As filed with the Securities and Exchange Commission on July 29, 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
QXO, 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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16-1633636
(I.R.S. Employer
Identification No.)
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Five American Lane
Greenwich, Connecticut 06831
(888) 998-6000
(Address, including zip code, and telephone number,
including area code, of registrant’s
principal executive offices)
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Christopher Signorello, Esq.
Five American Lane
Greenwich, Connecticut 06831
(888) 998-6000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
David S. Huntington, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York 10019-6064
(212) 373-3000
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Securities and Exchange 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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☐
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Accelerated filer
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☐
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Non-accelerated filer
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☒
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Smaller reporting company
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☒
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Emerging growth company
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☐
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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 Securities Act. ☐
PROSPECTUS
QXO, Inc.
Common Stock
Preferred Stock
Debt Securities
Depositary Shares
Warrants
Rights
Purchase Contracts
Units
We may offer and sell from time to time shares of our common stock, shares of our preferred stock, debt securities, depositary shares, warrants, rights, purchase contracts or units, or any combination thereof, in one or more offerings in amounts, at prices and on terms that we determine at the time of the offering. Each time we offer securities pursuant to this prospectus, we will provide a prospectus supplement containing more information about the particular offering together with this prospectus. The prospectus supplement or a freewriting prospectus also may add, update or change information contained in or omitted from this prospectus. This prospectus may not be used to offer and sell securities without a prospectus supplement. In addition, selling securityholders named in a prospectus supplement may offer, from time to time and in one or more offerings, shares of our common stock, shares of our preferred stock or warrants.
These securities may be sold on a continuous or delayed basis directly to or through agents, dealers or underwriters as designated from time to time, or through a combination of these methods.
Our common stock is listed on The Nasdaq Capital Market (“Nasdaq”) under the symbol “QXO.” If we decide to list or seek a quotation for any other securities, the prospectus supplement relating to those securities will disclose the exchange or market on which those securities will be listed or quoted.
Investing in these securities involves significant risks. We strongly recommend that you read carefully the risks we describe in this prospectus as well as in any accompanying prospectus supplement and the risk factors that are incorporated by reference into this prospectus from our filings made with the Securities and Exchange Commission. See “Risk Factors” beginning on page 5 of this prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus or any accompanying prospectus supplement is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is July 29, 2024.
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
This prospectus is part of an “automatic shelf” registration statement that we filed with the Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (the “Securities Act”). Under this shelf registration process, we may offer and sell from time to time shares of our common stock, shares of our preferred stock, debt securities, depositary shares, warrants, rights, purchase contracts or units, or any combination thereof, in one or more offerings in amounts, at prices and on terms that we determine at the time of the offering.
In addition, selling securityholders may offer and sell, from time to time in one or more offerings, shares of our common stock, shares of our preferred stock or warrants. Information about selling securityholders, where applicable, will be set forth in a prospectus supplement, in a post-effective amendment or in filings we will make with the SEC which will be incorporated into this prospectus by reference.
This prospectus provides you with a general description of the securities. Each time we or selling securityholders offer securities, we will provide a prospectus supplement that describes the terms of the offering. The prospectus supplement also may add, update or change information contained in this prospectus. Before making an investment decision, you should read carefully both this prospectus and any prospectus supplement together with the documents incorporated by reference into this prospectus as described below under the heading “Incorporation by Reference.”
The registration statement that contains this prospectus, including the exhibits to the registration statement and the information incorporated by reference, provides additional information about us and our securities. That registration statement is available on the SEC’s website at www.sec.gov.
We have not authorized anyone to provide any information or to make any representations other than those contained in this prospectus supplement and accompanying prospectus, in the documents incorporated by reference into this prospectus supplement as described under “Where You Can Find More Information,” in any accompanying prospectus supplement and in any free writing prospectus we may authorized to be delivered to you. We will not take any responsibility for, and can provide no assurance as to the reliability of any other information that others may give you. You should not assume that the information in this prospectus or any supplement to this prospectus or freewriting prospectus related thereto is accurate as of any date other than the date indicated on the cover page of this prospectus or any prospectus supplement or freewriting prospectus related thereto, as applicable. We are not making an offer to sell the securities in any jurisdiction where the offer or sale is not permitted.
We and selling securityholders may sell the securities to or through underwriters, dealers or agents or directly to purchasers. The securities may be sold for U.S. dollars, foreign-denominated currency, currency units or composite currencies. Amounts payable with respect to any securities may be payable in U.S. dollars or foreign-denominated currency, currency units or composite currencies as specified in the applicable prospectus supplement. We, selling securityholders and our and their agents reserve the sole right to accept or reject in whole or in part any proposed purchase of the securities. The prospectus supplement, which we will provide each time we or selling securityholders offer the securities, will set forth the names of any underwriters, dealers or agents involved in the sale of the securities, and any related fee, commission or discount arrangements. See “Plan of Distribution.”
The prospectus supplement may also contain information about any material U.S. federal income tax considerations relating to the securities covered by the prospectus supplement.
In this prospectus, the terms “QXO,” the “Company,” “we,” “us” and “our” refer to QXO, Inc. (f/k/a SilverSun Technologies, Inc.), unless the context requires otherwise.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and are required to file with the SEC annual, quarterly and current reports, proxy statements and other information. Such reports include our audited financial statements. Our publicly available filings can be found free of charge on the SEC’s website at www.sec.gov. Our filings may also be
found free of charge on our corporate website at www.qxo.com/investors. Information on or accessible through our website does not constitute part of this prospectus (except for SEC reports expressly incorporated by reference herein).
As permitted by SEC rules, this prospectus does not contain all of the information we have included in the registration statement and the accompanying exhibits and schedules we file with the SEC. You may refer to the registration statement, exhibits and schedules for more information about us and the securities. The registration statement, exhibits and schedules are available through the SEC’s website.
INCORPORATION BY REFERENCE
The SEC allows us to “incorporate by reference” the information we file with the SEC, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus. Information that we file later with the SEC will automatically update and supersede information in this prospectus. In all cases, you should rely on the later information over different information included in this prospectus. The following documents have been filed by us with the SEC and are incorporated by reference into this prospectus:
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our Current Reports on Form 8-K filed on March 15, 2024, April 15, 2024, May 28, 2024, May 30, 2024 (excluding the information disclosed pursuant to Item 7.01 and Exhibit 99.1 thereto), June 5, 2024, June 6, 2024, June 14, 2024, June 14, 2024, July 5, 2024, July 18, 2024 and July 22, 2024; and
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the description of the Company’s common stock contained in the Company’s Fifth Amended and Restated Certificate of Incorporation filed as Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on June 6, 2024, including any amendment or report filed with the SEC for the purpose of updating such description.
All reports and other documents that we subsequently file with the SEC (other than any portion of such filings that are furnished under applicable SEC rules rather than filed) pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus and before the later of (1) the completion of the offering of the securities described in this prospectus and any prospectus supplement and (2) the date securities are no longer offered pursuant to this prospectus and any prospectus supplement, will be deemed to be incorporated by reference into this prospectus and to be part of this prospectus from the date of filing of such reports and documents.
You should not assume that the information in this prospectus, any prospectus supplement, any applicable pricing supplement or any document incorporated by reference is accurate as of any date other than the date of the applicable document. Any statement contained in a document incorporated or deemed to be incorporated by reference into this prospectus will be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in or omitted from this prospectus or any other subsequently filed document that is deemed to be incorporated by reference into this prospectus modifies or supersedes the statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
You may request a copy of any or all documents referred to above that have been or may be incorporated by reference into this prospectus (excluding certain exhibits to the documents) at no cost, by writing or calling us at the following address or telephone number:
QXO, Inc.
Attention: Chief Legal Officer
Five American Lane
Greenwich, CT 06831
Telephone: (888) 998-6000
FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference contain forward-looking statements. Statements that are not historical facts, including statements about beliefs, expectations, targets and goals are forward-looking statements. These statements are based on plans, estimates, expectations and/or goals at the time the statements are made, and readers should not place undue reliance on them. In some cases, readers can identify forward-looking statements by the use of forward-looking terms such as “may,” “will,” “should,” “expect,” “opportunity,” “intend,” “plan,” “anticipate,” “believe,” “estimate,” “predict,” “potential,” “target,” “goal,” or “continue,” or the negative of these terms or other comparable terms. Forward-looking statements involve inherent risks and uncertainties and readers are cautioned that a number of important factors could cause actual results to differ materially from those contained in any such forward-looking statements. Factors that could cause actual results to differ materially from those described herein include, among others:
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risks associated with potential significant volatility and fluctuations in the market price of the Company’s common stock;
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risks associated with the Company’s relatively low public float, which may result in its common stock experiencing significant price volatility;
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risks associated with raising additional equity or debt capital from public or private markets to pursue the Company’s business plan following the closing of the private placements, including potentially one or more additional private placements of common stock, and the effects that raising such capital may have on the Company and its business, including the risk of substantial dilution or that the Company’s common stock may experience a substantial decline in trading price;
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the possibility that additional future financings may not be available to the Company on acceptable terms or at all;
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the effect that the consummation of the private placements have had or may have on the Company and its current or future business or on the price of the Company’s common stock;
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the possibility that an active, liquid trading market for the Company’s common stock may not develop or, if developed, may not be sustained;
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the possibility that the Company’s outstanding warrants and preferred stock may or may not be converted or exercised, and the economic impact on the Company and the holders of common stock of the Company that may result from either such exercise or conversion, including dilution, or the continuance of the preferred stock remaining outstanding, and the impact its terms, including its dividend, may have on the Company and the common stock of the Company;
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uncertainties regarding the Company’s focus, strategic plans and other management actions;
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the risk that the Company is or becomes highly dependent on the continued leadership of Brad Jacobs as chairman and chief executive officer and the possibility that the loss of Mr. Jacobs in these roles could have a material adverse effect on the Company’s business, financial condition and results of operations;
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the possibility that the concentration of ownership by Mr. Jacobs may have the effect of delaying or preventing a change in control of the Company and might affect the market price of shares of the common stock of the Company;
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the risk that Mr. Jacobs’ past performance may not be representative of future results;
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the risk that the Company is unable to attract and retain world-class talent;
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the risk that the failure to consummate any acquisition expeditiously, or at all, could have a material adverse effect on the Company’s business prospects, financial condition, results of operations or the price of the Company’s common stock;
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risks that the Company may not be able to enter into agreements with acquisition targets on attractive terms, or at all, that agreed acquisitions may not be consummated, or, if consummated, that the anticipated benefits thereof may not be realized and that the Company encounter difficulties
in integrating and operating such acquired companies, or that matters related to an acquired business (including operating results or liabilities or contingencies) may have a negative effect on the Company or its securities or ability to implement its business strategy, including that any such transaction may be dilutive or have other negative consequences to the Company and its value or the trading prices of its securities;
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risks associated with cybersecurity and technology, including attempts by third parties to defeat the security measures of the Company and its business partners, and the loss of confidential information and other business disruptions;
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the possibility that new investors in any future financing transactions could gain rights, preferences and privileges senior to those of the Company’s existing stockholders;
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the possibility that building products distribution industry demand may soften or shift substantially due to cyclicality or seasonality or dependence on general economic conditions, including inflation or deflation, interest rates, consumer confidence, labor and supply shortages, weather and commodity prices;
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the possibility that regional or global barriers to trade or a global trade war could increase the cost of products in the building products distribution industry, which could adversely impact the competitiveness of such products and the financial results of businesses in the industry;
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risks associated with potential litigation related to the transactions contemplated by the amended and restated investment agreement, dated April 14, 2024, among QXO, Jacobs Private Equity II, LLC and other investors party thereto or related to any possible subsequent financing transactions or acquisitions or investments;
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uncertainties regarding general economic, business, competitive, legal, regulatory, tax and geopolitical conditions; and
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other factors, including those set forth in the Company’s filings with the SEC, including its Annual Report on Form 10-K for the fiscal year ended December 31, 2023 and subsequent Quarterly Reports on Form 10-Q.
Forward-looking statements herein speak only as of the date each statement is made. The Company undertakes no obligation to update any of these statements in light of new information or future events, except to the extent required by applicable law.
THE COMPANY
QXO provides technology solutions, primarily to clients in the manufacturing, distribution and service sectors. The Company provides consulting and professional services, specialized programming, training and technical support. As a value-added reseller of business application software, QXO offers solutions for accounting, financial reporting, enterprise resource planning, warehouse management systems, customer relationship management, business intelligence and other applications. Additionally, QXO develops and publishes its own proprietary software.
QXO plans to become a tech-forward leader in the $800 billion building products distribution industry. The Company is targeting tens of billions of dollars of annual revenue in the next decade through accretive acquisitions and organic growth.
For a description of our business, financial condition, results of operations and other important information regarding QXO, we refer you to our filings with the SEC incorporated by reference into this prospectus. For instructions on how to find copies of these documents, see “Where You Can Find More Information.” More information about us is also available through our website at www.qxo.com. The information on our website is not incorporated by reference into this prospectus or any accompanying prospectus supplement (except for SEC reports that are expressly incorporated by reference herein).
Our principal executive offices are located at Five American Lane, Greenwich, Connecticut 06831. Our telephone number is (888) 998-6000.
RISK FACTORS
Investing in our securities involves risk. Before you decide whether to purchase any of our securities, you should carefully consider the specific risks discussed in, or incorporated by reference into, the applicable prospectus supplement, together with all the other information contained in the prospectus supplement or incorporated by reference into this prospectus and the applicable prospectus supplement. You should also consider the risks, uncertainties and assumptions discussed under the caption “Risk Factors” included in our most recent Annual Report on Form 10-K and Quarterly Reports on Form 10-Q, which are incorporated by reference into this prospectus. These risk factors may be amended, supplemented or superseded from time to time by other reports we file with the SEC in the future. For more information, please see “Incorporation by Reference.” These risks could materially and adversely affect our business, results of operations and financial condition and could result in a partial or complete loss of your investment.
SELECTED FINANCIAL DATA
On June 6, 2024, we filed our Fifth Amended and Restated Certificate of Incorporation (as amended, the “Amended and Restated Charter”) to implement an 8-for-1 reverse stock split of our then outstanding shares of common stock. The reverse stock split reduced the total number of shares outstanding, which resulted in the per share stock price being increased on an adjusted basis as compared to historical financial data. The summary data in the following tables presents data derived from the consolidated financial statements for the years ended December 31, 2023, 2022 and 2021 on a reported and as revised basis to reflect the impact of the reverse stock split. The following tables do not give effect to the issuance of convertible preferred stock and warrants issued subsequent to March 31, 2024.
As Reported
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Year Ended December 31,
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2023
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2022
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2021
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Basic net loss per share computation:
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Net loss
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$ |
(1,070,095) |
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$ |
(282,219) |
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$ |
(134,434) |
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Weighted-average common shares outstanding
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5,259,595 |
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5,167,081 |
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5,026,420 |
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Basic net loss per share
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$ |
(0.20) |
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$ |
(0.05) |
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$ |
(0.03) |
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Diluted net loss per share computation:
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Net loss per above
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$ |
(1,070,095) |
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$ |
(282,219) |
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$ |
(134,434) |
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Weighted-average common shares outstanding
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5,259,595 |
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5,167,081 |
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5,026,420 |
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Incremental shares for convertible promissory note
warrants and stock options(1)
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— |
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— |
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— |
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Diluted net loss per share
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$ |
(0.20) |
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(0.05) |
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$ |
(0.03) |
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Shares of common stock issued and outstanding at year end
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5,315,581 |
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5,256,177 |
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5,136,177 |
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As Adjusted for the Reverse Stock Split
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Year Ended December 31,
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2023
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2022
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2021
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Basic net loss per share computation:
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Net loss
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$ |
(1,070,095) |
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$ |
(282,219) |
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$ |
(134,434) |
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Weighted-average common shares outstanding
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657,449 |
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645,885 |
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628,303 |
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Basic net loss per share
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$ |
(1.63) |
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$ |
(0.44) |
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$ |
(0.21) |
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Diluted net loss per share computation:
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Net loss per above
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|
$ |
(1,070,095) |
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|
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$ |
(282,219) |
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|
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$ |
(134,434) |
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Weighted-average common shares outstanding
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657,449 |
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645,885 |
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628,303 |
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Incremental shares for convertible promissory note warrants and stock options(1)
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— |
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— |
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— |
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Diluted net loss per share
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$ |
(1.63) |
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(0.44) |
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$ |
(0.21) |
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Shares of common stock issued and outstanding at year end
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664,448 |
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|
657,022 |
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642,022 |
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(1)
The historical periods presented did not have any incremental shares that were issued for convertible promissory note warrants or stock options for the periods presented.
As Reported
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Three Months Ended
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March 31,
2024
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September 30,
2023
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June 30,
2023
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March 31,
2023
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September 30,
2022
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June 30,
2022
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March 31,
2022
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Basic net income per share
computation:
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Net income
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$ |
138,087 |
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$ |
(2,110,178) |
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$ |
343,361 |
|
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|
|
$ |
277,491 |
|
|
|
|
$ |
(134,237) |
|
|
|
|
$ |
(87,766) |
|
|
|
|
$ |
(40,656) |
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|
|
Weighted-average common shares outstanding
|
|
|
|
|
5,315,581 |
|
|
|
|
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5,256,177 |
|
|
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5,256,177 |
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|
|
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5,256,177 |
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5,136,177 |
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|
|
|
5,136,177 |
|
|
|
|
|
5,136,177 |
|
|
|
Basic net income per share
|
|
|
|
$ |
0.03 |
|
|
|
|
$ |
(0.40) |
|
|
|
|
$ |
0.07 |
|
|
|
|
$ |
0.05 |
|
|
|
|
$ |
(0.03) |
|
|
|
|
$ |
(0.02) |
|
|
|
|
$ |
(0.01) |
|
|
|
Diluted net income per share computation:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income per above
|
|
|
|
$ |
138,087 |
|
|
|
|
$ |
(2,110,178) |
|
|
|
|
$ |
343,361 |
|
|
|
|
$ |
277,491 |
|
|
|
|
$ |
(134,237) |
|
|
|
|
$ |
(87,766) |
|
|
|
|
$ |
(40,656) |
|
|
|
Weighted-average common shares outstanding
|
|
|
|
|
5,315,581 |
|
|
|
|
|
5,256,177 |
|
|
|
|
|
5,256,177 |
|
|
|
|
|
5,256,177 |
|
|
|
|
|
5,136,177 |
|
|
|
|
|
5,136,177 |
|
|
|
|
|
5,136,177 |
|
|
|
Total adjusted weighted-average shares
|
|
|
|
|
5,315,581 |
|
|
|
|
|
5,256,177 |
|
|
|
|
|
5,256,177 |
|
|
|
|
|
5,256,177 |
|
|
|
|
|
5,136,177 |
|
|
|
|
|
5,136,177 |
|
|
|
|
|
5,136,177 |
|
|
|
Diluted net income per share
|
|
|
|
$ |
0.03 |
|
|
|
|
$ |
(0.40) |
|
|
|
|
$ |
0.07 |
|
|
|
|
$ |
0.05 |
|
|
|
|
$ |
(0.03) |
|
|
|
|
$ |
(0.02) |
|
|
|
|
$ |
(0.01) |
|
|
|
Shares of common stock
issued and outstanding
at period end
|
|
|
|
|
5,315,581 |
|
|
|
|
|
5,256,177 |
|
|
|
|
|
5,256,177 |
|
|
|
|
|
5,256,177 |
|
|
|
|
|
5,136,177 |
|
|
|
|
|
5,136,177 |
|
|
|
|
|
5,136,177 |
|
|
As Adjusted for the Reverse Stock Split
| |
|
|
Three Months Ended
|
|
| |
|
|
March 31,
2024
|
|
|
September 30,
2023
|
|
|
June 30,
2023
|
|
|
March 31,
2023
|
|
|
September 30,
2022
|
|
|
June 30,
2022
|
|
|
March 31,
2022
|
|
|
Basic net income per share
computation:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
|
$ |
138,087 |
|
|
|
|
$ |
(2,110,178) |
|
|
|
|
$ |
343,361 |
|
|
|
|
$ |
277,491 |
|
|
|
|
$ |
(134,237) |
|
|
|
|
$ |
(87,766) |
|
|
|
|
$ |
(40,656) |
|
|
|
Weighted-average common
shares outstanding
|
|
|
|
|
664,448 |
|
|
|
|
|
657,022 |
|
|
|
|
|
657,022 |
|
|
|
|
|
657,022 |
|
|
|
|
|
642,022 |
|
|
|
|
|
642,022 |
|
|
|
|
|
642,022 |
|
|
|
Basic net income per
share
|
|
|
|
$ |
0.21 |
|
|
|
|
$ |
(3.21) |
|
|
|
|
$ |
0.52 |
|
|
|
|
$ |
0.42 |
|
|
|
|
$ |
(0.21) |
|
|
|
|
$ |
(0.14) |
|
|
|
|
$ |
(0.06) |
|
|
|
Diluted net income per share computation:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income per above
|
|
|
|
$ |
138,087 |
|
|
|
|
$ |
(2,110,178) |
|
|
|
|
$ |
343,361 |
|
|
|
|
$ |
277,491 |
|
|
|
|
$ |
(134,237) |
|
|
|
|
$ |
(87,766) |
|
|
|
|
$ |
(40,656) |
|
|
|
Weighted-average common
shares outstanding
|
|
|
|
|
664,448 |
|
|
|
|
|
657,022 |
|
|
|
|
|
657,022 |
|
|
|
|
|
657,022 |
|
|
|
|
|
642,022 |
|
|
|
|
|
642,022 |
|
|
|
|
|
642,022 |
|
|
|
Total adjusted weighted-average shares
|
|
|
|
|
664,448 |
|
|
|
|
|
657,022 |
|
|
|
|
|
657,022 |
|
|
|
|
|
657,022 |
|
|
|
|
|
642,022 |
|
|
|
|
|
642,022 |
|
|
|
|
|
642,022 |
|
|
|
Diluted net income per share
|
|
|
|
$ |
0.21 |
|
|
|
|
$ |
(3.21) |
|
|
|
|
$ |
0.52 |
|
|
|
|
$ |
0.42 |
|
|
|
|
$ |
(0.21) |
|
|
|
|
$ |
(0.14) |
|
|
|
|
$ |
(0.06) |
|
|
|
Shares of common stock issued and outstanding at period end
|
|
|
|
|
664,448 |
|
|
|
|
|
657,022 |
|
|
|
|
|
657,022 |
|
|
|
|
|
657,022 |
|
|
|
|
|
642,022 |
|
|
|
|
|
642,022 |
|
|
|
|
|
642,022 |
|
|
USE OF PROCEEDS
Unless we specify another use in the applicable prospectus supplement, we will use the net proceeds from the sale of the securities offered by us for general corporate purposes, which may include, among other things, debt repayment, working capital and capital expenditures. We may also use such proceeds to fund acquisitions of businesses or product lines that complement our current or any acquired business. We may set forth additional information on the use of net proceeds from the sale of the securities we offer under this prospectus in a prospectus supplement related to a specific offering.
We will not receive any proceeds from the resale of our common stock, preferred stock or warrants by selling securityholders.
DESCRIPTION OF CAPITAL STOCK
The following is a summary of QXO’s capital stock and important provisions of Amended and Restated Charter and Amended and Restated Bylaws (the “Amended and Restated Bylaws”). This summary does not purport to be complete and is subject to and qualified by QXO’s Amended and Restated Charter and Amended and Restated Bylaws and by the provisions of applicable law.
QXO’s authorized capital stock is comprised of 2,010,000,000 shares, consisting of (i) 2,000,000,000 shares of QXO’s common stock, par value $0.00001 per share and (ii) 10,000,000 shares of preferred stock, par value $0.001 per share, the rights and preferences of which may be established from time to time by QXO’s board of directors.
As of July 26, 2024, there were 409,430,195 outstanding shares of the Company’s common stock and 1,000,000 outstanding shares of Convertible Preferred Stock (as defined below).
Common Stock
Holders of our common stock are entitled to the rights set forth below.
Voting Rights
The holders of QXO common stock are entitled to one vote per share on all matters submitted to a vote of QXO’s stockholders (including the election or removal of directors), and do not have cumulative voting rights. Except as otherwise provided in the Amended and Restated Charter or as required by law, all matters to be voted on by QXO’s stockholders will be approved if votes cast in favor of the matter exceed the votes cast opposing the matter at a meeting at which a majority of the outstanding shares entitled to vote on such matter is represented in person or by proxy.
Dividend Rights
Holders of QXO common stock will share equally in any dividends that may be declared by QXO’s board of directors out of assets or funds legally available therefor, subject to the rights of the holders of any outstanding preferred stock.
Liquidation Rights
In the event of any voluntary or involuntary liquidation, dissolution or winding up of QXO’s affairs, holders of QXO common stock would be entitled to share ratably in QXO’s assets that are legally available for distribution to stockholders. If QXO has any preferred stock outstanding at such time, holders of the preferred stock may be entitled to distribution and/or liquidation preferences. In either such case, QXO must pay the applicable distribution to the holders of its preferred stock before it may pay distributions to the holders of QXO common stock.
Other Rights
Holders of QXO common stock do not have preemptive, subscription, redemption or conversion rights. All outstanding shares of QXO common stock are validly issued, fully paid and nonassessable. The rights, preferences and privileges of holders of QXO common stock will be subject to those of the holders of any shares of preferred stock that QXO may issue in the future.
Registration Rights
Registration Rights Agreement
On June 6, 2024, the Company entered into a Registration Rights Agreement (the “Registration Rights Agreement”), among the Company, Jacobs Private Equity II, LLC and the other investors party thereto, pursuant to which, among other things, the holders of (i) an aggregate of 1,000,000 shares of Convertible Perpetual Preferred Stock of the Company, par value $0.001 per share (the “Convertible Perpetual Preferred Stock”), which were initially convertible into an aggregate of 219,010,074 shares of QXO common stock at
an initial conversion price of $4.566 per share, and (ii) warrants initially exercisable for an aggregate of 219,010,074 shares of QXO common stock (the “Warrants,” and together with the Convertible Perpetual Preferred Stock, the “Securities”) have been provided with certain rights to cause the Company to register the sale of shares of Convertible Perpetual Preferred Stock, Warrants and shares of QXO common stock issued or issuable upon conversion of the Convertible Perpetual Preferred Stock or upon exercise of the Warrants, in each case other than any such securities that are then freely transferable without registration pursuant to Rule 144 under the Securities Act without limitation as to volume, manner of sale or other restrictions under Rule 144. Securities that are subject to registration under the Registration Rights Agreement as provided above are referred to as “Registrable Securities.”
Demand Registration. The holder or holders of Registrable Securities holding Registrable Securities constituting, in the aggregate, no less than a majority of the total number of Registrable Securities may request that the Company register the sale of such securities under the Securities Act. Such majority holders may request a total of ten demand registrations.
Shelf Registration. At a time when the Company is eligible to use a registration statement on Form S-3, the holder or holders of Registrable Securities holding Registrable Securities constituting, in the aggregate, no less than a majority of the total number of Registrable Securities may request that the Company register the sale of such securities under the Securities Act on a delayed or continuous basis. A holder of Registrable Securities included in such registration statement may initiate an unlimited number of shelf takedowns, except the Company is not required to effect a shelf takedown in certain specified situations.
Piggyback Registration. If the Company registers its securities on a registration statement, the Company must give each investor prompt written notice thereof (subject to certain exceptions). The Company must then include on such registration statement all Registrable Securities requested to be included therein (subject to certain exceptions).
Subject to certain exceptions, all expenses incurred in connection with the registration or sale of the Registrable Securities will be borne by the Company.
The foregoing description of the Registration Rights Agreement is not complete and is qualified in its entirety by reference to the complete text of the Registration Rights Agreement, a copy of which is filed as Exhibit 4.7 hereto and is hereby incorporated by reference.
Purchase Agreements
On June 13, 2024, QXO entered into purchase agreements with certain institutional and accredited investors named therein, pursuant to which QXO agreed to issue and sell in a private placement an aggregate of 340,932,212 shares of the Company’s common stock at a purchase price of $9.14 per share and pre-funded warrants to purchase 42,000,000 shares of the Company’s common stock (the “Warrant Shares”), at a purchase price of $9.13999 per warrant.
On July 22, 2024, QXO entered into additional purchase agreements with certain institutional and accredited investors named therein, pursuant to which QXO agreed to issue and sell in a private placement an aggregate of 67,833,699 shares of the Company’s common stock at a purchase price of $9.14 per share.
The purchase agreements provide certain registration rights, pursuant to which QXO has agreed to register the resale of shares of the Company’s common stock issued and sold pursuant to the purchase agreements and the Warrant Shares. The Company is required to use commercially reasonable efforts to file a registration statement with the SEC covering the resale by the investors of such shares of common stock and the Warrant Shares within 15 business days following the closing of the applicable private placement.
The foregoing descriptions of the purchase agreements is not complete and is qualified in its entirety by reference to the complete text of the forms of the purchase agreements, copies of which are filed as exhibits hereto.
Preferred Stock
QXO’s board of directors is authorized to provide for one or more series of preferred stock and to fix the terms of such preferred stock, including the preferences, powers and relative, participating, optional or
other special rights and qualifications, limitations or restrictions thereof, including the dividend rate, conversion rights, voting rights, redemption rights and liquidation preferences and to fix the number of shares to be included in any such series without any further vote or action by QXO’s stockholders. Any preferred stock so issued may rank senior to QXO’s common stock with respect to the payment of dividends or amounts upon liquidation, dissolution or winding up, or both. In addition, any such shares of preferred stock may have class or series voting rights. The issuance of preferred stock may have the effect of delaying, deferring or preventing a change in control of QXO without further action by the stockholders and may adversely affect the voting and other rights of the holders of QXO common stock.
Convertible Preferred Stock
The following is a summary of the material terms of the Company’s convertible perpetual preferred stock (the “Convertible Preferred Stock”) as contained in the Certificate of Designation of Convertible Perpetual Preferred Stock of the Company (the “Certificate of Designation”). The following description of the Convertible Preferred Stock is not complete and is qualified in its entirety by reference to the complete text of the Certificate of Designation, a copy of which is filed as Exhibit 4.3 hereto and is hereby incorporated by reference.
Authorized Shares and Liquidation Preference
The Company has designated 1,000,000 authorized shares of Preferred Stock as Convertible Preferred Stock. Each share of Convertible Preferred Stock has an initial liquidation preference of $1,000 per share, for an aggregate initial liquidation preference of $1,000,000,000.
Ranking
The Convertible Preferred Stock ranks, with respect to dividend rights and distribution of assets upon liquidation, winding-up or dissolution, senior to the Company’s common stock and each other class or series of capital stock, whether outstanding or established after the date of issuance of the Convertible Preferred Stock, the terms of which do not expressly provide that it ranks senior to or on a parity with the Convertible Preferred Stock as to payment of dividends and distribution of assets upon liquidation, winding-up or dissolution. The Convertible Preferred Stock ranks on a parity with or junior to each class or series of capital stock, the terms of which expressly provide for a pari passu or senior ranking, respectively, relative to the Convertible Preferred Stock.
Dividends
Dividends on the Convertible Preferred Stock are payable quarterly, when, as and if declared by the Board of Directors of the Company or a duly authorized committee thereof, out of the assets legally available for the payment of dividends, on the 15th calendar day (or the following business day if the 15th is not a business day) of January, April, July and October of each year at the rate per annum of 9% per share on the then-applicable liquidation preference (subject to the following paragraph). The amount of dividends payable for any period that is shorter or longer than a full quarterly dividend period, other than for the period commencing on the issuance date and ending on the first date after issuance on which the Convertible Preferred Stock would be entitled to a dividend payment, will be computed on the basis of a 360-day year consisting of twelve 30-day months.
In the event that the Company pays dividends on shares of its common stock in any dividend period with respect to the Convertible Preferred Stock, then the dividend payable in respect of each share of Convertible Preferred Stock for such period will be equal to the greater of (a) the amount otherwise payable in respect of such share of Convertible Preferred Stock in accordance with the foregoing paragraph and (b) the product of (i) the aggregate dividends payable per share of the Company’s common stock in such dividend period multiplied by (ii) the number of shares of the Company’s common stock into which such share of Convertible Preferred Stock is then convertible.
A dividend period with respect to a dividend payment date is the period commencing on the preceding dividend payment date or, if none, the date of original issuance, and ending on the day immediately prior to the next dividend payment date.
The Company will make each dividend payment on the Convertible Preferred Stock in cash.
Accretion
If the Company is unable, or otherwise fails, to pay dividends in cash and in full on the Convertible Preferred Stock on any dividend payment date, the then-applicable liquidation preference on each share of Convertible Preferred Stock will be increased automatically as of the first day of the immediately succeeding dividend period by the amount of the unpaid dividends. The amount of dividends payable for any dividend period following a non-payment of dividends will be calculated on the basis of the liquidation preference of each share of Convertible Preferred Stock, including such accreted dividends, determined as of the first day of the relevant dividend period. The Company may pay all or a portion of any dividends so accreted on any regular dividend payment date, or any other date fixed by the Board of Directors of the Company or a duly authorized committee thereof.
Payment Restrictions
No dividends or other distributions may be declared or paid on any capital stock of the Company ranking on a parity with or junior to the Convertible Preferred Stock (including the Company’s common stock), other than dividends and distribution payable solely in stock and cash paid in lieu of fractional shares, and no such capital stock may be redeemed or repurchased by or on behalf of the Company, unless all accrued and unpaid dividends have been paid on the Convertible Preferred Stock and any capital stock of the Company ranking on a parity with the Convertible Preferred Stock. Notwithstanding the foregoing, if full dividends have not been paid on the Convertible Preferred Stock and any parity stock, dividends may be declared and paid on the Convertible Preferred Stock and such parity stock so long as the dividends are declared and paid pro rata.
Liquidation
In the event that the Company voluntarily or involuntarily liquidates, dissolves or winds up, the holders of the Convertible Preferred Stock will be entitled, before any distribution to the holders of shares of the Company’s common stock or any other junior capital stock, and subject to the rights of the Company’s creditors, to receive an amount equal to the greater of (a) the aggregate accreted liquidation preference on their shares of Convertible Preferred Stock plus an amount equal to any accrued and unpaid dividends (whether or not declared) for the then-current dividend period and (b) the payment or distribution to which such holders would have been entitled if their shares of Convertible Preferred Stock were converted into shares of Common Stock immediately before such liquidation, dissolution or winding-up (without accounting for the accreted liquidation preference otherwise payable).
Voting Rights
Holders of Convertible Preferred Stock will vote together with the holders of the Company’s common stock on an “as-converted” basis on all matters, except as otherwise required by law. In addition, the approval of the holders of at least a majority of the outstanding shares of the Convertible Preferred Stock, voting separately as a single class, will be required (a) to amend, alter or repeal (whether by merger, consolidation or otherwise) any provision of the Certificate of Designation, (b) to amend, alter or repeal (whether by merger, consolidation or otherwise) any provision of the Amended and Restated Certificate of Incorporation or the Amended and Restated Bylaws if such amendment, alteration or repeal would have an adverse effect on the powers, preferences, privileges or rights of the holders of the Convertible Preferred Stock, (c) to authorize, create, issue or increase the authorized amount of, or issue or authorize any obligation or security convertible into exchangeable for or evidencing a right to purchase, any capital stock of the Company ranking on a parity with or senior to the Convertible Preferred Stock, (d) to reclassify any authorized capital stock of the Company into any parity stock or senior stock, or any obligation or security convertible into, exchangeable for or evidencing a right to purchase any parity stock or senior stock, or (e) for any increase or decrease in the authorized number of shares of Convertible Preferred Stock or the issuance of shares of Convertible Preferred Stock after the date of issuance of the Convertible Preferred Stock.
Conversion
The Convertible Preferred Stock is convertible at any time, in whole or in part, at the option of the holder thereof into a number of shares of the Company’s common stock equal to the then-applicable liquidation preference divided by the then-applicable conversion price, which, as of the date of this prospectus, is $4.566 per share of the Company’s common stock.
The Convertible Preferred Stock has the benefit of customary anti-dilution adjustments.
Redemption
The Convertible Preferred Stock is not redeemable or subject to any required offer to purchase.
Warrants
The summary of the material terms of the warrants issued by the Company on June 6, 2024 (the “Warrants”) below is qualified in its entirety by reference to the forms of Warrant Certificate, copies of which are attached as Exhibits 4.4, 4.5 and 4.6 to registration statement of which this prospectus forms a part.
As of the date of this prospectus, the aggregate number of shares of the Company’s common stock subject to the Warrants is 219,010,074 shares. The Warrants are exercisable at the option of the holder at any time until June 6, 2034.
As of the date of this prospectus, the Warrants have an exercise price of $4.566 per share of the Company’s common stock with respect to 50% of the Warrants, $6.849 per share of the Company’s common stock with respect to 25% of the Warrants, and $13.698 per share of the Company’s common stock with respect to the remaining 25% of the Warrants.
Cashless Exercise Option
Each Warrant may be exercised, in whole or in part, at any time or times on or after the issuance date and on or before the expiration date at the election of the holder (in such holder’s sole discretion) by means of a “cashless exercise” in which the holder will be entitled to receive a number of shares of the Company’s common stock equal to the quotient of the product of the Closing Sale Price (as defined in the Warrant Certificate) of a share of the Company’s common stock on the trading day immediately preceding the date on which the holder elects to exercise its Warrant, less the adjusted exercise price, multiplied by the number of shares of the Company’s common stock issuable upon exercise of such Warrant, divided by the aforementioned Closing Sale Price of a share of the Company’s common stock on the trading day immediately preceding the date on which the holder elects to exercise its Warrant.
Voting Rights and Dividends
Holders of the Warrants (in their capacity as such) will not be entitled to any rights of a stockholder of the Company, including the right to vote or to consent with respect to any matter or to receive dividends, prior to exercising their Warrants.
Pre-Funded Warrants
As of the date of this prospectus, the Company has outstanding pre-funded warrants (the “Pre-Funded Warrants”) to purchase 42,000,000 shares of the Company’s common stock.
The Pre-Funded Warrants are exercisable at any time after the date of issuance at an exercise price of $0.00001 per share. A holder of Pre-Funded Warrants may not exercise the Pre-Funded Warrants if the holder, together with its affiliates and any other person whose beneficial ownership would be aggregated with such holder, would beneficially own more than 4.99% of the number of shares of the Company’s common stock outstanding immediately after giving effect to such exercise. A holder of Pre-Funded Warrants may increase or decrease this percentage by providing at least 61 days’ prior notice to the Company.
Certain Corporate Anti-Takeover Provisions
Certain provisions in our Amended and Restated Charter and Amended and Restated Bylaws may be deemed to have an anti-takeover effect and may delay, deter or prevent a tender offer or takeover attempt that a stockholder might consider in its best interests, including attempts that might result in a premium being paid over the market price for shares held by stockholders.
Election and Removal of Directors
Our Amended and Restated Charter provides that, subject to the rights of the holders of any series of preferred stock, our directors are elected at an annual meeting of stockholders for terms expiring at the next annual meeting of stockholders. Subject to the rights of the holders of any series of preferred stock, any director may be removed, with or without cause, at any time, by the affirmative vote of the holders of at least a majority of the voting power of all outstanding shares of our capital stock entitled to vote generally in the election of directors.
Action by Written Consent; Special Meetings of Stockholders
Pursuant to Section 228 of the Delaware General Corporation Law (“DGCL”), any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote if a consent or consents in writing, setting forth the action so taken, is signed by the holders of outstanding capital stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and such written consent or consents are delivered in accordance with Section 228 of the DGCL.
Our Amended and Restated Charter provides that, subject to the rights of the holders of any series of preferred stock, special meetings of our stockholders may be called at any time only by or at the direction of the chair of the board of directors, the lead independent director (if one has been appointed) or our board of directors pursuant to a resolution adopted by a majority of the board of directors.
Advance Notice Procedures
Our Amended and Restated Bylaws establish an advance notice procedure for stockholder proposals to be brought before an annual meeting of our stockholders, including proposed nominations of persons for election to the board of directors. Stockholders at an annual meeting are only able to consider proposals or nominations specified in the notice of meeting or brought before the meeting by or at the direction of the board of directors or by a stockholder who was a stockholder of record on the record date for the meeting, who is entitled to vote at the meeting and who has given our Secretary timely written notice, in proper form, of the stockholder’s intention to bring that business before the meeting. Our Amended and Restated Bylaws may have the effect of precluding the conduct of certain business proposals or nominations at a meeting if the proper procedures are not followed or may discourage or deter a potential acquirer from conducting a solicitation of proxies to elect its own slate of directors or otherwise attempting to obtain control of the Company.
Authorized but Unissued Shares
Our authorized but unissued shares of our common stock and preferred stock are available for future issuance without stockholder approval. These additional shares may be utilized for a variety of corporate purposes, including future public offerings to raise additional capital, corporate acquisitions and employee benefit plans. In addition, our board of directors may by resolution establish one or more series of preferred stock and fix the rights, powers (including voting powers) and preferences, and the qualifications, limitations and restrictions thereof, of each such series, and may issue shares of any such series of preferred stock from time to time. The existence of authorized but unissued shares of our common stock and preferred stock could render more difficult or discourage an attempt to obtain control of a majority of our common stock by means of a proxy contest, tender offer, merger or otherwise.
Limitations on Liability and Indemnification of Officers and Directors
Our Amended and Restated Charter eliminates the personal liability of our directors to us or our stockholders for monetary damages for breach of fiduciary duty as a director to the fullest extent permitted by the DGCL. Our Amended and Restated Charter also provides that we will provide our directors and officers with customary rights to indemnification and advancement of expenses.
Transfer Agent and Registrar
The transfer agent and registrar for the Company’s common stock is Equiniti Trust Company, LLC.
DESCRIPTION OF THE DEBT SECURITIES
The following description of the terms of the debt securities sets forth certain general terms and provisions of the debt securities to which any prospectus supplement may relate. The particular terms of the debt securities offered by any prospectus supplement and the extent, if any, to which these general provisions may apply to those debt securities will be described in the prospectus supplement relating to those debt securities. Accordingly, for a description of the terms of a particular issue of debt securities, reference must be made to both the prospectus supplement relating thereto and to the following description.
We may issue debt securities from time to time in one or more series. The debt securities will be general obligations of the Company. The debt securities may be fully and unconditionally guaranteed on a secured or unsecured senior or subordinated basis, jointly and severally, by guarantors, if any. In the event that any series of debt securities will be subordinated to other indebtedness that we have outstanding or may incur, the terms of the subordination will be set forth in the prospectus supplement relating to the subordinated debt securities. Debt securities will be issued under one or more indentures between us and a trustee. A copy of the form of indenture has been filed as an exhibit to the registration statement filed with the SEC. The following discussion of certain provisions of the indenture is a summary only and should not be considered a complete description of the terms and provisions of the indenture. Accordingly, the following discussion is qualified in its entirety by reference to the provisions of the indenture, including the definition of certain terms used below. You should refer to the indenture for the complete terms of the debt securities.
General
The debt securities will represent direct, general obligations of the Company and:
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may rank equally with other unsubordinated debt or may be subordinated to other debt we have or may incur;
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may be issued in one or more series with the same or various maturities;
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may be issued at a price of 100% of their principal amount or at a premium or discount;
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may be issued in registered form and certificated or uncertificated form; and
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may be represented by one or more global debt securities registered in the name of a designated depositary’s nominee, and if so, beneficial interests in the global debt securities will be shown on and transfers will be made only through records maintained by the designated depositary and its participants.
The aggregate principal amount of debt securities that we may authenticate and deliver is unlimited. Subject to limitations contained in the indenture, we may from time to time, without notice to or the consent of the holders of a series of debt securities, issue additional debt securities of any such series on the same terms and conditions as the debt securities of such series, except for any differences in the issue price and, if applicable, the initial interest accrual date and interest payment date; provided that if the additional debt securities are not fungible with the debt securities of such series for U.S. federal income tax purposes, such additional debt securities will have one or more separate CUSIP numbers. You should refer to the applicable prospectus supplement for the following terms of the debt securities of the series with respect to which that prospectus supplement is being delivered:
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the title of the debt securities of the series (which will distinguish the debt securities of that particular series from the debt securities of any other series) and ranking (including the terms of any subordination provisions);
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the price or prices of the debt securities of the series at which such debt securities will be issued;
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whether the debt securities are entitled to the benefit of any guarantee by any guarantor;
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any limit on the aggregate principal amount of the debt securities of the series that may be authenticated and delivered under the indenture (except for debt securities authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu of, other debt securities of the series);
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the date or dates on which the principal and premium with respect to the debt securities of the series are payable;
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the person to whom any interest on a security of the series shall be payable if other than the person in whose name that security is registered at the close of business on the record date;
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the rate or rates (which may be fixed or variable) at which the debt securities of the series will bear interest (if any) or the method of determining such rate or rates (including, but not limited to, any commodity, commodity index, stock exchange index or financial index), the date or dates from which such interest, if any, will accrue, the interest payment dates on which such interest, if any, will be payable or the method by which such dates will be determined, the record dates for the determination of holders thereof to whom such interest is payable (in the case of securities in registered form), and the basis upon which interest will be calculated if other than that of a 360-day year of twelve 30-day months;
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the currency or currencies in which debt securities of the series will be denominated and/or in which payment of the principal, premium, if any, and interest of any of the securities shall be payable, if other than U.S. dollars, the place or places, if any, in addition to or instead of the corporate trust office of the trustee (in the case of securities in registered form) where the principal, premium and interest, if any, with respect to debt securities of the series will be payable, where notices and demands to or upon us in respect of the debt securities and the indenture may be delivered, and the method of such payment, if by wire transfer, mail or other means;
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the price or prices at which, the period or periods within which, and the terms and conditions upon which debt securities of the series may be redeemed, in whole or in part, at our option or otherwise;
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the obligation or right, if any, to redeem, purchase or repay debt securities of the series pursuant to any sinking fund or analogous provisions or at the option of a holder of such debt securities and the price or prices at which, the period or periods within which, and the terms and conditions upon which, debt securities of the series will be redeemed, purchased or repaid, in whole or in part, pursuant to such obligations;
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the terms, if any, upon which the debt securities of the series may be convertible into or exchanged for any issuer’s common stock, preferred stock, depositary shares, other debt securities or warrants for common stock, preferred stock, depositary shares, indebtedness or other securities of any kind and the terms and conditions upon which such conversion or exchange will be effected, including the initial conversion or exchange price or rate, the conversion or exchange period and any other additional provisions;
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if other than minimum denominations of $2,000 or any integral multiple of $1,000 in excess thereof, the denominations in which debt securities of the series will be issuable;
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if the amount of principal, premium or interest with respect to the debt securities of the series may be determined with reference to an index or pursuant to a formula, the manner in which such amounts will be determined;
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if the principal amount payable at the stated maturity of debt securities of the series will not be determinable as of any one or more dates prior to such stated maturity, the amount that will be deemed to be such principal amount as of any such date for any purpose, including the principal amount thereof which will be due and payable upon any maturity other than the stated maturity or which will be deemed to be outstanding as of any such date (or, in any such case, the manner in which such deemed principal amount is to be determined), and if necessary, the manner of determining the equivalent thereof in U.S. dollars;
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any changes or additions to the provisions of the indenture dealing with defeasance;
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if other than the principal amount thereof, the portion of the principal amount of debt securities of the series that will be payable upon declaration of acceleration of the maturity thereof or provable in bankruptcy;
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the terms, if any, of the transfer, mortgage, pledge or assignment as security for the debt securities of the series of any properties, assets, moneys, proceeds, securities or other collateral and any corresponding changes to provisions of the indenture as then in effect;
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any addition to or change in the events of default with respect to the debt securities of the series and any change in the right of the trustee or the holders to declare the principal, premium and interest, if any, with respect to such debt securities due and payable;
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if the debt securities of the series will be issued in whole or in part in the form of a global security, the terms and conditions, if any, upon which such global security may be exchanged in whole or in part for other individual debt securities in definitive registered form, the depositary (as defined in the applicable prospectus supplement) for such global security and the form of any legend or legends to be borne by any such global security in addition to or in lieu of the legend referred to in the indenture;
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any trustee, authenticating or paying agent, transfer agent or registrar or any other agent with respect to the debt securities;
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the applicability of, and any addition to, deletion of or change in, the covenants and definitions then set forth in the indenture or in the terms then set forth in the indenture relating to permitted consolidations, mergers or sales of assets;
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the terms, if any, of any guarantee of the payment of principal, premium and interest with respect to debt securities of the series and any corresponding changes to the provisions of the indenture as then in effect;
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the subordination, if any, of the debt securities of the series pursuant to the indenture and any changes or additions to the provisions of the indenture relating to subordination;
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with regard to debt securities of the series that do not bear interest, the dates for certain required reports to the trustee;
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any provisions granting special rights to holders when a specified event occurs;
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any co-issuer;
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the place or places where the principal of and interest, if any, on the debt securities will be payable, where the debt securities may be surrendered for registration of transfer or exchange and where notices and demands to or upon us in respect of the debt securities and the indenture may be served, and the method of such payment, if by wire transfer, mail or other means; and
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any other terms of the debt securities of the series (which terms will not be prohibited by the provisions of the indenture).
The prospectus supplement will also describe any material U.S. federal income tax consequences or other special considerations applicable to the series of debt securities to which such prospectus supplement relates, including those applicable to:
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debt securities with respect to which payments of principal, premium or interest are determined with reference to an index or formula (including changes in prices of particular securities, currencies or commodities);
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debt securities with respect to which principal or interest is payable in a foreign or composite currency;
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debt securities that are issued at a discount below their stated principal amount, bearing no interest or interest at a rate that at the time of issuance is below market rates or original issue discount debt securities; and
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variable rate debt securities that are exchangeable for fixed rate debt securities.
Unless otherwise provided in the applicable prospectus supplement, securities in registered form may be transferred or exchanged at the office of the trustee at which its corporate trust business is principally administered in the United States, subject to the limitations provided in the indenture, without the payment of any service charge, other than any tax or governmental charge payable in connection therewith.
All funds that we pay to a paying agent for the payment of principal, premium or interest with respect to any debt securities that remain unclaimed at the end of two years after that principal, premium or interest will have become due and payable will be repaid to us, and the holders of those debt securities or any related coupons will thereafter look only to us for payment thereof.
Global Securities
The debt securities of a series may be issued in whole or in part in the form of one or more global securities. A global security is a debt security that represents, and is denominated in an amount equal to the aggregate principal amount of, all outstanding debt securities of a series, or any portion thereof, in either case having the same terms, including the same original issue date, date or dates on which principal and interest are due, and interest rate or method of determining interest. A global security will be deposited with, or on behalf of, a depositary, which will be identified in the prospectus supplement relating to such debt securities. Global securities may be issued in registered form and in either temporary or definitive form. Unless and until it is exchanged in whole or in part for the individual debt securities represented thereby, a global security 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 nominee of the depositary to a successor depositary or any nominee of such successor.
The terms of the depositary arrangement with respect to a series of debt securities will be described in the prospectus supplement relating to such debt securities. We anticipate that the following provisions will generally apply to depositary arrangements, in all cases subject to any restrictions or limitations described in the prospectus supplement relating to such debt securities.
Upon the issuance of a global security, the depositary for such global security will credit, on its book entry registration and transfer system, the respective principal amounts of the individual debt securities represented by such global security to the accounts of persons that have accounts with the depositary. Such accounts will be designated by the dealers or underwriters with respect to such debt securities or, if such debt securities are offered and sold directly by us or through one or more agents, by us or such agents. Ownership of beneficial interests in a global security will be limited to participants or persons that hold beneficial interests through participants. Ownership of beneficial interests in such global security will be shown on, and the transfer of that ownership will be effected only through, records maintained by the depositary (with respect to interests of participants) or records maintained by participants (with respect to interests of persons other than participants). The laws of some states require that certain purchasers of securities take physical delivery of such securities in definitive form. Such limitations and laws may impair the ability to transfer beneficial interests in a global security.
So long as the depositary for a global security, or its nominee, is the registered owner or holder of such global security, such depositary or nominee, as the case may be, will be considered the sole owner or holder of the individual debt securities represented by such global security for all purposes under the indenture. Except as provided below, owners of beneficial interests in a global security will not be entitled to have any of the individual debt securities represented by such global security registered in their names, will not receive or be entitled to receive physical delivery of any of such debt securities in definitive form and will not be considered the owners or holders thereof under the indenture.
Payments of principal, premium and interest with respect to individual debt securities represented by a global security will be made to the depositary or its nominee, as the case may be, as the registered owner or holder of such global security. Neither we, the trustee, any paying agent or registrar for such debt securities nor any agent of ours or the trustee will have any responsibility or liability for:
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any aspect of the records relating to or payments made by the depositary, its nominee or any participants on account of beneficial interests in the global security or for maintaining, supervising or reviewing any records relating to such beneficial interests;
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the payment to the owners of beneficial interests in the global security of amounts paid to the depositary or its nominee; or
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any other matter relating to the actions and practices of the depositary, its nominee or its participants.
Neither we, the trustee, any paying agent or registrar for such debt securities nor any agent of ours or the trustee will be liable for any delay by the depositary, its nominee or any of its participants in identifying the owners of beneficial interests in the global security, and we and the trustee may conclusively rely on, and will be protected in relying on, instructions from the depositary or its nominee for all purposes.
We expect that the depositary for a series of debt securities or its nominee, upon receipt of any payment of principal, premium or interest with respect to a definitive global security representing any of such debt securities, will immediately credit participants’ accounts with payments in amounts proportionate to their respective beneficial interests in the principal amount of such global security, as shown on the records of the depositary or its nominee. We also expect that payments by participants to owners of beneficial interests in such global security held through such participants will be governed by standing instructions and customary practices, as is now the case with securities held for the accounts of customers and registered in “street name.” Such payments will be the responsibility of such participants.
If the depositary for a series of debt securities is at any time unwilling, unable or ineligible to continue as depositary, we will appoint a successor depositary. If a successor depositary is not appointed by us within 90 days, we will issue individual debt securities of such series in exchange for the global security representing such series of debt securities. In addition, we may at any time and in our sole discretion determine to no longer have debt securities of a series represented by a global security and, in such event, will issue individual debt securities of such series in exchange for the global security representing such series of debt securities. Furthermore, if we so specify with respect to the debt securities of a series, an owner of a beneficial interest in a global security representing debt securities of such series may, on terms acceptable to us, the trustee and the depositary for such global security, receive individual debt securities of such series in exchange for such beneficial interests. In any such instance, an owner of a beneficial interest in a global security will be entitled to physical delivery of individual debt securities of the series represented by such global security equal in principal amount to such beneficial interest and to have such debt securities registered in its name (if the debt securities are issuable as securities in registered form). Individual debt securities of such series so issued generally will be issued as securities in registered form in minimum denominations, unless otherwise specified by us, of $2,000 and any integral multiples of $1,000 in excess thereof if the debt securities are issuable as securities in registered form.
Certain Covenants
If debt securities are issued, the indenture, as supplemented for a particular series of debt securities, will contain certain covenants for the benefit of the holders of such series of debt securities, which will be applicable (unless waived or amended) so long as any of the debt securities of such series are outstanding, unless stated otherwise in the prospectus supplement. The specific terms of the covenants, and summaries thereof, will be set forth in the prospectus supplement relating to such series of debt securities.
Subordination
Debt securities of a series and any guarantees, may be subordinated, which we refer to as subordinated debt securities, to senior indebtedness (as defined in the applicable prospectus supplement) to the extent set forth in the prospectus supplement relating thereto. To the extent we conduct operations through subsidiaries, the holders of debt securities (whether or not subordinated debt securities) will be structurally subordinated to the creditors of our subsidiaries, except to the extent such subsidiary is a guarantor of such series of debt securities.
Events of Default
Each of the following will constitute an event of default under the form of indenture with respect to any series of debt securities:
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default in payment of the principal amount of the debt securities of that series, when such amount becomes due and payable at maturity, upon acceleration, required redemption or otherwise;
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failure to pay interest on the debt securities of that series within 30 days of the due date;
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failure to comply with the obligations described under “— Mergers and Sales of Assets” below;
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failure to comply for 90 days after notice with any of our other agreements in the debt securities of that series or the indenture or supplemental indenture related to that series of debt securities; or
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certain events of bankruptcy, insolvency or reorganization affecting us.
A prospectus supplement may omit, modify or add to the foregoing events of default.
An event of default under one series of debt securities does not necessarily constitute an event of default under any other series of debt securities. A default under the fourth bullet above will not constitute an event of default until the trustee or the holders of 30% in principal amount of the outstanding debt securities of such series notify us of the default and we do not cure such default within the time specified after receipt of such notice.
If any event of default (other than an event of default relating to certain events of bankruptcy, insolvency or reorganization) occurs and is continuing with respect to a particular series of debt securities, either the trustee or the holders of not less than 30% in aggregate principal amount of the debt securities of that series then outstanding by written notice to us (and to the trustee if such notice is given by the holders), may declare the principal amount of (or in the case of original issue discount debt securities, the portion thereby specified in the terms thereof), and accrued interest on the debt securities of that series to be immediately due and payable. In the case of certain events of bankruptcy, insolvency or reorganization, the principal amount of, and accrued interest on the debt securities of that series will automatically become and be immediately due and payable without any declaration or other act on the part of the trustee or any holders. Upon a declaration by the trustee or the holders, we will be obligated to pay the principal amount plus accrued and unpaid interest of each affected series of debt securities so declared due and payable.
The holders of a majority in aggregate principal amount of the debt securities of any series then outstanding by notice to the trustee under the indenture may on behalf of the holders of all of such series of debt securities waive any existing default or event of default and its consequences under the applicable indenture except a continuing default or event of default in the payment of interest on, or the principal of, the debt securities of such series.
Subject to the provisions of the indenture relating to the duties of the trustee in case an event of default will occur and be continuing, the trustee is under no obligation to exercise any of its rights or powers under the indenture or debt securities at the request or direction of any of the holders of any series of debt securities, unless such holders have offered to the trustee indemnity or security satisfactory to the trustee against any loss, liability or expense. Subject to such provisions for the indemnification of the trustee, the holders of at least a majority in aggregate principal amount of the outstanding debt securities of a series have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust or power conferred on the trustee with respect to such series of debt securities. The trustee, however, may refuse to follow any direction that conflicts with law or the indenture or that the trustee determines is unduly prejudicial to the rights of any other holder of such series of debt securities or that would involve the trustee in personal liability. Prior to taking any action under the indenture, the trustee is entitled to indemnification satisfactory to it in its sole discretion against all losses, liabilities and expenses caused by taking or not taking such action.
Except to enforce the right to receive payment of principal, premium, if any, or interest when due, no holder of debt securities of a series has any right to institute any proceeding with respect to the indenture or debt securities, or for the appointment of a receiver or a trustee, or for any other remedy thereunder, unless:
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such holder has previously given to the trustee written notice of a continuing event of default with respect to such series of debt securities;
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the holder or holders of at least 30% in aggregate principal amount of the outstanding debt securities of that series have made written request, and such holder or holders have offered security or indemnity satisfactory to the trustee against any loss, liability or expense, to the trustee to institute such proceeding as trustee; and
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the trustee has failed to institute such proceeding, and has not received from the holders of a majority in aggregate principal amount of the outstanding debt securities of that series a direction inconsistent with such request, within 60 days after such notice, request and offer.
However, such limitations do not apply to a suit instituted by a holder of a debt security of such series for the enforcement of payment of the principal, premium, if any, or interest on such debt security on or after the applicable due date specified in such debt security.
The indenture provides that if a default with respect to a series of debt securities occurs and is continuing and is known to the trustee, the trustee must send to each holder of such debt securities notice of the default within 90 days after it occurs. Except in the case of a default in the payment of the principal or premium, if any, upon acceleration, redemption or otherwise with respect to any debt security of a series when such amount becomes due and payable, the trustee may withhold notice if and so long as a committee of its trust officers in good faith determines that withholding notice is in the interests of the holders.
The indenture requires us to furnish to the trustee, within 120 days after the end of each fiscal year, a statement by certain of our officers as to whether or not we, to their knowledge, are in default in the performance or observance of any of the terms, provisions and conditions of the indenture and, if so, specifying all such known defaults. We are also required to deliver to the trustee, within 30 days after the occurrence thereof, written notice of any event which would constitute a default; provided, however, that failure to provide such written notice will not in and of itself result in a default under the indenture.
Street name and other indirect holders should consult their banks and brokers for information on their requirements for giving notice or taking other actions upon a default.
Modification and Waiver
Subject to certain exceptions, modifications and amendments of the indenture, any supplemental indenture and any series of debt securities may be made by us and the trustee with the consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of any series affected by such modification or amendment.
No such modification or amendment may, without the consent of each holder affected thereby:
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reduce the percentage of principal amount of the outstanding debt securities, the consent of whose holders is required for any amendment;
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reduce the principal amount of, or interest on, or extend the Stated Maturity or interest payment periods of, any debt securities;
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change the provisions applicable to the redemption of any debt securities;
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make any debt securities payable in money or securities other than those stated in the debt securities;
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impair the contractual right of any holder of the debt securities to receive payment of principal of and interest on such holder’s debt securities on or after the due dates therefor or to institute suit for the enforcement of any payment on or with respect to such holder’s debt securities;
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except as otherwise provided as described under “— Satisfaction and Discharge” and “— Defeasance” herein, release any security or guarantee that may have been granted with respect to any debt securities;
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in the case of any subordinated securities, or coupons appertaining thereto, make any change in the provisions of the indenture relating to subordination that adversely affects the rights of any holder under such provisions (including any contractual subordination of senior unsubordinated debt securities); or
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make any change in the amendment provisions which require each holder’s consent or in the waiver provisions.
Without the consent of any holder, we and the trustee may amend the indenture for one or more of the following purposes:
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to cure any ambiguity, omission, defect or inconsistency;
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to surrender any right or power conferred upon the Company by the indenture, to add to the covenants of the Company such further covenants, restrictions, conditions or provisions for the protection of the holders of all or any series of debt securities as the board of directors of the Company will consider to be for the protection of the holders of such debt securities, and to make the occurrence, or the occurrence and continuance, of a default in respect of any such additional covenants, restrictions, conditions or provisions a default or an event of default under the indenture;
provided, however that with respect to any such additional covenant, restriction, condition or provision, such amendment may provide for a period of grace after default, which may be shorter or longer than that allowed in the case of other defaults, may provide for an immediate enforcement upon such default, may limit the remedies available to the trustee upon such default or may limit the right of holders of a majority in aggregate principal amount of the debt securities of any series to waive such default;
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to provide for the assumption by a successor company of the obligations of the Company under the indenture;
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to add guarantees with respect to the debt securities or to secure the debt securities;
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to make any change that does not adversely affect in any material respect the rights of any holder of the debt securities;
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to add to, change, or eliminate any of the provisions of the indenture with respect to one or more series of debt securities, so long as any such addition, change or elimination not otherwise permitted under the indenture will (a) neither apply to any debt securities of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor modify the rights of the holders of any such debt securities with respect to the benefit of such provision or (b) become effective only when there is no such debt securities outstanding;
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to evidence and provide for the acceptance of appointment by a successor or separate trustee with respect to the debt securities of one or more series and to add to or change any of the provisions of the indenture as shall be necessary to provide for or facilitate the administration of the indenture by more than one trustee;
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in the case of subordinated debt securities, to make any change in the provisions of the indenture or any supplemental indenture relating to subordination that would limit or terminate the benefits available to any holder of senior Indebtedness under such provisions (but only if each such holder of senior Indebtedness consents to such change);
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to comply with any requirement of the SEC in connection with the qualification of the indenture or any supplemental indenture under the Trust Indenture Act;
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to conform any provision in the indenture or the debt securities to the description of any debt securities in an offering document;
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to approve a particular form of any proposed amendment;
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to provide for the issuance of additional debt securities of any series;
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to establish the form or terms of debt securities and coupons of any series pursuant to the indenture;
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to comply with the rules of any applicable depositary;
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to make any amendment to the provisions of the indenture relating to the transfer and legending of debt securities; provided, however, that (a) compliance with the indenture as so amended would not result in debt securities being transferred in violation of the Securities Act or any other applicable securities law and (b) such amendment does not materially and adversely affect the rights of holders of debt securities to transfer debt securities; or
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to convey, transfer, assign, mortgage or pledge any property to or with the trustee, or to make such other provisions in regard to matters or questions arising under the indenture as shall not adversely affect, in any material respect, the interests of any holders of debt securities of any series.
Mergers and Sales of Assets
The indenture provides that we will not consolidate with or merge with or into, or convey, transfer or lease in one transaction or a series of related transactions, directly or indirectly, all or substantially all of our properties and assets to, another person, unless (i) the resulting, surviving or transferee person, if not the Company, is a person organized and existing under the laws of the United States of America, any state thereof or the District of Columbia; (ii) immediately after giving effect to such transaction, no default or
event of default has occurred and is continuing under the indenture; (iii) the resulting, surviving or transferee person, if not the Company, expressly assumes by supplemental indenture in a form satisfactory to the trustee all of our obligations under the debt securities and the indenture; and (iv) we or the successor person has delivered to the trustee the certificates and opinions of counsel required under the indenture. Upon any such consolidation, merger or transfer, the resulting, surviving or transferee person shall succeed to, and may exercise every right and power of, the Company under the indenture.
Satisfaction and Discharge of the Indenture; Defeasance
Unless otherwise provided for in the prospectus supplement, the indenture will generally cease to be of any further effect with respect to a series of debt securities if (a) we have delivered to the trustee for cancellation all debt securities of such series (with certain limited exceptions) or (b) all debt securities and coupons of such series not theretofore delivered to the trustee for cancellation will have become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption within one year, and we will have deposited with the trustee as trust funds the entire amount sufficient to pay at maturity or upon redemption all such debt securities and coupons (and if, in either case, we will also pay or cause to be paid all other sums payable under the indenture by us).
In addition, we will have a “legal defeasance option” (pursuant to which we may terminate, with respect to the debt securities of a particular series, all of our obligations under such debt securities and the indenture with respect to such debt securities) and a “covenant defeasance option” (pursuant to which we may terminate, with respect to the debt securities of a particular series, our obligations with respect to such debt securities under certain specified covenants contained in the indenture). If we exercise our legal defeasance option with respect to a series of debt securities, payment of such debt securities may not be accelerated because of an event of default. If we exercise our covenant defeasance option with respect to a series of debt securities, payment of such debt securities may not be accelerated because of an event of default related to the specified covenants.
The applicable prospectus supplement will describe the procedures we must follow in order to exercise our defeasance options.
Regarding the Trustee
The indenture provides that, except during the continuance of an event of default, the trustee will perform only such duties as are specifically set forth in the indenture. During the existence of an event of default, the trustee may exercise such rights and powers vested in it under the indenture and use the same degree of care and skill in its exercise as a prudent person would exercise under the circumstances in the conduct of such person’s own affairs.
The indenture and provisions of the Trust Indenture Act that are incorporated by reference therein contain limitations on the rights of the trustee, should it become one of our creditors, to obtain payment of claims in certain cases or to realize on certain property received by it in respect of any such claim as security or otherwise. The trustee will be permitted to engage in other transactions with us or any of our affiliates; provided, however, that if it acquires any conflicting interest (as defined in the indenture or in the Trust Indenture Act), it must eliminate such conflict, apply to the SEC for permission to continue, or resign.
Governing Law
The indenture and the debt securities will be governed by, and construed in accordance with, the laws of the State of New York.
DESCRIPTION OF DEPOSITARY SHARES
General
We may, at our option, elect to offer fractional shares rather than full shares of the preferred stock of a series. In the event that we determine to do so, we will issue receipts for depositary shares, each of which will represent a fraction (to be set forth in the prospectus supplement relating to a particular series of preferred stock) of a share of a particular series of preferred stock as more fully described below.
The shares of any series of preferred stock represented by depositary shares will be deposited under one or more deposit agreements among us, a depositary to be named in the applicable prospectus supplement, and the holders from time to time of depositary receipts issued thereunder. Subject to the terms of the applicable deposit agreement, each holder of a depositary share will be entitled, in proportion to the applicable fraction of a share of preferred stock represented by the depositary share, to all the rights and preferences of the preferred stock represented thereby (including, as applicable, dividend, voting, redemption, subscription and liquidation rights).
The depositary shares will be evidenced by depositary receipts issued pursuant to the deposit agreement. Depositary receipts will be distributed to those persons purchasing the fractional shares of the related series of preferred stock.
The following description sets forth certain general terms and provisions of the depositary shares to which any prospectus supplement may relate. The particular terms of the depositary shares to which any prospectus supplement may relate and the extent, if any, to which such general provisions may apply to the depositary shares so offered will be described in the applicable prospectus supplement. To the extent that any particular terms of the depositary shares or the deposit agreement described in a prospectus supplement differ from any of the terms described below, then the terms described below will be deemed to have been superseded by that prospectus supplement relating to such deposited shares. The forms of deposit agreement and depositary receipt will be filed as exhibits to the documents incorporated or deemed to be incorporated by reference into this prospectus.
The following summary of certain provisions of the depositary shares and deposit agreement does not purport to be complete and is subject to, and is qualified in its entirety by express reference to, all the provisions of the deposit agreement and the applicable prospectus supplement, including the definitions.
Immediately following our issuance of shares of a series of preferred stock that will be offered as fractional shares, we will deposit the shares with the depositary, which will then issue and deliver the depositary receipts to the purchasers thereof. Depositary receipts will only be issued evidencing whole depositary shares. A depositary receipt may evidence any number of whole depositary shares.
Pending the preparation of definitive depositary receipts, the depositary may, upon our written order, issue temporary depositary receipts substantially identical to (and entitling the holders thereof to all the rights pertaining to) the definitive depositary receipts but not in definitive form. Definitive depositary receipts will be prepared thereafter without unreasonable delay, and such temporary depositary receipts will be exchangeable for definitive depositary receipts at our expense.
Dividends and Other Distributions
The depositary will distribute all cash dividends or other cash distributions received in respect of the related series of preferred stock to the record holders of depositary shares relating to the series of preferred stock in proportion to the number of the depositary shares owned by the holders.
In the event of a distribution other than in cash, the depositary will distribute property received by it to the record holders of depositary shares entitled thereto in proportion to the number of depositary shares owned by the holders, unless the depositary determines that the distribution cannot be made proportionately among the holders or that it is not feasible to make the distributions, in which case the depositary may, with our approval, adopt any method as it deems equitable and practicable for the purpose of effecting the distribution, including the sale (at public or private sale) of the securities or property thus received, or any part thereof, at the place or places and upon those terms as it may deem proper.
The amount distributed in any of the foregoing cases will be reduced by any amounts required to be withheld by us or the depositary on account of taxes or other governmental charges.
Redemption of Depositary Shares
If any series of the preferred stock underlying the depositary shares is subject to redemption, the depositary shares will be redeemed from the proceeds received by the depositary resulting from any redemption, in whole or in part, of the series of the preferred stock held by the depositary. The redemption price per depositary share will be equal to the applicable fraction of the redemption price per share payable with respect to the series of the preferred stock. If we redeem shares of a series of preferred stock held by the depositary, the depositary will redeem as of the same redemption date the number of depositary shares representing the shares of preferred stock so redeemed. If less than all the depositary shares are to be redeemed, the depositary shares to be redeemed will be selected by lot or substantially equivalent method determined by the depositary.
After the date fixed for redemption, the depositary shares so called for redemption will no longer be deemed to be outstanding and all rights of the holders of the depositary shares will cease, except the right to receive the monies payable upon redemption and any money or other property to which the holders of the depositary shares were entitled upon such redemption, upon surrender to the depositary of the depositary receipts evidencing the depositary shares. Any funds deposited by us with the depositary for any depositary shares that the holders thereof fail to redeem will be returned to us after a period of two years from the date the funds are so deposited.
Voting the Underlying Preferred Stock
Upon receipt of notice of any meeting at which the holders of any series of the preferred stock are entitled to vote, the depositary will mail the information contained in the notice of meeting to the record holders of the depositary shares relating to the series of preferred stock. Each record holder of the depositary shares on the record date (which will be the same date as the record date for the related series of preferred stock) will be entitled to instruct the depositary as to the exercise of the voting rights pertaining to the number of shares of the series of preferred stock represented by that holder’s depositary shares. The depositary will endeavor, insofar as practicable, to vote or cause to be voted the number of shares of preferred stock represented by the depositary shares in accordance with the instructions, provided the depositary receives the instructions sufficiently in advance of the meeting to enable it to so vote or cause to be voted the shares of preferred stock, and we will agree to take all reasonable action that may be deemed necessary by the depositary in order to enable the depositary to do so. The depositary will abstain from voting shares of the preferred stock to the extent it does not receive specific instructions from the holders of depositary shares representing the preferred stock.
Withdrawal of Stock
Upon surrender of the depositary receipts at the corporate trust office of the depositary and upon payment of the taxes, charges and fees provided for in the deposit agreement and subject to the terms thereof, the holder of the depositary shares evidenced thereby will be entitled to delivery at such office, to or upon his or her order, of the number of whole shares of the related series of preferred stock and any money or other property, if any, represented by the depositary shares. Holders of depositary shares will be entitled to receive whole shares of the related series of preferred stock, but holders of the whole shares of preferred stock will not thereafter be entitled to deposit the shares of preferred stock with the depositary or to receive depositary shares therefor. If the depositary receipts delivered by the holder evidence a number of depositary shares in excess of the number of depositary shares representing the number of whole shares of the related series of preferred stock to be withdrawn, the depositary will deliver to the holder or upon his or her order at the same time a new depositary receipt evidencing the excess number of depositary shares.
Amendment and Termination of a Deposit Agreement
The form of depositary receipt evidencing the depositary shares of any series and any provision of the applicable deposit agreement may at any time and from time to time be amended by agreement between us
and the depositary. However, any amendment that materially adversely alters the rights of the holders of depositary shares of any series will not be effective unless the amendment has been approved by the holders of at least a majority of the depositary shares of the series then outstanding. Every holder of a depositary receipt at the time the amendment becomes effective will be deemed, by continuing to hold the depositary receipt, to be bound by the deposit agreement as so amended. Notwithstanding the foregoing, in no event may any amendment impair the right of any holder of any depositary shares, upon surrender of the depositary receipts evidencing the depositary shares and subject to any conditions specified in the deposit agreement, to receive shares of the related series of preferred stock and any money or other property represented thereby, except in order to comply with mandatory provisions of applicable law. The deposit agreement may be terminated by us at any time upon not less than 60 days prior written notice to the depositary, in which case, on a date that is not later than 30 days after the date of the notice, the depositary shall deliver or make available for delivery to holders of depositary shares, upon surrender of the depositary receipts evidencing the depositary shares, the number of whole or fractional shares of the related series of preferred stock as are represented by the depositary shares. The deposit agreement shall automatically terminate after all outstanding depositary shares have been redeemed or there has been a final distribution in respect of the related series of preferred stock in connection with any liquidation, dissolution or winding up of us and the distribution has been distributed to the holders of depositary shares.
Charges of Depositary
We will pay all transfer and other taxes and the governmental charges arising solely from the existence of the depositary arrangements. We will pay the charges of the depositary, including charges in connection with the initial deposit of the related series of preferred stock and the initial issuance of the depositary shares and all withdrawals of shares of the related series of preferred stock, except that holders of depositary shares will pay transfer and other taxes and governmental charges and any other charges as are expressly provided in the deposit agreement to be for their accounts.
Resignation and Removal of Depositary
The depositary may resign at any time by delivering to us written notice of its election to do so, and we may at any time remove the depositary. Any resignation or removal will take effect upon the appointment of a successor depositary, which successor depositary must be appointed within 60 days after delivery of the notice of resignation or removal and must be a bank or trust company having its principal office in the United States and having a combined capital and surplus of at least $50,000,000.
Miscellaneous
The depositary will forward to the holders of depositary shares all reports and communications from us that are delivered to the depositary and which we are required to furnish to the holders of the related preferred stock.
The depositary’s corporate trust office will be identified in the applicable prospectus supplement. Unless otherwise set forth in the applicable prospectus supplement, the depositary will act as transfer agent and registrar for depositary receipts and if shares of a series of preferred stock are redeemable, the depositary will also act as redemption agent for the corresponding depositary receipts.
DESCRIPTION OF THE WARRANTS
The following description of the terms of the warrants sets forth certain general terms and provisions of the warrants to which any prospectus supplement may relate. We may issue warrants for the purchase of common stock, preferred stock, debt securities or depositary shares. Warrants may be issued independently or together with common stock, preferred stock, debt securities or depositary shares offered by any prospectus supplement and may be attached to or separate from any such offered securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between us and a bank or trust company, as warrant agent. The warrant agent will act solely as our agent in connection with the warrants and will not assume any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants. The following summary of certain provisions of the warrants does not purport to be complete and is subject to, and qualified in its entirety by reference to, the provisions of the warrant agreement that will be filed with the SEC in connection with the offering of such warrants.
Debt Warrants
The prospectus supplement relating to a particular issue of debt warrants will describe the terms of such debt warrants, including the following:
•
the title of such debt warrants;
•
the offering price for such debt warrants, if any;
•
the aggregate number of such debt warrants;
•
the designation and terms of the debt securities purchasable upon exercise of such debt warrants;
•
if applicable, the designation and terms of the debt securities with which such debt warrants are issued and the number of such debt warrants issued with each such debt security;
•
if applicable, the date from and after which such debt warrants and any debt securities issued therewith will be separately transferable;
•
the principal amount of debt securities purchasable upon exercise of a debt warrant and the price at which such principal amount of debt securities may be purchased upon exercise (which price may be payable in cash, securities or other property);
•
the date on which the right to exercise such debt warrants shall commence and the date on which such right shall expire;
•
if applicable, the minimum or maximum amount of such debt warrants that may be exercised at any one time;
•
information with respect to book-entry procedures, if any;
•
the currency or currency units in which the offering price, if any, and the exercise price are payable;
•
if applicable, a discussion of material United States federal income tax considerations;
•
the antidilution or adjustment provisions of such debt warrants, if any;
•
the redemption or call provisions, if any, applicable to such debt warrants; and
•
any additional terms of such debt warrants, including terms, procedures, and limitations relating to the exchange and exercise of such debt warrants.
Stock Warrants
The prospectus supplement relating to any particular issue of common stock warrants, preferred stock warrants or depositary share warrants will describe the terms of such warrants, including the following:
•
the title of such warrants;
•
the offering price for such warrants, if any;
•
the aggregate number of such warrants;
•
the designation and terms of the offered securities purchasable upon exercise of such warrants;
•
if applicable, the designation and terms of the offered securities with which such warrants are issued and the number of such warrants issued with each such offered security;
•
if applicable, the date from and after which such warrants and any offered securities issued therewith will be separately transferable;
•
the number of shares of common stock, preferred stock or depositary shares purchasable upon exercise of a warrant and the price at which such shares may be purchased upon exercise;
•
the date on which the right to exercise such warrants shall commence and the date on which such right shall expire;
•
if applicable, the minimum or maximum amount of such warrants that may be exercised at any one time;
•
the currency or currency units in which the offering price, if any, and the exercise price are payable;
•
if applicable, a discussion of material United States federal income tax considerations;
•
the antidilution provisions of such warrants, if any;
•
the redemption or call provisions, if any, applicable to such warrants; and
•
any additional terms of such warrants, including terms, procedures and limitations relating to the exchange and exercise of such warrants.
DESCRIPTION OF THE RIGHTS
We may issue rights to purchase our common stock. The rights may or may not be transferable by the persons purchasing or receiving the rights. In connection with any rights offering, we may enter into a standby underwriting or other arrangement with one or more underwriters or other persons pursuant to which such underwriters or other persons would purchase any offered securities remaining unsubscribed for after such rights offering. Each series of rights will be issued under a separate rights agent agreement to be entered into between us and one or more banks, trust companies or other financial institutions, as rights agent, which we will name in the applicable prospectus supplement. The rights agent will act solely as our agent in connection with the rights and will not assume any obligation or relationship of agency or trust for or with any holders of rights certificates or beneficial owners of rights.
The prospectus supplement relating to any rights that we offer will include specific terms relating to the offering, including, among other matters:
•
the date of determining the security holders entitled to the rights distribution;
•
the aggregate number of rights issued and the aggregate number of shares of common stock purchasable upon exercise of the rights;
•
the exercise price;
•
the conditions to completion of the rights offering;
•
the date on which the right to exercise the rights will commence and the date on which the rights will expire; and
•
any applicable federal income tax considerations.
Each right would entitle the holder of the rights to purchase for cash the principal amount of shares of common stock at the exercise price set forth in the applicable prospectus supplement. Rights may be exercised at any time up to the close of business on the expiration date for the rights provided in the applicable prospectus supplement. After the close of business on the expiration date, all unexercised rights will become void.
If less than all of the rights issued in any rights offering are exercised, we may offer any unsubscribed securities directly to persons other than our security holders, to or through agents, underwriters or dealers or through a combination of such methods, including pursuant to standby arrangements, as described in the applicable prospectus supplement.
DESCRIPTION OF THE PURCHASE CONTRACTS
We may issue, from time to time, purchase contracts, including contracts obligating holders to purchase from us and us to sell to the holders, a specified principal amount of debt securities, shares of common stock or preferred stock, depositary shares, government securities, or other securities that we may sell under this prospectus at a future date or dates. The consideration payable upon settlement of the purchase contracts may be fixed at the time the purchase contracts are issued or may be determined by a specific reference to a formula set forth in the purchase contracts. The purchase contracts may be issued separately or as part of units consisting of a purchase contract and other securities or obligations issued by us or third parties, including United States treasury securities, securing the holders’ obligations to purchase the relevant securities under the purchase contracts. The purchase contracts may require us to make periodic payments to the holders of the purchase contracts or units or vice versa, and the payments may be unsecured or prefunded on some basis. The purchase contracts may require holders to secure their obligations under the purchase contracts and, in certain circumstances, we may deliver a newly issued prepaid purchase contract, which is referred to as a “prepaid security,” upon release to a holder of any collateral securing such holder’s obligations under the original contract.
The prospectus supplement related to any particular purchase contracts and, if applicable, prepaid security, will describe, among other things, the material terms of the purchase contracts and of the securities being sold pursuant to such purchase contracts, and, if applicable, the prepaid securities and the documents pursuant to which such prepaid securities will be issued, a discussion, if appropriate, of any special United States federal income tax considerations applicable to the purchase contracts and any material provisions governing the purchase contracts that differ from those described above. The description in the prospectus supplement will not necessarily be complete and will be qualified in its entirety by reference to the purchase contracts, and, if applicable, collateral arrangements and depositary arrangements, relating to the purchase contracts. Alternatively, purchase contracts may require holders to satisfy their obligations thereunder when the purchase contracts are issued.
DESCRIPTION OF THE UNITS
We may, from time to time, issue units comprised of one or more of certain other securities that may be offered under this prospectus, in any combination. Each unit may also include debt obligations of third parties, such as U.S. Treasury securities. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately at any time, or at any time before a specified date.
Any prospectus supplement related to any particular units will describe, among other things:
•
the material terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately;
•
if applicable, the prepaid securities and the documents pursuant to which such prepaid securities will be issued;
•
any material provisions relating to the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units;
•
if appropriate, any special United States federal income tax considerations applicable to the units; and
•
any material provisions of the governing unit agreement that differ from those described above.
SELLING SECURITYHOLDERS
Information about selling securityholders, where applicable, will be set forth in a prospectus supplement, in a post-effective amendment or in filings we will make with the SEC which will be incorporated into this prospectus by reference.
PLAN OF DISTRIBUTION
We or selling securityholders may offer and sell the securities in any one or more of the following ways:
•
to or through underwriters, brokers or dealers;
•
directly to one or more other purchasers;
•
through a block trade in which the broker or dealer engaged to handle the block trade will attempt to sell the securities as agent, but may position and resell a portion of the block as principal to facilitate the transaction;
•
through agents on a best-efforts basis; or
•
otherwise through a combination of any of the above methods of sale.
In addition, we or selling securityholders may enter into option, share lending or other types of transactions that require us or such selling securityholders, as applicable, to deliver securities to an underwriter, broker or dealer, who will then resell or transfer the securities under this prospectus. We or selling securityholders may also enter into hedging transactions with respect to our securities. For example, we or selling securityholders may:
•
enter into transactions involving short sales of the securities by underwriters, brokers or dealers;
•
sell securities short and deliver the securities to close out short positions;
•
enter into option or other types of transactions that require us to deliver securities to an underwriter, broker or dealer, who will then resell or transfer the securities under this prospectus; or
•
loan or pledge the securities to an underwriter, broker or dealer, who may sell the loaned securities or, in the event of default, sell the pledged securities.
Any selling securityholder will act independently of us in making decisions with respect to the timing, manner and size of each sale of shares of common stock covered by this prospectus.
We or selling securityholders may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement indicates, in connection with those derivatives, the third parties may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third party may use securities pledged by us or such selling securityholders or borrowed from us, such selling securityholders or others to settle those sales or to close out any related open borrowings of securities, and may use securities received from us or such selling securityholders in settlement of those derivatives to close out any related open borrowings of securities. The third party in such sale transactions will be an underwriter and, if not identified in this prospectus, will be identified in the applicable prospectus supplement (or a post-effective amendment). In addition, we or selling securityholders may otherwise loan or pledge securities to a financial institution or other third party that in turn may sell the securities short using this prospectus. Such financial institution or other third party may transfer its economic short position to investors in our securities or the securities of such selling securityholders, as applicable, or in connection with a concurrent offering of other securities.
Each time we or selling securityholders sell securities, we or selling securityholders will provide a prospectus supplement that will name any underwriter, dealer or agent involved in the offer and sale of the securities. The prospectus supplement will also set forth the terms of the offering, including:
•
the purchase price of the securities and the proceeds we and/or such selling securityholders will receive from the sale of the securities;
•
any underwriting discounts and other items constituting underwriters’ compensation;
•
any public offering or purchase price and any discounts or commissions allowed or re-allowed or paid to dealers;
•
any commissions allowed or paid to agents;
•
any other offering expenses;
•
any securities exchanges on which the securities may be listed;
•
the method of distribution of the securities;
•
the terms of any agreement, arrangement or understanding entered into with the underwriters, brokers or dealers; and
•
any other information we think is important.
If underwriters or dealers are used in the sale, the securities will be acquired by the underwriters or dealers for their own account. The securities may be sold from time to time by us or selling securityholders in one or more transactions:
•
at a fixed price or prices that may be changed;
•
at market prices prevailing at the time of sale;
•
at prices related to such prevailing market prices;
•
at varying prices determined at the time of sale; or
•
at negotiated prices.
Such sales may be effected:
•
in transactions on any national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale;
•
in transactions in the over-the-counter market;
•
in block transactions in which the broker or dealer so engaged will attempt to sell the securities as agent but may position and resell a portion of the block as principal to facilitate the transaction, or in crosses, in which the same broker acts as an agent on both sides of the trade;
•
through the writing of options; or
•
through other types of transactions.
The securities may be offered to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more of such firms. Unless otherwise set forth in the prospectus supplement, the obligations of underwriters or dealers to purchase the securities offered will be subject to certain conditions precedent and the underwriters or dealers will be obligated to purchase all the offered securities if any are purchased. Any public offering price and any discount or concession allowed or reallowed or paid by underwriters or dealers to other dealers may be changed from time to time.
The selling securityholders might not sell any securities under this prospectus. In addition, any securities covered by this prospectus that qualify for sale pursuant to Rule 144 under the Securities Act may be sold under Rule 144 rather than pursuant to this prospectus. Any shares of our common stock offered under this prospectus will be listed on Nasdaq (or other such exchange or automated quotation system on which the common stock is listed), subject to official notice of issuance.
The securities may be sold directly by us or selling securityholders, or through agents designated by us or such selling securityholders, as applicable, from time to time. Any agent involved in the offer or sale of the securities in respect of which this prospectus is delivered will be named, and any commissions payable by us or such selling securityholders, as applicable, to such agent will be set forth in, the prospectus supplement. Unless otherwise indicated in the prospectus supplement, any such agent will be acting on a best efforts basis for the period of its appointment.
Offers to purchase the securities offered by this prospectus may be solicited, and sales of the securities may be made by us or by selling securityholders 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 the securities. The terms of any offer made in this manner will be included in the prospectus supplement relating to the offer.
If indicated in the applicable prospectus supplement, underwriters, dealers or agents will be authorized to solicit offers by certain institutional investors to purchase securities from us pursuant to contracts
providing for payment and delivery at a future date. Institutional investors with which these contracts may be made include, among others:
•
commercial and savings banks;
•
insurance companies;
•
pension funds;
•
investment companies; and
•
educational and charitable institutions.
In all cases, these purchasers must be approved by us or by such selling securityholders. Unless otherwise set forth in the applicable prospectus supplement, the obligations of any purchaser under any of these contracts will not be subject to any conditions except that (a) the purchase of the securities must not at the time of delivery be prohibited under the laws of any jurisdiction to which that purchaser is subject, and (b) if the securities are also being sold to underwriters, we or selling securityholders must have sold to these underwriters the securities not subject to delayed delivery. Underwriters and other agents will not have any responsibility in respect of the validity or performance of these contracts.
Some of the underwriters, dealers or agents used by us or selling securityholders in any offering of securities under this prospectus may be customers of, engage in transactions with, and perform services for us and/or such selling securityholders, as applicable, or affiliates of ours and/or such selling securityholders, as applicable, in the ordinary course of business. Underwriters, dealers, agents and other persons may be entitled under agreements which may be entered into with us and/or selling securityholders to indemnification against and contribution toward certain civil liabilities, including liabilities under the Securities Act, and to be reimbursed by us and/or such selling securityholders for certain expenses.
Subject to any restrictions relating to debt securities in bearer form, any securities initially sold outside the United States may be resold in the United States through underwriters, dealers or otherwise.
Any underwriters to which offered securities are sold by us or selling securityholders for public offering and sale may make a market in such securities, but those underwriters will not be obligated to do so and may discontinue any market making at any time.
The anticipated date of delivery of the securities offered by this prospectus will be described in the applicable prospectus supplement relating to the offering.
To comply with the securities laws of some states, if applicable, the securities may be sold in these jurisdictions only through registered or licensed brokers or dealers. In addition, in some states the securities may not be sold unless they have been registered or qualified for sale or an exemption from registration or qualification requirements is available and is complied with.
LEGAL MATTERS
Unless otherwise indicated in the applicable prospectus supplement, certain legal matters will be passed upon for us by Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, New York. If legal matters in connection with offerings made pursuant to this prospectus are passed upon by counsel for underwriters, dealers or agents, if any, such counsel will be named in the prospectus supplement relating to such offering.
EXPERTS
The consolidated financial statements of QXO, Inc. (f/k/a SilverSun Technologies, Inc.) appearing in QXO, Inc.’s Annual Report (Form 10-K) for the year ended December 31, 2023, have been audited by Marcum LLP, independent registered public accounting firm, as set forth in their report thereon, included therein, and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
QXO, Inc.
Common Stock
Preferred Stock
Debt Securities
Depositary Shares
Warrants
Rights
Purchase Contracts
Units
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses payable by the registrant in connection with the sale of the securities being registered hereby.
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Amount to
be Paid
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|
|
SEC registration fee
|
|
|
|
$ |
* |
|
|
|
FINRA filing fee
|
|
|
|
|
** |
|
|
|
Nasdaq supplemental listing fees
|
|
|
|
|
** |
|
|
|
Printing and duplicating expenses
|
|
|
|
|
** |
|
|
|
Legal fees and expenses
|
|
|
|
|
** |
|
|
|
Accounting fees and expenses
|
|
|
|
|
** |
|
|
|
Transfer agent and trustee fees and expenses
|
|
|
|
|
** |
|
|
|
Rating agency fees
|
|
|
|
|
** |
|
|
|
Miscellaneous expenses
|
|
|
|
|
** |
|
|
|
Total
|
|
|
|
$ |
** |
|
|
*
In accordance with Rules 456(b) and 457(r) of the Securities Act, we are deferring payment of the SEC registration fee for the securities offered by this registration statement.
**
Expenses are presently not known and cannot be estimated.
Item 15. Indemnification of Directors and Officers
Section 3 of Article 9 of the Amended and Restated Certificate of Incorporation and Section 6.1 of the Amended and Restated Bylaws requires the Company to indemnify and hold harmless, to the full extent permitted under the DGCL each person who is made or threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was a director or officer of the Company. Such indemnification covers all expenses, liabilities and losses actually and reasonably incurred or suffered by such individuals.
Subsection (a) of Section 145 of the DGCL 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, 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. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in or not opposed to the best interest of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that the person’s conduct was unlawful.
Subsection (b) of Section 145 of the DGCL 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 right of the corporation to procure a judgment in its favor by reason of the fact that such 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 and 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.
Subsection (d) of Section 145 of the DGCL provides that any indemnification under subsections (a) and (b) of Section 145 (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the present or former director, officer, employee or agent is proper in the circumstances because the person has met the applicable standard of conduct set forth in subsections (a) and (b) of Section 145. Such determination shall be made, with respect to a person who is a director or officer at the time of such determination, (1) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (2) by a committee of such directors designated by the majority vote of such directors, even though less than a quorum, or (3) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (4) by the stockholders.
Section 145 of the DGCL further provides that to the extent a present or former 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 and that such expenses may be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation as authorized in Section 145 of the DGCL; that any indemnification and advancement of expenses provided by, or granted pursuant to, Section 145 shall not be deemed exclusive of any other rights to which the indemnified party may be entitled; that indemnification and advancement of expenses provided by, or granted pursuant to, 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; and 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 such person’s status as such, whether or not the corporation would have the power to indemnify such person against such liabilities under Section 145.
As authorized by the Amended and Restated Bylaws, the Company may purchase and maintain at its expense on behalf of directors and officers insurance, within certain limits, covering liabilities which may be incurred by them in such capacities.
To the fullest extent permitted by the DGCL, the Amended and Restated Charter provides that a director or officer of the Company shall not be personally liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director or officer.
Item 16. Exhibits
A list of exhibits filed with this registration statement is contained in the exhibits index, which is incorporated by reference.
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Exhibit
Number
|
|
|
Description of Documents
|
|
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1.1*
|
|
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Form of Underwriting Agreement for Debt Securities.
|
|
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1.2*
|
|
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Form of Underwriting Agreement for Equity Securities.
|
|
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1.3*
|
|
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Form of Underwriting Agreement for Depositary Shares.
|
|
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1.4*
|
|
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Form of Underwriting Agreement for Purchase Contracts.
|
|
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1.5*
|
|
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Form of Underwriting Agreement for Units.
|
|
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4.1
|
|
|
|
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4.2
|
|
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|
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4.3
|
|
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Certificate of Designation of the Convertible Perpetual Preferred Stock of QXO, Inc. (incorporated by reference to Exhibit 4.1 of the Current Report on Form 8-K filed with the SEC on June 6, 2024).
|
|
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4.4
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|
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4.5
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|
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4.6
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|
|
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4.7
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|
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Registration Rights Agreement, dated as of June 6, 2024, by and among QXO, Inc., Jacobs Private Equity II, LLC and the other investors (incorporated by reference to Exhibit 10.2 of the Current Report on Form 8-K filed with the SEC on June 6, 2024).
|
|
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4.8
|
|
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Form of Purchase Agreement, dated as of June 13, 2024, by and between QXO, Inc. and the Investor signatory thereto (incorporated by reference to Exhibit 10.1 of the Current Report on Form 8-K filed with the SEC on June 14, 2024).
|
|
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4.9
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|
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Form of Purchase Agreement, dated as of July 22, 2024, by and between QXO, Inc. and the Investor signatory thereto (incorporated by reference to Exhibit 10.1 of the Current Report on Form 8-K filed with the SEC on July 22, 2024).
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4.10
|
|
|
|
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4.11
|
|
|
|
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4.12*
|
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Form of Certificate of Designation.
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4.13*
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Form of Deposit Agreement.
|
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4.14*
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Form of Depositary Receipt.
|
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4.15*
|
|
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Form of Warrant Agreement.
|
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4.16*
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Form of Warrant.
|
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4.17*
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|
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Form of Rights Agent Agreement.
|
|
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4.18*
|
|
|
Form of Purchase Contract.
|
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4.19*
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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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Exhibit
Number
|
|
|
Description of Documents
|
|
| |
24.1
|
|
|
|
|
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25.1**
|
|
|
Statement of Eligibility and Qualification on Form T-1 with respect to the Company under the Indenture.
|
|
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107
|
|
|
|
|
*
To be filed, if necessary, by a post-effective amendment to the registration statement or as an exhibit to a document incorporated by reference herein.
**
To be filed in accordance with the requirements of Section 305(b)(2) of the Trust Indenture Act.
Item 17. Undertakings
(a)
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC 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 Filing Fee Tables” or “Calculation of Registration Fee” table, as applicable, 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), (1)(ii) and (1)(iii) of this section do not apply if the registration statement is on Form S-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act of that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4)
That, for the purpose of determining liability under the Securities Act to any purchaser:
(i)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which 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 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 purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
(d)
The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under Section 310(a) of the Trust Indenture Act in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Trust Indenture Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, QXO, Inc. 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 Greenwich, State of Connecticut on July 29, 2024.
QXO, INC.
By:
/s/ Brad Jacobs
Name: Brad Jacobs
Title: Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each individual whose signature appears below hereby constitutes and appoints each of Brad Jacobs and Christopher Signorello, acting singly, his or her true and lawful agent, proxy and attorney-in-fact, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to (i) act on, sign and file with the Securities and Exchange Commission any and all amendments (including post-effective amendments) to this registration statement together with all schedules and exhibits thereto and any subsequent registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, together with all schedules and exhibits thereto, (ii) act on, sign and file such certificates, instruments, agreements and other documents as may be necessary or appropriate in connection therewith, (iii) act on and file any supplement to any prospectus included in this registration statement or any such amendment or any subsequent registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and (iv) take any and all actions which may be necessary or appropriate in connection therewith, granting unto such agent, proxy and attorney-in-fact full power and authority to do and perform each and every act and thing necessary or appropriate to be done, as fully for all intents and purposes as he might or could do in person, hereby approving, ratifying and confirming all that such agents, proxies and attorneys-in-fact or any of their 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 below by the following persons in the capacities indicated on July 29, 2024.
| |
/s/ Brad Jacobs
Brad Jacobs
|
|
|
Chairman and Chief Executive Officer (Principal Executive Officer)
|
|
| |
/s/ Ihsan Essaid
Ihsan Essaid
|
|
|
Chief Financial Officer (Principal Financial Officer)
|
|
| |
/s/ Sean Smith
Sean Smith
|
|
|
Chief Accounting Officer (Principal Accounting Officer)
|
|
| |
/s/ Jason Aiken
Jason Aiken
|
|
|
Director
|
|
| |
/s/ Marlene Colucci
Marlene Colucci
|
|
|
Director
|
|
| |
/s/ Mario Harik
Mario Harik
|
|
|
Director
|
|
| |
/s/ Mary Kissel
Mary Kissel
|
|
|
Director
|
|
| |
/s/ Jared Kushner
Jared Kushner
|
|
|
Director
|
|
| |
/s/ Allison Landry
Allison Landry
|
|
|
Director
|
|
Exhibit 4.11
[Form of Indenture]
QXO, INC.
Company
INDENTURE
Dated as of [ ],
Providing for Issuance of Senior Securities in
Series
[ ],
Trustee
Table Showing Reflection in Indenture of Certain Provisions of Trust
Indenture Act of 1939, as amended
| Trust Indenture Act Section |
Indenture Section |
| 310(a)(1) |
7.09;7.10 |
| (a)(2) |
7.10 |
| (a)(3) |
7.10 |
| (a)(4) |
7.10 |
| (a)(5) |
7.10 |
| (b) |
7.10 |
| (c) |
N.A. |
| 311(a) |
7.11 |
| (b) |
7.11. |
| (c) |
N.A. |
| 312(a) |
2.06 |
| (b) |
10.03 |
| (c) |
10.03 |
| 313(a) |
7.06 |
| (b)(1) |
7.06 |
| (b)(2) |
7.06 |
| (c) |
7.06;10.02 |
| (d) |
7.06 |
| 314(a) |
4.02;4.03;10.02 |
| (b) |
N.A. |
| (c)(1) |
10.04 |
| (c)(2) |
10.04 |
| (c)(3) |
N.A. |
| (d) |
N.A. |
| (e) |
10.05 |
| (f) |
N/A |
| 315(a) |
7.01 |
| (b) |
7.05;10.02 |
| (c) |
7.01 |
| (d) |
7.01 |
| (e) |
6.11 |
| 316(a) |
2.09 |
| (a)(1)(A) |
6.05 |
| (a)(1)(B) |
6.04 |
| (a)(2) |
N.A. |
| (b) |
6.07 |
| (c) |
2.13 |
| 317(a)(1) |
6.08 |
| (a)(2) |
6.09 |
| (b) |
2.05 |
| 318(a) |
10.01 |
| (b) |
N.A. |
| (c) |
10.01 |
N.A. means not applicable.
Note: This
cross-reference table shall not, for any purpose, be deemed to be part of this Indenture.
TABLE OF CONTENTS
ARTICLE I
Definitions
and Incorporation by Reference
| Section 1.01. |
Definitions |
1 |
| Section 1.02. |
Other Definitions |
5 |
| Section 1.03. |
Incorporation by Reference of Trust Indenture Act |
5 |
| Section 1.04. |
Rules of Construction |
5 |
ARTICLE II
The Securities
| Section 2.01. |
Issuable in Series |
6 |
| Section 2.02. |
Establishment of Terms of Series of Securities |
6 |
| Section 2.03. |
Execution and Authentication |
9 |
| Section 2.04. |
Registrar and Paying Agent |
10 |
| Section 2.05. |
Paying Agent to Hold Money in Trust |
10 |
| Section 2.06. |
Holder Lists |
11 |
| Section 2.07. |
Transfer and Exchange |
11 |
| Section 2.08. |
Mutilated, Destroyed, Lost and Stolen Securities |
11 |
| Section 2.09. |
Outstanding Securities |
12 |
| Section 2.10. |
Treasury Securities |
12 |
| Section 2.11. |
Temporary Securities |
12 |
| Section 2.12. |
Cancellation |
13 |
| Section 2.13. |
Defaulted Interest |
13 |
| Section 2.14. |
Global Securities |
13 |
| Section 2.15. |
CUSIP Numbers, ISINs, etc. |
14 |
ARTICLE III
Redemption
| Section 3.01. |
Notices to Trustee |
15 |
| Section 3.02. |
Selection of Securities to Be Redeemed |
15 |
| Section 3.03. |
Notice of Redemption |
15 |
| Section 3.04. |
Effect of Notice of Redemption |
16 |
| Section 3.05. |
Deposit of Redemption Price |
16 |
| Section 3.06. |
Securities Redeemed in Part |
17 |
ARTICLE IV
Covenants
| Section 4.01. |
Payment of Securities |
17 |
| Section 4.02. |
Reports |
17 |
| Section 4.03. |
Compliance Certificate |
17 |
| Section 4.04. |
Further Instruments and Acts |
17 |
ARTICLE V
Successor
Company
| Section 5.01. |
When Company May Merge or Transfer Assets |
18 |
ARTICLE VI
Defaults
and Remedies
| Section 6.01. |
Events of Default |
18 |
| Section 6.02. |
Acceleration |
20 |
| Section 6.03. |
Other Remedies |
20 |
| Section 6.04. |
Waiver of Past Defaults |
20 |
| Section 6.05. |
Control by Majority |
21 |
| Section 6.06. |
Limitation on Suits |
21 |
| Section 6.07. |
Rights of Holders to Receive Payment |
21 |
| Section 6.08. |
Collection Suit by Trustee |
21 |
| Section 6.09. |
Trustee May File Proofs of Claim |
22 |
| Section 6.10. |
Priorities |
22 |
| Section 6.11. |
Undertaking for Costs |
22 |
| Section 6.12. |
Waiver of Stay or Extension Laws |
22 |
ARTICLE VII
Trustee
| Section 7.01. |
Duties of Trustee |
23 |
| Section 7.02. |
Rights of Trustee |
24 |
| Section 7.03. |
Individual Rights of Trustee |
25 |
| Section 7.04. |
Trustee’s Disclaimer |
25 |
| Section 7.05. |
Notice of Defaults |
26 |
| Section 7.06. |
Reports by Trustee to Holders |
26 |
| Section 7.07. |
Compensation and Indemnity |
26 |
| Section 7.08. |
Replacement of Trustee |
27 |
| Section 7.09. |
Successor Trustee by Merger |
28 |
| Section 7.10. |
Eligibility; Disqualification |
28 |
| Section 7.11. |
Preferential Collection of Claims Against Company |
28 |
| Section 7.12. |
Conflicting Interests |
28 |
ARTICLE VIII
Discharge
of Indenture; Defeasance
| Section 8.01. |
Option to Effect Legal Defeasance or Covenant Defeasance |
29 |
| Section 8.02. |
Legal Defeasance and Discharge |
29 |
| Section 8.03. |
Covenant Defeasance |
30 |
| Section 8.04. |
Conditions to Legal or Covenant Defeasance |
30 |
| Section 8.05. |
Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions |
31 |
| Section 8.06. |
Repayment to Company |
32 |
| Section 8.07. |
Reinstatement |
32 |
ARTICLE IX
Amendments
| Section 9.01. |
Without Consent of Holders |
32 |
| Section 9.02. |
With Consent of Holders |
34 |
| Section 9.03. |
Compliance with Trust Indenture Act |
35 |
| Section 9.04. |
Revocation and Effect of Consents and Waivers |
35 |
| Section 9.05. |
Notation on or Exchange of Securities |
35 |
| Section 9.06. |
Trustee To Sign Amendments |
35 |
ARTICLE X
Miscellaneous
| Section 10.01. |
Trust Indenture Act Controls |
36 |
| Section 10.02. |
Notices |
36 |
| Section 10.03. |
Communication by Holders with Other Holders |
37 |
| Section 10.04. |
Certificate and Opinion as to Conditions Precedent |
37 |
| Section 10.05. |
Statements Required in Certificate or Opinion |
37 |
| Section 10.06. |
When Securities Disregarded |
38 |
| Section 10.07. |
Rules by Trustee, Paying Agent and Registrar |
38 |
| Section 10.08. |
Legal Holidays |
38 |
| Section 10.09. |
Governing Law |
38 |
| Section 10.10. |
No Recourse Against Others |
38 |
| Section 10.11. |
Successors |
38 |
| Section 10.12. |
Counterparts; Electronic Signature |
39 |
| Section 10.13. |
Table of Contents; Headings |
39 |
| Section 10.14. |
Severability |
39 |
| Section 10.15. |
Waiver of Jury Trial |
39 |
| Section 10.16. |
Force Majeure |
39 |
| Section 10.17. |
U.S.A. PATRIOT Act |
39 |
INDENTURE dated as of [ ], between QXO, Inc.,
a Delaware corporation (the “Company”), and [ ], as trustee (the “Trustee”).
Each party agrees as follows for the benefit of
the other party and for the equal and ratable benefit of the Holders of the securities issued under this Indenture (the “Securities”):
ARTICLE I
Definitions and Incorporation by Reference
Section 1.01. Definitions.
“Affiliate” of any specified
Person means any other Person, directly or indirectly, controlling or controlled by or under direct or indirect common control with such
specified Person. For the purposes of this definition, “control” when used with respect to any Person means the power to direct
the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Agent” means any Registrar,
Paying Agent or co-registrar
“Board of Directors” means the
Board of Directors of the Company or any committee thereof duly authorized to act on behalf of such Board of Directors or, in the case
of a Person that is not a corporation, the group exercising the authority generally vested in a board of directors of a corporation.
“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 each day
which is not a Legal Holiday.
“Capital Stock” of any Person
means any and all shares, interests (including partnership interests), rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) equity of such Person, including any preferred stock, but excluding any debt securities
convertible into such equity.
“Code” means the Internal Revenue
Code of 1986, as amended.
“Company” means the party named
as such in this Indenture until a successor replaces it and, thereafter, means the successor and, for purposes of any provision contained
herein and required by the Trust Indenture Act, each other obligor on the indenture Securities.
“Company Order” means a written
order signed in the name of the Company by an Officer of the Company.
“Corporate Trust Office” means
the office of the Trustee at which, at any particular time, the corporate trust business shall be administered, which such office at the
date hereof is located at [ ].
“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 issuable in whole or in part in global form, the Person specified pursuant to Section 2.14 hereof as the initial
Depositary with respect to the Securities, until a successor shall have been appointed and become such pursuant to the applicable provisions
of this Indenture, and thereafter “Depositary” shall mean or include such successor.
“Exchange Act” means the U.S.
Securities Exchange Act of 1934, as amended.
“GAAP” means generally accepted
accounting principles in the United States of America as in effect as of the issue date of any Series of Securities, including those
set forth in:
(1) the
opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants;
(2) statements
and pronouncements of the Financial Accounting Standards Board;
(3) such
other statements by such other entity as approved by a significant segment of the accounting profession; and
(4) the
rules and regulations of the SEC governing the inclusion of financial statements (including pro forma financial statements)
in periodic reports required to be filed pursuant to Section 13 of the Exchange Act, including opinions and pronouncements in staff
accounting bulletins and similar written statements from the accounting staff of the SEC. All ratios and computations based on GAAP contained
in this Indenture shall be computed in conformity with GAAP.
“Global Securities Legend” means
the legend set forth in Section 2.14(c), which is required to be placed on all Global Securities issued under this Indenture.
“Global Security” when used
with respect to any Series of Securities issued hereunder, means a Security which is executed by the Company and authenticated and
delivered by the Trustee to the Depositary or pursuant to the Depositary’s instruction, all in accordance with this Indenture and
an indenture supplemental hereto, if any, or Board Resolution and pursuant to a Company Order, which shall be registered in the name of
the Depositary or its nominee and which shall represent, and shall be denominated in an amount equal to the aggregate principal amount
of, all the outstanding Securities of such Series or any portion thereof, in either case having the same terms, including, without
limitation, the same original issue date, date or dates on which principal is due, and interest rate or method of determining interest
and which shall bear the Global Securities Legend.
“Government Securities” means
direct obligations (or certificates representing an ownership interest in such obligations) of the United States of America (including
any agency or instrumentality thereof) for the payment of which the full faith and credit of the United States of America is pledged;
provided, that if Securities of a Series are denominated in a currency other than U.S. Dollars, an Officer’s Certificate
or any supplemental indenture may provide for Government Securities to be direct obligations of, or obligations guaranteed by a country
other than the United States of America and the payment for which such country pledges its full faith and credit, for purposes of such
Securities of a Series.
“Guarantee” means any obligation,
contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person and any obligation, direct
or indirect, contingent or otherwise, of such other Person:
(1) to
purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such other Person (whether arising by
virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take-or-pay or
to maintain financial statement conditions or otherwise); or
(2) entered
into for the purpose of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee
against loss in respect thereof (in whole or in part);
provided,
however, that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course
of business. The term “Guarantee” used as a verb has a corresponding meaning. The term “Guarantor” shall mean
any Person Guaranteeing any obligation.
“Holder” means the Person in
whose name a Security is registered on the Registrar’s books.
“Indebtedness” has the meaning
specified in the applicable Board Resolution, supplemental indenture or Officer’s Certificate relating to a particular Series of
Securities.
“Indenture” means this Indenture
as amended or supplemented from time to time, and includes the forms and terms of particular Securities established as contemplated hereunder.
For the avoidance of doubt, for purposes of determining the rights of Holders of any Series of Securities, and the terms applicable
to such Series, references to “this Indenture” will mean the Indenture with respect to such Series.
“Interest Payment Date” when
used with respect to any Series of Securities, means the date specified in such Securities for the payment of any installment of
interest on those Securities.
“Legal Holiday” means a Saturday,
a Sunday or a day on which banking institutions are not required to be open in the State of New York or in the city of the Corporate Trust
Office.
“Maturity”, when used with respect
to any Security or installment of principal thereof, means the date on which the principal of such Security or such installment of principal
becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration or otherwise.
“Officer” means the Chairman
of the Board, the Chief Executive Officer, the President, the Chief Financial Officer, the Chief Operating Officer, any Vice President,
the Treasurer, the Controller or the Secretary of the Company.
“Officer’s Certificate”
means a certificate signed by an Officer.
“Opinion of Counsel” means a
written opinion from legal counsel who is reasonably acceptable to the Trustee. The counsel may be an employee of or counsel to the Company
or any Subsidiary of the Company.
“Original Issue Discount Security”
means (i) any Security that provides for an amount less than the stated principal amount thereof to be due and payable upon a declaration
of acceleration of the Maturity thereof and (ii) any other security which is issued with “original issue discount” within
the meaning of Section 1273(a) of the Code.
“Person” means any individual,
corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity.
“SEC” means the U.S. Securities
and Exchange Commission.
“Securities” has the meaning
specified in the preamble to this Indenture.
“Securities Act” means the U.S.
Securities Act of 1933, as amended.
“Series” or “Series of
Securities” means each series of debentures, notes or other debt instruments of the Company created pursuant to Sections 2.01
and 2.02 hereof.
“Significant Subsidiary” means
any Subsidiary of the Company that would be a “Significant Subsidiary” of the Company within the meaning of Rule 1-02
under Regulation S-X promulgated by the SEC and, for purpose of determining whether an Event of Default has occurred, any group of Subsidiaries
that combined would be such a Significant Subsidiary.
“Stated Maturity” means, with
respect to any Security, the date specified in such Security as the fixed date on which the final payment of principal of such Security
is due and payable, including pursuant to any mandatory redemption provision (but excluding any provision providing for the repurchase
of such Security at the option of the holder thereof upon the happening of any contingency beyond the control of the issuer unless such
contingency has occurred).
“Subsidiary” means, with respect
to any Person, any corporation, association, partnership or other business entity of which more than 50% of the total voting power of
shares of Voting Stock is at the time owned or controlled, directly or indirectly, by (1) such Person, (2) such Person and one
or more Subsidiaries of such Person or (3) one or more Subsidiaries of such Person.
“Trustee” means the party named
as such in this Indenture until a successor replaces it pursuant to the applicable provisions of this Indenture and, thereafter, means
the successor.
“Trust Indenture Act” means
the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb) as in effect on the date of this Indenture; provided,
however, that in the event the Trust Indenture Act is amended after such date, “Trust Indenture Act” means, to the extent
required by any such amendment, the Trust Indenture Act as so amended.
“Trust Officer” means any officer
or assistant officer of the Trustee assigned by the Trustee to administer its corporate trust matters and who shall have direct responsibility
for the administration of this Indenture.
“Uniform Commercial Code” means
the New York Uniform Commercial Code as in effect from time to time.
“U.S. Dollar” means a dollar
or other equivalent unit in such coin or currency of the United States as at the time shall be legal tender for the payment of public
and private debt.
“Voting Stock” of a Person means
all classes of Capital Stock of such Person then outstanding and normally entitled (without regard to the occurrence of any contingency)
to vote in the election of directors, managers or trustees thereof.
Section 1.02. Other Definitions.
| Term |
Section |
| Bankruptcy Law |
6.01 |
| Covenant Defeasance |
8.03 |
| Custodian |
6.01 |
| Event of Default |
6.01 |
| DTC |
3.03 |
| Legal Defeasance |
8.02 |
| Notice of Default |
6.01 |
| Paying Agent |
2.04 |
| Registrar |
2.04 |
| Successor Company |
5.01(a)(1) |
Section 1.03. Incorporation by Reference
of Trust Indenture Act.
This Indenture is subject to the mandatory provisions
of the Trust Indenture Act which are incorporated by reference in and made a part of this Indenture. The following Trust Indenture Act
terms have the following meanings:
“indenture securities” means
the Securities;
“indenture security holder”
means a Holder;
“indenture to be qualified”
means this Indenture;
“indenture trustee” or “institutional
trustee” means the Trustee; and
“obligor” on the Securities
means the Company, and any other obligor on the Securities.
All other terms used in this Indenture that are
defined by the Trust Indenture Act, defined by Trust Indenture Act reference to another statute or defined by SEC rule have the meanings
assigned to them by such definitions.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a
term has the meaning assigned to it;
(2) an
accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(3) “or”
is not exclusive;
(4) “including”
means including without limitation;
(5) words
in the singular include the plural and words in the plural include the singular;
(6) unsecured
Indebtedness shall not be deemed to be subordinate or junior to secured Indebtedness merely by virtue of its nature as unsecured Indebtedness;
(7) secured
Indebtedness shall not be deemed to be subordinate or junior to any other secured Indebtedness merely because it has a junior priority
with respect to the same collateral; and
(8) the
principal amount of any noninterest bearing or other discount security at any date shall be the principal amount thereof that would be
shown on a balance sheet of the issuer dated such date prepared in accordance with GAAP.
ARTICLE II
The Securities
Section 2.01. 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 as the Company may authorize from time to time. All Securities of a Series shall be identical
except as may be set forth in a Board Resolution, a supplemental indenture or an Officer’s Certificate detailing the adoption
of the terms thereof pursuant to the authority granted under a Board Resolution. In the case of Securities of a Series to be issued
from time to time, the Board Resolution, supplemental indenture or Officer’s Certificate may provide for the method by which specified
terms (such as interest rate, maturity date, record date or date from which interest shall accrue) are to be determined. Securities may
differ between Series in respect of any matters, provided that all Series of Securities shall be equally and ratably entitled
to the benefits of this Indenture.
Section 2.02. 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 Section 2.02(a), and either as to such
Securities within the Series or as to the Series generally in the case of Sections 2.02(b) through 2.02(cc)) by a Board
Resolution, a supplemental indenture or an Officer’s Certificate pursuant to authority granted under a Board Resolution:
(a) the
title of the Securities of the Series (which shall distinguish the Securities of that particular Series from the Securities
of any other Series) and ranking (including the terms of any subordination provisions);
(b) the
price or prices of the Securities of the Series at which such Securities will be issued;
(c) whether
the Securities are entitled to the benefit of any Guarantee by any Guarantor;
(d) any
limit upon the aggregate principal amount of the Securities of the Series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities
of the Series);
(e) the
date or dates on which the principal and premium with respect to the Securities of the Series are payable;
(f) the
Person to whom any interest on a Security of the Series shall be payable if other than the Person in whose name that Security is
registered at the close of business on the record date;
(g) the
rate or rates (which may be fixed or variable) at which the Securities of the Series shall bear interest, if any, or the method of
determining such rate or rates (including, but not limited to, any commodity, commodity index, stock exchange index or financial index),
the date or dates from which such interest, if any, shall accrue, the Interest Payment Dates on which such interest, if any, shall be
payable or the method by which such dates will be determined, the record dates, for the determination of Holders thereof to whom such
interest is payable (in the case of Securities in registered form), and the basis upon which such interest will be calculated if other
than that of a 360-day year of twelve 30-day months;
(h) the
currency or currencies in which Securities of the Series shall be denominated and/or in which payment of the principal, premium,
if any, and interest, on any of the Securities of the Series shall be payable, if other than U.S. Dollars, the place or places, if
any, in addition to or instead of the Corporate Trust Office of the Trustee, where the principal, premium and interest, if any, with respect
to Securities of such Series shall be payable, where notices and demands to or upon the Company in respect of the Securities of such
Series and this Indenture may be delivered, and the method of such payment, if by wire transfer, mail or other means;
(i) the
price or prices at which, the period or periods within which, and the terms and conditions upon which, Securities of the Series may
be redeemed, in whole or in part at the option of the Company or otherwise;
(j) the
Company’s obligation or right, if any, to redeem, purchase or repay the Securities of the Series pursuant to any sinking fund
or analogous provisions or at the option of a Holder of such Securities and the price or prices at which, the period or periods within
which, and the terms and conditions upon which, Securities of the Series shall be redeemed, purchased or repaid, in whole or in part,
pursuant to such obligations;
(k) the
terms, if any, upon which the Securities of the Series may be convertible into or exchanged for the Company’s common stock,
preferred stock, depositary shares, other debt securities or warrants for common stock, preferred stock, depositary shares, Indebtedness
or other securities of any kind and the terms and conditions upon which such conversion or exchange shall be effected, including the initial
conversion or exchange price or rate, the conversion or exchange period and any other additional provisions;
(l) if
other than minimum denominations of $2,000 and any integral multiple of $1,000 in excess thereof, the denominations in which the Securities
of the Series shall be issuable;
(m) if
the amount of principal, premium or interest with respect to the Securities of the Series may be determined with reference to an
index or pursuant to a formula, the manner in which such amounts will be determined;
(n) if
the principal amount payable at the Stated Maturity of Securities of the Series will not be determinable as of any one or more dates
prior to such Stated Maturity, the amount that will be deemed to be such principal amount as of any such date for any purpose, including
the principal amount thereof which will be due and payable upon any Maturity other than the Stated Maturity or which will be deemed to
be outstanding as of any such date (or, in any such case, the manner in which such deemed principal amount is to be determined), and if
necessary, the manner of determining the equivalent thereof in U.S. Dollars;
(o) any
changes or additions to Article VIII;
(p) if
other than the principal amount thereof, the portion of the principal amount of the Securities of the Series that shall be payable
upon declaration of acceleration of the maturity thereof pursuant to Section 6.02 or provable in bankruptcy;
(q) the
terms, if any, of the transfer, mortgage, pledge or assignment as security for the Securities of the Series of any properties, assets,
moneys, proceeds, securities or other collateral and any corresponding changes to provisions of this Indenture as then in effect;
(r) any
addition to or change in the Events of Default with respect to any Securities of the Series and any change in the right of the Trustee
or the Holders of such Series of Securities to declare the principal, premium and interest, if any, on such Series of Securities
due and payable pursuant to Section 6.02;
(s) if
the Securities of the Series shall be issued in whole or in part in the form of a Global Security, the terms and conditions, if any,
upon which such Global Security may be exchanged in whole or in part for other individual Securities of such Series in definitive
registered form, the Depositary for such Global Security and the form of any legend or legends to be borne by any such Global Security
in addition to or in lieu of the Global Securities Legend;
(t) any
Trustee, authenticating agent, Paying Agent, transfer agent or Registrar, or any other agent with respect to the Securities;
(u) the
applicability of, and any addition to, deletion of or change in, the covenants and definitions set forth in Articles IV or V which apply
to Securities of the Series;
(v) the
terms, if any, of any Guarantee of the payment of principal, premium and interest with respect to Securities of the Series and any
corresponding changes to the provisions of this Indenture and as then in effect;
(w) the
subordination, if any, of the Securities of the Series pursuant to this Indenture and any changes or additions to the provisions
of this Indenture then in effect;
(x) with
regard to Securities of the Series that do not bear interest, the dates for certain required reports to the Trustee;
(y) any
U.S. federal income tax consequences or implications applicable to the Securities;
(z) any
provisions granting special rights to Holders when a specified event occurs;
(aa) any co-issuer;
(bb) the place
or places where the principal of and interest, if any, on the Securities of the Series will be payable, where the Securities of such
Series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect
of the Securities of such Series and this Indenture may be served, and the method of such payment, if by wire transfer, mail or other
means; and
(cc) any other
terms of Securities of the Series (which terms shall not be prohibited by the provisions of this Indenture).
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 or Officer’s Certificate referred to above, and the authorized principal amount
of any Series may not be increased to provide for issuances of additional Securities of such Series, unless otherwise provided in
such Board Resolution, supplemental indenture or Officer’s Certificate.
Section 2.03. 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 Trustee authenticates the Security, the Security shall be valid nevertheless.
A Security shall not be valid until an authorized
signatory of the Trustee manually signs the certificate of authentication on the Security. The signature of the Trustee on a Security
shall be conclusive evidence that such Security has been duly and validly authenticated and issued under this Indenture. A Security shall
be dated the date of its authentication, unless otherwise provided by a Board Resolution, a supplemental indenture or an Officer’s
Certificate.
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, an Officer’s Certificate delivered in accordance
with section 10.04 and an Opinion of Counsel which shall state:
(1) that
the form and the terms of such Securities have been established by a supplemental indenture or by or pursuant to a Board Resolution in
accordance with Sections 2.01 and 2.02 and in conformity with the provisions of this Indenture;
(2) that
such Securities when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will have been duly authorized, executed and delivered, and constitute valid and legally binding
obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws relating to or affecting creditors’ rights generally and subject to general principles
of equity, including concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether such enforceability is
considered in a proceeding in equity or at law; and
(3) that
all conditions precedent in respect of the execution and delivery by the Company of such Securities have been complied with;
provided,
however, that the Opinion of Counsel addressing the matters set forth in clause (3) above shall not be required to be furnished
in connection with the initial issuance of Securities hereunder.
The aggregate principal amount of Securities of
any Series outstanding at any time may not exceed any limit upon the maximum principal amount for such Series set forth in the
Board Resolution, supplemental indenture hereto or Officer’s Certificate delivered pursuant to Section 2.02, except as provided
in Section 2.08.
The Trustee may appoint an authenticating agent
reasonably acceptable to the Company to authenticate the Securities. Any such appointment shall be evidenced by an instrument signed by
a Trust Officer, a copy of which shall be furnished to the Company. Unless limited by the terms of such appointment, an authenticating
agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as any Registrar, Paying Agent or agent for service of notices
and demands.
Section 2.04. 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 2.02, an office
or agency where Securities of such Series may be presented for registration of transfer or for exchange (the “Registrar”)
and an office or agency where Securities of such Series may be presented for payment (the “Paying Agent”). The
Registrar shall keep a register with respect to each Series of Securities and of their transfer and exchange. The Company may appoint
one or more co-registrars and one or more additional paying agents. The term “Paying Agent” includes any additional paying
agent and the term “Registrar” includes any co-registrars. The Company hereby appoints the Trustee as Registrar and Paying
Agent for each Series of Securities unless another Registrar or Paying Agent, as the case may be, is appointed prior to the time
Securities of a Series are first issued. The Company may change any Registrar, co-registrar or Paying Agent without notice to any
Holder.
The Company shall enter into an appropriate agency
agreement with any Registrar, Paying Agent or co-registrar not a party to this Indenture, which shall incorporate the terms of the Trust
Indenture Act. The agreement shall implement the provisions of this Indenture that relate to such agent. The Company shall notify the
Trustee of the name and address of any such agent. If the Company fails to maintain a Registrar or Paying Agent, the Trustee shall act
as such and shall be entitled to appropriate compensation therefor pursuant to Section 7.07. The Company or any of its domestically
organized Subsidiaries may act as Paying Agent, Registrar, co-registrar or transfer agent.
The Company may remove any Registrar or Paying
Agent upon written notice to such Registrar or Paying Agent and to the Trustee; provided, however, that no such removal shall become effective
until (1) acceptance of any appointment by a successor as evidenced by an agreement entered into by the Company and such successor
Registrar or Paying Agent, as the case may be, and delivered to the Trustee or (2) notification to the Trustee that the Trustee shall
serve as Registrar or Paying Agent until the appointment of a successor in accordance with clause (1) above. The Registrar or Paying
Agent may resign at any time upon written notice; provided, however, that the Trustee may resign as Registrar or Paying Agent only if
the Trustee also resigns as Trustee in accordance with Section 7.08.
Section 2.05. Paying Agent to
Hold Money in Trust.
The Company shall require each Paying Agent other
than the Trustee to agree in writing that the Paying Agent will hold in trust, for the benefit of Holders of any Series of 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 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 any of its Subsidiaries) shall have
no further liability for the money. If the Company or any of its domestically organized Subsidiaries acts as Paying Agent, it shall segregate
and hold in a separate trust fund for the benefit of Holders of any Series of Securities all money held by it as Paying Agent. Upon
any Event of Default under Section 6.01(5) or (6), the Trustee shall automatically become the Paying Agent. In the event that
the Paying Agent receives funds in advance of the due date, the Paying Agent shall be entitled to invest such funds in any account designated
by the Company in writing, any earnings on which shall be for the account of the Company.
Section 2.06. Holder Lists.
The Trustee shall preserve in as current a form
as is reasonably practicable the most recent list available to it of the names and addresses of Holders of each Series of Securities
and shall otherwise comply with Trust Indenture Act Section 312(a). If the Trustee is not the Registrar, the Company shall furnish
to the Trustee at least five days before each interest payment date and at such other times as the Trustee may request in writing a list,
in such form and as of such date as the Trustee may reasonably require, of the names and addresses of Holders of each Series of Securities.
Section 2.07. Transfer and Exchange.
Where Securities of a Series are presented
to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal principal amount of Securities
of the same Series, the Registrar shall register the transfer or make the exchange if its requirements for such transactions are met.
To permit registrations of transfers and exchanges, the Trustee shall authenticate Securities at the Registrar’s request. No service
charge shall be made for any registration of transfer or exchange (except as otherwise expressly permitted herein), but the Company may
require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than
any such transfer tax or similar governmental charge payable upon exchanges pursuant to Sections 2.11, 3.06 or 9.05).
Neither the Company nor the Registrar shall be
required (a) to issue, register the transfer of, or exchange Securities of any Series for the period beginning at the opening
of business 15 days immediately preceding the mailing of a notice of redemption of Securities of that Series selected for redemption
and ending at the close of business on the day of such mailing or (b) to register the transfer of or exchange Securities of any Series selected,
called or being called for redemption as a whole or the portion being redeemed of any such Securities selected, called or being called
for redemption in part.
Section 2.08. Mutilated, Destroyed,
Lost and Stolen Securities.
If any mutilated Security is surrendered to the
Trustee, the Company shall execute and the Trustee, upon receipt of a Company Order, shall authenticate and deliver in exchange therefor
a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and
the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity
as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company
or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and the Trustee, upon receipt
of a Company Order, 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 2.09. Outstanding Securities.
Securities outstanding at any time are all Securities
authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation and those described in this Section as
not outstanding. A Security does not cease to be outstanding because the Company or an Affiliate of the Company holds the Security.
If a Security is replaced pursuant to Section 2.08,
it ceases to be outstanding unless the Company receives proof satisfactory to it that the replaced Security is held by a protected purchaser
(as defined in Section 8-303 of the Uniform Commercial Code).
If the principal amount of any Security is considered
paid, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent segregates and holds in trust,
in accordance with this Indenture, at the Maturity of Securities of a Series money sufficient to pay all principal and interest payable
on that date with respect to such Securities, then on and after that date such Securities cease to be outstanding and interest on them
ceases to accrue.
In determining whether the Holders of the requisite
principal amount of outstanding Securities of any Series have given any request, demand, authorization, direction, notice, consent
or waiver hereunder, the principal amount of an Original Issue Discount Security that shall be deemed to be outstanding for such purposes
shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of
acceleration of the Maturity thereof pursuant to Section 6.02.
Section 2.10. 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 shall be disregarded.
Section 2.11. Temporary Securities.
Until definitive Securities are ready for delivery,
the Company may prepare and the Trustee shall authenticate and deliver temporary Securities. 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 shall authenticate definitive Securities and deliver them in exchange for
temporary Securities.
Section 2.12. Cancellation.
The Company at any time may deliver Securities
to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee for cancellation any Securities surrendered
to them for registration of transfer, exchange or payment. The Trustee and no one else shall cancel and destroy (subject to the record
retention requirements of the Exchange Act) all Securities surrendered for registration of transfer, exchange, payment, replacement or
cancellation and deliver a certificate of such destruction to the Company unless the Company directs the Trustee to deliver canceled Securities
to the Company. The Company may not issue new Securities to replace Securities it has redeemed, paid or delivered to the Trustee for cancellation.
The Trustee shall provide to the Company a list of all Securities that have been cancelled from time to time as requested in writing by
the Company.
Section 2.13. Defaulted Interest.
If the Company defaults in a payment of interest
on a Series of Securities, the Company shall pay defaulted interest at the rate set forth in the Securities (plus interest on such
defaulted interest to the extent lawful) in any lawful manner. The Company may pay the defaulted interest to the persons who are Holders
of such Series on a subsequent special record date. The Company shall notify the Trustee in writing of the amount of defaulted interest
proposed to be paid on each Security and the date of the proposed payment. The Company shall fix or cause to be fixed any such special
record date and payment date and shall promptly mail, or cause to be mailed, to each Holder a notice that states the special record date,
the payment date and the amount of defaulted interest to be paid.
Section 2.14. Global Securities.
(a) 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.
(b) Transfer
and Exchange. Notwithstanding any provisions to the contrary contained in Section 2.07 of this Indenture and in addition thereto,
any Global Security shall be exchangeable pursuant to Section 2.07 of this Indenture for Securities registered in the names of Holders
other than the Depositary for such Security or its nominee only if (i) such Depositary notifies the Company that it is unwilling
or unable to continue as Depositary for such Global Security or if at any time such Depositary ceases to be a clearing agency registered
under the Exchange Act, and, in either case, the Company fails to appoint a successor Depositary within 90 days of such event, (ii) the
Company, subject to the procedures of the Depositary, executes and delivers to the Trustee an Officer’s Certificate to the effect
that such Global Security shall be so exchangeable or (iii) an Event of Default with respect to the Securities represented by such
Global Security shall have happened and be continuing. Any Global Security that is exchangeable pursuant to the preceding sentence shall
be exchangeable for Securities registered in such names as the Depositary shall direct in writing in an aggregate principal amount equal
to the principal amount of the Global Security with like tenor and terms.
Except as provided in this Section 2.14(b) 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.
(c) Legend.
Any Global Security issued hereunder shall bear a legend in substantially the following form:
“This Global Security is held by the Depositary (as defined
in the Indenture governing this Security) or its nominee in custody for the benefit of the beneficial owners hereof, and is not transferable
to any person under any circumstances except that (I) the Trustee may make such notations hereon as may be required pursuant to Section 9.05
of this Indenture, (II) this Global Security may be exchanged in whole but not in part pursuant to Section 2.08 of the Indenture,
(III) this Global Security may be delivered to the Trustee for cancellation pursuant to Section 2.15 of the Indenture and (IV) this
Global Security may be transferred to a successor Depositary with the prior written consent of the Company (as defined in the Indenture
governing this Security).”
(d) 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 this Indenture.
(e) Payments.
Notwithstanding the other provisions of this Indenture, unless otherwise specified as contemplated by Section 2.02, payment of the
principal of and interest, if any, on any Global Security shall be made to the Holder thereof.
(f) Consents,
Declaration and Directions. Except as provided in Section 2.14(e), the Company, the Trustee and any Agent shall treat a person
as the Holder of such principal amount of outstanding Securities of such Series represented by a Global Security as shall be specified
in a written statement of the Depositary with respect to such Global Security, for purposes of obtaining any consents, declarations, waivers
or directions required to be given by the Holders pursuant to this Indenture.
Section 2.15. CUSIP Numbers, ISINs, etc.
The Company in issuing the Securities may use “CUSIP”
numbers, ISINs and “Common Code” numbers (in each case if then generally in use) and, if so, the Trustee shall use “CUSIP”
numbers, ISINs and “Common Code” numbers in notices of redemption as a convenience to Holders; provided, however,
that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities
or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company shall advise the Trustee
in writing of any change in any “CUSIP” numbers, ISINs or “Common Code” numbers applicable to the Securities
of any Series.
ARTICLE III
Redemption
Section 3.01. Notices to Trustee.
The
Company, with respect to any Series of Securities, may elect 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 provided
for in such Series of 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 Securities of the Series to be redeemed and the
redemption price. The Company shall give such notice to the Trustee at least 45 days before the redemption date.
Section 3.02. Selection of Securities
to Be Redeemed.
Unless otherwise provided for a particular Series of
Securities by a Board Resolution, a supplemental indenture or an Officer’s Certificate, if fewer than all the Securities of a particular
Series are to be redeemed or purchased, the Trustee shall select the Securities of such Series to be redeemed or purchased pro
rata or by lot or by a method that complies with applicable legal and securities exchange requirements, if any, and that the Trustee in
its sole discretion shall deem to be fair and appropriate and in accordance with methods generally used at the time of selection by fiduciaries
in similar circumstances. The Trustee shall make the selection at least 30 days but no more than 60 days before the redemption date (subject
to delay as provided in the Indenture to allow for one or more conditions to be satisfied) from outstanding Securities of a Series not
previously called for redemption. Securities and portions thereof that the Trustee selects shall be in principal minimum amounts of $2,000
or integral multiples of $1,000 in excess thereof. Provisions of this Indenture that apply to Securities called for redemption also apply
to portions of Securities called for redemption. If applicable, the Trustee shall promptly notify the Company of the Securities (or portions
thereof) to be redeemed.
Any redemption or notice may, at the Company’s
discretion, be subject to one or more conditions precedent and, at the Company’s discretion, the redemption date may be delayed
until such time as any of all such conditions shall be satisfied.
Section 3.03. Notice of Redemption.
Unless otherwise provided for a particular Series of
Securities by a Board Resolution, a supplemental indenture or an Officer’s Certificate, at least 30 days but not more than 60 days
before a date for redemption of Securities, the Company shall mail a notice of redemption by first-class mail to each Holder of Securities
to be redeemed at such Holder’s registered address or delivered electronically if held by The Depository Trust Company (“DTC”),
except that redemption notices may be mailed more than 60 days prior to the redemption date if the notice is issued in connection with
a defeasance of the Securities or a satisfaction and discharge of this Indenture, or in the case of Global Securities, delivered according
to the procedures of the Depositary.
The notice shall identify the Securities to be
redeemed and shall state:
(1) the
redemption date;
(2) the
redemption price (or the method of calculating such price);
(3) if
any Security is being redeemed in part, the portion of the principal amount of such Security to be redeemed and that, after the redemption
date upon surrender of such Security, a new Security or Securities in principal amount equal to the unredeemed portion shall be issued
upon cancellation of the original Security;
(4) the
name and address of the Paying Agent;
(5) that
Securities called for redemption must be surrendered to the Paying Agent to collect the redemption price;
(6) that,
upon the satisfaction of any conditions to such redemption set forth in the notice of redemption, and unless the Company defaults in making
such redemption payment or the Paying Agent is prohibited from making such payment pursuant to the terms of this Indenture, interest on
Securities (or portion thereof) called for redemption ceases to accrue on and after the redemption date;
(7) the
paragraph of the Securities and/or provision of this Indenture pursuant to which the Securities called for redemption are being redeemed;
(8) that
the redemption is for a sinking fund, if such is the case; and
(9) the
CUSIP or ISIN number, if any, printed on the Securities being redeemed; provided, however, that no representation will be
made as to the correctness or accuracy of the CUSIP or ISIN number, if any, listed in such notice or printed on the Securities.
In addition, if such redemption is subject to one
or more conditions precedent, such notice shall describe each such condition and, if applicable, shall state that in the Company’s
discretion, the redemption date may be delayed until such time (including, subject to the applicable procedures of DTC, more than 60 days
after the date the notice of redemption was mailed or delivered, including by electronic transmission) as any or all such conditions shall
be satisfied (or waived by the Company in its sole discretion), or such redemption may not occur and such notice may be rescinded in the
event that any or all such conditions shall not have been satisfied by the redemption date, or by the redemption date as so delayed. The
Company will provide prompt written notice to the Trustee and the Holders prior to the close of business two Business Days prior to the
redemption date rescinding such redemption and notice of redemption shall be rescinded and of no force or effect. Upon the Company’s
written request given at least five Business Days prior to the date such notice shall be sent (unless the Trustee consents to a shorter
period), the Trustee shall (on the date specified in such written request or promptly after such time) forward such notice to the Holders
in the Company’s name and at the Company’s expense in the same manner in which the notice of redemption was given.
At the Company’s request, the Trustee shall
give the notice of redemption in the Company’s name and at the Company’s expense. In such event, the Company shall provide
the Trustee with the information required by this Section.
Section 3.04. Effect of Notice of
Redemption.
Once notice of redemption is mailed, Securities
called for redemption become due and payable on the redemption date and at the redemption price stated in the notice, subject to the satisfaction
of any conditions precedent provided in such notice. Upon surrender to the Paying Agent, such Securities shall be paid at the redemption
price stated in the notice, plus accrued interest to the redemption date (subject to the right of Holders of record on the relevant record
date to receive interest due on the related interest payment date), and such Securities shall be canceled by the Trustee. On and after
the redemption date, unless the Company defaults in the payment of the amounts due upon redemption, interest ceases to accrue on Securities
or portions of such Securities called for redemption. Failure to give notice or any defect in the notice to any Holders shall not affect
the v3.alidity of the notice to any other Holder.
Section 3.05. Deposit of Redemption
Price.
Prior to 11:00 a.m. (New York City time) on
the redemption date, the Company shall deposit with the Paying Agent (or, if the Company or a Subsidiary is the Paying Agent, shall segregate
and hold in trust) money sufficient to pay the redemption price of and accrued interest on all Securities to be redeemed on that date
other than Securities or portions of Securities called for redemption which have been delivered by the Company to the Trustee for cancellation.
The Paying Agent shall as promptly as practicable return to the Company any money deposited with it by the Company in excess of the amounts
necessary to pay the redemption price of, and accrued interest on, all Securities to be redeemed. If such money is then held by the Company
in trust and is not required for such purpose it shall be discharged from such trust. The Company at any time may require a Paying Agent
to pay all money held by it to the Trustee and to account for any funds disbursed by the Paying Agent. Upon complying with this Section,
the Paying Agent shall have no further liability for the money delivered to the Trustee.
Section 3.06. Securities Redeemed
in Part.
Upon surrender of a Security that is redeemed in
part, the Company shall execute and the Trustee shall authenticate for the Holder (at the Company’s expense) a new Security equal
in principal amount to the unredeemed portion of the Security surrendered, and the Company shall cancel the original Security.
ARTICLE IV
Covenants
Section 4.01. Payment of Securities.
The Company shall promptly make all payments in
respect of each Series of Securities on the dates and in the manner provided in such Series of Securities and in this Indenture.
Such payments shall be considered made on the date due if on such date the Trustee or the Paying Agent holds, in accordance with this
Indenture, money sufficient to make all payments with respect to such Securities then due and the Trustee or the Paying Agent, as the
case may be, is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture.
Section 4.02. Reports.
At any time when the Company is not subject to
the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company shall furnish to the Holders and to prospective
investors, upon the requests of any Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act so long as any Securities are not freely transferable under the Securities Act. The Company also shall comply with the
other provisions of Trust Indenture Act § 314(a).
Section 4.03. Compliance Certificate.
The Company shall deliver to the Trustee, within
120 days after the end of each fiscal year of the Company, an Officer’s Certificate stating that in the course of the performance
by the signers of his or her duties as Officer of the Company such Officer would normally have knowledge of any Default and whether or
not such Officer knows of any Default that occurred during such period. If so, the certificate shall describe the Default, its status
and what action the Company is taking or proposes to take with respect thereto. The Company also shall comply with Trust Indenture Act
§ 314(a)(4).
Section 4.04. Further Instruments
and Acts.
Upon request of the Trustee, the Company will execute
and deliver to the Trustee such further instruments and do such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
ARTICLE V
Successor Company
Section 5.01. When Company May Merge
or Transfer Assets.
(a) Unless
otherwise provided for a particular Series of Securities in a Board Resolution, a supplemental indenture or an Officer’s Certificate,
the Company shall not consolidate with or merge with or into, or sell, convey, transfer or lease, in one transaction or a series of transactions,
directly or indirectly, all or substantially all of its assets to, any Person, unless:
(1) the
Company is the surviving Person or the resulting, surviving or transferee Person (the “Successor Company”) is a corporation,
limited liability company, partnership or similar entity organized and existing under the laws of the United States of America, any State
thereof or the District of Columbia and the Successor Company (if not the Company) expressly assumes, by a supplemental indenture, executed
and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture;
(2) immediately
after giving pro forma effect to such transaction, no Default shall have occurred and be continuing; and
(3) the
Company or the Successor Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating
that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture.
(b) For
purposes of this Section 5.01, the sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all
of the properties and assets of one or more Subsidiaries of the Company, which properties and assets, if held by the Company instead of
such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall
be deemed to be the transfer of all or substantially all of the properties and assets of the Company.
(c) The
Successor Company shall be the successor to the Company and shall succeed to, be substituted for, and may exercise every right and power
of, the Company under this Indenture. The Company will be relieved of all obligations and covenants under the Securities and the Indenture,
provided that, in the case of a lease of all or substantially all of properties or assets of the Company, the Company will not
be released from the obligation to pay the principal of and interest on the Securities.
ARTICLE VI
Defaults and Remedies
Section 6.01. Events of Default.
Unless otherwise provided for a particular Series of
Securities by a Board Resolution, a supplemental indenture or an Officer’s Certificate, each of the following constitutes an “Event
of Default” with respect to a Series of Securities:
(1) the
Company’s default in any payment of the principal amount of (or, in the case of Original Issue Discount Securities of that Series,
the portion thereby specified in the terms of such Security), any Security of that Series when such amount becomes due and payable
at Stated Maturity, upon acceleration, required redemption or otherwise;
(2) the
Company’s failure to pay interest on any Security of that Series when such interest becomes due and payable, and such failure
continues for a period of 30 days;
(3) the
Company fails to comply with Section 5.01;
(4) the
Company fails to comply with any of its agreements contained in the Securities of that Series or this Indenture (other than those
referred to in clause (1), (2) or (3) above) and such failure continues for 90 days after the notice specified below;
(5) the
Company or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(A) commences
a voluntary case;
(B) consents
to the entry of an order for relief against it in an involuntary case;
(C) consents
to the appointment of a Custodian of it or for any substantial part of its property;
(D) makes
a general assignment for the benefit of its creditors;
or takes any comparable action under any foreign laws relating to insolvency;
or
(6) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(A) is
for relief against the Company or any Significant Subsidiary in an involuntary case;
(B) appoints
a Custodian of the Company or any Significant Subsidiary or for any substantial part of its property; or
(C) orders
the winding up or liquidation of the Company or any Significant Subsidiary;
or any similar relief is granted under any foreign laws, and the order
or decree remains unstayed and in effect for 90 days.
The foregoing will constitute Events of Default
whatever the reason for any such Event of Default and whether it is voluntary or involuntary or is effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body.
The term “Bankruptcy Law” means
Title 11, United States Code, or any similar Federal or state law for the relief of debtors. The term “Custodian” means
any receiver, trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law.
A Default under clause (4) above is not an
Event of Default with respect to any Series of Securities until the Trustee or the holders of at least 30% in principal amount of
the Securities of that Series notify the Company of the Default and the Company does not cure such Default within the time specified
in clause (4) after receipt of such notice. Such notice must specify the Default, demand that it be remedied and state that such
notice is a “Notice of Default.” Any Default for the failure to deliver any report within the time periods prescribed
in Section 4.02 or to deliver any notice or certificate pursuant to any other provision of this Indenture shall be deemed to be cured
upon the subsequent delivery of any such report, notice or certificate, even though such delivery is not within the prescribed period
specified.
Section 6.02. Acceleration.
If
an Event of Default with respect to any Series of Securities at the time outstanding (other than an Event of Default specified in
Section 6.01(5) or (6) with respect to the Company) occurs and is continuing, the Trustee by notice to the Company, or
the Holders of at least 30% in aggregate principal amount of the Securities of that Series by written notice to the Company and the
Trustee, may declare the principal of (or, in the case of Original Issue Discount Securities of that Series, the portion thereby specified
in the terms of such Security), and accrued and unpaid interest on, all the Securities of that Series to be due and payable. Upon
such a declaration, such amounts shall be due and payable immediately. If an Event of Default specified in Section 6.01(5) or
(6) with respect to the Company occurs and is continuing, the principal amount of (or, in the case of Original Issue Discount Securities
of that Series, the portion thereby specified in the terms of such Security), and accrued and unpaid interest on, all the Securities of
each Series shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee
or any Holders. The Holders of a majority in principal amount of the Securities of any Series, by notice to the Trustee, may rescind any
such acceleration of that Series of Securities and its consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default with respect to such Series have been cured or waived except nonpayment of the principal
amount of (or, in the case of Original Issue Discount Securities of that Series, the portion thereby specified in the terms of such Security),
and accrued and unpaid interest on, all Securities of that Series that has become due solely because of acceleration. No such rescission
shall affect any subsequent Default or impair any right consequent thereto.
Section 6.03. Other Remedies.
If an Event of Default with respect to any Series of
Securities occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal of (or, in the case
of Original Issue Discount Securities of that Series, the portion thereby specified in the terms of such Security), and accrued and unpaid
interest on, the Securities of that Series or to enforce the performance of any provision of the Securities of that Series or
this Indenture.
The Trustee may maintain a proceeding even if it
does not possess any of the Securities of a Series or does not produce any of them in the proceeding. A delay or omission by the
Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default with respect to any Series of Securities
shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive of any
other remedy. All available remedies are cumulative.
Section 6.04. Waiver of Past
Defaults.
The Holders of a majority in principal amount of
the Securities of any Series may, by notice to the Trustee, waive an existing Default and its consequences except (a) a Default
in the payment of the principal amount of (or, in the case of Original Issue Discount Securities of that Series, the portion thereby specified
in the terms of such Security), premium, if any, and accrued and unpaid interest on a Security of that Series, (b) a Default arising
from the failure to redeem or purchase any Security of that Series when required pursuant to the terms of this Indenture or (c) a
Default in respect of a provision that under Section 9.02 cannot be amended without the consent of each Holder of that Series affected.
When a Default is waived, it is deemed cured, but no such waiver shall extend to any subsequent or other Default or impair any consequent
right.
Section 6.05. Control by Majority.
The Holders of a majority in principal amount of
the Securities of any Series may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee
or of exercising any trust or power conferred on the Trustee with respect to that Series. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture or, subject to Section 7.01, that the Trustee determines is unduly prejudicial
to the rights of any other Holder of that Series or that would involve the Trustee in personal liability; provided, however,
that the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction. Prior to taking
any action hereunder, the Trustee shall be entitled to indemnification satisfactory to it in its sole discretion against all losses and
expenses caused by taking or not taking such action.
Section 6.06. Limitation on Suits.
Except to enforce the right to receive payment
of principal of (or, in the case of Original Issue Discount Securities, the portion thereby specified in the terms of such Security),
or accrued and unpaid interest on, a Security of any Series when due, no Holder of a Security of that Series may pursue any
remedy with respect to this Indenture or the Securities of that Series unless:
(1) the
Holder has previously given the Trustee written notice that an Event of Default with respect to that Series is continuing;
(2) the
Holders of at least 30% in aggregate principal amount of the outstanding Securities of that Series make a written request to the
Trustee to pursue the remedy;
(3) such
Holder or Holders of that Series have offered the Trustee security or indemnity satisfactory to the Trustee against any loss, liability
or expense;
(4) the
Trustee has not complied with such request within 60 days after the receipt of the request and the offer of security or indemnity; and
(5) the
Holders of a majority in aggregate principal amount of the outstanding Securities of that Series have not given the Trustee a direction
inconsistent with such request during such 60-day period.
A Holder of Securities of any Series may not
use this Indenture to prejudice the rights of another Holder of that Series or to obtain a preference or priority over another Holder
of that Series.
Section 6.07. Rights of Holders
to Receive Payment.
Notwithstanding any other provision of this Indenture,
the right of any Holder to receive payment of principal of (or, in the case of Original Issuer Discount Securities, the portion thereby
specified in the terms of such Security), or accrued and unpaid interest on, the Securities held by such Holder, on or after the respective
due dates expressed in the Securities, or to bring suit for the enforcement of any such payment on or after such respective dates, shall
not be impaired or affected without the consent of such Holder.
Section 6.08. Collection Suit
by Trustee.
If an Event of Default specified in Section 6.01(1) or
(2) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Company
for the whole amount then due and owing (together with interest on any unpaid interest to the extent lawful) and the amounts provided
for in Section 7.07 to cover the costs and expenses of collection, including the reasonable compensation, expenses disbursement and
advances of the Trustee, its agents and its counsel.
Section 6.09. Trustee May File
Proofs of Claim.
The Trustee may file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims of the Trustee and the Holders allowed in any judicial
proceedings relative to the Company or any of its Subsidiaries, their creditors or their property and, unless prohibited by law or applicable
regulations, may vote on behalf of the Holders in any election of a trustee in bankruptcy or other Person performing similar functions,
and any Custodian in any such judicial proceeding is hereby authorized by each Holder to make payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel, and any other amounts due the
Trustee under Section 7.07.
Section 6.10. Priorities.
If the Trustee collects any money or property pursuant
to this Article VI with respect to any Series of Securities, it shall pay out the money or property in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: Holders for amounts due and unpaid on the
Securities of that Series for the principal amount of (or, in the case of Original Issue Discount Securities of that Series, the
portion thereby specified in the terms of such Security), premium, if any, and accrued and unpaid interest, ratably, without preference
or priority of any kind, according to the amounts due and payable on the Securities of that Series for the principal amount of (or,
in the case of Original Issue Discount Securities of that Series, the portion thereby specified in the terms of such Security), premium,
if any, and accrued and unpaid interest, respectively; and
THIRD: to the Company.
The Company shall fix a record date and payment
date for any payment to Holders pursuant to this Section. At least 15 days before such record date, the Company shall mail to each Holder
and the Trustee a notice that states the record date, the payment date and the amount to be paid.
Section 6.11. Undertaking for
Costs.
In any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion
may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party litigant. This Section does not apply to a suit by
the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by Holders of more than 10% in principal amount of the Securities
of any Series.
Section 6.12. Waiver of Stay
or Extension Laws.
The Company (to the extent it may lawfully do so)
shall not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and shall not
hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE VII
Trustee
Section 7.01. Duties of Trustee.
(a) If
an Event of Default has occurred and is continuing with respect to any Series of Securities, 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. Subject to such provisions, the Trustee will be under
no obligation to exercise any of its rights or powers under this Indenture at the request of any Holder of Securities, unless such Holder
shall have offered to the Trustee security and indemnity satisfactory to it against any loss, liability or expense and then only to the
extent required by the terms of this Indenture.
(b) Except
during the continuance of an Event of Default with respect to any Series of Securities:
(1) the
Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture with respect to the Securities
of that Series, as modified or supplemented by a supplemental indenture and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in
the absence of bad faith on its part, the Trustee may, with respect to the Securities of that Series, conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture. However, the Trustee shall examine the certificates (including Officer’s Certificates) and
opinions (including Opinions of Counsel) to determine whether they conform to the requirements of this Indenture (but need not confirm
or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The
Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct,
except that:
(1) this
paragraph does not limit the effect of paragraph (b) of this Section;
(2) the
Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer unless it is proved that the Trustee was negligent
in ascertaining the pertinent facts; and
(3) the
Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received
by it pursuant to Section 6.05.
(d) Every
provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b), (c) and (g) of this Section.
(e) 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. In the
absence of written investment direction from the Company, the Trustee shall be entitled to invest any funds received in an account designated
by the Company, in writing, any earnings on which shall be for the account of the Company. In no event shall the Trustee be liable for
the selection of investments or for investment losses incurred thereon or for losses incurred as a result of the liquidation of any such
investment prior to its maturity date, and the Trustee shall have no liability to invest or reinvest any amounts held hereunder in the
absence of any written investment direction from the Company.
(f) Money
held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
(g) No
provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur financial liability in the performance
of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that
repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(h) Every
provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject
to the provisions of this Section and to the provisions of the Trust Indenture Act.
Section 7.02. Rights of Trustee.
(a) The
Trustee may rely on any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need
not investigate any fact or matter stated in the document.
(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 the Officer’s Certificate or Opinion of
Counsel.
(c) The
Trustee may act through agents, custodians, nominees or attorneys and shall not be responsible for the misconduct or negligence of any
agent, custodian, nominee or attorney appointed with due care.
(d) The
Trustee shall not be liable for any action it takes, suffers to exist or omits to take in good faith which it believes to be authorized
or within its rights or powers conferred upon it by this Indenture; provided that the Trustee’s conduct does not constitute
willful misconduct or negligence.
(e) The
Trustee may consult with counsel, and the advice or opinion of counsel with respect to legal matters relating to this Indenture and the
Securities shall be full and complete authorization and protection from liability in respect to any action taken, omitted or suffered
by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(f) The
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, debenture, note or other paper or document.
(g) The
Trustee shall not be deemed to have notice or charged with knowledge of any Default or Event of Default with respect to the Securities
of any Series unless a Trust Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in
fact such a default is received from the Company or any Holders of such Securities by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references such Securities and this Indenture.
(h) The
rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified,
are extended to and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder.
(i) The
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory
to the Trustee against the costs, expenses and liabilities which might be incurred by the Trustee in compliance with such request or direction.
(j) The
Trustee may from time to time request that the Company deliver an Officer’s Certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified actions pursuant to the Indenture, which Officer’s Certificate may
be signed by any persons authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such
certificate previously delivered and not superseded.
(k) The
permissive right of the Trustee to take any action under this Indenture shall not be construed as a duty to so act.
(l) In
no event shall the Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including
loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form
of action.
(m) Any
request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Order and any resolution of the Board
of Directors may be sufficiently evidenced by a Board Resolution.
Section 7.03. 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 its Affiliates with the same rights it would
have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest, it must either eliminate such conflict
within 90 days, apply to the SEC for permission to continue or resign. Any Paying Agent, Registrar, co-registrar or co-paying agent may
do the same with like rights. However, the Trustee must comply with Sections 7.10 and 7.11.
Section 7.04. Trustee’s
Disclaimer.
The Trustee shall not be responsible for and makes
no representation as to the validity or adequacy of this Indenture or the Securities, it shall not be accountable for the Company’s
use of the proceeds from the Securities, it will not be responsible for the use or application of any money received by any Paying Agent
(other than itself as Paying Agent) and it shall not be responsible for any statement of the Company in this Indenture or in any document
issued in connection with the sale of the Securities or in the Securities other than the Trustee’s certificate of authentication.
Section 7.05. Notice of Defaults.
If a Default with respect to Securities of any
Series occurs, is continuing and is actually known to a Trust Officer of the Trustee, the Trustee shall send to each Holder of Securities
of that Series notice of the Default within 90 days after it is known to the Trustee. Except in the case of a Default with respect
to Securities of any Series in payment of the principal amount of (or, in the case of Original Issue Discount Securities of that
Series, the portion thereby specified in the terms of such Security), and accrued and unpaid interest on, any Security of that Series,
the Trustee may withhold the notice if and for so long as the a committee of its Trust Officers in good faith determines that withholding
the notice is not opposed to the interests of the Holders.
Section 7.06. Reports by Trustee
to Holders.
As promptly as practicable after each July 1
beginning with the July 1 after the issuance of Securities pursuant to this Indenture, and in any event prior to September 15
in each such year for so long as Securities remain outstanding, the Trustee shall mail to each Holder a brief report dated as of such
reporting date that complies with Trust Indenture Act § 313(a). The Trustee also shall comply with Trust Indenture Act § 313(b).
The Trustee shall promptly deliver to the Company a copy of any report it delivers to Holders pursuant to this Section 7.06.
A copy of each report at the time of its mailing
to Holders shall be filed by the Trustee with the SEC and each stock exchange (if any) on which the Securities are listed. The Company
agrees to notify promptly the Trustee whenever the Securities become listed on any stock exchange and of any delisting thereof.
Section 7.07. Compensation and
Indemnity.
The Company shall pay to the Trustee from time
to time reasonable compensation for its services as the Company and the Trustee shall from time to time agree 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 and documented out-of-pocket expenses incurred or made by it in accordance with the provisions of this
Indenture, including costs of collection, costs of preparation and mailing of notices to Holders and reasonable costs of counsel retained
by the Trustee in connection with the delivery of an Opinion of Counsel or otherwise in addition to the compensation for its services,
except any such expense as shall be determined to have been caused by its own negligence, willful misconduct or bad faith. Such expenses
shall include the reasonable compensation and expenses, disbursements and advances of the Trustee’s agents, counsel, accountants
and experts. The Company shall indemnify the Trustee against any and all loss, liability or expense (including attorneys’ fees)
(other than taxes applicable to Trustee’s compensation hereunder) incurred by it in connection with the administration of this trust
and the performance of its duties hereunder, including the costs and expenses of enforcing the Indenture (including this Section 7.07)
and of defending itself against any claims (whether asserted by any Holder, the Company or otherwise). 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, except to the extent that the Company has been prejudiced by such failure. The Company shall defend the claim
and the Trustee shall cooperate in the defense of any such claim, and, if (in the opinion of counsel to the Trustee) the facts and/or
issues surrounding the claim are reasonably likely to create a conflict with the Company, the Company shall pay the reasonable and documented
out-of-pocket fees and expenses of separate counsel to the Trustee. The Company need not reimburse any expense or indemnify against any
loss, liability or expense incurred by the Trustee through the Trustee’s own willful misconduct, negligence or bad faith. The Company
need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld or delayed.
To secure the Company’s payment obligations
in this Section, the Trustee shall have a lien prior to the Securities on all money or property held or collected by the Trustee other
than money or property held in trust to pay principal of and interest on particular Securities.
The Company’s payment obligations pursuant
to this Section shall survive the satisfaction or discharge of this Indenture, any rejection or termination of this Indenture under
any bankruptcy law or the resignation or removal of the Trustee. When the Trustee incurs expenses after the occurrence of a Default specified
in Section 6.01(5) or (6) with respect to the Company, the expenses are intended to constitute expenses of administration
under the Bankruptcy Law.
Section 7.08. Replacement of
Trustee.
The Trustee may resign with respect to the Securities
of any Series at any time upon 30 days’ written notice to the Company. The Holders of a majority in aggregate principal amount
of the Securities of any Series outstanding may remove the Trustee upon 30 days’ written notice to the Trustee and may appoint
a successor Trustee with respect to such Series of Securities, which successor Trustee shall be reasonably acceptable to the Company.
If at any time:
(1) the
Trustee fails to comply with Section 7.10;
(2) the
Trustee is adjudged bankrupt or insolvent;
(3) a
receiver or other public officer takes charge of the Trustee or its property; or
(4) the
Trustee otherwise becomes incapable of acting;
then, in any such case, (A) the Company may remove the Trustee
with respect to all Securities or (B) subject to Section 6.11, Holders of 10% in aggregate principal amount of Securities of
any series who have been bona fide Holders of such Securities of the Series for at least six months may, on behalf of themselves
and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities
and the appointment of a successor Trustee or Trustees.
If the Trustee resigns, is removed by the Company
or by the Holders of a majority in principal amount of the Securities of any Series and such Holders do not reasonably promptly appoint
a successor Trustee, or if a vacancy exists in the office of Trustee for any reason (the Trustee in such event being referred to herein
as the retiring Trustee), the Company shall promptly appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance
of its appointment to the retiring Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture subject to the lien
in Section 7.07 herein. The successor Trustee shall mail a notice of its succession to Holders of that Series of Securities.
The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided
for in Section 7.07.
If a successor Trustee does not take office with
respect to the Securities of that Series within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee or
the Holders of 10% in aggregate principal amount of the Securities of that Series may petition any court of competent jurisdiction
for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10,
any Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee
pursuant to this Section, the Company’s obligations under Section 7.07 shall continue for the benefit of the retiring Trustee.
Section 7.09. Successor Trustee
by Merger.
If the Trustee consolidates with, merges or converts
into, or transfers all or substantially all its corporate trust business or assets to, another corporation or banking association, the
resulting, surviving or transferee corporation without any further act shall be the successor Trustee; provided that such corporation
shall be otherwise qualified and eligible under this Article VII and § 310(a) of the Trust Indenture Act, without the execution
or filing of any paper or any further act on the part of the parties hereto.
In case at the time such successor or successors
by merger, conversion or consolidation to the Trustee shall succeed to the trusts created by this Indenture any of the Securities shall
have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor
trustee, and deliver such Securities so authenticated; and in case at that time any of the Securities shall not have been authenticated,
any successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor
to the Trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Securities or in this Indenture;
provided that the certificate of the Trustee shall have.
Section 7.10.
Eligibility; Disqualification.
The Trustee shall at all times satisfy the requirements
of Trust Indenture Act § 310(a). The Trustee shall have a combined capital and surplus of at least $50,000,000 as set forth in its
most recent published annual report of condition. The Trustee shall comply with the Trust Indenture Act § 310(b); provided,
however, that there shall be excluded from the operation of the Trust Indenture Act § 310(b)(1) any indenture or indentures
under which other securities or certificates of interest or participation in other securities of the Company are outstanding if the requirements
for such exclusion set forth in the Trust Indenture Act § 310(b)(1) are met.
Section 7.11. Preferential Collection
of Claims Against Company.
If and when the Trustee shall be or become a creditor
of the Company (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding
the collection of claims against the Company (or any such other obligor).
Section 7.12. Conflicting Interests.
If the Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and
in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.
To the extent permitted by the Trust Indenture
Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series.
ARTICLE VIII
Discharge of Indenture; Defeasance
Section 8.01. Option to Effect
Legal Defeasance or Covenant Defeasance.
The Company may, at the option of its Board of
Directors evidenced by resolutions set forth in an Officer’s Certificate, at any time, elect to have either Section 8.02 or
8.03 hereof be applied to all outstanding Securities of any Series upon compliance with the conditions set forth below in this Article VIII.
Unless otherwise provided for in a Board Resolution,
a supplemental indenture or an Officer’s Certificate, when (a) the Company has delivered to the Trustee for cancellation all
Securities of a Series or (b) all outstanding Securities of a Series not theretofore delivered to the Trustee for cancellation
shall have become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption
within one year, and the Company shall have deposited with the Trustee as trust funds the entire amount sufficient to pay at Maturity
or upon redemption of all outstanding Securities of the Series, and if, in either case, the Company shall also pay or cause to be paid
all other sums payable under the Indenture by the Company, then the Indenture shall cease to be of further effect with respect to such
Securities of such Series. The Trustee shall acknowledge satisfaction and discharge of the Indenture on demand of the Company accompanied
by an Officer’s Certificate and an Opinion of Counsel and at the cost and expense of the Company.
Section 8.02. Legal Defeasance
and Discharge.
Upon the Company’s exercise under Section 8.01
hereof of the option applicable to this Section 8.02 with respect to any Series of Securities, the Company shall, subject to
the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to have been discharged from its obligations with
respect to all outstanding Securities of that Series on the date the conditions set forth below are satisfied (hereinafter, “Legal
Defeasance”). For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Securities of that Series, which shall thereafter be deemed to be “outstanding”
only for the purposes of Section 8.05 hereof and the other Sections of this Indenture referred to in (a) and (b) below,
and to have satisfied all its other obligations under such Securities and this Indenture with respect to such Securities of such Series (and
the Trustee, on demand of and at the expense of the Company and in sole reliance on an Opinion of Counsel and Officer’s Certificate,
shall execute such instruments reasonably requested by the Company acknowledging the same), except for the following provisions which
shall survive until otherwise terminated or discharged hereunder:
(a) the
rights of Holders of outstanding Securities of that Series to receive solely from the trust fund described in Section 8.04 hereof,
and as more fully set forth in such Section, payments in respect of the principal of (or, in the case of Original Issue Discount Securities
of that Series, the portion thereby specified in the terms of such Security), and interest on, such Securities when such payments are
due;
(b) the
Company’s obligations with respect to such Securities of that Series under Article II;
(c) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company’s obligations in connection therewith including
without limitation under Article VII herein; and
(d) this
Article VIII.
Subject to compliance with this Article VIII,
the Company may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03
hereof.
Section 8.03. Covenant Defeasance.
Upon
the Company’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03 with respect to any Series of
Securities, the Company shall, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be released from its
obligations under the covenants contained in a Board Resolution, a supplemental indenture or an Officer’s Certificate with respect
to the outstanding Securities of that Series on and after the date the conditions set forth in Section 8.04 are satisfied (hereinafter,
“Covenant Defeasance”), and the Securities of that Series shall thereafter be deemed not “outstanding”
for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection
with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that
such Securities shall not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect
to the outstanding Securities of that Series, the Company may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein
to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default with respect to such Securities under Section 6.01 hereof,
but, except as specified above, the remainder of this Indenture and such Securities shall be unaffected thereby. In addition, upon the
Company’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03 hereof with respect to any
Series of Securities, subject to the satisfaction of the conditions set forth in Section 8.04 hereof and Sections 6.01(3) and
6.01(4) hereof shall not constitute Events of Default with respect to such Securities.
Section 8.04. Conditions to Legal
or Covenant Defeasance.
The following shall be the conditions to the application
of either Section 8.02 or 8.03 hereof to the outstanding Securities:
In order to exercise either Legal Defeasance or
Covenant Defeasance with respect to any Series of Securities:
(a) the
Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of that Series of Securities, cash in
U.S. dollars (or the currency in which Securities of that Series is denominated), non-callable Government Securities, or a combination
thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized independent registered public accounting firm
(as to which the Trustee is an addressee or otherwise entitled to rely), to pay the principal amount of (or, in the case of Original Issue
Discount Securities of that Series, the portion thereby specified in the terms of such Security), premium, if any, and interest on, the
outstanding Securities of that Series on the stated date for payment thereof or on the applicable redemption date, as the case may
be;
(b) in
the case of an election under Section 8.02 hereof, the Company shall have delivered to the Trustee an Opinion of Counsel in the United
States confirming that:
(1) the
Company has received from, or there has been published by, the Internal Revenue Service, a ruling; or
(2) since
the issue date of that particular Series of Securities under this Indenture, there has been a change in the applicable federal income
tax law,
(3) in
either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the outstanding Securities
of that Series will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will
be subject to federal income tax on the same amounts, in the same manner and at the same time as would have been the case if such Legal
Defeasance had not occurred;
in the case of an election under Section 8.03
hereof, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States confirming that the Holders of the
outstanding Securities of that Series will not recognize income, gain or loss for federal income tax purposes as a result of such
Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have
been the case if such Covenant Defeasance had not occurred;
(c) no
Default or Event of Default with respect to that Series of Securities shall have occurred and be continuing either:
(1) on
the date of such deposit (other than a Default or Event of Default with respect to that Series of Securities resulting from the borrowing
of funds to be applied to such deposit); or
(2) insofar
as Sections 6.01(5) or 6.01(6) hereof are concerned, at any time in the period ending on the 91st day after the date of deposit;
(d) such
Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement
or instrument to which the Company or any of its Significant Subsidiaries are a party or by which the Company or any of its Significant
Subsidiaries are bound;
(e) the
Company shall have delivered to the Trustee an Officer’s Certificate to the effect that the deposit was not made by the Company
with the intent of preferring the Holders over other creditors of the Company with the intent of defeating, hindering, delaying or defrauding
any creditors of the Company or others; 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 provided for or relating to the Legal Defeasance or the Covenant Defeasance have been complied with and that the defeasance
is permitted by the Indenture.
Section 8.05. Deposited Money
and Government Securities to be Held in Trust; Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money
and non-callable Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 hereof in respect of any outstanding
Series of Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and
this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as Paying Agent) as the Trustee
may determine, to the Holders of such Securities of all sums due and to become due thereon in respect of principal, premium, if any, and
interest, but such money need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the cash or non-callable Government Securities deposited pursuant
to Section 8.04 hereof or the principal and interest received in respect thereof.
Anything in this Article VIII to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon the request of the Company any money or non-callable
Government Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally recognized independent
registered public accounting firm expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered
under Section 8.04(c) hereof), are in excess of the amount thereof that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance. The Trustee shall have no liability for any such release of funds.
Section 8.06. Repayment to Company.
Any
money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of, premium,
if any, or interest on any Security and remaining unclaimed for two years (or as otherwise required by applicable law) after such principal,
and premium, if any, or interest has become due and payable shall be paid to the Company on its request or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security shall thereafter look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease. Any unclaimed funds held by the Trustee pursuant to Section 8.06 shall be held uninvested and without
any liability of or by the Trustee for interest.
Section 8.07. Reinstatement.
If
the Trustee or Paying Agent is unable to apply any currency or non-callable Government Securities in accordance with Section 8.02
or 8.03 thereof, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the Company’s obligations under this Indenture and the Securities shall be revived
and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the case may be; provided,
however, that, if the Company makes any payment of principal of, premium, if any, or interest on any Security following 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
held by the Trustee or Paying Agent.
ARTICLE IX
Amendments
Section 9.01. Without Consent
of Holders.
The Company and the Trustee may amend this Indenture
or the Securities without notice to or consent of any Holder:
(1) to
cure any ambiguity, omission, defect or inconsistency;
(2) to
surrender any right or power conferred upon the Company by this Indenture, to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions for the protection of the Holders of all or any Series of Securities as the Board of Directors
of the Company shall consider to be for the protection of the Holders of such Securities, and to make the occurrence, or the occurrence
and continuance, of a default in respect of any such additional covenants, restrictions, conditions or provisions a Default or an Event
of Default under this Indenture; provided, however, that with respect to any such additional covenant, restriction, condition
or provision, such amendment may provide for a period of grace after default, which may be shorter or longer than that allowed in the
case of other Defaults, may provide for an immediate enforcement upon such Default, may limit the remedies available to the Trustee upon
such Default or may limit the right of Holders of a majority in aggregate principal amount of the Securities of any Series to waive
such default;
(3) to
comply with Article V;
(4) to
provide for uncertificated Securities in addition to or in place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes of Section 163(f) of the Code or in a manner such that
the uncertificated Securities are described in Section 163(f)(2)(B) of the Code and such determination is set forth in an Opinion
of Counsel upon which the Trustee may rely;
(5) to
add Guarantees with respect to the Securities or to secure the Securities;
(6) to
make any change that does not adversely affect in any material respect the rights of any Holder of Securities;
(7) to
add to, change, or eliminate any of the provisions of this Indenture with respect to one or more Series of Securities, so long as
any such addition, change or elimination not otherwise permitted under this Indenture shall (A) neither apply to any Security of
any Series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor modify
the rights of the Holders of any such Security with respect to the benefit of such provision or (B) become effective only when there
is no such Security outstanding;
(8) to
evidence and provide for the acceptance of appointment by a successor or separate 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 this Indenture by more than one Trustee;
(9) in
the case of subordinated Securities, to make any change in the provisions of this Indenture or any supplemental indenture relating to
subordination that would limit or terminate the benefits available to any holder of senior Indebtedness under such provisions (but only
if each such holder of senior Indebtedness consents to such change);
(10) to
comply with any requirements of the SEC in connection with qualifying, or maintaining the qualification of, this Indenture or any supplemental
indenture under the Trust Indenture Act;
(11) to
conform any provision in this Indenture or the Securities to the description of any Securities in an offering document;
(12) to
approve a particular form of any proposed amendment; provided that Holders consent to approve the substance of the proposed amendment
to the extent required;
(13) to
provide for the issuance of additional debt securities of any series;
(14) to
establish the form or terms of Securities and coupons of any Series pursuant to Article II;
(15) to
comply with the rules of any applicable Depositary;
(16) to
make any amendment to the provisions of this Indenture relating to the transfer and legending of Securities; provided, however,
that (a) compliance with this Indenture as so amended would not result in Securities being transferred in violation of the Securities
Act or any other applicable securities law and (b) such amendment does not materially and adversely affect the rights of Holders
to transfer Securities; or
(17) to
convey, transfer, assign, mortgage or pledge any property to or with the Trustee, or to make such other provisions in regard to matters
or questions arising under this Indenture as shall not adversely affect, in any material respect, the interests of any Holders of Securities
of any Series.
Section 9.02. With Consent of
Holders.
The Company and the Trustee may amend this Indenture
or the Securities of any Series without notice to any Holder but with the written consent of the Holders of at least a majority in
principal amount of the Securities of any Series then outstanding and affected by such amendment (including consents obtained in
connection with a purchase of, or tender offer or exchange for, the Securities) and any past default or compliance with any provisions
may also be waived with the consent of the Holders of at least a majority in principal amount of the Securities of any Series then
outstanding and affected. However, without the consent of each Holder affected thereby, an amendment or waiver may not:
(1) reduce
the percentage of the principal amount of the outstanding Securities of any Series, the consent of whose Holders is required for any amendment;
(2) reduce
the principal amount of, or interest on, or extend the Stated Maturity or interest payment periods of, any Security;
(3) change
the provisions applicable to the redemption of any Security;
(4) make
any Security payable in money or securities other than those stated in the Security;
(5) impair
the right of any Holder of the Securities to receive payment of principal of and interest on such Holder’s Securities on or after
the due dates therefor or to institute suit for the enforcement of any payment on or with respect to such Holder’s Securities;
(6) except
as otherwise provided pursuant to Article VIII under this Indenture, release any security or Guarantee that may have been granted
with respect to any Security;
(7) in
the case of any subordinated Securities, or coupons appertaining thereto, make any change in the provisions of this Indenture relating
to subordination that adversely affects the rights of any Holder under such provisions (including any contractual subordination of senior
unsubordinated debt securities);
(8) expressly
subordinate the Securities to any other Indebtedness of the company or its Subsidiaries; or
(9) make
any change in Section 6.04 or 6.07 or the second sentence of this Section.
It shall not be necessary for the consent of the
Holders under this Section to approve the particular form of any proposed amendment, but it shall be sufficient if such consent approves
the substance thereof.
After an amendment under this Section becomes
effective, the Company shall send to all affected Holders a notice briefly describing such amendment. The failure to give such notice
to all Holders, or any defect therein, shall not impair or affect the validity of an amendment under this Section.
Section 9.03. Compliance with
Trust Indenture Act.
Every amendment to this Indenture or the Securities
shall comply with the Trust Indenture Act as then in effect.
Section 9.04. Revocation and
Effect of Consents and Waivers.
A consent to an amendment or a waiver by a Holder
of a Security shall bind the Holder and every subsequent Holder of that Security or portion of the Security that evidences the same debt
as the consenting Holder’s Security, even if notation of the consent or waiver is not made on the Security. However, any such Holder
or subsequent Holder may revoke the consent or waiver as to such Holder’s Security or portion of the Security if the Trustee receives
the notice of revocation before the date the amendment or waiver becomes effective. After an amendment or waiver becomes effective with
respect to Securities, it shall bind every Holder of such Securities. An amendment or waiver becomes effective upon the execution of such
amendment or waiver by the Trustee.
The Company may, but shall not be obligated to,
fix a record date for the purpose of determining the Holders entitled to give their consent or take any other action described above or
required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the immediately preceding
paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled
to give such consent or to 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 9.05. Notation on or
Exchange of Securities.
If an amendment changes the terms of a Security,
the Trustee may require the Holder of the Security to deliver it to the Trustee. The Trustee may place an appropriate notation on the
Security regarding the changed terms and return it to the Holder. Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Security shall issue and the Trustee shall authenticate a new Security that reflects the changed terms. Failure to
make the appropriate notation or to issue a new Security shall not affect the validity of such amendment.
Section 9.06. Trustee To Sign
Amendments.
The Trustee shall sign any amendment authorized
pursuant to this Article IX if the amendment does not adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may but need not sign it. In signing such amendment the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Section 7.01) shall be fully protected in relying upon, an Officer’s Certificate
and an Opinion of Counsel stating that such amendment is authorized or permitted by this Indenture.
Upon the execution of any supplemental indenture
under this Article IX, this Indenture shall be modified in accordance therewith, and such supplemental Indenture shall form a part
of this Indenture for all purposes; and every Holder theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
ARTICLE X
Miscellaneous
Section 10.01. Trust Indenture
Act Controls.
If any provision of this Indenture limits, qualifies
or conflicts with the duties imposed by, or with another provision which is required to be included in this Indenture by the Trust Indenture
Act, the duty or provision required by the Trust Indenture Act shall control. If any provision of this Indenture modifies or excludes
any provision of the Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture
as so modified or to be excluded, as the case may be.
Section 10.02. Notices.
Unless otherwise provided here in, any notice or
communication shall be in writing (including facsimile and electronic communications in PDF format) and delivered in person or mailed
by first-class mail addressed as follows:
If
to the Company:
QXO, Inc.
Five American Lane
Greenwich, Connecticut 06831
Attention: Christopher Signorello, Chief Legal Officer
With a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, NY 10019-6064
Attention: David S. Huntington, Esq.
If
to the Trustee:
[ ]
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 mailed to a Holder
shall be mailed to the Holder at the Holder’s address as it appears on the registration books of the Registrar and shall be sufficiently
given if so mailed within the time prescribed.
Failure to mail a notice or communication to a
Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is mailed in the
manner provided above, it is duly given, whether or not the addressee receives it.
The Trustee agrees to accept and act upon instructions
and directions pursuant to this Indenture sent by unsecured e-mail, pdf, facsimile transmission or other similar unsecured electronic
methods; provided, however, that the Trustee shall have received an incumbency certificate listing persons designated to
give such instructions or directions and containing specimen signatures of such designated persons, which such incumbency certificate
shall be amended and replaced whenever a person is to be added or deleted from the listing; and provided further that, the sending
party assumes any and all risks of using such unsecured delivery methods, including without limitation any risks of interception, disclosure
or delivery errors and failures.
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 Global Securities (whether by mail or otherwise), such notice shall be sufficiently given if given to the Depositary for such Security
(or its designee), pursuant to the customary procedures of the Depositary.
Section 10.03. Communication
by Holders with Other Holders.
Holders may communicate pursuant to Trust Indenture
Act § 312(b) with other Holders with respect to their rights under this Indenture or the Securities. The Company, the Trustee,
the Registrar and anyone else shall have the protection of Trust Indenture Act § 312(c).
Section 10.04. Certificate and
Opinion as to Conditions Precedent.
Upon any request or application by the Company
to the Trustee to take or refrain from taking any action under this Indenture, the Company shall furnish to the Trustee:
(1) an
Officer’s Certificate in form and substance reasonably satisfactory to the Trustee 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
(2) an
Opinion of Counsel in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
Section 10.05. Statements Required
in Certificate or Opinion.
Each certificate or opinion with respect to compliance
with a covenant or condition provided for in this Indenture shall include:
(1) a
statement that the individual making such certificate or opinion has read such covenant or condition;
(2) 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;
(3) a
statement that, in the opinion of such individual, 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
(4) a
statement as to whether or not, in the opinion of such individual, such covenant or condition has been complied with.
Section 10.06. When Securities
Disregarded.
In determining whether the Holders of the required
principal amount of Securities have concurred in any direction, waiver or consent, Securities owned by the Company or by any Person directly
or indirectly controlling or controlled by or under direct or indirect common control with the Company shall be disregarded and deemed
not to be outstanding, except that, for the purpose of determining whether the Trustee shall be protected in relying on any such direction,
waiver or consent, only Securities which the Trustee knows are so owned shall be so disregarded. Subject to the foregoing, only Securities
outstanding at the time shall be considered in any such determination.
Section 10.07. Rules by
Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for
action by or a meeting of Holders. The Registrar and the Paying Agent may make reasonable rules for their functions.
Section 10.08. Legal Holidays.
If a payment date is a Legal Holiday, payment shall
be made on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period. If a regular
record date is a Legal Holiday, the record date shall not be affected.
Section 10.09. Governing Law.
This Indenture and the Securities shall be governed
by, and construed in accordance with, the laws of the State of New York.
Section 10.10. No Recourse Against
Others.
A director, officer, employee or stockholder, as
such, of the Company shall not have any liability for any obligations of the Company under the Securities or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their creation. By accepting a Security, each Holder shall waive and
release all such liability. The waiver and release shall be part of the consideration for the issue of the Securities.
Section 10.11. Successors.
All agreements of the Company in this Indenture
and the Securities shall bind its successors and assigns. All agreements of the Trustee in this Indenture shall bind its successors.
Section 10.12. Counterparts;
Electronic Signature.
This
Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all of such
counterparts together shall constitute but one and the same instrument. 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 and signature pages for all purposes. Signatures of the parties hereto transmitted
by facsimile or PDF shall be deemed to be their original signatures for all purposes. This Indenture shall be valid, binding, and enforceable
against a party only when executed and delivered by an authorized individual on behalf of the party by means of (i) any electronic
signature permitted by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic
Transactions Act, and/or any other relevant electronic signatures law, including relevant provisions of the Uniform Commercial Code (“UCC”)
(collectively, “Signature Law”); (ii) an original manual signature; or (iii) a faxed, scanned, or photocopied manual
signature. Each electronic signature or faxed, scanned, or photocopied manual signature shall for all purposes have the same validity,
legal effect, and admissibility in evidence as an original manual signature. Each party hereto shall be entitled to conclusively rely
upon, and shall have no liability with respect to, any faxed, scanned, or photocopied manual signature, or other electronic signature,
of any party and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity thereof. This Indenture may
be executed in any number of counterparts, each of which shall be deemed to be an original, but such counterparts shall, together, constitute
one and the same instrument. For avoidance of doubt, original manual signatures shall be used for execution or indorsement of writings
when required under the UCC or other Signature Law due to the character or intended character of the writings.
Section 10.13. Table of Contents;
Headings.
The table of contents, cross-reference sheet and
headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not intended to be considered
a part hereof and shall not modify or restrict any of the terms or provisions hereof.
Section 10.14. Severability.
If any provision in this Indenture is deemed unenforceable,
it shall not affect the validity or enforceability of any other provision set forth herein, or of the Indenture as a whole.
Section 10.15. Waiver of Jury
Trial.
Each of the Company and the Trustee hereby irrevocably
waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of this
Indenture, the Securities or the transactions contemplated thereby.
Section 10.16. Force Majeure.
In no event shall the Trustee be responsible or
liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces
beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances,
nuclear or natural catastrophes or acts of God; it being understood that the Trustee shall use reasonable efforts which are consistent
with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 10.17. 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 the 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.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties have caused this
Indenture to be duly executed as of the date first written above.
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QXO, Inc. |
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Title: |
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as Trustee |
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[Signature Page to Indenture]
Exhibit 5.1
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York 10019-6064
July 29, 2024
QXO, Inc.
Five American Lane
Greenwich, CT 06831
Registration Statement on Form S-3ASR
Ladies and Gentlemen:
In connection with the Registration Statement on
Form S-3ASR (the “Registration Statement”) of QXO, Inc., a Delaware corporation (the “Company”), filed
today with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Act”), and the
rules and regulations thereunder (the “Rules”), you have asked us to furnish our opinion as to the legality of the securities
being registered under the Registration Statement. The Registration Statement relates to the registration under the Act of the following
securities of the Company (together, the “Securities”):
A. debt
securities (the “Debt Securities”);
B. shares
of preferred stock (including shares issuable upon conversion of the Debt Securities or upon the exercise of warrants or purchase contracts)
of the Company, par value $0.001 per share (the “Preferred Stock”);
C. shares
of common stock (including shares issuable upon conversion or exchange of the Debt Securities or Preferred Stock or upon the exercise
of warrants, rights or purchase contracts) of the Company, par value $0.00001 per share (the “Common Stock”);
D. depositary
shares representing a fractional share or multiple shares of Preferred Stock evidenced by depositary receipts (the “Depositary Shares”);
E. warrants
to purchase Debt Securities, Preferred Stock, Common Stock, Depositary Shares or any combination of them (the “Warrants”);
F. rights
to purchase Common Stock (the “Rights”);
G. purchase
contracts representing the Company’s obligation to sell Debt Securities, Preferred Stock, Common Stock, Depositary Shares, Warrants
or debt obligations of third parties, including government securities (the “Purchase Contracts”); and
H. units
consisting of any combination of two or more of Debt Securities, Preferred Stock, Common Stock, Depositary Shares, Warrants, Purchase
Contracts or debt obligations of third parties, including government securities (the “Units”).
The Securities are being registered for offering
and sale from time to time as provided by Rule 415 under the Act.
The Debt Securities are to be issued under an indenture
to be entered into by and between the Company and the bank or trust company identified in such indenture as the trustee with respect to
the Debt Securities (the “Indenture”). The Depositary Shares are to be issued under deposit agreements, each between the Company
and a depositary to be identified in the applicable agreement (each, a “Depositary Agreement”). The Warrants are to be issued
under warrant agreements, each between the Company and a warrant agent to be identified in the applicable agreement (each, a “Warrant
Agreement”). The Rights are to be issued under rights agent agreements, each between the Company and a rights agent to be identified
in the applicable agreement (each, a “Rights Agent Agreement”). The Purchase Contracts will be issued under purchase contract
agreements, each between the Company and a purchase contract agent to be identified in the applicable agreement (each, a “Purchase
Contract Agreement”). The Units are to be issued under unit agreements, each between the Company and a unit agent to be identified
in the applicable agreement (each, a “Unit Agreement”).
In connection with the furnishing of this opinion,
we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents:
1. the
Registration Statement; and
2. the
form of Indenture (including the form of Securities included therein) attached as Exhibit 4.11 to the Registration Statement.
In addition, we have examined (i) such corporate
records of the Company, including a copy of the Fifth Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws
of the Company and copies of resolutions of the board of directors of the Company relating to the issuance of the Securities certified
by the Company, and (ii) such certificates, agreements and documents as we deemed relevant and necessary as a basis for the opinions
expressed below. We have also relied upon the factual matters contained in the representations and warranties of the Company made in the
documents reviewed by us and upon certificates of public officials and the officers of the Company.
In our examination of the documents referred to above,
we have assumed, without independent investigation, the genuineness of all signatures, the legal capacity of all individuals who have
executed any of the documents reviewed by us, the authenticity of all documents submitted to us as originals, the conformity to the originals
of all documents submitted to us as certified, photostatic, reproduced or conformed copies of valid existing agreements or other documents,
the authenticity of all such latter documents and that the statements regarding matters of fact in the certificates, records, agreements,
instruments and documents that we have examined are accurate and complete.
We have also assumed, without independent investigation,
that (i) the Indenture will be duly authorized, executed and delivered by the parties to it in substantially the form filed as an
exhibit to the Registration Statement and will be duly qualified under the Trust Indenture Act of 1939, as amended, (ii) each of
the Depositary Agreements, the Warrant Agreements, the Rights Agent Agreements, the Purchase Contract Agreements, the Unit Agreements
and any other agreement entered into, or officer’s certificates or board resolutions delivered, in connection with the issuance
of the Securities will be duly authorized, executed and delivered by the parties to such agreements (such agreements and documents, together
with the Indenture, are referred to collectively as the “Operative Agreements”), (iii) each Operative Agreement, when
so authorized, executed and delivered, will constitute a legal, valid and binding obligation of the parties thereto (other than the Company),
(iv) the Depositary Shares, the Warrants, the Rights, the Purchase Contracts, the Units and any related Operative Agreements will
be governed by the laws of the State of New York, (v) in the case of Purchase Contracts or Units consisting at least in part of debt
obligations of third parties, such debt obligations at all relevant times constitute the legal, valid and binding obligations of the issuers
thereof enforceable against the issuers thereof in accordance with their terms and (vi) the execution, delivery and performance of
the Operative Agreements and the Securities and issuance of the Securities do not conflict with or constitute a breach of the terms of
any agreement or instrument to which the Company is subject or violate applicable law or contravene any requirement or restriction imposed
by any court or governmental body having jurisdiction over the Company.
With respect to the Securities of a particular series
or issuance, we have assumed that (i) the issuance, sale, number or amount, as the case may be, and terms of the Securities to be
offered from time to time will be duly authorized and established, in accordance with the organizational documents of the Company, the
laws of the State of New York and the State of Delaware, and any applicable Operative Agreement, (ii) prior to the issuance of a
series of Preferred Stock, an appropriate certificate of designation or board resolution relating to such series of Preferred Stock will
have been duly authorized by the Company and filed with the Secretary of State of Delaware, (iii) the Securities will be duly authorized,
executed, issued and delivered by the Company, and, in the case of Debt Securities, Depositary Shares, Warrants, Rights, Purchase Contracts
and Units, duly authenticated or delivered by the applicable trustee or agent, in each case, against payment by the purchaser at the agreed-upon
consideration and (iv) the Securities will be issued and delivered as contemplated by the Registration Statement and the applicable
prospectus supplement.
Based upon the above, and subject to the stated assumptions,
exceptions and qualifications, we are of the opinion that:
1. When
the specific terms of a particular issuance of Debt Securities (including any Debt Securities duly issued upon exercise, exchange or conversion
of any Security in accordance with its terms) have been duly authorized by the Company and such Debt Securities have been duly executed,
authenticated, issued and delivered, and, if applicable, upon exercise, exchange or conversion of any Security in accordance with its
terms, such Debt Securities will constitute legal, valid and binding obligations of the Company enforceable against the Company in accordance
with their terms.
2. Upon
due authorization by the Company of the issuance and sale of shares of a series of Preferred Stock, and, if applicable, upon exercise,
exchange or conversion of any Security in accordance with its terms, such shares of Preferred Stock will be validly issued, fully paid
and non-assessable.
3. Upon
due authorization by the Company of the issuance and sale of shares of Common Stock, and, if applicable, upon exercise, exchange or conversion
of any Security in accordance with its terms, such shares of Common Stock will be validly issued, fully paid and non-assessable.
4. When
Depositary Shares evidenced by depositary receipts are issued and delivered in accordance with the terms of a Depositary Agreement against
the deposit of duly authorized, validly issued, fully paid and non-assessable shares of Preferred Stock, such Depositary Shares will entitle
the holders thereof the rights specified in the Depositary Agreement and such Depositary Shares will constitute, legal, valid and binding
obligations of the Company enforceable against the Company in accordance with their terms.
5. When
the specific terms of a particular issuance of Warrants have been duly authorized by the Company and such Warrants have been duly executed,
authenticated, issued and delivered, such Warrants will constitute legal, valid and binding obligations of the Company enforceable against
the Company in accordance with their terms.
6. When
the specific terms of a particular issuance of Rights have been duly authorized by the Company and such Rights have been duly executed,
authenticated, issued and delivered, such Rights will constitute legal, valid and binding obligations of the Company enforceable against
the Company in accordance with their terms.
7. When
any Purchase Contracts have been duly authorized, executed and delivered by the Company, such Purchase Contracts will constitute legal,
valid and binding obligations of the Company enforceable against the Company in accordance with their terms.
8. When
any Units have been duly authorized, issued and delivered by the Company, such Units will constitute legal, valid and binding obligations
of the Company enforceable against the Company in accordance with their terms.
The opinions expressed above as to enforceability
may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting
creditors’ rights generally, (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding
in equity or at law) and (iii) requirements that a claim with respect to any Securities in denominations other than in United States
dollars (or a judgment denominated other than into United States dollars in respect of the claim) be converted into United States dollars
at a rate of exchange prevailing on a date determined by applicable law.
The opinions expressed above are limited to the laws
of the State of New York and the Delaware General Corporation Law. Our opinion is rendered only with respect to the laws, and the rules,
regulations and orders under those laws, that are currently in effect.
We hereby consent to use of this opinion as an exhibit
to the Registration Statement and to the use of our name under the heading “Legal Matters” contained in the prospectus included
in the Registration Statement. In giving this consent, we do not hereby admit that we come within the category of persons whose consent
is required by the Act or the Rules.
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Very truly yours, |
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/s/ Paul,
Weiss, Rifkind, Wharton & Garrison LLP |
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Paul,
Weiss, Rifkind, Wharton & Garrison LLP |
Exhibit 23.1
Independent
Registered Public Accounting Firm’s Consent
We consent to the incorporation by reference in
this Registration Statement of QXO, Inc. (f/k/a SilverSun Technologies, Inc.) on Form S-3 of our report dated March 14,
2024, with respect to our audits of the consolidated financial statements of QXO, Inc. (f/k/a SilverSun Technologies, Inc.)
as of December 31, 2023 and 2022 and for the years ended December 31, 2023 and 2022 appearing in the Annual Report on Form 10-K
of QXO, Inc. (f/k/a SilverSun Technologies, Inc.) for the year ended December 31, 2023. We also consent to the reference
to our firm under the heading “Experts” in the Prospectus, which is part of this Registration Statement.
/s/ Marcum llp
Marcum llp
Marlton, New Jersey
July 29, 2024
Exhibit 107
Calculation of Filing Fee Tables
Form S-3
(Form Type)
QXO, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered and Carry Forward
Securities
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Security
Type |
Security
Class Title |
Fee
Calculation
or Carry
Forward
Rule (1) |
Amount
Registered
(2) |
Proposed
Maximum
Offering
Price Per
Unit (2) |
Maximum
Aggregate
Offering Price
(2) |
Fee Rate
(1) |
Amount of
Registration
Fee(1) |
Carry
Forward
Form
Type |
Carry
Forward
File
Number |
Carry
Forward
Initial
Effective
Date |
Filing Fee
Previously
Paid In
Connection
with Unsold
Securities to
be Carried
Forward |
| Newly Registered Securities |
| Fees to Be Paid |
Equity |
Common Stock, par value
$0.00001 per
share |
Rule 456(b) and 457(r) |
– |
– |
– |
– |
– |
– |
– |
– |
– |
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Equity |
Preferred Stock, par value $0.001 per share |
Rule 456(b) and 457(r) |
– |
– |
– |
– |
– |
– |
– |
– |
– |
| |
Debt |
Debt Securities |
Rule 456(b) and 457(r) |
– |
– |
– |
– |
– |
– |
– |
– |
– |
| |
Other |
Depositary Shares |
Rule 456(b) and 457(r) |
– |
– |
– |
– |
– |
– |
– |
– |
– |
| |
Other |
Warrants |
Rule 456(b) and 457(r) |
– |
– |
– |
– |
– |
– |
– |
– |
– |
| |
Other |
Rights |
Rule 456(b) and 457(r) |
– |
– |
– |
– |
– |
– |
– |
– |
– |
| |
Other |
Purchase Contracts |
Rule 456(b) and 457(r) |
– |
– |
– |
– |
– |
– |
– |
– |
– |
| |
Other |
Units |
Rule 456(b) and 457(r) |
– |
– |
– |
– |
– |
– |
– |
– |
– |
| Fees Previously Paid |
N/A |
N/A |
N/A |
N/A |
N/A |
N/A |
N/A |
N/A |
|
|
|
|
| Carry Forward Securities |
| Carry Forward Securities |
N/A |
N/A |
N/A |
N/A |
|
N/A |
|
|
N/A |
N/A |
N/A |
N/A |
| |
Total Offering Amounts |
|
N/A |
|
N/A |
|
|
|
|
| |
Total Fees Previously Paid |
|
|
|
N/A |
|
|
|
|
| |
Total Fee Offsets |
|
|
|
N/A |
|
|
|
|
| |
Net Fee Due |
|
|
|
N/A |
|
|
|
|
| (1) | In accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended,
QXO, Inc. (“QXO”) is deferring payment of all of the registration fee. Registration fees will be paid subsequently on
a “pay as you go” basis. QXO will calculate the registration fee applicable to an offer of securities pursuant to this Registration
Statement based on the fee payment rate in effect on the date of such fee payment. |
| (2) | An indeterminate aggregate initial offering price and number or amount of the securities of each identified
class is being registered as may from time to time be issued at indeterminate prices, including securities that may be issued upon exercise,
conversion, settlement or exchange of, any securities offered hereunder. |
SilverSun Technologies (NASDAQ:SSNT)
過去 株価チャート
から 6 2024 まで 7 2024
SilverSun Technologies (NASDAQ:SSNT)
過去 株価チャート
から 7 2023 まで 7 2024
