As filed with the Securities and Exchange Commission on August 6, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
THE PENNANT GROUP, INC.
(Exact name of registrant as specified in its charter)
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Delaware
(State or other jurisdiction of incorporation or organization)
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83-3349931
(I.R.S. Employer Identification Number)
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1675 East Riverside Drive, Suite 150
Eagle, Idaho 83616
(208) 506-6100
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Kirk Cheney
General Counsel
The Pennant Group, Inc.
1675 East Riverside Drive, Suite 150
Eagle, Idaho 83616
(208) 506-6100
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
George J. Vlahakos
Sidley Austin LLP
1000 Louisiana Street, Suite 5900
Houston, Texas 77002
(713) 495-4500
Approximate date of commencement of proposed sale to the public: From time to time after this registration statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: ☐
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.
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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Smaller reporting company
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Emerging growth company
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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
The Pennant Group, Inc.
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
We may offer and sell the securities identified above from time to time in one or more offerings. This prospectus provides you with a general description of the securities. We refer to the securities identified above as the “securities.” We may offer any combination of the securities, together or separately, in one or more offerings in separate series or classes and in amounts, at prices and on terms that we will determine at the time of the offering and that will be described in one or more supplements to this prospectus.
This prospectus describes some of the general terms that may apply to the securities we may offer and sell and the general manner in which they may be offered. Each time we offer securities pursuant to this prospectus, we will provide one or more supplements to this prospectus or free writing prospectuses that contain specific information about the offering and the terms of any securities being sold. Prospectus supplements or free writing prospectuses may also add, update, or change information contained in this prospectus.
We may offer and sell these securities to or through agents, underwriters, dealers, or directly to purchasers, or through a combination of these methods, on a continuous or delayed basis. The names of any agents, underwriters or dealers and the terms of the arrangements with them will be stated in the applicable prospectus supplement or free writing prospectus. For additional information on the methods of sale, you should refer to the section entitled “Plan of Distribution” in this prospectus and in the applicable prospectus supplement.
Our common stock is listed on The Nasdaq Global Select Market (“Nasdaq”) under the symbol “PNTG.” On August 5, 2024, the last reported sale price of our common stock on Nasdaq was $28.00 per share.
Our business and an investment in our securities involve significant risks. Before making an investment decision, you should review carefully and consider all of the information set forth in this prospectus and the documents incorporated by reference. These risks are described under the caption “Risk Factors” beginning on page 4 of this prospectus and under similar headings in the documents incorporated by reference into this prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is August 6, 2024.
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we have filed with the Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (the “Securities Act”), using a “shelf” registration process. By using a shelf registration statement, we may sell securities from time to time and in one or more offerings as described in this prospectus.
Each time that we offer and sell securities under this prospectus, we will provide one or more prospectus supplements to this prospectus that contain specific information about the securities being offered and sold and the specific terms of that offering. We may also authorize one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings. The prospectus supplement or free writing prospectus may also add, update or change information contained in this prospectus with respect to that offering. If there is any inconsistency between the information in this prospectus and the applicable prospectus supplement or free writing prospectus, you should rely on the prospectus supplement or free writing prospectus, as applicable. Before purchasing any securities, you should carefully read this prospectus, any applicable prospectus supplement, and any applicable free writing prospectuses, together with the additional information described under “Where You Can Find More Information” and “Incorporation by Reference.”
We have not authorized anyone to provide you with information other than that contained or incorporated by reference in this prospectus, any applicable prospectus supplement or free writing prospectuses prepared by or on behalf of us or to which we have referred you. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. We will not make an offer to sell or solicit any offer to buy these securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this prospectus and the applicable prospectus supplement is accurate only as of the date on its respective cover, that the information appearing in any applicable free writing prospectus is accurate only as of the date of that free writing prospectus, and that any information incorporated by reference is accurate only as of the date of the document incorporated by reference, unless we indicate otherwise. Our business, financial condition, results of operations and prospects may have changed since those dates.
This prospectus may not be used to offer and sell securities unless it is accompanied by an additional prospectus or a prospectus supplement.
This prospectus, the information incorporated herein by reference, and any prospectus supplement or free writing prospectus contain or may contain references to trademarks, service marks, and trade names owned by us or other companies. Solely for convenience, trademarks, service marks, and trade names, including logos, artwork, and other visual displays, may appear without the ® or ™ symbols, but such references are not intended to indicate, in any way, that we will not assert, to the fullest extent under applicable law, our rights or the rights of the applicable licensor to these trademarks, service marks, and trade names. We do not intend our use or display of other companies’ trade names, service marks, or trademarks to imply a relationship with, or endorsement or sponsorship of us by, any other companies. Other trademarks, trade names, and service marks appearing in this prospectus are the property of their respective owners.
Unless the context indicates otherwise, as used in this prospectus, the terms “us,” “our,” “Pennant,” “we,” the “Company” and similar designations refer to The Pennant Group, Inc. and its consolidated subsidiaries.
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other information with the SEC. The SEC maintains a website that contains reports, proxy and information statements, and other information about issuers, such as us, who file electronically with the SEC. The address of that website is www.sec.gov. We make available, free of charge, on our website at www.pennantgroup.com, our proxy statements on Schedule 14A, Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and any amendments to such reports as soon as reasonably practicable after such reports are electronically filed with, or furnished to, the SEC. Information on or accessible through our website is not incorporated by reference herein and does not form a part of this prospectus. We have included our website in this prospectus solely as an inactive textual reference.
This prospectus is part of a registration statement that we have filed with the SEC and does not contain all of the information in the registration statement. The full registration statement may be obtained through the SEC’s website, as provided above, or from us, as provided below under “Incorporation by Reference.” Certain documents establishing the terms of the offered securities are or may be filed as exhibits to the registration statement or documents incorporated by reference in the registration statement. Statements in this prospectus about these documents are summaries and each statement is subject, and qualified in all respects by reference, to the document to which it refers. You should refer to the actual documents for a more complete description of the relevant matters.
INCORPORATION BY REFERENCE
The SEC allows us to incorporate by reference information into this prospectus, which means that we can disclose important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference is deemed to be part of this prospectus, and subsequent information that we file with the SEC will automatically update and supersede that information. This prospectus and any accompanying prospectus supplement incorporate by reference the documents set forth below that have previously been filed with the SEC (other than those documents or the portions of those documents not deemed to be filed):
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our Annual Report on Form 10-K for the year ended December 31, 2023, filed with the SEC on February 28, 2024, including the information incorporated therein by reference from our Definitive Proxy Statement on Schedule 14A (other than information furnished rather than filed) for our 2024 Annual Meeting of Stockholders, filed with the SEC on April 11, 2024;
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our Quarterly Reports on Form 10-Q for the quarter ended March 31, 2024, filed with the SEC on May 6, 2024, and for the quarter ended June 30, 2024, filed with the SEC on August 6, 2024;
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the description of our Common Stock contained in our Registration Statement on Form 10-12B filed with the SEC on September 3, 2019, including any amendment or report filed for the purpose of updating such description, including Exhibit 4.1 to our Annual Report on Form 10-K for the year ended December 31, 2023.
All documents that we file (but not documents or parts of documents that we furnish) pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on or after the date of this prospectus and prior to the termination of this offering, including all such reports and other documents filed with the SEC after the date of the initial filing of the registration statement of which this prospectus forms a part and prior to the effectiveness of such registration statement, shall be deemed to be incorporated by reference into this prospectus and will automatically update and supersede the information in this prospectus and any previously filed documents. Under no circumstances will any information filed or furnished under current items 2.02 or 7.01 of Form 8-K be deemed incorporated herein by reference unless such Form 8-K expressly provides to the contrary.
Any statement contained herein or in a document incorporated or deemed to be incorporated by reference into this prospectus shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus, or in any other subsequently filed document
which also is or is deemed to be incorporated by reference into this prospectus, modifies or supersedes such earlier statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
We will furnish without charge to each person, including any beneficial owner, to whom a prospectus is delivered, upon written or oral request, a copy of any or all of the documents incorporated by reference, including exhibits to these documents. Any such request may be made by writing or calling us at the following address or phone number: The Pennant Group, Inc., 1675 E. Riverside Drive, Suite 150, Eagle, Idaho 83616, (208) 506-6100.
THE COMPANY
Overview
We are a leading provider of high-quality healthcare services to patients or residents of all ages, including the growing senior population, in the United States. Through our innovative operating model, we strive to be the provider of choice in the communities we serve.
As of June 30, 2024, we operate multiple lines of business, including home health, hospice and senior living, throughout Arizona, California, Colorado, Idaho, Montana, Nevada, Oklahoma, Oregon, Texas, Utah, Washington, Wisconsin and Wyoming. We provide home health, hospice and home care services through 117 agencies and senior living services at 54 communities with 3,835 total units in our assisted living, independent living and memory care business. We derive revenue from a diversified blend of payors including Medicare and Medicaid programs, private pay patients and residents and managed care payors.
We believe our key differentiators are our (1) innovative operating model that focuses on empowering and developing strong local leaders, (2) disciplined growth strategy, and (3) ability to achieve quality care outcomes in cost effective settings. In our experience, healthcare is a local endeavor, largely dependent upon personal and professional relationships, community reputation and an ability to adapt to the changing needs of patients, residents, partners and communities. As our operational leaders build strong relationships with key partners in their local communities, they are empowered to make informed and critical operational decisions that produce quality care outcomes and more effectively meet the needs of our patients and residents.
We believe our home health and hospice businesses are able to achieve quality outcomes — as measured by multiple industry and value-based metrics (such as hospital readmission rates) — in cost-effective settings. We believe our senior living business is able to offer our residents a safe and tailored quality-of-life at an affordable cost, thus appealing to a broad population. With our platform of diversified service offerings, we believe that we are well-positioned to take advantage of favorable demographic shifts as well as industry trends that reward providers offering quality care in lower cost settings.
Corporate Information
We were incorporated as a Delaware corporation on January 24, 2019, for the purpose of holding the home health and hospice agencies and substantially all of the senior living businesses of The Ensign Group, Inc. (“Ensign”), which was formed in 1999 with the goal of establishing a new level of quality care within the skilled nursing industry. On October 1, 2019, Ensign completed the separation of Pennant. The address of our headquarters is 1675 East Riverside Drive, Suite 150, Eagle, Idaho 83616, and our telephone number is (208) 506-6100. Our corporate website is located at www.pennantgroup.com. Additionally, our filings with the SEC are posted on our website at www.pennantgroup.com. The public can also obtain copies of these filings by accessing the SEC’s website at www.sec.gov. We have included our website in this prospectus solely as an inactive textual reference. The information found on or accessible through our website is not part of this or any other report we file with or furnish to the SEC.
RISK FACTORS
Investment in any securities offered pursuant to this prospectus and the applicable prospectus supplement involves significant risks. Before you invest in our securities, you should carefully consider the risk factors included in our most recent Annual Report on Form 10-K, in our Quarterly Reports on Form 10-Q and in our Current Reports on Form 8-K that are incorporated herein by reference and those that may be included in the applicable prospectus supplement, together with all of the other information included in this prospectus, any prospectus supplement and the documents we incorporate by reference. The risks and uncertainties we have described are not the only ones we face. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our business, financial condition, and results of operations. The occurrence of any of these risks might cause you to lose all or part of your investment in the offered securities.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, the applicable prospectus supplement and any free writing prospectus, and the documents incorporated herein and therein, may from time to time contain statements that do not directly or exclusively relate to historical facts. Such statements are “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995, and typically include, but are not limited to, our expected future financial position, results of operations, cash flows, financing plans, business strategy, budgets, capital expenditures, competitive positions, growth opportunities and plans and objectives of management. Forward-looking statements can often be identified by words such as “anticipate,” “expect,” “intend,” “plan,” “predict,” “believe,” “seek,” “estimate,” “may,” “will,” “should,” “would,” “could,” “potential,” “continue,” “ongoing,” similar expressions, and variations or negatives of these words. These statements are subject to the safe harbors created under the Securities Act and the Exchange Act. These statements are not guarantees of future performance and are subject to risks, uncertainties and assumptions that are difficult to predict. Therefore, our actual results could differ materially and adversely from those expressed in any forward-looking statements as a result of various factors, some of which are listed in Part I, Item 1A., Risk Factors, of this Annual Report on Form 10-K for the year ended December 31, 2023. Accordingly, you should not rely upon forward-looking statements as predictions of future events. These forward-looking statements represent our estimates and assumptions only as of the dates of this prospectus and the documents incorporated by reference herein and therein, and any free writing prospectus, as applicable, regardless of the time of delivery of this prospectus or any sale of our securities and, except as required by law, we undertake no obligation to update or revise publicly any forward-looking statements, whether as a result of new information, future events or otherwise after the date of this prospectus.
USE OF PROCEEDS
Unless we specify otherwise in any applicable prospectus supplement or in any related free writing prospectus that we may authorize to be provided to you in connection with a specific offering, we currently intend to use the net proceeds from sales of securities by us for general corporate purposes. As of the date of this prospectus, we cannot specify with certainty all of the particular uses of the net proceeds from the sale of securities under this prospectus.
DESCRIPTION OF CAPITAL STOCK
The following description summarizes certain information about our capital stock. The summary does not purport to be complete and is subject, and qualified in its entirety by reference, to our amended and restated certificate of incorporation and our second amended and restated bylaws, each of which is incorporated by reference as an exhibit to the registration statement of which this prospectus is a part, and the applicable provisions of Delaware law. See “Incorporation by Reference.”
Authorized Capital Stock
Our authorized capital shares consist of 100,000,000 shares of common stock, $0.001 par value per share, and 1,000,000 shares of preferred stock, $0.001 par value per share.
As of August 5, 2024, 30,206,741 shares of our common stock were outstanding and no shares of our preferred stock were outstanding.
Common Stock
Voting Rights
Each share of common stock is entitled to one vote on all matters submitted to a vote of the stockholders, including the election of directors. Our common stock does not have cumulative voting rights. This means a holder of a single share of common stock cannot cast more than one vote for each position to be filled on our board of directors. It also means the holders of a majority of the shares of common stock entitled to vote in the election of directors can elect all directors standing for election and the holders of the remaining shares will not be able to elect any directors.
Dividend Rights
Subject to the rights of holders of outstanding shares of preferred stock, if any, the holders of common stock are entitled to receive dividends, if any, as may be declared from time to time by our board of directors in its discretion out of funds legally available for the payment of dividends. Delaware law allows a corporation to pay dividends only out of surplus, as determined under the Delaware General Corporation Law (the “DGCL”).
Liquidation Rights
Upon the liquidation, dissolution or winding up of the Company, the holders of common stock are entitled to receive ratably the net assets of the Company legally available for distribution after we have paid or provided for all of our liabilities and all of the preferential amounts to which any holders of preferred stock, if any, may be entitled.
Other Rights and Preferences
Our common stock has no sinking fund or redemption provisions or pre-emptive, conversion or exchange rights.
Preferred Stock
Our board of directors has the authority, without further action by our stockholders, to issue up to 1,000,000 shares of preferred stock in one or more series and to fix the rights, preferences, privileges and restrictions thereof. These rights, preferences and privileges could include dividend rights, conversion rights, voting rights, terms of redemption, liquidation preferences, sinking fund terms and the number of shares constituting any series or the designation of such series, any or all of which may be greater than the rights of common stock. The issuance of our preferred stock could adversely affect the voting power of holders of common stock and the likelihood that such holders will receive dividend payments and payments upon our liquidation. In addition, the issuance of preferred stock could have the effect of delaying, deferring or preventing a change in control of the Company or other corporate action.
Anti-Takeover Effects of Provisions of our Amended and Restated Certificate of Incorporation, our Second Amended and Restated Bylaws and Delaware Law
Our amended and restated certificate of incorporation, our second amended and restated bylaws and Delaware law contain provisions that may impact the prospect of an acquisition of our company by means of a tender offer or a proxy contest. These provisions may discourage coercive takeover practices and inadequate takeover bids. We believe that the benefits of such increased protection give us the potential ability to negotiate with the proponent of an unsolicited proposal to acquire or restructure us and outweigh the disadvantages of discouraging those proposals because negotiation of the proposals could result in an improvement of their terms.
Election and Removal of Directors
Our amended and restated certificate of incorporation provides for a classified board of directors consisting of three classes of directors, with each class serving staggered three-year terms and a nearly equal number of board members in each class, as determined by our board of directors. As a result, approximately one-third of our board of directors will be elected each year. Additionally, directors will be elected by a majority of the votes cast with respect to that director’s election. In a contested election, directors will be elected by a plurality of the votes cast in the election of directors. The classification of directors and the plurality voting standard in contested elections will have the effect of making it more difficult for stockholders to change the composition of our board of directors. Any director or the entire board of directors may be removed at any time by the affirmative vote of the holders of at least sixty-six and two-thirds percent (662∕3%) of the shares then entitled to vote at an election of directors, but only for cause.
Stockholder Action by Written Consent
Our amended and restated certificate of incorporation and second amended and restated bylaws prohibit stockholder action by written consent except when approved by our board of directors.
Stockholder Meetings
Under our amended and restated certificate of incorporation and second amended and restated bylaws, only the chairman of our board of directors, our chief executive officer or our board of directors acting pursuant to a resolution adopted by a majority of the board of directors will be able to call special meetings of our stockholders.
Requirements for Advance Notification of Stockholder Nominations and Proposals
Our second amended and restated bylaws establish advance notice procedures with respect to stockholder proposals and nomination of candidates for election as directors other than nominations made by or at the direction of our board of directors or a committee of our board of directors.
Amendment of Charter Provisions
We are subject to Section 203 of the DGCL, an anti-takeover law. In general, Section 203 prohibits a publicly held Delaware corporation from engaging in a business combination with an interested stockholder for a period of three years following the date such person becomes an interested stockholder, unless the business combination or the transaction in which such person becomes an interested stockholder is approved in a prescribed manner. Generally, a “business combination” includes a merger, asset or stock sale, or other transaction resulting in a financial benefit to the interested stockholder. Generally, an “interested stockholder” is a person that, together with affiliates and associates, owns, or within three years prior to the determination of interested stockholder status did own, 15% or more of a corporation’s voting stock. The existence of this provision may have an anti-takeover effect with respect to transactions not approved in advance by our board of directors and the anti-takeover effect includes discouraging attempts that might result in a premium over the market price for the shares of our common stock.
Limitations of Liability and Indemnification Matters
Section 145 of the DGCL provides that a corporation may indemnify directors and officers as well as other employees and individuals against expenses (including attorneys’ fees), judgments, fines and amounts
paid in settlement in connection with any threatened, pending or completed actions, suit or proceeding, whether civil, criminal, administrative or investigative, in which such person is made a party by reason of the fact that the person is or was a director, officer, employee or agent of the corporation (other than an action by or in the right of the corporation — a “derivative action”), if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful. A similar standard is applicable in the case of derivative actions, except that indemnification extends only to expenses (including attorneys’ fees) incurred in connection with the defense or settlement of such action, and the statute requires court approval before there can be any indemnification where the person seeking indemnification has been found liable to the corporation. The statute provides that it is not exclusive of other indemnification that may be granted by a corporation’s bylaws, disinterested director vote, stockholder vote, agreement or otherwise.
Our amended and restated certificate of incorporation provides that no director shall be liable to us or our stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation on liability is not permitted under the DGCL, as now in effect or as amended. Currently, Section 102(b)(7) of the DGCL requires that liability be imposed for the following:
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any breach of the director’s duty of loyalty to us or our stockholders;
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any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;
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unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the Delaware General Corporation Law; or
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any transaction from which the director derived an improper personal benefit.
Our amended and restated certificate of incorporation and second amended and restated bylaws provide that, to the fullest extent authorized or permitted by the DGCL, as now in effect or as amended, we will indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding by reason of the fact that such person is or was our director or officer, or by reason of the fact that our director or officer is or was serving, at our request, as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans maintained or sponsored by us. We will indemnify such persons against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding if such person acted in good faith and in a manner reasonably believed to be in or not opposed to our best interests and, with respect to any criminal proceeding, had no reason to believe such person’s conduct was unlawful. A similar standard is applicable in the case of derivative actions, except that indemnification extends only to expenses (including attorneys’ fees) incurred in connection with the defense or settlement of such actions, and court approval is required before there can be any indemnification where the person seeking indemnification has been found liable to us. Any amendment of this provision will not reduce our indemnification obligations relating to actions taken before an amendment.
The limitation of liability and indemnification provisions in our amended and restated certificate of incorporation and second amended and restated bylaws may discourage stockholders from bringing a lawsuit against our directors and officers for breach of their fiduciary duty. They may also reduce the likelihood of derivative litigation against our directors and officers, even though an action, if successful, might benefit us and our stockholders. Further, a stockholder’s investment may be adversely affected to the extent that we pay the costs of settlement and damage.
Choice of Forum
Our amended and restated certificate of incorporation provides that, unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall, to the fullest extent permitted by law, be the sole and exclusive forum for any: (1) derivative action or proceeding brought on behalf of our company; (2) action asserting a claim of breach of a fiduciary duty owed by any director, officer, employee or agent of our company to our company or our stockholders, or any claim for aiding and
abetting any such alleged breach; (3) action asserting a claim against our company or any director or officer of our company arising pursuant to any provision of the DGCL or our amended and restated certificate of incorporation or our second amended and restated bylaws; or (4) action asserting a claim against us or any director or officer of our company governed by the internal affairs doctrine except for, as to each of (1) through (4) above, 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 the 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) arising under the federal securities laws, including the Securities Act as to which the Court of Chancery and the federal district court for the District of Delaware shall concurrently be the sole and exclusive forums. Notwithstanding the foregoing, the provisions of this paragraph will not apply to suits brought to enforce any liability or duty created by the Exchange Act or any other claim for which the federal district courts of the United States of America shall be the sole and exclusive forum.
The Nasdaq Global Select Market Listing
Our common stock is traded on The Nasdaq Global Select Market under the trading symbol “PNTG.”
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Broadridge Corporate Issuer Solutions, Inc.
DESCRIPTION OF DEBT SECURITIES
The following description summarizes certain terms and conditions of the debt securities that we may offer and sell pursuant to this prospectus. When we offer to sell a particular series of debt securities, we will describe the specific terms and conditions of the series in a prospectus supplement to this prospectus. We will also indicate in the applicable prospectus supplement whether the general terms and conditions described in this prospectus apply to the series. The terms and conditions of the series may be different in one or more respects from the terms and conditions described below. If so, those differences will be described in the applicable prospectus supplement. We urge you to read the applicable prospectus supplement and any related free writing prospectus, as well as the indenture, which may be amended or supplemented from time to time, that contains the terms of the debt securities.
The following summary of provisions of the indenture does not purport to be complete and is subject, and qualified in its entirety by reference, to the complete text of the indenture, including, but not limited to, definitions therein of certain terms. This summary may not contain all of the information that you may find useful. The terms and conditions of the debt securities of each series will be set forth in those debt securities and in the indenture and in the applicable prospectus supplement.
The form of indenture has been filed as an exhibit to the registration statement of which this prospectus forms a part. A form of each debt security, reflecting the specific terms and provisions of that series of debt securities, will be filed with the SEC in connection with each offering and will be incorporated by reference in the registration statement of which this prospectus forms a part.
General
We may offer the debt securities from time to time in as many distinct series as we may determine. The indenture does not limit the amount of debt securities that we may issue thereunder. We may, without the consent of the holders of the debt securities of any series, issue additional debt securities ranking equally with, and otherwise similar in all respects to, the debt securities of the series (except for the public offering price and the issue date) so that those additional debt securities will be consolidated and form a single series with the debt securities of the series previously offered and sold.
The debt securities of each series will be issued in fully registered form without interest coupons. We currently anticipate that the debt securities of each series offered and sold pursuant to this prospectus will be issued as global debt securities as described under “Global Debt Securities” and will trade in book-entry form only.
Debt securities denominated in U.S. dollars will be issued in denominations of $2,000 and any integral multiple of $1,000 in excess thereof, unless otherwise specified in the applicable prospectus supplement. If the debt securities of a series are denominated in a foreign or composite currency, the applicable prospectus supplement will specify the denomination or denominations in which those debt securities will be issued.
Unless otherwise specified in the applicable prospectus supplement, we will repay the debt securities of each series at 100% of their principal amount, together with any premium and accrued and unpaid interest thereon at maturity, except if those debt securities have been previously redeemed or purchased and cancelled.
Unless otherwise specified in the applicable prospectus supplement, the debt securities of each series will not be listed on any securities exchange.
Provisions of Indenture
A prospectus supplement, the indenture, and a supplemental indenture or authorizing resolution of our board of directors (including any related officer’s certificate or Company order), if any, relating to any series of debt securities being offered will include specific terms relating to the offering. These terms will include some or all of the following:
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the form and title of the debt securities;
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the aggregate principal amount of the debt securities and any limit on the aggregate principal amount, provided, however, that such amount may from time to time be increased by a resolution of our board of directors;
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the price or prices at which the debt securities will be sold;
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the person to whom any interest on a debt security of the series will be payable, if other than the person in whose name that debt security is registered;
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the date or dates on which the principal of the debt securities will be payable;
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the rate or rates (fixed or variable, or combination thereof) at which the debt securities shall bear interest, if any, or the method of determining such rate or rates;
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the date or dates on which any such interest shall be payable, the date or dates on which payment of any such interest shall commence and the record dates, if any, for such payment date or dates, or the method of determining such date or dates, and the basis upon which interest shall be calculated if other than that of a 360-day year of twelve 30-day months, the right, if any, to extend or defer interest payments and the duration of such extension or deferral;
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any optional or mandatory redemption or repayment option, including any sinking fund, amortization or analogous provisions;
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if other than a minimum denomination equal to $2,000 or an integral multiple of $1,000 in excess thereof, the denominations in which any debt securities of the series will be issuable;
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any special tax implications of the debt securities, including provisions for original issue discount securities, if offered;
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any provisions granting special rights to holders when a specified event occurs;
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the percentage of the principal amount at which the debt securities will be issued and any payments due if the maturity of the debt securities is accelerated;
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any Events of Default or covenants with respect to the debt securities that differ from, or are in addition to, those set forth in the indenture;
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if other than U.S. dollars, the currency or currencies for which the debt securities will be issued or in which the principal thereof, any premium thereon and any interest thereon will be payable;
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provisions regarding the convertibility or exchangeability of the debt securities;
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provisions pertaining to the issuance of debt securities in the form of global debt securities, as described below;
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provisions relating to the satisfaction and discharge of the indenture;
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the form of and conditions to issuance of debt securities issuable in definitive form, other than as described below;
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if other than the trustee, the identity of any other trustee, the registrar for the debt securities and any paying agent;
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whether the debt securities of the series will be guaranteed by any persons and, if so, the identity of such persons, the terms and conditions upon which such debt securities will be guaranteed and, if applicable, the terms and conditions upon which such guarantees may be subordinated to other indebtedness of the respective guarantors;
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whether the debt securities of the series will be secured by any collateral and, if so, the terms and conditions upon which such debt securities will be secured and, if applicable, upon which such liens may be subordinated to other liens securing other indebtedness of us or of any guarantor;
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the exchanges, if any, on which the debt securities may be listed;
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the terms of any right to convert or exchange debt securities of such series into any other securities or property of ours or of any other corporation or person, and the additions or changes, if any, to the indenture with respect to the debt securities of such series to permit or facilitate such conversion or exchange; and
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any other terms not prohibited by the provisions of the indenture.
Global Debt Securities
Certain series of the debt securities may be issued as permanent global debt securities to be deposited with a depositary with respect to that series. Unless otherwise indicated in the applicable prospectus supplement, the following is a summary of the depository arrangements applicable to debt securities issued in permanent global form and for which The Depository Trust Company (“DTC”), acts as depositary.
Each global debt security will be deposited with, or on behalf of, DTC, as depositary, or its nominee and registered in the name of a nominee of DTC. Except under the limited circumstances described below, global debt securities are not exchangeable for definitive certificated debt securities.
Ownership of beneficial interests in a global debt security is limited to institutions that have accounts with DTC or its nominee, or participants, or persons that may hold interests through participants. In addition, ownership of beneficial interests by participants in a global debt security will be evidenced only by, and the transfer of that ownership interest will be effected only through, records maintained by DTC or its nominee for a global debt security. Ownership of beneficial interests in a global debt security by persons that hold through participants will be evidenced only by, and the transfer of that ownership interest within that participant will be effected only through, records maintained by that participant. DTC has no knowledge of the actual beneficial owners of the debt securities. Beneficial owners will not receive written confirmation from DTC of their purchase, but beneficial owners are expected to receive written confirmations providing details of the transaction, as well as periodic statements of their holdings, from the participants through which the beneficial owners entered the transaction. The laws of some jurisdictions require that certain purchasers of securities take physical delivery of such securities in definitive form. Such laws may impair the ability to transfer beneficial interests in a global debt security.
Payments on debt securities represented by a global debt security registered in the name of or held by DTC or its nominee will be made to DTC or its nominee, as the case may be, as the registered owner and holder of the global debt security representing the debt securities. We expect that upon receipt of any payments with respect to a global debt security, DTC will immediately credit accounts of participants on its book- entry registration and transfer system with payments in amounts proportionate to their respective beneficial interests in the principal amount of that global debt security as shown in the records of DTC. Payments by participants to owners of beneficial interests in a global debt security held through those participants will be governed by standing instructions and customary practices, as is now the case with securities held for the accounts of customers in bearer form or registered in “street name,” and will be the sole responsibility of those participants, subject to any statutory or regulatory requirements that may be in effect from time to time.
Neither we, any trustee nor any of our respective agents will be responsible for any aspect of the records of DTC, any nominee or any participant relating to, or payments made on account of, beneficial interests in a permanent global debt security or for maintaining, supervising or reviewing any of the records of DTC, any nominee or any participant relating to such beneficial interests.
A global debt security is exchangeable for definitive debt securities registered in the name of, and a transfer of a global debt security may be registered to, any person other than DTC or its nominee, only if:
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DTC notifies us that it is unwilling or unable to continue as depositary for that global debt security or at any time DTC ceases to be registered under the Exchange Act, and a successor depositary is not appointed by us within 90 days after our receipt of such notice;
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there shall have occurred and be continuing an event of default under the debt securities and the registrar shall have received a request from the depositary to issue certificated securities;
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we determine in our sole discretion that the global debt security will be exchangeable for definitive debt securities in registered form; or
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as may be provided in any applicable prospectus supplement.
Any global debt security that is exchangeable pursuant to the preceding sentence will be exchangeable in whole for definitive debt securities in registered form, of like tenor and of an equal aggregate principal amount as the global debt security. The definitive debt securities will be registered by the registrar in the name
or names instructed by DTC. We expect that these instructions may be based on directions received by DTC from its participants with respect to ownership of beneficial interests in the global debt security.
Except as provided above, owners of the beneficial interests in a global debt security will not be entitled to receive physical delivery of debt securities in definitive form and will not be considered the holders of debt securities for any purpose under the indenture. No global debt security will be exchangeable except for another global debt security of like denomination and tenor to be registered in the name of DTC or its nominee. Accordingly, each person owning a beneficial interest in a global debt security must rely on the procedures of DTC and, if that person is not a participant, on the procedures of the participant through which that person owns its interest, to exercise any rights of a holder under the global debt security or the indenture.
We understand that, under existing industry practices, in the event that we request any action of holders, or an owner of a beneficial interest in a global debt security desires to give or take any action that a holder is entitled to give or take under the debt securities or the indenture, DTC would authorize the participants holding the relevant beneficial interest to give or take that action, and those participants would authorize beneficial owners owning through those participants to give or take that action or would otherwise act upon the instructions of beneficial owners owning through them.
DTC is a limited purpose trust company organized under the laws of the State of New York, a “banking organization” within the meaning of the New York Banking Law, a member of the Federal Reserve System, a “clearing corporation” within the meaning of the New York Uniform Commercial Code and a “clearing agency” pursuant to the provisions of Section 17A of the Exchange Act. DTC was created to hold securities of its participants and to facilitate the clearance and settlement of securities transactions among its participants in those securities through electronic book-entry changes in accounts of the participants, thereby eliminating the need for physical movement of securities certificates. DTC’s participants include securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations. DTC is a wholly owned subsidiary of The Depository Trust & Clearing Corporation (“DTCC”). DTCC is the holding company for DTC, National Securities Clearance Corporation and Fixed Income Clearing Corporation, all of which are registered clearing agencies. DTCC is owned by the users of its regulated subsidiaries. Access to the DTC system is also available to others, such as banks, brokers, dealers, trust companies and clearing corporations that clear through or maintain a custodial relationship with a participant, either directly or indirectly. The rules applicable to DTC and its participants are on file with the SEC. More information about DTC can be found at www.dtcc.com; the information on or accessible through that website is not incorporated by reference herein and does not form a part of this prospectus. Information on or accessible through our website is not incorporated by reference herein and does not form a part of this prospectus.
Certain Covenants
The indenture sets forth limited covenants that will apply to each series of debt securities issued under the indenture, unless otherwise specified in the applicable prospectus supplement. Under the indenture, we will agree to:
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pay the principal of, and interest and any premium on, the debt securities when due;
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maintain a place of payment;
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deliver an officer’s certificate to the trustee within 120 days after the end of each fiscal year regarding our review of compliance with our obligations under the indenture;
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maintain our corporate existence; and
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deposit sufficient funds with any paying agent on or before the due date for any payment of principal, interest or premium.
Consolidation, Merger or Asset Sale
The indenture generally will allow us to consolidate with or merge into any other person, association or entity. The indenture will also allow us to convey, transfer or lease our property and assets as, or substantially as, an entirety to a person, association or entity.
However, we will only consolidate with or merge into any other person, association or entity or convey, transfer or lease our properties and assets as, or substantially as, an entirety according to the terms and conditions of the indenture, including the following requirements:
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(i) we are the surviving person or (ii) the remaining or acquiring person, association or entity is a corporation or partnership organized under the laws of the United States, any state or the District of Columbia and expressly assumes all of our responsibilities and liabilities under the indenture, including the punctual payment of all amounts due on the debt securities and performance of the covenants in the indenture;
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immediately after giving effect to the transaction, no event of default, and no event which, after notice or lapse of time or both, would become an event of default, exists; and
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delivery to the trustee of an officer’s certificate and an opinion of counsel, each stating that all related conditions have been satisfied.
The remaining or acquiring person, association or entity will be substituted for us in the indenture with the same effect as if it had been an original party to the indenture. Thereafter, the successor may exercise our rights and powers under the indenture, in our name or in its own name. If we sell or transfer our assets substantially as an entirety, we will be released from all our liabilities and obligations under the indenture and the debt securities. If we lease our assets substantially as an entirety, we will not be released from our obligations under the indenture and the debt securities.
Events of Default
Unless otherwise specified in the applicable prospectus supplement, each of the following events will be an event of default under the indenture with respect to any series of debt securities issued under the indenture:
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failure to pay any interest on any debt security of the series when due, continued for 30 days;
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failure to pay principal of (or premium, if any, on) any debt security of the series when due;
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failure to perform or comply with any covenant in the indenture or related supplemental indenture, continued for 90 days after written notice as provided in the indenture;
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certain events in bankruptcy, insolvency or reorganization affecting us; and
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any other event of default set forth in the indenture or supplemental indenture relating to the debt securities of that series.
An Event of default for a particular series of debt securities does not necessarily constitute an event of default for any other series of debt securities issued under the indenture. The trustee may withhold notice to the holders of a series of debt securities of any default, except payment defaults of principal or interest or any premium on those debt securities, if it considers such withholding to be in the interest of the holders.
If an event of default occurs and is continuing, then the trustee or the holders of 25% in aggregate principal amount of the outstanding debt securities of that series may declare the entire principal amount of the debt securities of that series to be due and payable immediately; provided, however, that the holders of a majority of the aggregate principal amount of the debt securities of that series may, under certain circumstances, rescind and annul the declaration.
Subject to provisions in the indenture relating to its duties in case an event of default shall have occurred and be continuing, the trustee will not be under an obligation to exercise any of its rights or powers under the indenture at the request, order or direction of any holders of debt securities then outstanding under the indenture, unless the holders shall have offered to the trustee reasonable indemnity. If such reasonable indemnity is provided, the holders of a majority in aggregate principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any power conferred on the trustee, for any series of debt securities.
Defeasance
Debt securities of a series may be defeased at any time in accordance with their terms and as set forth in the indenture and described briefly below, unless the securities resolutions or supplemental indenture establishing the terms of the series provides otherwise. Any defeasance may terminate all of our obligations (with limited exceptions) with respect to a series of debt securities and the indenture, or Legal Defeasance, or it may terminate only our obligations under any restrictive covenants which may be applicable to a particular series, or Covenant Defeasance.
We may exercise our Legal Defeasance option even though we have also exercised our Covenant Defeasance option. If we exercise the Legal Defeasance option with respect to a series of debt securities, that series may not be accelerated because of an event of default. If we exercise the Covenant Defeasance option, that series of debt securities may not be accelerated by reference to any restrictive covenants which may be applicable to that particular series.
To exercise either defeasance option as to a series of debt securities, we must:
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irrevocably deposit in trust with the trustee or another trustee money or U.S. government obligations in an amount to pay and discharge the principal of and any premium and interest on the debt securities on the stated maturities or redemption dates therefor and any mandatory sinking fund payments;
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deliver a certificate from an independent public accountant or financial advisor expressing its opinion that the payments of principal and interest when due on the deposited U.S. government obligations, without reinvestment, plus any deposited money without investment, will provide cash at the times and in the amounts necessary to pay the principal of and premium and interest when due on all debt securities of the series to maturity or redemption, as the case may be, and any mandatory sinking fund payments; and
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comply with certain other conditions, including that there be no event of default at the time of deposit or event of default due to bankruptcy on or prior to the 90th day after the deposit date. In particular, we must obtain an opinion of tax counsel that the defeasance will not result in recognition of any gain or loss to holders for federal income tax purposes as a result of the deposit.
Discharge
We may discharge all our obligations under the indenture with respect to the notes of any series, other than our obligation to register the transfer of and to exchange notes of that series, when either:
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all outstanding notes of that series (except (i) mutilated, destroyed, lost or stolen notes that have been replaced or paid and notes for whose payment money has been deposited in trust and thereafter repaid to us and (ii) notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by us and thereafter repaid to us or discharged from such trust) have been delivered to the trustee cancelled or for cancellation; or
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all such notes not so delivered for cancellation have either become due and payable or will become due and payable at their stated maturity within one year or are to be called for redemption within one year, and we have deposited with the trustee in trust an amount of cash sufficient to pay the entire indebtedness of such notes, including interest to the stated maturity or applicable redemption date; and
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we have paid all other sums due under the indenture and delivered an officer’s certificate and opinion of counsel to the trustee stating that all related conditions have been satisfied.
Modification of the Indenture
Under the indenture, generally we and the trustee may modify our rights and obligations and the rights of the holders with the consent of the holders of not less than a majority in aggregate principal amount of the outstanding debt securities of each series affected by the modification.
No modification of the principal or interest payment terms, no modification reducing the percentage required for any waiver or modifications and no modification impairing the right to institute suit for the enforcement of any payment on debt securities of any series when due, is effective against any holder without its consent.
In addition, we and the trustee may amend the indenture without the consent of any holder of the debt securities to make certain changes, such as:
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curing ambiguities or correcting defects or inconsistencies;
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otherwise adding or changing provisions with respect to matters or questions arising under the indenture relating to a particular series of debt securities that does not adversely affect the rights of any holder in any material respect;
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evidencing the succession of another person to us, and the assumption by that successor of our obligations under the indenture and the debt securities of any series;
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providing for the acceptance of appointment by a successor trustee;
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qualifying the indenture under the Trust Indenture Act (the “TIA”);
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complying with the rules and regulations of any securities exchange or automated quotation system on which debt securities of any series may be listed or traded or any applicable depositary;
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to establish the form or terms of any debt securities of any series under the indenture; or
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to provide for the issuance of additional debt securities of any series.
No Individual Liability of Officers, Directors, Employees or Stockholders
No director, officer, employee or stockholder, as such, of ours or any of our affiliates will have any personal liability in respect of our obligations under the indenture or the debt securities by reason of his, her or its status as such.
Governing Law
The indenture and all the debt securities will be governed by, and construed in accordance with, the laws of the State of New York.
Regarding the Trustee
The indenture provides that there may be more than one trustee thereunder, each with respect to one or more series of debt securities. If there are different trustees for different series of debt securities, each trustee will be a trustee of a trust or trusts separate and apart from the trust or trusts administered by any other trustee under the indenture. Unless otherwise indicated in any applicable prospectus supplement, any action permitted to be taken by a trustee may be taken by such trustee only with respect to the one or more series of debt securities for which it is the trustee under the indenture. Any trustee under the indenture may resign or be removed with respect to one or more series of debt securities. All payments of principal of, and premium, if any, and interest on, and all registration, transfer, exchange, authentication and delivery (including authentication and delivery on original issuance of the debt securities) of, the debt securities of a series will be effected by the trustee with respect to that series at an office designated by the trustee.
We may maintain corporate trust relationships in the ordinary course of business with the trustee. The trustee shall have and be subject to all the duties and responsibilities specified with respect to an indenture trustee under the TIA. Subject to the provisions of the TIA, the trustee is under no obligation to exercise any of the powers vested in it by the indenture at the request of any holder of debt securities, unless offered satisfactory indemnity by the holder against the costs, expense and liabilities which might be incurred thereby.
Under the TIA, the indenture is deemed to contain limitations on the right of the trustee, should it become a creditor of our company, to obtain payment of claims in some cases or to realize on certain property received in respect of any such claim as security or otherwise. The trustee may engage in other transactions with us. If it acquires any conflicting interest under the TIA relating to any of its duties with respect to the debt securities, however, it must eliminate the conflict or resign as trustee.
DESCRIPTION OF WARRANTS
The following description summarizes certain terms and conditions of the warrants that we may offer and sell pursuant to this prospectus. When we offer to sell a particular series of warrants, we will describe the specific terms and conditions of the warrants in a prospectus supplement to this prospectus. We will also indicate in the applicable prospectus supplement whether the general terms and conditions described in this prospectus apply to the series of warrants. The terms and conditions of the warrants may be different in one or more respects from the terms and conditions described below. If so, those differences will be described in the applicable prospectus supplement. We urge you to read the applicable prospectus supplement and any related free writing prospectus, as well as the complete warrant agreements and warrant certificates that contain the terms of the warrants.
We may issue warrants for the purchase of shares of our common stock or preferred stock or of debt securities, or any combination thereof. We may issue warrants independently or together with other securities, and the warrants may be attached to or separate from any offered securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between us and the investors or a warrant agent. The terms of any warrants offered under a prospectus supplement may differ from the terms described below.
The particular terms of any issue of warrants will be described in the prospectus supplement relating to the issue. Those terms may include:
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the number of shares of common stock or preferred stock issuable upon the exercise of warrants to purchase such shares and the price at which such number of shares may be purchased upon such exercise;
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the designation, stated value and terms (including, without limitation, liquidation, dividend, conversion, and voting rights) of the series of preferred stock issuable upon exercise of warrants to purchase preferred stock;
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the principal amount of debt securities that may be purchased upon exercise of a debt warrant and the exercise price for the warrants, which may be payable in cash, securities or other property;
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the date, if any, on and after which the warrants and the related debt securities, preferred stock or common stock will be separately transferable;
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the terms of any rights to redeem or call the warrants;
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the date on which the right to exercise the warrants will commence and the date on which the right will expire;
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U.S. federal income tax consequences applicable to the warrants; and
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any additional terms of the warrants, including terms, procedures and limitations relating to the exchange, exercise and settlement of the warrants.
Each warrant will entitle its holder to purchase the principal amount of debt securities or the number of shares of common stock or preferred stock at the exercise price set forth in, or calculable as set forth in, the applicable prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement, holders of the warrants may exercise the warrants at any time up to the specified time on the expiration date that we set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants will become void.
A holder of warrant certificates may exchange them for new warrant certificates of different denominations, present them for registration of transfer and exercise them at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement. Until any warrants to purchase debt securities are exercised, the holder of the warrants will not have any rights of holders of the debt securities that can be purchased upon exercise, including any rights to receive payments of principal, premium or interest on the underlying debt securities or to enforce covenants in the applicable indenture. Until any warrants to purchase common stock or preferred stock are exercised, the holders of the warrants
will not have any rights of holders of the underlying common stock or preferred stock, including any rights to receive dividends or payments upon any liquidation, dissolution or winding up on the common stock or preferred stock, if any.
This description and the description in the applicable prospectus supplement and any free writing prospectus of any warrants that we may offer is not and will not necessarily be complete and will be subject, and qualified in its entirety by reference, to the applicable warrant agreements and warrant certificates, which will be filed with the SEC.
DESCRIPTION OF UNITS
We may issue units consisting of any combination of the other types of securities offered under this prospectus in one or more series. We may evidence each series of units by unit certificates that we will issue under a separate agreement. We may enter into unit agreements with a unit agent. Each unit agent will be a bank or trust company that we select. We will indicate the name and address of any unit agent in the applicable prospectus supplement relating to a particular series of units.
The following description summarizes certain features of the units that we may offer under this prospectus. When we offer to sell any units, we will describe the specific terms and conditions of the units in a prospectus supplement to this prospectus. We urge you to read the applicable prospectus supplement and any related free writing prospectus, as well as the complete unit agreements that contain the terms of the units. If we offer any units, certain terms of that series of units will be described in the applicable prospectus supplement, including, without limitation, the following, as applicable:
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the title of the series of units;
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identification and description of the separate constituent securities comprising the units;
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the price or prices at which the units will be issued;
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the date, if any, on and after which the constituent securities comprising the units will be separately transferable;
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a discussion of certain U.S. federal income tax considerations applicable to the units; and
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any other terms of the units and their constituent securities.
The description in the applicable prospectus supplement and any free writing prospectus of any units that we may offer will not necessarily be complete and will be subject, and qualified in its entirety by reference, to the unit agreement and, if applicable, collateral arrangements and depositary arrangements relating to such units, which will be filed with the SEC.
PLAN OF DISTRIBUTION
We may sell the securities offered by this prospectus in any one or more of the following ways from time to time:
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to or through one or more underwriters, brokers or dealers;
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through agents to investors or the public;
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in short or long transactions;
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through put or call option transactions relating to our common stock;
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directly to agents or other purchasers;
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in “at the market offerings” within the meaning of Rule 415(a)(4) of the Securities Act, to or through a market maker or into an existing trading market, on an exchange or otherwise;
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though a combination of any such methods of sale; or
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through any other method described in the applicable prospectus supplement.
In addition, we may issue the securities as a dividend or distribution or in a subscription rights offering to our existing securityholders. This prospectus may be used in connection with any offering of our securities through any of these methods or other methods described in the applicable prospectus supplement.
We may directly solicit offers to purchase securities, or agents may be designated to solicit such offers. We will, in the prospectus supplement relating to such offering, name any agent that could be viewed as an underwriter under the Securities Act, and describe any commissions that we must pay. Any such agent will be acting on a best efforts basis for the period of its appointment or, if indicated in the applicable prospectus supplement, on a firm commitment basis.
The distribution of the securities may be effected from time to time in one or more transactions:
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at a fixed price, or prices, which may be changed from time to time;
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at market prices prevailing at the time of sale;
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at prices related to such prevailing market prices; or
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at negotiated prices.
The applicable prospectus supplement will set forth the terms of the offering and the method of distribution and will identify any firms acting as underwriters, dealers or agents in connection with the offering, including:
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the terms of the offering;
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the names of any underwriters, dealers or agents;
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the name or names of any managing underwriter or underwriters;
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the purchase price of the securities and the proceeds to us from the sale;
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any over-allotment options under which the underwriters may purchase additional shares of common stock from us;
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any underwriting discounts, concessions, commissions or agency fees and other items constituting compensation to underwriters, dealers or agents;
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any delayed delivery arrangements;
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any public offering price;
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any discounts or concessions allowed or re-allowed or paid by underwriters or dealers to other dealers;
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any securities exchange or market on which the common stock offered in the prospectus supplement may be listed; or
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other facts material to the transaction.
If we use underwriters for a sale of securities, the underwriters will acquire the securities for their own account for resale to the public, either on a firm commitment basis or a best efforts basis. The underwriters may resell the securities in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. Underwriters may offer the securities to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more firms acting as underwriters. If an underwriter or underwriters are used in the sale of securities hereunder, an underwriting agreement will be executed with the underwriter or underwriters at the time an agreement for sale is reached. Unless we inform you otherwise in the applicable prospectus supplement, the obligations of the underwriters to purchase the securities will be subject to certain conditions. We may change from time to time any public offering price and any discounts or concessions the underwriters allow or pay to dealers.
During and after an offering through underwriters, the underwriters may purchase and sell the securities in the open market. These transactions may include overallotment and stabilizing transactions and purchases to cover syndicate short positions created in connection with the offering. The underwriters may also impose a penalty bid, which means that selling concessions allowed to syndicate members or other broker-dealers for the offered securities sold for their account may be reclaimed by the syndicate if the offered securities are repurchased by the syndicate in stabilizing or covering transactions. These activities may stabilize, maintain or otherwise affect the market price of the offered securities, which may be higher than the price that might otherwise prevail in the open market. If commenced, the underwriters may discontinue these activities at any time.
Under Rule 15c6-1 of the Exchange Act, trades in the secondary market generally are required to settle in one business day, unless the parties to any such trade expressly agree otherwise or the securities are sold by us to an underwriter in a firm commitment underwritten offering. The applicable prospectus supplement may provide that the original issue date for your securities may be more than two scheduled business days after the trade date for your securities. Accordingly, in such a case, if you wish to trade securities on any date prior to the second business day before the original issue date for your securities, you will be required, by virtue of the fact that your securities initially are expected to settle in more than two scheduled business days after the trade date for your securities, to make alternative settlement arrangements to prevent a failed settlement.
Some or all of the securities that we offer though this prospectus may be new issues of securities with no established trading market. Any underwriters to whom we sell our securities for public offering and sale may make a market in those securities, but they will not be obligated to do so and they may discontinue any market making at any time without notice. Accordingly, we cannot assure you of the liquidity of, or continued trading markets for, any securities that we offer.
If dealers are used for the sale of securities, we, or an underwriter, will sell the securities to them as principals. The dealers may then resell those securities to the public at varying prices determined by the dealers at the time of resale. We will include in the applicable prospectus supplement the names of the dealers and the terms of the transaction.
We may also sell the securities through agents designated from time to time. In the applicable prospectus supplement, we will name any agent involved in the offer or sale of the offered securities, and we will describe any commissions payable to the agent. Unless we inform you otherwise in the applicable prospectus supplement, any agent will agree to use its reasonable best efforts to solicit purchases for the period of its appointment.
We may sell the securities directly in transactions not involving underwriters, dealers or agents.
We may sell the securities directly to institutional investors or others who may be deemed to be underwriters within the meaning of the Securities Act with respect to any resale of those securities. We will describe the terms of any such sales in the prospectus supplement.
Underwriters, dealers and agents that participate in the distribution of the securities may be underwriters as defined in the applicable securities laws and any discounts or commissions they receive from us and any profit on their resale of the securities may be treated as underwriting discounts and commissions under the applicable securities laws. We will identify in the applicable prospectus supplement any underwriters, dealers or agents and will describe their compensation. We may have agreements with the underwriters, dealers and agents to indemnify them against specified civil liabilities, including liabilities under the applicable securities laws.
Underwriters, dealers and agents may engage in transactions with or perform services for us in the ordinary course of their businesses for which they may receive customary fees and reimbursement of expenses.
We may use underwriters with whom we have a material relationship. We will describe the nature of such relationship in the applicable prospectus supplement.
Under the securities laws of some states, the securities offered by this prospectus may be sold in those states only through registered or licensed brokers or dealers.
We may enter into hedging transactions with broker-dealers and the broker-dealers may engage in short sales of the securities in the course of hedging the positions they assume with us, including, without limitation, in connection with distributions of the securities by those broker-dealers. We may enter into option or other transactions with broker-dealers that involve the delivery of the securities offered hereby to the broker-dealers, who may then resell or otherwise transfer those securities. We may also loan or pledge the securities offered hereby to a broker-dealer and the broker-dealer may sell the securities offered hereby so loaned or upon a default may sell or otherwise transfer the pledged securities offered hereby.
LEGAL MATTERS
Unless otherwise indicated in the applicable prospectus supplement, the validity of the securities offered by this prospectus, and any supplement thereto, will be passed upon for us by Sidley Austin LLP, Houston, Texas.
EXPERTS
The financial statements of The Pennant Group, Inc. as of December 31, 2023 and 2022, and for each of the three years in the period ended December 31, 2023, incorporated by reference in this Prospectus, and the effectiveness of The Pennant Group Inc.’s internal control over financial reporting have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their reports. Such financial statements are incorporated by reference in reliance upon the reports of such firm given their authority as experts in accounting and auditing.
The Pennant Group, Inc.
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
PROSPECTUS
August 6, 2024
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the costs and expenses, other than the underwriting discounts and commissions, payable by The Pennant Group Inc. (the “Registrant,” “we,” “us,” “our” or the “Company”) in connection with the sale of common stock being registered. All amounts are estimates except for the SEC registration fee and the Financial Industry Regulatory Authority, Inc. (“FINRA”), filing fee.
| |
|
|
Amount to be Paid
|
|
|
SEC registration fee
|
|
|
|
$ |
(1)
|
|
|
|
FINRA filing fee
|
|
|
|
|
(1)
|
|
|
|
Printing and engraving expenses
|
|
|
|
|
(1)
|
|
|
|
Legal fees and expenses
|
|
|
|
|
(1)
|
|
|
|
Accounting fees and expenses
|
|
|
|
|
(1)
|
|
|
|
Transfer agent and registrar fees and expenses
|
|
|
|
|
(1)
|
|
|
|
Miscellaneous expenses
|
|
|
|
|
(1)
|
|
|
|
Total
|
|
|
|
$ |
(1)
|
|
|
(1)
Because this registration statement covers an indeterminate amount of securities, the SEC registration fee and other expenses are not currently determinable. Such SEC registration fee is deferred in accordance with Rules 456(b) and Rule 457(r) under the Securities Act.
Item 15. Indemnification of Directors and Officers.
Subsection (a) of Section 145 of the General Corporation Law of the State of Delaware (the “DGCL”), empowers a corporation to indemnify any person who was or is a party or who is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person acted in any of the capacities set forth above, against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
Section 145 further provides that to the extent a director or officer of a corporation has been successful on the merits or otherwise in the defense of any action, suit or proceeding referred to in subsections (a) and (b) of Section 145, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection
therewith; that indemnification provided for by Section 145 shall not be deemed exclusive of any other rights to which the indemnified party may be entitled; and the indemnification provided for by Section 145 shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of such person’s heirs, executors and administrators. Section 145 also empowers the corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify such person against such liabilities under Section 145.
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.
Any underwriting agreement or distribution agreement that the registrant enters into with any underwriters or agents involved in the offering or sale of any securities registered hereby may require such underwriters or dealers to indemnify the registrant, some or all of its directors and officers and its controlling persons, if any, for specified liabilities, which may include liabilities under the Securities Act of 1933, as amended.
Our amended and restated certificate of incorporation provides that we may, and our second amended and restated bylaws provide that we shall, indemnify and advance expenses to each of our directors and officers, and may indemnify and advance expenses to our employees and other agents, to the fullest extent permitted by the DGCL, as described above.
We have entered into indemnification agreements with each of our directors and executive officers. These indemnification agreements, along with our amended and restated certificate of Incorporation and second amended and restated bylaws, require us to indemnify such persons to the fullest extent permitted by Delaware law.
We have purchased and will maintain insurance on behalf of any person who is or was a director or officer against any loss arising from any claim asserted against him or her and incurred by him or her in that capacity, subject to certain exclusions and limits of the amount of coverage.
Item 16. Exhibits.
Exhibit
Number
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Description
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1.1*
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Form of Underwriting Agreement
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4.1
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Amended and Restated Certificate of Incorporation of The Pennant Group, Inc., effective as of September 27, 2019 (incorporated by reference to Exhibit 3.1 to The Pennant Group, Inc.’s Current Report on Form 8-K (File No. 001-38900) filed with the SEC on October 3, 2019)
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4.2
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Second Amended and Restated Bylaws of The Pennant Group, Inc., effective as of February 21, 2022 (incorporated by reference to Exhibit 3.1 to The Pennant Group, Inc.’s Current Report on Form 8-K (File No. 001-38900) filed with the SEC February 22, 2022)
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4.3*
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Form of Preferred Stock Certificate and Certificate of Designation of Preferred Stock
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4.4
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4.5*
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Form of Debt Security
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4.6*
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Form of Warrant
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Exhibit
Number
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Description
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4.7*
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Form of Warrant Agreement
|
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4.8*
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Form of Unit Agreement
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5.1
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23.1
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23.2
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24.1
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25.1**
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Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939.
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107
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*
To be filed, if necessary, by amendment or as an exhibit to a document to be incorporated or deemed to be incorporated by reference in this registration statement, including a Current Report on Form 8-K.
**
To be filed in accordance with the requirements of Section 305(b)(2) of the Trust Indenture Act of 1939.
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for the purpose of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the 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 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Eagle, State of Idaho, on August 6, 2024.
THE PENNANT GROUP, INC.
/s/ Lynette B. Walbom
By: Lynette B. Walbom
Title: Chief Financial Officer
Each person whose individual signature appears below hereby authorizes and appoints Kirk Cheney and Tyson Moore, and each of them, with full power of substitution and resubstitution and full power to act without the other, as his or her true and lawful attorney-in-fact and agent to act in his or her name, place, and stead and to execute in the name and on behalf of each person, individually and in each capacity stated below, and to file any and all amendments to this registration statement, including any and all post-effective amendments and amendments thereto, and any subsequent registration statement relating to the same offering as this registration statement that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, 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 thereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Brent J. Guerisoli
Brent J. Guerisoli
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Director and Chief Executive Officer
(Principal Executive Officer)
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August 6, 2024
|
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/s/ Lynette B. Walbom
Lynette B. Walbom
|
|
|
Chief Financial Officer
(Principal Financial and Accounting Officer)
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|
August 6, 2024
|
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/s/ Barry M. Smith
Barry M. Smith
|
|
|
Chairman of the Board of Directors
|
|
|
August 6, 2024
|
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| |
/s/ Christopher R. Christensen
Christopher R. Christensen
|
|
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Director
|
|
|
August 6, 2024
|
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/s/ John G. Nackel, Ph.D.
John G. Nackel, Ph.D.
|
|
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Director
|
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|
August 6, 2024
|
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/s/ Stephen M. R. Covey
Stephen M. R. Covey
|
|
|
Director
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|
August 6, 2024
|
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| |
/s/ JoAnne Stringfield
JoAnne Stringfield
|
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|
Director
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|
August 6, 2024
|
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| |
Signature
|
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|
Title
|
|
|
Date
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| |
/s/ Scott E. Lamb
Scott E. Lamb
|
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Director
|
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|
August 6, 2024
|
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/s/ Gregory K. Morris
Gregory K. Morris
|
|
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Director
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August 6, 2024
|
|
Exhibit 4.4
The
Pennant Group, INC.
INDENTURE
Dated as of , 20
[ ]
Trustee
TABLE
OF CONTENTS
Page
| Article I.
DEFINITIONS AND INCORPORATION BY REFERENCE |
2 |
| Section 1.1. | |
Definitions |
2 |
| Section 1.2. | |
Other Definitions |
5 |
| Section 1.3. | |
Incorporation by Reference of
Trust Indenture Act |
5 |
| Section 1.4. | |
Rules of Construction |
6 |
| | |
|
|
| Article II.
THE SECURITIES |
6 |
| Section 2.1. | |
Issuable in Series |
6 |
| Section 2.2. | |
Establishment of Terms of Series of Securities |
7 |
| Section 2.3. | |
Execution and Authentication |
9 |
| Section 2.4. | |
Registrar and Paying Agent |
9 |
| Section 2.5. | |
Paying Agent to Hold Money in
Trust |
10 |
| Section 2.6. | |
Securityholder Lists |
10 |
| Section 2.7. | |
Mutilated, Destroyed, Lost and
Stolen Securities |
11 |
| Section 2.8. | |
Outstanding Securities |
11 |
| Section 2.9. | |
Treasury Securities |
12 |
| Section 2.10. | |
Temporary Securities |
12 |
| Section 2.11. | |
Cancellation |
12 |
| Section 2.12. | |
Defaulted Interest |
13 |
| Section 2.13. | |
Global Securities |
13 |
| Section 2.14. | |
CUSIP Numbers |
14 |
| | |
|
|
| Article III.
REDEMPTION |
14 |
| Section 3.1. | |
Notice to Trustee |
14 |
| Section 3.2. | |
Selection of Securities to be
Redeemed |
14 |
| Section 3.3. | |
Notice of Redemption |
15 |
| Section 3.4. | |
Effect of Notice of Redemption |
16 |
| Section 3.5. | |
Deposit of Redemption Price |
16 |
| Section 3.6. | |
Securities Redeemed in Part |
16 |
| | |
|
|
| Article IV.
COVENANTS |
16 |
| Section 4.1. | |
Payment of Principal and Interest |
16 |
| Section 4.2. | |
SEC Reports |
16 |
| Section 4.3. | |
Compliance Certificate |
17 |
| Section 4.4. | |
Stay, Extension and Usury Laws |
17 |
| | |
|
|
| Article V.
SUCCESSORS |
17 |
| Section 5.1. | |
When Company May Merge,
Etc |
17 |
| Section 5.2. | |
Successor Corporation Substituted |
18 |
| | |
|
|
| Article VI.
DEFAULTS AND REMEDIES |
18 |
| Section 6.1. | |
Events of Default |
18 |
| Section 6.2. | |
Acceleration of Maturity; Rescission
and Annulment |
19 |
| Section 6.3. | |
Collection of Indebtedness and
Suits for Enforcement by Trustee |
20 |
| Section 6.4. | |
Trustee May File Proofs
of Claim |
20 |
| Section 6.5. | |
Trustee May Enforce Claims
Without Possession of Securities. |
21 |
| Section 6.6. | |
Application of Money Collected. |
21 |
| Section 6.7. | |
Limitation on Suits |
22 |
| Section 6.8. | |
Unconditional Right of Holders
to Receive Principal and Interest |
22 |
| Section 6.9. | |
Restoration of Rights and Remedies |
22 |
| Section 6.10. | |
Rights and Remedies Cumulative |
23 |
| Section 6.11. | |
Delay or Omission Not Waiver |
23 |
| Section 6.12. | |
Control by Holders |
23 |
| Section 6.13. | |
Waiver of Past Defaults. |
23 |
| Section 6.14. | |
Undertaking for Costs. |
24 |
| Section 6.15. | |
Subordination |
24 |
| | |
|
|
| Article VII.
TRUSTEE |
25 |
| Section 7.1. | |
Duties of Trustee |
25 |
| Section 7.2. | |
Rights of Trustee |
26 |
| Section 7.3. | |
Individual Rights of Trustee |
27 |
| Section 7.4. | |
Trustee’s Disclaimer |
27 |
| Section 7.5. | |
Notice of Defaults |
27 |
| Section 7.6. | |
Reports by Trustee to Holders |
27 |
| Section 7.7. | |
Compensation and Indemnity |
28 |
| Section 7.8. | |
Replacement of Trustee |
28 |
| Section 7.9. | |
Successor Trustee by Merger,
Etc |
29 |
| Section 7.10. | |
Eligibility; Disqualification |
30 |
| Section 7.11. | |
Preferential Collection of Claims
Against Company |
30 |
| | |
|
|
| Article VIII.
SATISFACTION AND DISCHARGE; DEFEASANCE |
30 |
| Section 8.1. | |
Satisfaction and Discharge of
Indenture |
30 |
| Section 8.2. | |
Application of Trust Funds;
Indemnification |
31 |
| Section 8.3. | |
Legal Defeasance of Securities
of any Series |
31 |
| Section 8.4. | |
Covenant Defeasance. |
33 |
| Section 8.5. | |
Repayment to Company |
34 |
| Section 8.6. | |
Reinstatement |
34 |
| | |
|
|
| Article IX.
AMENDMENTS AND WAIVERS |
35 |
| Section 9.1. | |
Without Consent of Holders |
35 |
| Section 9.2. | |
With Consent of Holders |
35 |
| Section 9.3. | |
Compliance with Trust Indenture
Act |
36 |
| Section 9.4. | |
Revocation and Effect of Consents |
36 |
| Section 9.5. | |
Notation on or Exchange of Securities |
37 |
| Section 9.6. | |
Trustee Protected |
37 |
| | |
|
|
| Article X.
MISCELLANEOUS |
37 |
| Section 10.1. | |
Trust Indenture Act Controls |
37 |
| Section 10.2. | |
Notices |
37 |
| Section 10.3. | |
Communication by Holders with
Other Holders |
39 |
| Section 10.4. | |
Certificate and Opinion as to
Conditions Precedent |
39 |
| Section 10.5. | |
Statements Required in Certificate
or Opinion |
39 |
| Section 10.6. | |
Rules by Trustee and Agents |
39 |
| Section 10.7. | |
Legal Holidays |
39 |
| Section 10.8. | |
No Recourse Against Others |
40 |
| Section 10.9. | |
Counterparts |
40 |
| Section 10.10. | |
Governing Law; Waiver of Jury
Trial; Consent to Jurisdiction |
40 |
| Section 10.11. | |
No Adverse Interpretation of
Other Agreements |
41 |
| Section 10.12. | |
Successors |
41 |
| Section 10.13. | |
Severability |
41 |
| Section 10.14. | |
Table of Contents, Headings,
Etc |
41 |
| Section 10.15. | |
Securities in a Foreign Currency |
41 |
| Section 10.16. | |
Judgment Currency |
42 |
| Section 10.17. | |
Force Majeure |
42 |
| Section 10.18. | |
U.S.A. Patriot Act |
42 |
| | |
|
|
| Article XI.
SINKING FUNDS |
43 |
| Section 11.1. | |
Applicability of Article. |
43 |
| Section 11.2. | |
Satisfaction of Sinking Fund
Payments with Securities. |
43 |
| Section 11.3. | |
Redemption of Securities for
Sinking Fund. |
43 |
THE
PENNANT GROUP, INC.
Reconciliation
and tie between Trust Indenture Act of 1939 and
Indenture, dated as of , 20
| § |
|
| 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 |
| (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 |
| §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.
Indenture
dated as of , 20 between The Pennant Group, Inc., a Delaware corporation (“Company”), and [ ]
(“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.
DEFINITIONS AND INCORPORATION BY REFERENCE
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 any day except a Saturday,
Sunday or a legal holiday in New York City, 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 any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate stock.
“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.
“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.
“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.
“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.
“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.
“Officer” means the Chief Executive Officer, President,
the Chief Financial Officer, 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.
“Opinion of Counsel” means a written opinion of
legal counsel who is acceptable to the Trustee. 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 is referred because of his or her knowledge of and familiarity
with a particular subject.
“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.
“Senior Indebtedness” means the principal of (and
premium, if any) and unpaid interest on (i) the Company indebtedness (including indebtedness of others guaranteed by the Company),
whenever created, incurred, assumed or guaranteed, for money borrowed (other than indenture Securities issued under this Indenture and
denominated as subordinated debt securities), unless in the instrument creating or evidencing the same or under which the same is outstanding
it is provided that this indebtedness is not senior or prior in right of payment to the subordinated Securities; and (ii) renewals,
extensions, modifications and refinancings of any such indebtedness.
“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 §§ 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 or an agency of 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 depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from
the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government
Obligation evidenced by such depositary receipt.
Section 1.2. Other
Definitions.
| TERM |
|
DEFINED
IN
SECTION |
| “Bankruptcy
Law” |
|
6.1 |
| “Custodian” |
|
6.1 |
| “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 |
| “Specified
Courts” |
|
10.10 |
| “successor
person” |
|
5.1 |
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.
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.
THE SECURITIES
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 2.2.24) 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:
2.2.1. the
designation or 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;
2.2.2. the
total principal amount of the Series, the denominations in which the offered Securities will be issued and whether the offering may be
reopened for additional Securities of that Series and on what terms;
2.2.3. the
percentage of the principal amount at which the Securities of the Series will be issued; 2.2.4. the date or dates on which principal
will be payable;
2.2.4. the
rate or rates (which may be either fixed or variable) and/or, if applicable, the method of determining such rate or rates of interest,
if any, the date or dates from which any interest shall accrue, or the method of determining such date or dates, and the date or dates
on which any interest will be payable;
2.2.5. the
terms for redemption, extension or early repayment, if any; 2.2.7. the currencies in which the Series are issued and payable;
2.2.6. 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;
2.2.7. whether
the amount of payments of principal, interest or premium, if any, on a Series of the Securities will be determined with reference
to an index, formula or other method and how these amounts will be determined;
2.2.8. the
place or places of payment, transfer, conversion and/or exchange of the Securities;
2.2.9. any
restrictive covenants;
2.2.10. whether
the Series of Securities are issuable in certified form;
2.2.11. any
provisions for legal defeasance or covenant defeasance;
2.2.12. whether
and under what circumstances we will pay Additional Amounts in respect of any tax, assessment or governmental charge and, if so, whether
we will have the option to redeem the Securities rather than pay the Additional Amounts (and the terms of this option);
2.2.13. if
other than denominations of $1,000 and any integral multiple thereof, the denominations in which the Securities of the Series shall
be issuable;
2.2.14. the
provisions for convertibility or exchangeability of the Securities of the Series into or for any other Securities;
2.2.15. whether
the Securities are subject to subordination and the terms of such subordination;
2.2.16. 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;
2.2.17. whether
the Securities are subject to subordination and the terms of such subordination;
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;
2.2.19. any
addition to, deletion of or change in the covenants set forth in Articles IV or V which applies to Securities of the Series;
2.2.20. any
listing of Securities of such Series on any securities exchange;
2.2.21. the
provisions, if any, relating to conversion or exchange of any Securities of such Series, including if applicable, to 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;
2.2.22. 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;
2.2.23. 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; and
2.2.24. whether
any of the Company’s direct or indirect Subsidiaries will guarantee the Securities of that Series, including the terms of subordination,
if any, of such guarantees.
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.
An Officer shall sign the Securities for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the security shall nevertheless be valid.
A Security shall not be valid until authenticated by the manual signature
of the Trustee 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.
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) the if the Trustee, being advised by counsel, determines that such action may not be taken lawfully;
or (b) if the Trustee in good faith by its board of directors or trustees, executive committee or a trust committee of directors
and/or vice-presidents or a committee of Responsible 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 my authenticate Securities whenever the Trustee may do so. Each reference
in this Indenture to authentic action 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, however, that any appointment of the Trustee as the Notice Agent shall exclude
the appointment of the Trustee or any office of the Trustee as an agent to receive the service of legal process on the Company.
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 § 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.
Section 2.7. Mutilated,
Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same Series and of like
tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity 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.
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.
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 2.8. 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.
If a Security is replaced pursuant to Section 2.7, 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, 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 2.9 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 2.9. Treasury
Securities.
In determining whether the Holders of the required principal amount
of Securities of a Series have concurred in any request, demand, authorization, direction, notice, consent or waiver, Securities
of a Series owned by the Company or 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 2.10. 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.
Section 2.11. 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 destroy such canceled Securities (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 2.12. 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 10 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 2.13. Global
Securities.
2.13.1. 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.
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.
2.13.2. Legends.
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.”
2.13.3. 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.
2.13.4. 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.
2.13.5. Consents,
Declaration and Directions. The Company, the Trustee and any Agent shall treat a person as the Holder of such principal amount
of outstanding Securities of such Series represented by a Global Security as shall be specified in a written statement of the Depositary
or by the applicable procedures of such 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 2.14. 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.
Article III.
REDEMPTION
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 Series of Securities to be redeemed. The Company shall give the notice at least 15 days before the redemption date, unless
a shorter period is satisfactory to the Trustee.
Section 3.2. Selection
of Securities to be Redeemed.
Unless otherwise indicated for a particular Series by a Board
Resolution, a supplemental indenture hereto or an Officer’s Certificate, if less than all the Securities of a Series are to
be redeemed, the Securities of the Series to be redeemed will be selected as follows: (a) if the Securities are in the form
of Global Securities, in accordance with the procedures of the Depositary, (b) if the Securities are listed on any national securities
exchange, in compliance with the requirements of the principal national securities exchange, if any, on which the Securities are listed,
or (c) if not otherwise provided for under clause (a) or (b) in the manner that the Trustee deems fair and appropriate,
including by lot or other method, unless otherwise required by law or applicable stock exchange requirements, subject, in the case of
Global Securities, to the applicable rules and procedures of the Depositary. The Securities to be redeemed shall be selected from
Securities of the Series outstanding not previously called for redemption. Portions of the principal of Securities of the Series that
have denominations larger than $1,000 may be selected for redemption. Securities of the Series and portions of them it selected
for redemption shall be in amounts of $1,000 or whole multiples of $1,000 or, with respect to Securities of any Series issuable
in other denominations pursuant to Section 2.2.15, 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.
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 unless the Company
defaults in the deposit of the redemption price;
(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.
At the Company’s request, the Trustee shall give the notice
of redemption in the Company’s name and at its expense, provided, however, that the Company has delivered to the Trustee, at least
10 days (unless a shorter time shall be acceptable to the Trustee) prior to the notice date, an Officer’s Certificate requesting
that the Trustee give such notice and setting forth the information to be stated in 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
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.
Upon surrender of a Security that is redeemed in part, the Trustee
shall authenticate for the Holder a new Security of the same Series and the same maturity equal in principal amount to the unredeemed
portion of the Security surrendered.
Article IV.
COVENANTS
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 will duly and punctually pay 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.
Section 4.2. SEC
Reports.
To the extent any Securities of a Series are outstanding, the
Company shall 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. The Company also shall
comply with the other provisions of TIA § 314(a). Reports, information and documents filed with the SEC via the EDGAR system will
be deemed to be delivered to the Trustee as of the time of such filing via EDGAR for purposes of this Section 4.2. Delivery of reports, information and documents to the Trustee under
this Section 4.2 are 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 their covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
Section 4.3. Compliance
Certificate.
To the extent any Securities of a Series are outstanding, each
year, the Company shall furnish to the Trustee an Officer’s Certificate stating that to their knowledge the Company is in compliance
with this Indenture and the Securities, or else specifying any Default.
Section 4.4. Stay,
Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that
it 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 (to the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such
law and covenants that it 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.
Article V.
SUCCESSORS
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
all of the following conditions are met:
(a) if
the Company does not survive such transaction or the Company conveys, transfers or leases its properties and assets substantially as
an entirety, the acquiring company must be a corporation, limited liability company, partnership or trust, or other corporate form, organized
under the laws of any state of the United States or the District of Columbia, and such company must agree to be legally responsible for
our Securities, and, if not already subject to the jurisdiction of any state of the United States or the District of Columbia, the new
company must submit to such jurisdiction for all purposes with respect to the Securities and appoint an Agent for service of process;
(b) alternatively,
the Company must be the surviving Company;
(c) 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
Corporation 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 corporation
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 person 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.
DEFAULTS AND REMEDIES
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:
(a) default
in the payment of any interest on 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 11:00 a.m., New York City time, on the 30th day of such period); or
(b) default
in the payment of principal of, or any premium on, any Security of that Series at its Maturity; or
(c) the
Company remains in breach of a covenant in respect of Securities of the Series for 90 days after there has been given, by registered
or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount
of the outstanding Securities of that Series a written notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a “Notice of Default” hereunder; or
(d) the
Company 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 in an involuntary case,
(ii) appoints
a Custodian of the Company or for all or substantially all of its property, or
(iii) orders
the liquidation of the Company,
and the order or decree remains unstayed and in effect for 60 days;
or
(e) 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 has occurred and has not been cured or waived
(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 (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 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 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
(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, if any, when and as due by the terms of a Security, 14
then, the Company will, upon demand of the Trustee, pay to it, for
the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and interest and,
to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and 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 compensation, reasonable expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails 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 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 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 in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities
of such Series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
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 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 compensation,
reasonable expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding,
and
(b) to
collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and,
in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount
due it for the compensation, reasonable 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 compensation, reasonable 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 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.
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 other 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 satisfactory to the Trustee against the costs, 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.
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.
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 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 2.7, 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) subject
to the provisions of Section 7.1, 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, and
(d) prior
to taking any action as directed under this Section 6.12, the Trustee shall be entitled to indemnity satisfactory to it against
the costs, 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, 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).
Section 6.15. Subordination
Upon any distribution of our assets upon the Company’s dissolution,
winding up, liquidation or reorganization, the payment of the principal of (and premium, if any) and interest on any Securities denominated
as subordinated Securities is to be subordinated to the extent provided in this Indenture in right of payment to the prior payment in
full of all Senior Indebtedness, but the Company’s obligation to Holders to make payment of the principal of (and premium, if any)
and interest on such subordinated Securities will not otherwise be affected. In addition, no payment on account of principal (or premium,
if any), interest or sinking fund, if any, may be made on such subordinated Securities at any time unless full payment of all amounts
due in respect of the principal (and premium, if any), interest and sinking fund, if any, on Senior Indebtedness has been made or duly
provided for in money or money’s worth.
In the event that, notwithstanding the foregoing, any payment from
the Company is received by the Trustee in respect of subordinated Securities or by the Holders of any of such subordinated Securities
before all Senior Indebtedness is paid in full, the payment or distribution must be paid over to the Holders of the Senior Indebtedness
or on their behalf for application to the payment of all the Senior Indebtedness remaining unpaid until all the Senior Indebtedness has
been paid in full, after giving effect to any concurrent payment or distribution to the Holders of the Senior Indebtedness. Subject to
the payment in full of all Senior Indebtedness, the Holders of such subordinated Securities will be subrogated to the rights of the Holders
of the Senior Indebtedness to the extent of payments made to the Holders of the Senior Indebtedness out of the distributive share of
such subordinated Securities.
By reason of this subordination, in the event of a distribution of
our assets upon the Company’s insolvency, certain of our senior creditors may recover more, ratably, than holders of any subordinated
Securities. These subordination provisions will not apply to money and Securities held in trust under the defeasance provisions of this
Indenture.
Article VII.
TRUSTEE
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.
(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.
(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.
(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 indemnity satisfactory to it against the costs,
expenses and liabilities which might be incurred by it in performing such duty or exercising such right or power.
(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 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, if adequate indemnity against such risk is not assured to the
Trustee in its satisfaction.
(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 and in Section 7.2, each with respect to the Trustee.
Section 7.2. Rights
of Trustee.
(a) The
Trustee may rely on and shall be protected in acting or refraining from acting upon any document (whether in its original or facsimile
form) 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 an Officer’s Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion
of Counsel.
(c) The
Trustee may act through agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care. 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 and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder without willful misconduct or negligence, and in reliance
thereon.
(f) 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 to the Trustee security or indemnity satisfactory to it against
the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
(g) The
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see
fit.
(h) 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 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.
(i) In
no event shall the Trustee be liable to any person for special, punitive, indirect, consequential or incidental loss or damage of any
kind whatsoever (including but not limited to lost profits), even if the Trustee has been advised of the likelihood of such loss or damage.
(i) The
permissive right of the Trustee to take the actions permitted by this Indenture shall not be construed as an obligation or duty to do
so.
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 known to a Responsible Officer of the Trustee, the Trustee shall send to each Securityholder
of the Securities of that Series 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 its corporate trust
committee or a committee of its Responsible Officers 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 each anniversary of the date of this Indenture,
the Trustee shall transmit by mail 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 § 313.
A copy of each report at the time of its mailing 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 on any national securities
exchange.
Section 7.7. Compensation
and Indemnity.
The Company shall pay to the Trustee 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 upon request for
all reasonable out of pocket expenses incurred by it. Such expenses shall include the reasonable compensation and expenses of the Trustee’s
agents and counsel.
The Company shall indemnify each of the Trustee and any predecessor
Trustee (including for the cost of defending itself) against any cost, 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 hereunder, unless and to
the extent that the Company is materially prejudiced thereby. The Company shall defend the claim and the Trustee shall cooperate in the
defense. The Trustee may have one separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. The Company
need not pay for any settlement made without its consent, which consent will not be unreasonably withheld. This indemnification shall
apply to officers, directors, employees, shareholders and agents of the Trustee.
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.
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.
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. 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;
(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 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 mail 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, the successor corporation 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 § 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 § 310(b).
Section 7.11. Preferential
Collection of Claims Against Company.
The Trustee is subject to TIA § 311(a), excluding any creditor
relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the
extent indicated.
Article VIII.
SATISFACTION AND DISCHARGE; DEFEASANCE
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 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, shall
have irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust an amount of money or U.S. Government Obligations,
which amount shall be sufficient for the purpose of paying and discharging each installment of principal (including mandatory sinking
fund or analogous payments) of and interest on all the Securities of such Series on the dates such installments of principal or
interest are due;
(b) the
Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(c) 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 satisfaction and discharge contemplated by this Section 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, 8.2 and 8.5 shall survive.
Section 8.2. Application
of Trust Funds; Indemnification.
(a) Subject
to the provisions of Section 8.5, all money and U.S. Government Obligations or Foreign Government Obligations deposited with the
Trustee pursuant to Section 8.1, 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 Section 8.1, 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 8.1, 8.3 or 8.4.
(b) The
Company shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against U.S. Government
Obligations or Foreign Government Obligations deposited pursuant to Sections 8.1, 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.
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 (d) hereof,
and the provisions of this Indenture, as it relates to such outstanding Securities of such Series, shall no longer be in effect (and
the Trustee, at the expense of the Company, shall, upon receipt of a Company Order, execute instruments 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 (d) 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, 2.5, 2.7, 7.7, 8.2, 8.3, 8.5 and 8.6; and
(c) the
rights, powers, trusts and immunities of the Trustee hereunder and the Company’s obligations in connection therewith; provided
that, the following conditions shall have been satisfied:
(d) the
Company shall have irrevocably deposited or caused to be deposited (except as provided in Section 8.2(c)) with the Trustee as trust
funds 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, on and any mandatory sinking fund payments in respect of all the Securities of such Series on the dates such installments
of principal or interest and such sinking fund payments are due;
(e) 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;
(f) 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;
(g) the
Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel to the effect 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 Federal income tax law, in either case to the effect that, and based thereon
such Opinion of Counsel shall confirm that, the Holders of the Securities of such Series will not recognize income, gain or loss
for Federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to Federal income tax on the
same amount 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;
(h) 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
(i) 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. Covenant
Defeasance.
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 and 5.1 and, unless otherwise specified therein, 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 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, but, except as specified above, the remainder of this Indenture and such Securities will be unaffected thereby; provided that
the following conditions shall have been satisfied:
(a) with
reference to this Section 8.4, the Company has irrevocably 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 (including mandatory sinking fund
or analogous payments) of and interest on all the Securities of such Series on the dates such installments of principal or interest
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;
(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 Officers’ Certificate and an Opinion of Counsel to the effect that the Holders of
the Securities of such Series will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit
and covenant defeasance and will be subject to 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 and covenant defeasance had not occurred;
(e) The
Company shall have delivered to the Trustee an Officer’s Certificate stating 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.
AMENDMENTS AND WAIVERS
Section 9.1. Without
Consent of Holders.
The Company 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;
(d) to
add guarantees with respect to Securities of any Series or secure Securities of any Series;
(e) to
surrender any of the Company’s rights or powers under this Indenture;
(f) to
add covenants or events of default for the benefit of the holders of Securities of any Series;
(g) to
comply with the applicable procedures of the applicable depositary;
(h) to
make any change that does not adversely affect the rights of any Securityholder;
25
(i) to
provide for the issuance of and establish the form and terms and conditions of Securities of any Series as permitted by this Indenture;
(j) 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; or
(k) to
comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA.
Section 9.2. With
Consent of Holders.
9.2.1. The
following types of changes may require specific approval of all of the Holders:
(a) change
the Stated Maturity of the principal of or rate of interest on a Security;
(b) reduce
the principal or any amounts due on a Security;
(c) reduce
the amount of principal payable upon acceleration of the Maturity of a Security following a Default;
(d) at
any time after a change of control has occurred, reduce any premium payable upon a change of control;
(e) unless
otherwise described in a supplemental indenture, change the place or currency of payment on a Security;
(f) impair
the right of Holders to sue for payment;
(g) adversely
affect any right to convert or exchange a Security in accordance with its terms;
(h) reduce
the percentage of Holders of Securities whose consent is needed to modify or amend this Indenture;
(i) reduce
the percentage of Holders of Securities whose consent is needed to waive compliance with certain provisions of this Indenture or to waive
certain Defaults;
(j) modify
any other aspect of the provisions of this Indenture dealing with supplemental indenture, modification and waiver of past Defaults, changes
to the quorum or voting requirements or the wavier of certain covenants; and
(k) change
any obligations the Company has to pay Additional Amounts.
9.2.2. Any
other change to this Indenture and the Securities shall require majority approval:
(a) if
the change affects only one Series of Securities, it must be approved by the Holders of a majority in principal amount of that Series;
and
(b) if
the change affects more than one Series of Securities issued under the same indenture, it must be approved by the Holders of a majority
in principal amount of all of the Series affected by the change, with all affected Series voting together as one class for
this purpose.
The Holders of a majority in principal amount of all of the Series of
Securities issued under this Indenture, voting together as one class for this purpose, may waive Company compliance obligations with
respect to some covenants in this Indenture. However, the Company cannot obtain a waiver of payment default or any of the matters in
Section 9.2.1.
Section 9.3. 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.
Section 9.4. 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 Section 9.2.2. 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 second 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 9.5. 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 receipt of a Company Order in accordance with Section 2.3 new Securities of that Series that
reflect the amendment or waiver.
Section 9.6. Trustee
Protected.
In executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 7.1) shall be fully protected in relying upon, an Officer’s Certificate or an Opinion
of Counsel or both complying with Section 10.4. The Trustee shall sign all supplemental indentures upon delivery of such an Officer’s
Certificate or Opinion of Counsel or both, except that the Trustee need not sign any supplemental indenture that adversely affects its
rights, duties, liabilities or immunities under this Indenture.
Article X.
MISCELLANEOUS
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 or the Trustee to the other,
or by a Holder to the Company or the Trustee, is duly given if in writing and delivered in person or mailed by first-class mail (registered
or certified, return receipt requested), facsimile transmission, email or overnight air courier guaranteeing next day delivery, to the
others’ address:
if to the Company:
| |
The Pennant Group, Inc.
1675 E Riverside Drive, Suite 150
Eagle, Idaho 83616
Attention: [____]
Telephone: (208) 506-6100 |
| with
copies to: |
|
| |
Sidley
Austin LLP
1000 Louisiana Street, Suite 5900
Houston, Texas 77002
Attention: George J. Vlahakos
Telephone: (713)495-4522 |
| |
|
| if
to the Trustee: |
|
| |
[______]
Attention:
Telephone: [_____] |
with a copy to:
|
|
| |
[____]
Attention: [_____]
Telephone: [____] |
The Company 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.
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 sends a notice or communication to Securityholders,
it shall send 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
§ 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 § 312(c).
Section 10.4. Certificate
and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(a) an
Officer’s Certificate stating that, in the opinion of the signers, all 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 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 § 314(a)(4)) shall comply with the
provisions of TIA § 314(e) and shall include:
(a) a
statement that the person making such certificate or opinion has read such covenant or condition;
(b) a
brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a
statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a
statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
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.
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 shall not have any liability for any obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their creation. Each Securityholder by accepting a Security waives
and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities.
Section 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. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their
original signatures for all purposes.
Section 10.10. Governing
Law; Waiver of Jury Trial; Consent to Jurisdiction.
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.
THE COMPANY, 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 New York City or the courts of the State of New York in each case located in New York City (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 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.
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 in this Indenture and the Securities
shall bind its successor. All agreements of the Trustee in this Indenture shall bind its successor.
Section 10.13. Severability.
In case any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 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 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.
Section 10.16. Judgment
Currency.
The Company agrees, to the fullest extent that it may effectively
do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the sum due
in respect of the principal of or interest 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 New York City 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 New York
City 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 New York City on which banking institutions are authorized or required
by law, regulation or executive order to close.
Section 10.17. Force
Majeure.
In no event shall the Trustee be responsible or liable for any failure
or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control,
including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear
or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and
hardware) services, it being understood that the Trustee shall use reasonable best efforts which are consistent with accepted practices
in the banking industry to resume performance as soon as practicable under the circumstances.
Section 10.18. U.S.A.
Patriot Act.
The parties hereto acknowledge that in accordance with Section 326
of the U.S.A. Patriot Act, the Trustee is required to obtain, verify, and record information that identifies each person or legal entity
that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the
Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot Act.
Article XI.
SINKING FUNDS
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
and 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.
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 Securities to be redeemed upon such sinking
fund payment date will be selected in the manner specified in Section 3.2 and the Company shall send or cause to be sent a notice
of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in and in accordance with
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.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed as of the day and year first above written.
| |
THE PENNANT
GROUP, INC. |
| |
|
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By: |
|
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|
Name: |
| |
|
Its: |
| |
|
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[ ], as Trustee |
| |
|
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By: |
|
| |
|
Name: |
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|
Its: |
Exhibit 5.1
 |
Sidley Austin LLP
1000 Louisiana Street
Suite 5900
Houston, TX 77002
+1 713 495 4500
+1 713 495 7799 Fax
AMERICA ·
ASIA PACIFIC · EUROPE |
|
August 6, 2024
The Pennant Group, Inc.
1675 East Riverside Drive, Suite 150
Eagle, Idaho 83616
| Re: | Registration Statement on Form S-3 |
Ladies and Gentlemen:
We refer to the Registration
Statement on Form S-3 (the “Registration Statement”) being filed by The Pennant Group, Inc., a Delaware corporation
(the “Company”), with the Securities and Exchange Commission (the “SEC”) under the Securities Act
of 1933, as amended (the “Securities Act”), relating to the registration of an unlimited amount of:
(i) shares of the Company’s common stock, $0.001 par value per share (the “Common Stock”);
(ii)
shares of the Company’s preferred stock, $0.001 par value per share (the “Preferred Stock”);
(iii)
debt securities of the Company (the “Debt Securities”);
(iv)
warrants to purchase Common Stock, Preferred Stock or Debt Securities (the “Warrants”);
(v)
units (the “Units”), each consisting of two or more types of securities listed in clauses (i) through (iv) above.
The Common Stock, the Preferred Stock, the Debt
Securities, the Warrants and the Units are collectively referred to herein as the “Securities.”
Unless otherwise specified
in the applicable prospectus supplement:
(1)
the Debt Securities will be issued under an indenture (the “Indenture”) to be entered into between the Company
and a trustee (the “Trustee”);
(2)
the Warrants will be issued under a warrant agreement (the “Warrant Agreement”) to be entered into between the
Company and a warrant agent (the “Warrant Agent”); and
The Pennant Group, Inc.
August 6, 2024
Page 2
(3)
the Units will be issued pursuant to one or more unit agreements (each, a “Unit Agreement”) to be entered into
between the Company and a unit agent (each, a “Unit Agent”);
in each case substantially in the form that has
been or will be filed as an exhibit to the Registration Statement.
This opinion letter is being
delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
We have examined the Registration
Statement, the exhibits thereto, the certificate of incorporation of the Company, as amended to the date hereof (the “Charter”),
the bylaws of the Company, as amended to the date hereof (the “Bylaws”), and the resolutions (the “Resolutions”)
adopted by the board of directors of the Company (the “Board”) relating to the Registration Statement. We have also
examined originals, or copies of originals certified to our satisfaction, of such agreements, documents, certificates and statements of
the Company and others, and have examined such questions of law, as we have considered relevant and necessary as a basis for this opinion
letter. We have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures, the legal capacity
of all persons and the conformity with the original documents of any copies thereof submitted to us for examination. As to facts relevant
to the opinions expressed herein, we have relied without independent investigation or verification upon, and assumed the accuracy and
completeness of, certificates, letters and oral and written statements and representations of public officials and officers and other
representatives of the Company.
Based on and subject to the
foregoing and the other limitations, qualifications and assumptions set forth herein, we are of the opinion that:
1.
With respect to an offering of shares of Common Stock covered by the Registration Statement, such shares of Common Stock will
be validly issued, fully paid and nonassessable when: (i) the Registration Statement, as finally amended (including any necessary post-effective
amendments), shall have become effective under the Securities Act; (ii) a prospectus supplement with respect to the sale of such shares
of Common Stock shall have been filed with the SEC in compliance with the Securities Act and the rules and regulations thereunder; (iii)
the Board or a duly authorized committee thereof shall have duly adopted final resolutions in conformity with the Charter, the Bylaws
and the Resolutions authorizing the issuance and sale of such shares of Common Stock; and (iv) certificates representing such shares
of Common Stock shall have been duly executed, countersigned and registered and duly delivered in accordance with the applicable definitive
purchase, underwriting or similar agreement upon payment of the agreed consideration therefor in an amount not less than the par value
thereof or, if any such shares of Common Stock are to be issued in uncertificated form, the Company’s books shall reflect the issuance
of such shares of Common Stock in accordance with the applicable definitive purchase, underwriting or similar agreement upon payment
of the agreed consideration therefor in an amount not less than the par value thereof.
The Pennant Group, Inc.
August 6, 2024
Page 3
2.
The issuance and sale of each series of Preferred Stock covered by the Registration Statement will be duly authorized, and each
share of such series of Preferred Stock will be validly issued, fully paid and nonassessable, when: (i) the Registration Statement, as
finally amended (including any necessary post-effective amendments), shall have become effective under the Securities Act; (ii) a prospectus
supplement with respect to the sale of such series of Preferred Stock shall have been filed with the SEC in compliance with the Securities
Act and the rules and regulations thereunder; (iii) the Board or a duly authorized committee thereof shall have duly adopted final resolutions
in conformity with the Charter, the By Laws and the Resolutions establishing the designations, preferences, rights, qualifications, limitations
or restrictions of such series of Preferred Stock and authorizing the issuance and sale of such series of Preferred Stock; (iv) the Company
shall have filed with the Secretary of State of the State of Delaware a Certificate of Designations with respect to such series of Preferred
Stock in accordance with the General Corporation Law of the State of Delaware (the “DGCL”) and in conformity with the
Charter and such final resolutions; and (v) certificates representing such series of Preferred Stock shall have been duly executed, countersigned
and registered and duly delivered in accordance with the applicable definitive purchase, underwriting or similar agreement to the purchasers
thereof against payment of the agreed consideration therefor in an amount not less than the par value thereof or, if any shares of such
series of Preferred Stock are to be issued in uncertificated form, the Company’s books shall reflect the issuance of such shares
in accordance with the applicable definitive purchase, underwriting or similar agreement upon payment of the agreed consideration therefor
in an amount not less than the par value thereof.
3.
Each issue of Warrants covered by the Registration Statement will constitute valid and binding obligations of the Company when:
(i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have become effective under
the Securities Act; (ii) a prospectus supplement with respect to such issue of Warrants and the Common Stock, Debt Securities or Preferred
Stock issuable upon exercise of such Warrants shall have been filed with the SEC in compliance with the Securities Act and the rules and
regulations thereunder; (iii) a Warrant Agreement relating to such issue of Warrants shall have been duly authorized, executed and delivered
by the Company and duly executed and delivered by the Warrant Agent named in the Warrant Agreement; (iv) the Board or a duly authorized
committee thereof shall have duly adopted final resolutions in conformity with the Charter, the Bylaws and the Resolutions authorizing
the execution and delivery of the Warrant Agreement and the issuance and sale of such issue of Warrants; (v) if such Warrants are exercisable
for Common Stock, the actions described in paragraph 1 above shall have been taken; (vi) if such Warrants are exercisable for Debt Securities,
the actions described in paragraph 4 below, as applicable, shall have been taken; (vii) if such Warrants are exercisable for Preferred
Stock, the actions described in paragraph 2 above shall have been taken; and (viii) certificates representing such issue of Warrants shall
have been duly executed, countersigned and issued in accordance with such Warrant Agreement and shall have been duly delivered in accordance
with the applicable definitive purchase, underwriting or similar agreement to the purchasers thereof against payment of the agreed consideration
therefor.
The Pennant Group, Inc.
August 6, 2024
Page 4
4.
The Debt Securities of each series covered by the Registration Statement will constitute valid and binding obligations of the Company
when: (i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have become effective
under the Securities Act and the Senior Indenture (including any necessary supplemental indenture) shall have been qualified under the
Trust Indenture Act of 1939, as amended (the “TIA”); (ii) a prospectus supplement with respect to such series of Debt
Securities shall have been filed with the SEC in compliance with the Securities Act and the rules and regulations thereunder; (iii) the
Indenture shall have been duly authorized, executed and delivered by the Company and the Trustee; (iv) all necessary corporate action
shall have been taken by the Company to authorize the form, terms, execution, delivery, performance, issuance and sale of such series
of the Debt Securities as contemplated by the Registration Statement, the prospectus supplement relating to such Debt Securities and the
Indenture and to authorize the execution, delivery and performance of a supplemental indenture or officers’ certificate establishing
the form and terms of such series of the Debt Securities as contemplated by the Indenture; (v) a supplemental indenture or officers’
certificate establishing the form and terms of such series of the Debt Securities shall have been duly executed and delivered by the Company
and the Trustee (in the case of such a supplemental indenture) or by duly authorized officers of the Company (in the case of such an officers’
certificate), in each case in accordance with the provisions of the Charter, the Bylaws, final resolutions of the Board or a duly
authorized committee thereof and the Indenture; and (vi) the certificates evidencing the Debt Securities of such series shall have been
duly executed and delivered by the Company, authenticated by the Trustee and issued, all in accordance with the Charter, the Bylaws, final
resolutions of the Board or a duly authorized committee thereof, the Indenture and the supplemental indenture or officers’ certificate,
as the case may be, establishing the form and terms of the Debt Securities of such series, and shall have been duly delivered in accordance
with the applicable definitive purchase, underwriting or similar agreement to the purchasers thereof against payment of the agreed consideration
therefor.
5.
The Units will constitute valid and binding obligations of the Company when: (i) the Registration Statement, as finally amended
(including any necessary post-effective amendments), shall have become effective under the Securities Act; (ii) a prospectus supplement
with respect to such Units and the Common Stock, Preferred Stock, Debt Securities or Warrants, as the case may be, included as a component
of such Units shall have been filed with the SEC in compliance with the Securities Act and the rules and regulations thereunder; (iii)
an Unit Agreement relating to such issue of Units shall have been duly authorized, executed and delivered by the Company and duly executed
and delivered by the Unit Agent named in the Unit Agreement, (iv) the Board or a duly authorized committee thereof shall have duly adopted
final resolutions in conformity with the Charter, the Bylaws and the Resolutions authorizing the execution and delivery of the Units Agreement
and the execution, delivery, issuance and sale of such Units; (v) if such Units relate to the issuance and sale of Common Stock, the actions
described in paragraph 1 above shall have been taken; (vi) if such Units relate to the issuance and sale of Preferred Stock, the actions
described in paragraph 2 above shall have been taken; (vii) if such Units relate to the issuance and sale of Warrants, the actions described
in paragraph 4 above shall have been taken; (viii) if such Units relate to the issuance and sale of Debt Securities, the actions described
in paragraph 3 above shall have been taken; and (ix) certificates representing such Units shall have been duly executed, countersigned
and registered and shall have been duly delivered to the purchasers thereof in accordance with the applicable definitive purchase, underwriting
or similar agreement against payment of the agreed consideration therefor.
The Pennant Group, Inc.
August 6, 2024
Page 5
Our opinions are subject to
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer and other similar laws relating to or affecting
creditors’ rights generally and to general equitable principles (regardless of whether considered in a proceeding in equity or at
law), including concepts of commercial reasonableness, good faith and fair dealing and the possible unavailability of specific performance
or injunctive relief. Our opinion is also subject to (i) provisions of law which may require that a judgment for money damages rendered
by a court in the United States of America be expressed only in United States dollars, (ii) requirements that a claim with respect to
any Debt Securities or other obligations that are denominated or payable other than in United States dollars (or a judgment denominated
or payable other than in United States dollars in respect of such claim) be converted into United States dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law and (iii) governmental authority to limit, delay or prohibit the making of
payments outside of the United States of America or in a foreign currency.
For the purposes of this letter,
we have assumed that, at the time of the issuance, sale and delivery of any of the Securities:
(i) the Securities being offered
will be issued and sold as contemplated in the Registration Statement and the prospectus supplement relating thereto;
(ii) the execution, delivery
and performance by the Company of the Indenture, the Warrant Agreement and the Unit Agreement, as applicable, and the issuance sale and
delivery of the Securities will not (A) contravene or violate the Charter or Bylaws, (B) violate any law, rule or regulation applicable
to the Company, (C) result in a default under or breach of any agreement or instrument binding upon the Company or any order, judgment
or decree of any court or governmental authority applicable to the Company, or (D) require any authorization, approval or other action
by, or notice to or filing with, any court or governmental authority (other than such authorizations, approvals, actions, notices or filings
which shall have been obtained or made, as the case may be, and which shall be in full force and effect);
(iii) the authorization thereof
by the Company, as the case may be, will not have been modified or rescinded, and there will not have occurred any change in law affecting
the validity, legally binding character or enforceability thereof; and
(iv) the Charter and the Bylaws,
each as currently in effect, will not have been modified or amended and will be in full force and effect.
We have further assumed that
each Warrant Agreement, each Unit Agreement, each Warrant, each Unit, each Debt Security and the Indenture and each indenture supplement
to the Indenture and will be governed by the laws of the State of New York.
The Pennant Group, Inc.
August 6, 2024
Page 6
With respect to each instrument
or agreement referred to in or otherwise relevant to the opinions set forth herein (each, an “Instrument”), we have
assumed, to the extent relevant to the opinions set forth herein, that (i) each party to such Instrument (if not a natural person) was
duly organized or formed, as the case may be, and was at all relevant times and is validly existing and in good standing under the laws
of its jurisdiction of organization or formation, as the case may be, and had at all relevant times and has full right, power and authority
to execute, deliver and perform its obligations under such Instrument; (ii) such Instrument has been duly authorized, executed and delivered
by each party thereto; and (iii) such Instrument was at all relevant times and is a valid, binding and enforceable agreement or obligation,
as the case may be, of, each party thereto.
This opinion letter is limited
to the DGCL and the laws of the State of New York (excluding the securities laws of the State of New York). We express no opinion as to
the laws, rules or regulations of any other jurisdiction, including, without limitation, the federal laws of the United States of America
or any state securities or blue sky laws.
We hereby consent to the filing
of this opinion letter as an exhibit to the Registration Statement and to all references to our Firm included in or made a part of the
Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required
under Section 7 of the Securities Act.
| |
Very truly yours, |
| |
|
| |
/s/ Sidley Austin LLP |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this
Registration Statement on Form S-3 of our report dated February 28, 2024, relating to the financial statements of Pennant Group, Inc.
and the effectiveness of Pennant Group, Inc.’s internal control over financial reporting, appearing in the Annual Report on Form
10-K of Pennant Group, Inc. for the year ended December 31, 2023. We also consent to the reference to us under the heading "Experts"
in such Registration Statement.
/s/ Deloitte & Touche LLP
Boise, Idaho
August 6, 2024
Exhibit 107
Calculation of Filing Fee Tables
Form S-3
(Form Type)
The Pennant Group, Inc.
(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 |
| Fees
to Be Paid |
|
Equity |
Common
stock, par value $0.001 per share |
457(r) |
(1) |
(1) |
(1) |
(1) |
(1) |
|
|
|
|
| Fees
to Be Paid |
|
Equity |
Preferred
Stock, par value $0.001 per share |
457(r) |
(1) |
(1) |
(1) |
(1) |
(1) |
|
|
|
|
| Fees
to Be Paid |
|
Debt |
Debt
Securities |
457(r) |
(1) |
(1) |
(1) |
(1) |
(1) |
|
|
|
|
| Fees
to Be Paid |
|
Other |
Warrants |
457(r) |
(1) |
(1) |
(1) |
(1) |
(1) |
|
|
|
|
| Fees
to Be Paid |
|
Other |
Units |
457(r) |
(1) |
(1) |
(1) |
(1) |
(1) |
|
|
|
|
| Fees
Previously Paid |
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
Carry
Forward Securities |
| Carry
Forward Securities |
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Total
Offering Amounts |
|
$0.00 |
|
$0.00 |
|
|
|
|
| |
|
Total
Fees Previously Paid |
|
|
|
$0.00 |
|
|
|
|
| |
|
Total
Fee Offsets |
|
|
|
$0.00 |
|
|
|
|
| |
|
Net
Fee Due |
|
|
|
$0.00 |
|
|
|
|
| (1) | An unspecified aggregate initial offering price or principal amount or number of the securities of each identified class is being
registered as may from time to time be issued at indeterminate prices, or upon conversion, exchange or exercise of securities registered
hereunder to the extent any such securities are, by their terms, convertible into, or exchangeable or exercisable for, such securities.
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 as units with other securities registered hereunder. In accordance with
Rules 456(b) and 457(r) under the Securities Act of 1933, as amended, the registrants are deferring payment of all of the registration
fee. |
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