any predecessor Trustee (including the cost of defending itself) against any cost, claim, expense or liability,
including taxes (other than taxes based upon, measured by or determined by the income of the Trustee) incurred by it except as set forth in the next paragraph in the performance of its duties under this Indenture as Trustee or Agent. The Trustee
shall notify the Company promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Company shall not relieve the Company of its obligations under this Section 7.7. The Company shall defend the claim and
the Trustee shall cooperate in the defense. The Trustee may have separate counsel of its selection and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without its consent, which
consent shall not be unreasonably withheld. This indemnification shall apply to officers, directors, employees, shareholders and agents of the Trustee (acting in any capacity hereunder).
The Company need not reimburse any expense or indemnify against any loss or liability incurred by the Trustee or by any officer, director, employee, shareholder or agent of the Trustee through
willful misconduct or negligence, as determined by a final non-appealable order of a court of competent jurisdiction.
To secure the Company’s payment obligations in this Section, the Trustee shall have a lien prior to the Securities of any Series
on all money or property held or collected by the Trustee, except that held in trust to pay principal of and interest on particular Securities of that Series.
When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.1(d) or (e) occurs, the expenses and the compensation for the
services are intended to constitute expenses of administration under any Bankruptcy Law.
The provisions of this Section shall survive the termination of this Indenture and the earlier resignation or removal of the Trustee.
| Section 7.8. |
Replacement of Trustee.
|
A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in
this Section.
The Trustee may resign with respect to the Securities of one or more Series by so notifying the Company at least 30 days prior to the date of the proposed resignation and the
retiring or resigning Trustee shall have no liability or responsibility for the action or inaction of any successor Trustee. The Holders of a majority in principal amount of the Securities of any Series may remove the Trustee with respect to that
Series by so notifying the Trustee and the Company. The Company may remove the Trustee with respect to Securities of one or more Series if:
| a. |
the Trustee fails to comply with Section 7.10;
|
32
| b. |
the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
|
| c. |
a Custodian or public officer takes charge of the Trustee or its property; or
|
| d. |
the Trustee becomes incapable of acting.
|
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. Within one year after
the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Securities may appoint a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee with respect to the Securities of any one or more Series does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring
Trustee, the Company or the Holders of at least a majority in principal amount of the Securities of the applicable Series may, at the Company’s sole cost and expense, petition any court of competent jurisdiction for the appointment of a successor
Trustee. A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Immediately after that, the retiring Trustee shall transfer all property held by it as Trustee to the successor Trustee
subject to the lien provided for in Section 7.7, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee with respect to each Series of
Securities for which it is acting as Trustee under this Indenture. A successor Trustee shall deliver a notice of its succession to each Securityholder of each such Series. Notwithstanding replacement of the Trustee pursuant to this Section 7.8,
the Company’s obligations under Section 7.7 hereof shall continue for the benefit of the retiring Trustee with respect to expenses and liabilities incurred by it for actions taken or omitted to be taken in accordance with its rights, powers
and duties under this Indenture prior to such replacement.
| Section 7.9. |
Successor Trustee by Merger, Etc.
|
If the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation or banking association,
the successor corporation or banking association without any further act shall be the successor Trustee, subject to Section 7.10.
| Section 7.10. |
Eligibility; Disqualification.
|
This Indenture shall always have a Trustee who satisfies the requirements of TIA Section 310(a)(1), (2) and (5). The Trustee shall always have a combined capital and surplus of
at least $25,000,000 as set forth in its most recent published annual report of condition. The Trustee shall comply with TIA Section 310(b). In determining whether the Trustee has a conflicting interest as defined in Section 310(b) of the TIA with
respect to the Securities of any Series, there shall be excluded Securities of any particular Series of Securities other than that Series.
33
| Section 7.11. |
Preferential Collection of Claims Against Company.
|
The Trustee is subject to TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to TIA
Section 311(a) to the extent indicated.
ARTICLE VIII.
| Section 8.1. |
Satisfaction and Discharge of Indenture.
|
This Indenture shall upon Company Order be discharged with respect to the Securities of any Series and cease to be of further effect as to all Securities of such Series (except as hereinafter
provided in this Section 8.1), and the Trustee, at the expense of the Company, shall execute instruments reasonably requested by the Company acknowledging satisfaction and discharge of this Indenture, when
| a. |
either
|
| i. |
all Securities of such Series theretofore authenticated and delivered (other than Securities that have been destroyed, lost or stolen and that have been replaced or paid) have been delivered to the Trustee for cancellation; or
|
| ii. |
all such Securities of such Series not theretofore delivered to the Trustee for cancellation:
|
| 1. |
have become due and payable by reason of sending a notice of redemption or otherwise, or
|
| 2. |
will become due and payable at their Stated Maturity within one year, or
|
| 3. |
have been called for redemption or are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, or
|
| 4. |
are deemed paid and discharged pursuant to Section 8.3, as applicable and the Company, in the case of (1), (2) or (3) above, has irrevocably deposited or
caused to be irrevocably deposited with the Trustee as trust funds in trust an amount of money or U.S. Government Obligations sufficient for the purpose of paying and
discharging the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and interest to the date of such deposit (in the case of Securities which have become due and payable on or
prior to the date of such deposit) or to the Stated Maturity or redemption date, as the case may be;
|
34
| b. |
the Company has paid or caused to be paid all other sums payable hereunder by the Company; and
|
| c. |
the Company has delivered to the Trustee an Officer’s 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 7.7, and, if money shall have been deposited with the Trustee
pursuant to clause (a) of this Section, the provisions of Sections 2.4, 2.7, 2.8, 8.2 and 8.5 shall survive.
If the Company exercises the satisfaction and discharge provisions in compliance with this Indenture with respect to Securities of a particular Series that are entitled to the benefit of the
Guarantee of any Guarantor, the Guarantee will terminate with respect to that Series of Securities.
| Section 8.2. |
Application of Trust Funds; Indemnification.
|
| a. |
Subject to the provisions of Section 8.5, all money or U.S. Government Obligations deposited with the Trustee pursuant to Section 8 1 all money and U.S. Government Obligations or Foreign
Government Obligations deposited with the Trustee pursuant to Sections 8.3 or 8.4 and all money received by the Trustee in respect of U.S. Government Obligations or Foreign Government Obligations deposited with the Trustee
pursuant to Sections 8.3 or 8.4, shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may determine, to the persons entitled thereto, of the principal and interest for whose payment such money has been deposited with or received by the Trustee or to make mandatory sinking
fund payments or analogous payments as contemplated by Sections 8.3 or 8.4.
|
| b. |
The Company shall pay and shall indemnify the Trustee (and any Agent as applicable) against any tax, fee or other charge imposed on or assessed against U.S. Government Obligations or Foreign Government
Obligations deposited pursuant to Sections 8.3 or 8.4 or the interest and principal received in respect of such obligations other than any payable by or on behalf of Holders.
|
| c. |
The Trustee shall deliver or pay to the Company from time to time upon Company Order any U.S. Government Obligations or Foreign Government Obligations or money held by it as provided in Sections 8.3 or
8.4 which, in the opinion of a nationally recognized firm of independent certified public accountants or investment bank expressed in a written certification thereof delivered to the Trustee, are then in excess of the amount thereof
which then would have been required to be deposited for the purpose for which such U.S. Government Obligations or Foreign Government Obligations or money were deposited or received. This provision shall not authorize the sale by the Trustee
of any U.S. Government Obligations or Foreign Government Obligations held under this Indenture.
|
35
| Section 8.3. |
Legal Defeasance of Securities of any Series.
|
Unless this Section 8.3 is otherwise specified, pursuant to Section 2.2, to be inapplicable to Securities of any Series, the Company shall be deemed to have paid and discharged the
entire indebtedness on all the outstanding Securities of any Series on the 91st day after the date of the deposit referred to in subparagraph (c) hereof, and the provisions of this Indenture, as it relates to such outstanding
Securities of such Series, shall no longer be in effect and any Guarantee will terminate with respect to that Series of Securities (and the Trustee, at the expense of the Company, shall, upon receipt of a Company Order, execute instruments reasonably
requested by the Company acknowledging the same), except as to:
| a. |
the rights of Holders of Securities of such Series to receive, from the trust funds described in subparagraph (c) hereof, (i) payment of the principal of and each installment of principal of and
interest on the outstanding Securities of such Series on the Maturity of such principal or installment of principal or interest and (ii) the benefit of any mandatory sinking fund payments applicable to the Securities of such Series on the day
on which such payments are due and payable in accordance with the terms of this Indenture and the Securities of such Series;
|
| b. |
the provisions of Sections 2.4, 2.7, 2.8, 8.2, 8.3 and 8.5; and
|
| c. |
the rights, powers, trust and immunities of the Trustee hereunder and the Company’s obligations in connection therewith; provided, that the following conditions shall
have been satisfied:
|
| i. |
the Company shall have deposited or caused to be irrevocably deposited (except as provided in Section 8.2(c)) with the Trustee as trust funds in trust for the purpose of making the following
payments, specifically pledged as security for and dedicated solely to the benefit of the Holders of such Securities (i) in the case of Securities of such Series denominated in Dollars, cash in Dollars and/or U.S. Government Obligations, or
(ii) in the case of Securities of such Series denominated in a Foreign Currency (other than a composite currency), money and/or Foreign Government Obligations, which through the payment of interest and principal in respect thereof in
accordance with their terms, will provide (and without reinvestment and assuming no tax liability will be imposed on such Trustee), not later than one day before the due date of any payment of money, an amount in cash, sufficient, in the
opinion of a nationally recognized firm of independent public accountants or investment bank expressed in a written certification thereof delivered to the Trustee, to pay and discharge each installment of principal of and interest, if any,
on and any mandatory sinking fund payments in respect of all the Securities of such Series on the dates such installments of interest or principal and such sinking fund payments are due;
|
36
| ii. |
such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound (other than a Default or Event of Default
resulting from the borrowing of funds to be applied to such deposit (and any similar concurrent deposit related to other indebtedness of the Company or any Subsidiary) and the granting of liens to secure such borrowings);
|
| iii. |
no Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such deposit or during the period ending on the 91st day after such date;
|
| iv. |
the Company shall have delivered to the Trustee an Officer’s Certificate and 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 execution of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case stating that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the Securities of such
Series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to U.S. federal income tax on the same amount and in the same manner and at the same
times as would have been the case if such deposit, defeasance and discharge had not occurred;
|
| v. |
the Company shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company; and
|
| vi. |
the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to the defeasance contemplated by this Section have been complied with.
|
| Section 8.4. |
Unless this Section 8.4 is otherwise specified pursuant to Section 2.2 to be inapplicable to Securities of any Series, the Company may omit to comply with respect to the Securities of
any Series with any term, provision or condition set forth under Sections 4.2, 4.3, 4.4, 4.5 and 5.1 as well as any additional covenants specified in a supplemental indenture for such Series of Securities or a
Board Resolution or an Officer’s Certificate delivered pursuant to Section 2.2 (and the failure to comply with any such covenants shall not constitute a Default or Event of Default with respect to such Series under Section 6.1) and
the occurrence of any event specified in a supplemental indenture for such Series of Securities or a Board Resolution or an Officer’s Certificate delivered pursuant to Section 2.2.18 and designated as an Event of Default shall not constitute
a Default or Event of Default hereunder, with respect to the Securities of such Series; provided, that the following conditions shall have been satisfied:
37
| a. |
With reference to this Section 8.4, the Company has deposited or caused to be irrevocably deposited (except as provided in Section 8.2(c)) with the Trustee as trust funds in trust for the
purpose of making the following payments specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities (i) in the case of Securities of such Series denominated in Dollars, cash in Dollars and/or
U.S. Government Obligations, or (ii) in the case of Securities of such Series denominated in a Foreign Currency (other than a composite currency), money and/or Foreign Government Obligations, which through the payment of interest and
principal in respect thereof in accordance with their terms, will provide (and without reinvestment and assuming no tax liability will be imposed on such Trustee), not later than one day before the due date of any payment of money, an amount
in cash, sufficient, in the opinion of a nationally recognized firm of independent certified public accountants or investment bank expressed in a written certification thereof delivered to the Trustee, to pay and discharge each installment of
principal of and interest, if any, on and any mandatory sinking fund payments in respect of the Securities of such Series on the dates such installments of interest or principal and such sinking fund payments are due;
|
| b. |
Such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound (other than a
Default or Event of Default resulting from the borrowing of funds to be applied to such deposit (and any similar concurrent deposit related to other indebtedness of the Company or any Subsidiary) and the granting of liens to secure such
borrowings);
|
| c. |
No Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such deposit;
|
| d. |
The Company shall have delivered to the Trustee an Opinion of Counsel stating that the Holders of the Securities of such Series will not recognize income, gain or loss for U.S. federal income tax purposes as a
result of such deposit and covenant defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and covenant defeasance had not occurred;
|
38
| e. |
The Company shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company with the intent of defeating, hindering, delaying or defrauding any other creditors
of the Company; and
|
| f. |
The Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the covenant defeasance
contemplated by this Section have been complied with.
|
| Section 8.5. |
Repayment to Company.
|
Subject to applicable abandoned property law, the Trustee and the Paying Agent shall pay to the Company upon request any money held by them for the payment of principal and interest that remains
unclaimed for two years. After that, Securityholders entitled to the money must look to the Company for payment as general creditors unless an applicable abandoned property law designates another person.
| Section 8.6. |
Reinstatement.
|
If the Trustee or the Paying Agent is unable to apply any money deposited with respect to Securities of any Series in accordance with Section 8.1 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 obligations of the Company under this Indenture with respect to the Securities of such Series and under the
Securities of such Series shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.1 until such time as the Trustee or the Paying Agent is permitted to apply all such money in accordance with Section 8.1;
provided, however, that if the Company has made any payment of principal of or interest on or any Additional Amounts with respect to 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 money or U.S. Government Obligations held by the Trustee or Paying Agent after payment in full to the Holders.
ARTICLE IX.
| Section 9.1. |
Without Consent of Holders.
|
The Company, any Guarantors and the Trustee may amend or supplement this Indenture or the Securities of one or more Series without the consent of any Securityholder:
| a. |
to cure any ambiguity, defect or inconsistency;
|
| b. |
to comply with Article V;
|
| c. |
to provide for uncertificated Securities in addition to or in place of certificated Securities; provided, that the uncertificated Securities are issued in registered
form for purposes of Section 163(f) of the Code;
|
39
| d. |
to surrender any of the Company’s rights or powers under this Indenture;
|
| e. |
to add covenants or events of default for the benefit of the holders of Securities of any Series;
|
| f. |
to comply with the applicable procedures of the applicable Depositary;
|
| g. |
to make any change that does not adversely affect the rights of any Securityholder;
|
| h. |
to provide for the issuance of and establish the form and terms and conditions of Securities of any Series as permitted by this Indenture;
|
| i. |
to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more Series and to add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee;
|
| j. |
to comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA;
|
| k. |
to reflect the release of any Guarantor in accordance with Article XII; or
|
| l. |
to add Guarantors with respect to any or all of the Securities or to secure any or all of the Securities or the Guarantees.
|
| Section 9.2. |
With Consent of Holders.
|
The Company, any Guarantors and the Trustee may enter into a supplemental indenture with the written consent of the Holders of at least a majority in principal amount of the outstanding Securities of each Series affected by such supplemental indenture (including consents obtained in
connection with a tender offer or exchange offer for the Securities of such Series), for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or
of modifying in any manner the rights of the Securityholders of each such Series. Except as provided in Section 6.13, the Holders of at least a majority in principal amount of the outstanding Securities of any 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 9.2 to approve the particular form of any proposed supplemental indenture or waiver, but it shall be sufficient if such consent approves the substance thereof. After a supplemental indenture or waiver
under this section becomes effective, the Company shall mail to the Holders of Securities affected thereby (with a copy to the Trustee), a notice briefly describing the supplemental indenture or waiver.
40
Any failure by the Company to send such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture or waiver.
| Section 9.3. |
Limitations.
|
Without the consent of each Securityholder affected, an amendment or waiver may not:
| a. |
reduce the principal amount of Securities whose Holders must consent to an amendment, supplement or waiver;
|
| b. |
reduce the rate of or extend the time for payment of interest (including default interest) on any Security;
|
| c. |
reduce the principal or change the Stated Maturity of any Security or reduce the amount of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation;
|
| d. |
reduce the principal amount of Discount Securities payable upon acceleration of the maturity thereof;
|
| e. |
waive a Default or Event of Default in the payment of the principal of or interest, if any, on any Security (except a rescission of acceleration of the Securities of any Series by the Holders of at least a
majority in principal amount of the outstanding Securities of such Series and a waiver of the payment default that resulted from such acceleration);
|
| f. |
make the principal of or interest, if any, on any Security payable in any currency other than that stated in the Security;
|
| g. |
make any change in Section 6.8, 6.13 or 9.3 (this sentence);
|
| h. |
waive a redemption payment with respect to any Security; provided, that such redemption is made at the Company’s option; or
|
| i. |
if the Securities of that Series are entitled to the benefit of the Guarantee, release any Guarantor of such Series other than as provided in this Indenture or modify the Guarantee in any manner adverse to the
Holders.
|
| Section 9.4. |
Compliance with Trust Indenture Act.
|
Every amendment to this Indenture or the Securities of one or more Series shall be set forth in a supplemental indenture hereto that complies with the TIA as then in effect.
41
| Section 9.5. |
Revocation and Effect of Consents.
|
Until an amendment is set forth in a supplemental indenture or a 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 of the supplemental indenture or the date the waiver becomes effective.
Any amendment or waiver once effective shall bind every Securityholder of each Series affected by such amendment or waiver unless it is of the type described in any of clauses (a) through (h)
of Section 9.3 or requires the consent of each Security Holder affected, as set forth in a supplemental indenture or Officer’s Certificate in respect to a particular Series of Securities. 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.
The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to give their consent or take any other action described above or required or
permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the immediately preceding paragraph, those persons who were Holders at such record date (or their duly designated proxies), and only those persons,
shall be entitled to give such consent or to revoke any consent previously given or take any such action, whether or not such persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 120 days
after such record date.
| Section 9.6. |
Notation on or Exchange of Securities.
|
The Company or the Trustee may place an appropriate notation about an amendment or waiver on any Security of any Series thereafter authenticated. The Company in exchange for Securities of that Series
may issue and the Trustee shall authenticate upon request new Securities of that Series that reflect the amendment or waiver.
| Section 9.7. |
Trustee Protected.
|
The Trustee will execute and deliver any amendment or supplemental indenture authorized pursuant to this Article IX; provided, however, that
the Trustee need not (but may, in its sole and absolute discretion) execute or deliver any such amendment or supplemental indenture that the Trustee reasonably concludes adversely affects the Trustee’s rights, duties, liabilities or immunities. 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 receive, and (subject to Section 7.1) shall
be fully protected in relying upon, an Officer’s Certificate or 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 upon
delivery of such an Officer’s Certificate or Opinion of Counsel, except that the Trustee need not sign any supplemental indenture that adversely affects its rights.
42
ARTICLE X.
| Section 10.1. |
Trust Indenture Act Controls.
|
If any provision of this Indenture limits, qualifies, or conflicts with another provision which is required or deemed to be included in this Indenture by the TIA, such required or deemed provision
shall control.
| Section 10.2. |
Notices.
|
Any notice or communication by the Company, any Guarantor or the Trustee to the other, or by a Holder to the Company, any Guarantor or the Trustee, is duly given if in writing and delivered in person
or mailed by first-class mail:
if to the Company or any Guarantor:
Intertechnology Technology, Inc.
63 Lancaster Avenue
Malvern, Pennsylvania 19355-2143
Attention: Michael O’Sullivan
with a copy to:
Troutman Pepper Locke LLP
3000 Two Logan Square,
Eighteenth and Arch Streets
Philadelphia, PA 19103
Attention: Barry Abelson, Esq.
if to the Trustee:
[ ]
[ ]
[ ]
Attention: [ ]
The Company, any Guarantor or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications.
Any notice or communication to a Securityholder shall be sent electronically or by first-class mail to his, her or its address shown on the register kept by the Registrar, in accordance with the
procedures of the Depositary.
Failure to send a notice or communication to a Securityholder of any Series or any defect in it shall not affect its sufficiency with respect to other Securityholders of that or any other Series.
43
If a notice or communication is sent or published in the manner provided above, within the time prescribed, it is duly given, whether or not the Securityholder receives it.
If the Company or any Guarantor mails a notice or communication to Securityholders, it shall mail a copy to the Trustee and each Agent at the same time.
Notwithstanding any other provision of this Indenture or any Security, where this Indenture or any Security provides for notice of any event (including any notice of redemption) to a Holder of a Global Security (whether by mail or otherwise), such notice shall be sufficiently given to the Depositary for
such Security (or its designee) pursuant to the customary procedures of such Depositary.
| Section 10.3. |
Communication by Holders with Other Holders.
|
Securityholders of any Series may communicate pursuant to TIA Section 312(b) with other Securityholders of that Series or any
other Series with respect to their rights under this Indenture or the Securities of that Series or all Series. The Company, the Trustee, the Registrar and anyone else shall
have the protection of TIA Section 312(c).
| Section 10.4. |
Upon any request or application by the Company to the
Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:
| a. |
an Officer’s Certificate stating that, in the opinion of the signers, all covenants and conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and
|
| b. |
an Opinion of Counsel stating that, in the opinion of such counsel, all such covenants and conditions precedent have been complied with.
|
| Section 10.5. |
Statements Required in Certificate or Opinion.
|
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA Section
314(a)(4)) shall comply with the provisions of TIA Section 314(e) and shall include:
| a. |
a statement that the person making such certificate or opinion has read such covenant or condition;
|
| b. |
a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
|
| c. |
a statement that, in the opinion of such person, such person has made such examination or investigation as is necessary to enable such person to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
|
44
| d. |
a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
|
| Section 10.6. |
Rules by Trustee and Agents.
|
The Trustee may make reasonable rules for action by or a meeting of Securityholders of one or more Series. Any Agent may make reasonable rules and set reasonable requirements for its functions.
| Section 10.7. |
Legal Holidays.
|
Unless otherwise provided by Board Resolution, Officer’s Certificate or supplemental indenture hereto for a particular Series, a “Legal Holiday” is any day
that is not a Business Day. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period.
| Section 10.8. |
No Recourse Against Others.
|
A director, officer, employee or stockholder (past or present), as such, of the Company or any Guarantor shall not have any liability for any obligations of the Company under the Securities, the
Guarantee or this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Securityholder by accepting a Security waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
| Section 10.9. |
Counterparts.
|
This Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute
effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. The words “execution,”
“signed,” “signature,” and words of like import in this Indenture shall include images of manually executed signatures transmitted by facsimile, email or other electronic format (including, without limitation, “pdf,” “tif” or “jpg”) and other
electronic signatures (including without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received,
or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal
Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the
Uniform Commercial Code. Without limitation to the foregoing, and anything in this Indenture to the contrary notwithstanding, (a) any Officer’s Certificate, Company Order, Opinion of Counsel, Security, Guarantee endorsed on any Security, opinion
of counsel, instrument, agreement or other document delivered pursuant to this Indenture may be executed, attested and transmitted by any of the foregoing electronic means and formats, (b) all references in Section 2.3 or elsewhere in
this Indenture to the execution, attestation or authentication of any Security, any Guarantee endorsed on any Security, or any certificate of authentication appearing on or attached to any Security by means of a manual or facsimile signature
shall be deemed to include signatures that are made or transmitted by any of the foregoing electronic means or formats, and (c) any requirement in this Indenture that any signature be made under a corporate seal (or facsimile thereof) shall not
be applicable to the Securities or any Guarantees endorsed on any Securities. The Company agrees to assume all risks arising out of the use of using digital signatures, including without limitation the risk of the Trustee acting on unauthorized
instructions. The Trustee shall not have any duty to confirm that the person sending any notice, instruction or other communication (a “Notice”) by electronic transmission (including by e-mail, facsimile transmission, web portal or other electronic methods) is, in fact, a person authorized to do so. Electronic signatures believed by the Trustee to comply with the ESIGN Act of 2000 or
other applicable law (including electronic images of handwritten signatures and digital signatures provided by DocuSign, Orbit, Adobe Sign or any other digital signature provider acceptable to the Trustee) shall be deemed original signatures for
all purposes. Each other party assumes all risks arising out of the use of electronic signatures and electronic methods to send Notices to the Trustee, including without limitation the risk of the Trustee acting on an unauthorized Notice, and the
risk of interception or misuse by third parties.
45
| Section 10.10. |
THIS INDENTURE AND THE SECURITIES, INCLUDING ANY CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THE INDENTURE OR THE SECURITIES, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS THEREOF OTHER THAN SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW).
THE COMPANY, THE GUARANTORS, THE TRUSTEE AND THE HOLDERS (BY THEIR ACCEPTANCE OF THE SECURITIES) EACH HEREBY IRREVOCABLY WAIVE, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Any legal suit, action or proceeding arising out of or based upon this Indenture or the transactions contemplated hereby may be
instituted in the federal courts of the United States of America located in the Borough of Manhattan, the City of New York or the courts of the State of New York in each case
located in the Borough of Manhattan, the City of New York (collectively, the “Specified Courts”), and each party irrevocably submits to the
non-exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail (to the extent allowed under any applicable statute or rule of court) to such party’s address set forth
above shall be effective service of process for any suit, action or other proceeding brought in any such court. The Company, the Guarantors, the Trustee and the Holders (by their acceptance of the Securities) each hereby irrevocably and
unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim any such suit, action or other proceeding has
been brought in an inconvenient forum.
46
| Section 10.11. |
No Adverse Interpretation of Other Agreements.
|
This Indenture may not be used to interpret another indenture, loan or debt agreement of the Company or a Subsidiary of the Company. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
| Section 10.12. |
Successors.
|
All agreements of the Company and the Guarantors in this
Indenture and the Securities shall bind their respective successors. All agreements of the Trustee in this Indenture shall bind its successor.
| Section 10.13. |
In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
| Section 10.14. |
Table of Contents, Headings, Etc.
|
The Table of Contents, Cross Reference Table, and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
| Section 10.15. |
Securities in a Foreign Currency.
|
Unless otherwise specified in a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate delivered pursuant
to Section 2.2 of this Indenture with respect to a particular Series of Securities, whenever for purposes of this Indenture any action may be taken by the Holders of
a specified percentage in aggregate principal amount of Securities of all Series or all Series affected by a particular action at the time outstanding and, at such time, there are outstanding Securities of any Series which are denominated in more
than one currency, then the principal amount of Securities of such Series which shall be deemed to be outstanding for the purpose of taking such action shall be determined by converting any such other currency into a currency that is designated
upon issuance of any particular Series of Securities. Unless otherwise specified in a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate delivered pursuant to Section 2.2 of this Indenture with respect to a
particular Series of Securities, such conversion shall be made by the Company at the spot rate for the purchase of the designated currency as published in The Financial Times in the “Currency Rates” section (or, if The Financial Times is no
longer published, or if such information is no longer available in The Financial Times, such source as may be selected in good faith by the Company) on any date of determination. The provisions of this paragraph shall apply in determining the
equivalent principal amount in respect of Securities of a Series denominated in currency other than Dollars in connection with any action taken by Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations provided for in the preceding paragraph shall, in the absence of manifest error, to the extent permitted by law, be conclusive for all purposes
and irrevocably binding upon the Trustee and all Holders.
47
| Section 10.16. |
Judgment Currency.
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The Company and each Guarantor agrees, to the fullest extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary to
convert the sum due in respect of the principal of or interest or other amount on the Securities of any Series (the “Required Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment
Currency on the day on which final unappealable judgment is entered, unless such day is not a New York Banking Day, then the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in
The City of New York the Required Currency with the Judgment Currency on the New York Banking Day preceding the day on which final unappealable judgment is entered and (b) its obligations under this Indenture to make payments in the Required Currency
(i) shall not be discharged or satisfied by any tender, any recovery pursuant to any judgment (whether or not entered in accordance with subsection (a)), in any currency other than the Required Currency, except to the extent that such tender
or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable as an alternative or additional cause of action for the purpose
of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable, and (iii) shall not be affected by judgment being obtained for any other
sum due under this Indenture. For purposes of the foregoing, “New York Banking Day” means any day except a Saturday, Sunday or a legal holiday in The City of New York on which banking institutions are
authorized or required by law, regulation or executive order to close.
| Section 10.17. |
USA Patriot Act.
|
The parties hereto acknowledge that, in accordance with Section 326 of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (as amended, modified or supplemented from
time to time, the “USA Patriot Act”), the Trustee, like all financial institutions, is required to obtain, verify, and record information that identifies each person or legal entity that opens an account. The
parties to this Indenture agree that they will provide the Trustee with such information as the Trustee may reasonably request in order for the Trustee to satisfy the requirements of the USA Patriot Act.
| Section 10.18. |
Force Majeure.
|
In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its
control, including strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, pandemics, epidemics, recognized public emergencies, quarantine restrictions, nuclear or natural catastrophes or acts of God, and
interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, hacking, cyber-attacks, or other use or infiltration of the Trustee’s technological infrastructure exceeding authorized access; it being
understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
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ARTICLE XI.
| Section 11.1. |
Applicability of Article.
|
The provisions of this Article shall be applicable to any sinking fund for the retirement of the Securities of a Series if so provided by the terms of such Securities pursuant to Section 2.2,
except as otherwise permitted or required by any form of Security of such Series issued pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by the terms of the Securities of any Series is herein referred to as a “mandatory sinking fund payment” and any other amount provided for
by the terms of Securities of such Series is herein referred to as an “optional sinking fund payment.” If provided for by the terms of Securities of any Series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section
11.2. Each sinking fund payment shall be applied to the redemption of Securities of any Series as provided for by the terms of the Securities of such Series.
| Section 11.2. |
Satisfaction of Sinking Fund Payments with Securities.
|
The Company may, in satisfaction of all or any part of any sinking fund payment with respect to the Securities of any Series to be made pursuant to the terms of such Securities (1) deliver
outstanding Securities of such Series to which such sinking fund payment is applicable (other than any of such Securities previously called for mandatory sinking fund redemption) and (2) apply as credit Securities of such Series to which such sinking
fund payment is applicable and which have been repurchased by the Company or redeemed either at the election of the Company pursuant to the terms of such Series of Securities (except pursuant to any mandatory sinking fund) or through the application
of permitted optional sinking fund payments or other optional redemptions pursuant to the terms of such Securities; provided, that such Securities have not been previously so credited. Such Securities shall
be received by the Trustee, together with an Officer’s Certificate with respect thereto, not later than 15 days prior to the date on which the Trustee begins the process of selecting Securities for redemption, and shall be credited for such purpose
by the Trustee at the price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly. If as a result of the delivery or credit of Securities in lieu of
cash payments pursuant to this Section 11.2, the principal amount of Securities of such Series to be redeemed in order to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee need not call Securities of such Series for
redemption, except upon receipt of a Company Order that such action be taken, and such cash payment shall be held by the Trustee or a Paying Agent and applied to the next succeeding sinking fund payment; provided,
however, that the Trustee or such Paying Agent shall from time to time upon receipt of a Company Order pay over and deliver to the Company any cash payment so being held by the Trustee or such Paying Agent upon delivery by the Company to
the Trustee of Securities of that Series purchased by the Company having an unpaid principal amount equal to the cash payment required to be released to the Company.
49
| Section 11.3. |
Redemption of Securities for Sinking Fund.
|
Not less than 45 days (unless otherwise indicated in the Board Resolution, supplemental indenture hereto or Officer’s Certificate in respect of a particular Series of Securities) prior to each
sinking fund payment date for any Series of Securities, the Company will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that Series pursuant to the terms of that Series,
the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting of Securities of that Series pursuant to Section 11.2, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and the Company shall thereupon be obligated to pay the amount therein specified. Not less than 30 days (unless otherwise indicated in the Board Resolution, Officer’s
Certificate or supplemental indenture in respect of a particular Series of Securities) before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section
3.2 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 3.3. Such notice having been duly given, the redemption of such Securities shall be made upon
the terms and in the manner stated in Sections 3.4, 3.5 and 3.6.
ARTICLE XII.
| Section 12.1. |
Unconditional Guarantee.
|
| a. |
Notwithstanding any provision of this Article XII to the contrary, the provisions of this Article XII shall be applicable only to, and inure solely to the benefit of, the Securities of any
Series designated, pursuant to Section 2.2.23, as entitled to the benefits of the Guarantee of each Guarantor identified in such designation and that has executed a Notation of Guarantee with respect to such Series.
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| b. |
For value received, each Guarantor hereby jointly and severally, fully, unconditionally and absolutely guarantees (the “Guarantee”) to the Holders and to the Trustee the
due and punctual payment of the principal of, premium, if any, and interest on each Series of Securities for which such Guarantor has executed a Notation of Guarantee with respect to such Series and all other amounts due and payable under
this Indenture and the Securities of such Series by the Company, when and as such principal, premium, if any, interest, and such other amounts as shall become due and payable, whether at the Stated Maturity or by declaration of acceleration,
call for redemption or otherwise, according to the terms of such Securities and this Indenture, subject to the limitations set forth in Section 12.3.
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50
| c. |
Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Guarantors will be jointly and severally obligated to pay the same immediately. Each of the
Guarantors hereby agrees that its obligations hereunder shall be full, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee (including the Guarantee of any other Guarantor) or
this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Company or any other Guarantor, or
any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of any of the Guarantors. Each Guarantor hereby agrees that in the event of a default in payment of the
principal of or interest on the Securities entitled to the Guarantee of such Guarantor, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on
behalf of the Holders or, subject to Section 6.7 by the Holders, on the terms and conditions set forth in this Indenture, directly against such Guarantor to enforce the Guarantee without first proceeding against the Company or any
other Guarantor.
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| d. |
Each Guarantor hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Company or any of the Guarantors, and all
demands whatsoever and (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or
document evidencing the Guarantee without notice to it. Each Guarantor further agrees that if at any time all or any part of any payment theretofore applied by any person to the Guarantee is, or must be, rescinded or returned for any reason
whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Company or any of the Guarantors, the Guarantee shall, to the extent that such payment is or must be rescinded or returned, be deemed to have
continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
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| e. |
Each Guarantor shall be subrogated to all rights of the Holders and the Trustee against the Company in respect of any amounts paid by such Guarantor pursuant to the provisions of this Indenture; provided, however, that such Guarantor shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Securities entitled to the
Guarantee of such Guarantor and the Guarantee shall have been paid in full or discharged.
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| Section 12.2. |
Execution and Delivery of Notation of Guarantee.
|
To evidence the Guarantee of a Guarantor of a Series of Securities, a Notation of Guarantee, executed by either manual or facsimile signature of an Officer of such Guarantor, shall be affixed on each
Security entitled to the benefits of the Guarantee of such Guarantor. If any Officer of any Guarantor whose signature is on a Notation of Guarantee no longer holds that office at the time the Trustee authenticates a Security to which such Notation of
Guarantee is affixed or at any time thereafter, the Guarantee of such Security shall be valid nevertheless. The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of any Guarantee
relating to such Security set forth in the Indenture on behalf of the Guarantor. Notwithstanding the foregoing, each Guarantor hereby agrees that its Guarantee shall remain in full force and effect notwithstanding the absence of a Notation of
Guarantee being affixed to such Security.
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| Section 12.3. |
Limitation on Guarantors’ Liability.
|
Each Guarantor by its acceptance hereof and each Holder of Security and the Trustee entitled to the benefits of the Guarantee hereby confirms that it is the intention of all such parties that the
guarantee by such Guarantor pursuant to the Guarantee not constitute a fraudulent transfer or conveyance for purposes of any federal or state law. To effectuate the foregoing intention, each Holder of a Security and the Trustee entitled to the
benefits of the Guarantee and each Guarantor hereby irrevocably agrees that the obligations of each Guarantor under the Guarantee shall be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of
such Guarantor and to any collections from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under the Guarantee, not result in the obligations of such Guarantor under the Guarantee
constituting a fraudulent conveyance or fraudulent transfer under federal or state law.
| Section 12.4. |
Release of Guarantors from Guarantee.
|
| a. |
Notwithstanding any other provisions of this Indenture, the Guarantee of any Guarantor may be released upon the terms and subject to the conditions set forth in Section 8.1, Section 8.3 and this
Section 12.4. Provided that no Default shall have occurred and shall be continuing under this Indenture, the Guarantee incurred by a Guarantor pursuant to this Article XII shall be unconditionally released and discharged
(i) automatically upon (A) any sale, exchange or transfer, whether by way of merger or otherwise, to any person that is not an Affiliate of the Company, of all of the Company’s direct or indirect equity interests in such Guarantor (provided, such sale, exchange or transfer is not prohibited by this Indenture) or (B) the merger of such Guarantor into the Company or any other Guarantor or the liquidation and dissolution of such
Guarantor (in each case to the extent not prohibited by this Indenture) or (ii) with respect to any Series of Securities, upon the occurrence of any other condition set forth in the Board Resolution, supplemental indenture or Officer’s
Certificate establishing the terms of such Series.
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| b. |
Upon receipt of a written request of the Company accompanied by an Officer’s Certificate or Opinion of Counsel stating that any Guarantor is entitled to be released from the Guarantee in accordance with the
provisions of this Indenture, the Trustee shall deliver instruments reasonably requested by the Company or such Guarantor evidencing the release of such Guarantor from the Guarantee, such instruments to be prepared by the Company or such
Guarantor and delivered to the Trustee. Any Guarantor not so released shall remain liable for the full amount of principal of and interest on the Securities entitled to the benefits of the Guarantee as provided in this Indenture, subject to
the limitations of Section 12.3.
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[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.
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VISHAY INTERTECHNOLOGY, INC., as the Company
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By:
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Name:
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Title:
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[____________], as Guarantor
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By:
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Name:
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Title:
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[____________], as the Trustee
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By:
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Name:
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Title:
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[Signature Page for Indenture]
EXHIBIT A
[FORM OF]
NOTATION OF GUARANTEE
Each Guarantor signing below has fully, unconditionally and absolutely guaranteed, to the extent set forth in the Indenture and subject to the provisions in the Indenture, the due and punctual
payment of the principal of, premium, if any, and interest on the Securities to which this notation is affixed and all other amounts due and payable under the Indenture and the Securities to which this notation is affixed by the Company.
The obligations of such Guarantor to the Holders of Securities to which this notation is affixed and to the Trustee pursuant to the Guarantee and the Indenture are expressly set forth in Article
XII of the Indenture and reference is hereby made to the Indenture for the precise terms of the Guarantee.
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[NAME OF GUARANTOR(S)]
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By:
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Name:
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Title:
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[Exhibit A]
Exhibit 5.1
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Troutman Pepper Locke LLP
3000 Two Logan Square
Eighteenth and Arch Streets
Philadelphia, PA 19103
troutman.com
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June 29, 2026
Vishay Intertechnology, Inc.
63 Lancaster Avenue
Malvern, PA 19355
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Re: Registration Statement on Form S-3
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Ladies and Gentlemen:
We have acted as counsel to Vishay Intertechnology, Inc., a Delaware corporation (the “Company”), in connection with the Company’s
registration statement on Form S-3ASR (the “Registration Statement”), including the base prospectus that is part of the Registration Statement (the “Base Prospectus”), filed on the date hereof, with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”). The Base Prospectus provides that it will be supplemented in the future by one or more prospectus supplements (each, a “Prospectus
Supplement”). The Base Prospectus, as supplemented by the various Prospectus Supplements, will provide for the offer and sale from time to time by the Company of an indeterminate amount of any or all of (i) shares of common stock, $0.10 par
value per share (the “Common Stock”), of the Company, (ii) shares of preferred stock, par value $1.00 per share (the “Preferred Stock”), of the Company, (iii) one or more series of debt securities of the Company, which may include convertible debt
securities of the Company that constitute a part of or that are issuable upon the conversion or exercise of other Registered Securities in the Registration Statement (the “Debt
Securities”), (iv) warrants to purchase shares of Common Stock, shares of Preferred Stock or Debt Securities, or all three (the “Warrants”), (v) units comprised of one or more shares of Common Stock, shares of Preferred Stock, Debt Securities and/or Warrants, in any combination (the “Units”),
(vi) subscription rights to purchase shares of Common Stock, shares of Preferred Stock or Debt Securities, or all three (“Subscription Rights”) or (vii) any combination of the foregoing securities. The Common Stock, Preferred Stock, Debt Securities, Warrants, Units and Subscription Rights are
collectively herein referred to herein as the “Registered Securities.” The Registered Securities may be offered and sold by the Company from time to time pursuant to Rule 415(a) under the
Securities Act as set forth in the Base Prospectus, as supplemented by the various Prospectus Supplements that may be filed under the Securities Act. This opinion letter is furnished to you at your request to enable you to fulfill the requirements of
Item 601(b)(5) of Regulation S-K, in connection with the filing of the Registration Statement.
The Debt Securities will be issued under one or more indentures in the form filed as an exhibit to the Registration Statement, as amended or supplemented from time to time (each, an “Indenture”), between the Company, as obligor, and a trustee chosen by the Company and qualified to act as such under the Trust Indenture Act of 1939, as amended (the “Trustee”).
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In connection with this opinion, we have examined and relied upon originals or copies, certified or otherwise identified to our satisfaction, of: (i) the Registration Statement; (ii) the Base
Prospectus, (iii) the Company’s Corrected Amended and Restated Certificate of Incorporation (the “Charter”), as in effect on the date hereof; (iv) the Amended
and Restated Bylaws of the Company (as amended from time to time, the “Bylaws”), as in effect on the date hereof and (v) and the corporate proceedings taken by the Company with
respect (1) the filing of the Registration Statement by the Company and (2) the offer, sale and issuance of the Registered Securities by the Company, subject to a specific further authorization for the offer, sale, issuance, execution, delivery and
performance by proper action (the “Authorizing Resolutions”) of the Company’s board of directors (the “Board”) and/or an
authorized committee thereof. We have also examined and relied upon originals or copies of such corporate records, documents, agreements or other instruments of the Company, and such certificates and records of public officials, and such other
papers, as we have deemed necessary or appropriate in connection herewith. As to all matters of fact (including, without limitation, factual conclusions and characterizations and descriptions of purpose, intention or other state of mind) we have
relied entirely upon certificates of officers of the Company, and have assumed, without independent inquiry, the accuracy of those certificates.
In rendering this opinion, we have assumed the genuineness and authenticity of all signatures on original documents; the legal capacity of all natural persons; the authenticity of all documents
submitted to us as originals; the conformity to originals of all documents submitted to us as certified or photocopies; the accuracy and completeness of all documents and records reviewed by us; the accuracy, completeness and authenticity of
certificates issued by any governmental official, office or agency and the absence of change in the information contained therein from the effective date of any such certificate; and the due authorization, execution and delivery of all documents
where authorization, execution and delivery are prerequisites to the effectiveness of such documents.
For purposes of this opinion letter, we have assumed that:
(i) the issuance, sale, amount, and terms of each of the Registered Securities to be offered from time to time by the Company will be duly authorized and established by proper action of the
Board (or an authorized committee thereof) and in accordance with the Charter, the Bylaws, and applicable Delaware law, and that, at the time of each such issuance and sale of such Registered Securities, the
Company will be validly existing and in good standing under the laws of the State of Delaware, with the requisite corporate power and authority to issue and sell all such Registered Securities at such time;
(ii) any shares of Common Stock (including any such shares issuable upon exercise of Warrants) issued by the Company pursuant to the Registration Statement, the Base Prospectus and the related
Prospectus Supplement, from time to time will not exceed the maximum authorized number of shares of Common Stock under the Charter, as the same may have been amended, minus that number of shares of Common Stock that may have been issued and are
outstanding, or are reserved for issuance for other purposes, at such time;
(iii) any shares of Preferred Stock (including any such shares issuable upon exercise of Warrants) issued by the Company pursuant to the Registration Statement, the Base Prospectus and the
related Prospectus Supplement, from time to time will not exceed the maximum authorized number of shares of Preferred Stock under the Charter, as the same may have been amended, minus that number of shares of Common Stock that may have been issued
and are outstanding, or are reserved for issuance for other purposes, at such time;
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(iv) any Warrants issued by the Company pursuant to the Registration Statement, the Base Prospectus and the related Prospectus Supplement, from time to time, will be issued under one or more
valid, binding, and enforceable warrant agreements (each a “Warrant Agreement”); the Board (or an authorized Committee thereof) will have taken all necessary corporate action to authorize
the creation of and the terms of such Warrants and the issuance of the Common Stock and/or Preferred Stock to be issued upon exercise of such Warrants and to approve the Warrant Agreement; neither such Warrants nor such Warrant Agreement will include
any provision that is unenforceable, that violates any applicable law or results in a default under or breach of any agreement or instrument binding upon the Company; such Warrants or certificates representing such Warrants will have been duly
executed, countersigned, registered and delivered in accordance with the provisions of such Warrant Agreement; the issuance and sale of the Warrants will not violate any applicable law or result in a default under or breach of any agreement or
instrument binding upon the Company and will comply with any requirements or restrictions imposed by any court or governmental body having jurisdiction over the Company;
(v) any Debt Securities issued by the Company pursuant to the Registration Statement, the Base Prospectus and the related Prospectus Supplement, from time to time, will be issued under and in
conformity with a valid, binding and enforceable Indenture, which shall be delivered by the Trustee, and the Trustee will have all requisite power and authority to effect the transactions contemplated by such Indenture, and the Trustee or an
authenticating agent for the Trustee will duly authenticate the Debt Securities pursuant to the applicable Indenture, and the applicable Indenture will be the valid and binding obligation of the Trustee and will be enforceable against the Trustee in
accordance with its terms. We are expressing no opinion herein as to the application of or compliance with any foreign, federal or state law or regulation to the power, authority or competence of any party, other than the Company, to the applicable
Indenture;
(vi) any Units issued by the Company pursuant to the Registration Statement, the Base Prospectus and the related Prospectus Supplement will be issued pursuant to a valid, binding and enforceable
Unit Agreement (the “Unit Agreement”) between the Company and a bank or trust company as unit agent;
(vii) all Registered Securities will be issued and sold in the manner stated in the Registration Statement and the applicable Prospectus Supplement;
(viii) the Registration Statement, and any amendments thereto (including post-effective amendments), will have become and remain effective under the Securities Act;
(ix) a Prospectus Supplement will have been prepared and filed with the Commission describing the Registered Securities;
(x) New York law will apply to the applicable Indenture, the Warrants, any underwriting agreement or other agreement but New York law does not apply generally;
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(xi) all requisite third-party consents necessary to register and/or issue the Registered Securities will have been obtained by the Company;
(xii) certificates representing shares of Common Stock, if any, will have been duly executed, countersigned, registered and delivered, or if uncertificated, valid book-entry notations will have
been made in the share register of the Company, in each case in accordance with the provisions of the Charter and Bylaws, each as amended and then in effect; and
(xiii) all Registered Securities will be offered and sold in compliance with applicable federal and state securities or “blue sky” laws and in the manner specified in the Registration Statement
and the applicable Prospectus Supplement.
Subject to the limitations set forth below, we have made such examination of law as we have deemed necessary for the purposes of expressing the opinions set forth in this letter. Such opinions are
limited solely to matters governed by the General Corporation Law of the State of Delaware and the internal laws of the State of New York, in each case without regard to conflict or choice of law principles and as applied by courts located in the
particular jurisdiction, the applicable provisions of the Delaware Constitution, the reported judicial decisions interpreting such laws of the State of Delaware.
Based upon the foregoing, we are of the opinion that:
1. The Common Stock, when (a) Authorizing Resolutions with respect to Common Stock have been adopted, (b) the terms for the offer and sale of the Common Stock have been established in
conformity with such Authorizing Resolutions, (c) such Common Stock has been issued and sold as contemplated by the Registration Statement, the Base Prospectus and the applicable Prospectus Supplement and (d) the Company has received the
consideration provided for in the applicable Prospectus Supplement and any applicable definitive purchase, underwriting or similar agreement, which must have a value not less than the par value thereof, or upon conversion, exchange or exercise of
Preferred Stock or Warrants in accordance with the terms of such Registered Security or the instrument governing such Registered Security providing for such conversion, exchange or otherwise, will be validly issued, fully paid and nonassessable.
2. The Preferred Stock, when (a) Authorizing Resolutions with respect to Preferred Stock have been adopted, (b) the terms for the offer and sale of the Preferred Stock have been established
in conformity with such Authorizing Resolutions, (c) such Preferred Stock has been issued and sold as contemplated by the Registration Statement, the Base Prospectus and the applicable Prospectus Supplement and (d) the Company has received the
consideration provided for in the applicable Prospectus Supplement and any applicable definitive purchase, underwriting or similar agreement, which must have a value not less than the par value thereof, or upon conversion, exchange or exercise of
Warrants, in accordance with the terms of such Registered Security or the instrument governing such Registered Security providing for such conversion, exchange or otherwise, will be validly issued, fully paid and nonassessable.
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3. The Warrants, when (a) Authorizing Resolutions with respect to the Warrants have been adopted, (b) the terms of such Warrants and for their issuance and sale have been established in
conformity with such Authorizing Resolutions, (c) such Warrants have been issued and sold as contemplated by the Registration Statement, the Base Prospectus and the applicable Prospectus Supplement, (d) the Company has received the consideration
provided for in the applicable supplement to the Base Prospectus and any applicable definitive purchase, underwriting or similar agreement and (e) such Warrants have been authenticated or countersigned in accordance with the provisions of the Warrant
Agreement, will be valid and binding obligations of the Company enforceable against the Company in accordance with their respective terms.
4. The Debt Securities, when (a) Authorizing Resolutions with respect to such Debt Securities have been adopted, (b) the terms of such Debt Securities and for their issuance and sale have
been established in conformity with such Authorizing Resolutions and the Indenture, (c) such Debt Securities have been issued and sold as contemplated by the Registration Statement, the Base Prospectus and the applicable Prospectus Supplement, (d)
the Company has received the consideration provided for in the applicable Prospectus Supplement and any applicable definitive purchase, underwriting or similar agreement and (e) such Debt Securities have been executed and delivered against the
payment specified therefor and pursuant to the Indenture duly authorized, executed and delivered by the Company and the Trustee, will be valid and binding obligations of the Company enforceable against the Company in accordance with their respective
terms.
5. The Units, when (a) Authorizing Resolutions with respect to the Units have been adopted, (b) the terms of such Units and for their issuance and sale have been established in conformity
with such Authorizing Resolutions, (c) such Units have been issued and sold as contemplated by the Registration Statement, the Base Prospectus and the applicable Prospectus Supplement, (d) the Company has received the consideration provided for in
the applicable Prospectus Supplement and any applicable definitive purchase, underwriting or similar agreement and (e) such Units have been authenticated or countersigned in accordance with the Unit Agreement, if applicable, will be valid and binding
obligations of the Company enforceable against the Company in accordance with their respective terms.
6. The Subscription Rights, when (a) Authorizing Resolutions with respect to the Subscription Rights have been adopted, (b) the terms of such Subscription Rights and for their issuance and
sale have been established in conformity with such Authorizing Resolutions, (c) such Subscription Rights have been issued and sold as contemplated by the Registration Statement, the Base Prospectus and the applicable Prospectus Supplement, (d) the
Company has received the consideration provided for in the applicable supplement to the Base Prospectus and any applicable definitive purchase, underwriting or similar agreement and (e) such Subscription Rights have been authenticated or
countersigned in accordance with the provisions of any governing subscription agreement, will be valid and binding obligations of the Company enforceable against the Company in accordance with their respective terms
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In addition, our opinions in paragraphs 3, 4, 5 and 6 above are subject to: (a) the effect of bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect relating to or affecting the rights and remedies of creditors; (b) the effect of general principles of equity, including without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief, regardless of whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefore may be brought; (c) the
unenforceability under certain circumstances under law or court decisions of provisions providing for the indemnification of, or contribution to, a party with respect to a liability where such indemnification or contribution is contrary to public
policy; (d) the rights or remedies available to any party for violations or breaches of any provisions of the Warrants, Debt Securities, Units or Subscription Rights, as applicable that are immaterial or the enforcement of which would be unreasonable
under the then existing circumstances; (e) the rights or remedies available to any party for material violations or breaches that are the proximate result of actions taken by any party to the Warrants, Debt Securities, Units Subscription Rights, as
applicable, other than the party against whom enforcement is sought, which actions such other party is not entitled to take pursuant to the Warrants, Debt Securities, Units or Subscription Rights, as applicable, or that otherwise violate applicable
laws; (f) the rights or remedies available to any party that takes discretionary action that is arbitrary, unreasonable or capricious, or is not taken in good faith or in a commercially reasonable manner, whether or not the Warrants, Debt Securities,
Units Subscription Rights, as applicable permit such action; or (g) the effect of the exercise of judicial discretion, whether in a proceeding in equity or at law.
This opinion letter is given as of the date hereof, and we express no opinion as to the effect of subsequent events or changes in law occurring or becoming effective after the date hereof. We assume
no obligation to update this opinion letter or otherwise advise you with respect to any facts or circumstances or changes in law that may hereafter occur or come to our attention.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to this firm under the heading “Legal Matters” in the Base Prospectus included in the
Registration Statement. In rendering this opinion and giving this consent, we do not admit that we are an “expert” within the meaning of the Securities Act.
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Very truly yours,
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/s/ Troutman Pepper Locke LLP
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Troutman Pepper Locke LLP
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Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption "Experts" in the Registration Statement (Form S-3) and related Prospectus of Vishay Intertechnology, Inc. for the registration of shares of
its common stock, preferred stock, debt securities, warrants, units and subscription rights and to the incorporation by reference therein of our reports dated February 13, 2026, with respect to the consolidated financial statements of Vishay
Intertechnology, Inc., and the effectiveness of internal control over financial reporting of Vishay Intertechnology, Inc., included in its Annual Report (Form 10-K) for the year ended December 31, 2025, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
June 29, 2026
Exhibit 107
CALCULATION OF FILING FEE TABLES
FORM S-3
(Form Type)
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered and Carry Forward Securities
| Security Type | Security Class Title | Fee Calculation or Carry Forward Rule | Amount Registered | Proposed Maximum Offering Price Per Unit | Maximum Aggregate Offering Price | Fee Rate | Amount of Registration Fee | Carry Forward Form Type | Carry Forward File Number | Carry Forward Initial Effective Date | Filing Fee Previously Paid In Connection with Unsold Securities to be Carried Forward | ||
| Newly Registered Securities | |||||||||||||
| | (1) | | | | |||||||||
| | (2) | | | | |||||||||
| | (3) | | | | |||||||||
| | (4) | | | | |||||||||
| | (5) | | | | |||||||||
| | (6) | | | | |||||||||
| Fees Previously Paid | |||||||||||||
| Carry Forward Securities | |||||||||||||
| Carry Forward Securities | |||||||||||||
| Total Offering Amounts | $ | $ | |||||||||||
| Total Fees Previously Paid | | ||||||||||||
| Total Fee Offsets | | ||||||||||||
| Net Fee Due | $ | ||||||||||||
| (1) | An indeterminate aggregate initial offering
price and number or amount of securities of each identified class is being
registered as may from time to time be offered at indeterminate prices. The
securities registered hereunder include an indeterminate number or amount, as
the case may be, of securities of each identified class as may from time to
time be issued upon conversion, exercise or exchange of the securities issued
directly hereunder. Separate consideration may or may not be received for
securities that are issuable on exercise, conversion or exchange of other
securities. Any securities registered hereunder may be sold separately or
together with the other securities registered hereunder. Pursuant to Rule 416
under the Securities Act of 1933, as amended (the “Securities Act”), this
registration statement shall also cover any additional shares of the
registrant’s securities that become issuable by reason of any stock split,
stock dividend or similar transaction, including pursuant to any applicable anti-dilution
provisions (including, without limitation, upon adjustment of any conversion or
exchange rate thereof). The registrant is relying on Rule 456(b) and Rule 457(r) under the Securities Act to defer payment of the entire registration fee. In connection with the securities offered hereby, the Registrant will pay “pay-as-you-go registration fees” in accordance with Rule 456(b). The registrant will calculate the registration fee applicable to an offer of securities pursuant to this registration statement based on the fee rate in effect on the date of such fee payment. |
| (2) | See Note 1. |
| (3) | See Note 1. |
| (4) | See Note 1. |
| (5) | See Note 1. |
| (6) | See Note 1. |