As filed with the Securities and Exchange Commission on October 26, 2011\n
Registration No. 333-
\n
\n
UNITED STATES
\nSECURITIES AND EXCHANGE COMMISSION
FORM S-3\n
REGISTRATION STATEMENT
The Securities Act of 1933
\n
BRADY CORPORATION
\n
| \n | \n | |
| WISCONSIN | \n\n | 39-0178960 |
| (State or other jurisdiction of \nincorporation or organization) | \n\n | (I.R.S. Employer |
6555 West Good Hope Road
(414) 358-6600
\n(Address, including ZIP Code, and telephone number, including area code, of Registrant’s principal executive offices)\n
THOMAS J. FELMER
Brady Corporation\n
6555 West Good Hope Road
Milwaukee, Wisconsin 53201-0571
\n(414) 358-6600
Copy to:\n
HOYT R. STASTNEY, ESQ.
411 East Wisconsin Avenue
\nMilwaukee, Wisconsin 53202
Approximate\ndate of commencement of proposed sale of the securities to the public: At such time or from time to time after the effective date of this Registration Statement as determined in light of market conditions and other factors.
\nIf the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check\nthe following box. ¨
If any of the securities being\nregistered 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\nbox. x
If this Form is filed to register additional\nsecurities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same\noffering. ¨
If this Form is a post-effective amendment\nfiled 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\na post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. x\n
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to\nregister additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
\nIndicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller\nreporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
\n\n
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| \n | \n | Large accelerated filer | \n\n | x | \n\n | Accelerated filer | \n\n | ¨ |
| \n | \n | \n | \n | |||||
| \n | \n | Non-accelerated filer | \n\n | ¨ (Do not check if a smaller reporting company) | \n\n | Smaller reporting company. | \n\n | ¨ |
CALCULATION OF REGISTRATION FEE
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| Title of each class of \nsecurities to be registered | \n\n | Amount \nto be \nregistered | \n\n | Proposed \nmaximum \naggregate \noffering price | \n\n | Proposed \nmaximum \noffering price | \n\n | Amount of \nregistration fee |
| Debt securities | \n\n | (1) (2) | \n\n | (1) | \n\n | (1) | \n\n | |
| Class A Nonvoting Common Stock, par value $.01 per share | \n\n | (1) (2) | \n\n | (1) | \n\n | (1) | \n\n | |
| Total | \n\n | \n | \n | (1) | \n\n | (1) | \n\n | (3) |
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\n
| (1) | \nThere are being registered hereunder such indeterminate number, principal amount or liquidation of debt securities, and common stock of Brady Corporation, as may from\ntime to time be issued at indeterminate prices. Any securities registered hereunder may be sold separately or as units with other securities registered hereunder. |
| (2) | \nAlso includes such indeterminate number of debt securities and common stock as may be issued upon conversion or exchange of any debt securities that provide for\nconversion or exchange into other securities for such securities. No separate consideration will be received for the debt securities or common stock issuable upon conversion of or in exchanges for debt securities. |
| (3) | \nIn accordance with Rules 456(b) and 457(c), the Registrant is deferring payment of the registration fee. Pursuant to Rule 457(p) under the Securities Act of 1933,\n$30,131 of the registration fee for the securities issued under this registration statement will be offset by the registration fees paid in connection with the unsold securities registered by Brady Corporation under Registration Statement\nNo. 333-128023 filed on September 1, 2005 and declared effective on November 10, 2005. |
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PROSPECTUS
DEBT SECURITIES
\nCLASS A NONVOTING COMMON STOCK
When we offer\nsecurities, we will provide you with a prospectus supplement describing the terms of the specific issue of securities, including the offering price of the securities. The prospectus supplement may also add, update or change information contained in\nthis prospectus. You should read this prospectus and any supplement carefully before you invest.
We may offer from time to\ntime:
\n
| \n | • | \n\n | unsecured debt securities consisting of debentures, notes and/or other evidences of unsecured indebtedness in one or more series;\n |
\n
| \n | • | \n\n | Class A Nonvoting Common Stock, $0.01 par value per share; and |
\n
| \n | • | \n\n | any combination of the foregoing at prices and on terms to be determined at or prior to the time of sale in light of market conditions at the time of\nsale. |
Our Class A Nonvoting common stock is quoted on the New York Stock Exchange, under the symbol\n“BRC.”
Investment in our securities involves risks. See “Risk Factors” in our most recent Annual\nReport on Form 10-K and in any applicable prospectus supplement and/or other offering material for a discussion of certain factors which should be considered in an investment of the securities which may be offered hereby.
\n
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or\ndetermined if this prospectus is truthful and complete. Any representation to the contrary is a criminal offense.
The date of\nthis prospectus is October 26, 2011.
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| \n | \n | \n | 4.3 | \n|
| \n | \n | \n | 5.1 | \n|
| STATEMENT OF COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES | \n\n | \n | 12.1 | \n|
| \n | \n | \n | 23.1 | \n
* * *\n
No person has been authorized to give any information or to make any representation not contained in, or incorporated by\nreference into, this prospectus or the accompanying prospectus supplement. You must not rely on any unauthorized information or representation. We do not imply or represent by delivering this prospectus that Brady Corporation, or its business, is\nunchanged after the date of the prospectus or that the information in this prospectus is correct as of any time after its date.
\nThe information in this prospectus or any prospectus supplement may not contain all of the information that may be important to you. You\nshould read the entire prospectus and any prospectus supplement, as well as the documents incorporated by reference into this prospectus or any accompanying prospectus supplement, before making an investment decision.
\nWhen used in this prospectus and any prospectus supplement, the terms “Brady,”\n“we,” “our,” “us” and the “Company” refer to Brady Corporation and its subsidiaries.
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FORWARD-LOOKING STATEMENTS AND CAUTIONARY FACTORS
\nAll statements other than statements of historical facts included or incorporated by reference into this prospectus, including statements\nregarding our future financial position, business strategy, budgets, projected costs, and plans and objectives for future operations are “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of\n1995. These statements are subject to risks and uncertainties that could cause actual results to differ materially from those anticipated as of the date of this prospectus. Forward-looking statements generally can be identified by the use of\nforward-looking words such as “may,” “will,” “expect,” “intend,” “estimate,” “anticipate,” “believe,” or “continue” or words of similar meaning.
\nSome of the factors that could cause such a variance are disclosed in the section “Risk Factors” in our most recent Annual\nReport on Form 10-K, any applicable prospectus supplement and elsewhere in this prospectus and documents incorporated by reference into this prospectus, and include the following, among others:
\n\n
| \n | • | \n\n | our financial condition, results of operations, cash flows, or liquidity may be adversely affected by a prolonged economic downturn or economic\nuncertainty. |
\n
| \n | • | \n\n | market demand for our products may be susceptible to fluctuations in the economy that may cause volatility in our results of operations, cash flows and\nliquidity. |
\n
| \n | • | \n\n | the increase in our level of indebtedness could adversely affect our financial health and make us vulnerable to adverse economic conditions.\n |
\n
| \n | • | \n\n | our net earnings could be affected by changes in tax legislation or tax rates. |
\n
| \n | • | \n\n | we may be adversely impacted by an inability to identify, complete and integrate acquisitions. |
\n
| \n | • | \n\n | if we fail to develop new products or our customers do not accept the new products we develop, our business could be adversely affected.\n |
\n
| \n | • | \n\n | we operate in competitive markets and may be forced to cut our prices or incur additional costs to remain competitive, which may have a negative impact\non our profitability. |
\n
| \n | • | \n\n | foreign currency fluctuations could adversely affect our sales, profits and net assets. |
\n
| \n | • | \n\n | our goodwill or other intangible assets may become impaired, which may negatively impact our results of operations. |
\n
| \n | • | \n\n | we have a concentration of business with several large key customers and distributors and loss of one or more of these customers could significantly\naffect our results of operations, cash flows, and liquidity. |
\n
| \n | • | \n\n | we increasingly conduct a sizeable amount of our manufacturing outside of the United States, which may present additional risks to our business.\n |
\n
| \n | • | \n\n | environmental, health and safety laws and regulations could adversely affect our business. |
\n
| \n | • | \n\n | we may be unable to successfully complete our restructuring plans to reduce costs and increase efficiencies in our businesses, and therefore, we may\nnot achieve projected financial statement benefits. |
We urge you to consider these factors and to review\ncarefully the section titled “Risk Factors” in our most recent Annual Report on Form 10-K, any applicable prospectus supplement or other offering material and/or any other document that we file with the SEC before investing in our\nsecurities. The forward-looking statements included in this document or in the documents incorporated by reference into this document are made only as of the date of this document or the date of the incorporated document, and we undertake no\nobligation to publicly update these statements to reflect subsequent events or circumstances except as required by law.
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\n\n\n\n
Brady, a Wisconsin corporation founded in 1914, is an international manufacturer and marketer of identification solutions and specialty\nmaterials that identify and protect premises, products, and people. Our product lines include facility identification; safety and complementary products; wire and cable identification products; sorbent materials; people identification products;\nregulatory publishing; high-performance identification products for product identification and work-in-process identification; and bar-code labels and precision die-cut components for mobile telecommunications devices, hard disk drives, medical\ndevices and supplies, and automotive and numerous other electronics industry applications. The Company serves customers in general manufacturing, maintenance and safety, process industries, construction, electrical, telecommunications, electronics,\nlaboratory/healthcare, airline/transportation, brand protection, education, governmental, public utility, and a variety of other industries.
WHERE YOU CAN FIND MORE INFORMATION
\nBrady Corporation files annual, quarterly and current reports and other information with the Securities and Exchange Commission. We have\nalso filed a registration statement on Form S-3, including exhibits and schedules, under the Securities Act of 1933 with respect to the securities that we may issue from time to time. This prospectus is a part of that registration statement,\nbut does not contain all of the information included in the registration statement or the exhibits and schedules. You may read and copy the registration statement and any reports, statements or other information filed by us with the SEC at the SEC's\npublic reference facility at:
Room 1580
Washington, D.C. 20549
\nYou may obtain information on the operation of the public reference room by calling the SEC at 1-800-SEC-0330. The SEC also maintains a\nwebsite at http://www.sec.gov that contains reports and other information regarding issuers like us that file electronically with the SEC. You may also obtain copies of these materials through our web site, http://www.investor.bradycorp.com.\nInformation on our website does not constitute part of this prospectus.
Our common stock is listed on the New York Stock\nExchange and reports and other information concerning us can be inspected at the New York Stock Exchange located at 20 Broad Street, New York, New York 10005.
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The SEC allows us to \"incorporate by reference\" into this prospectus information that we\nfile with the SEC. This means that:
\n
| \n | • | \n\n | we can disclose important information to you by referring to other documents that contain that information; |
\n
| \n | • | \n\n | the information incorporated by reference is considered to be part of this prospectus; and |
\n
| \n | • | \n\n | any information that we file with the SEC in the future is automatically incorporated into this prospectus and updates and supersedes previously filed\ninformation, including information contained in this prospectus. |
We incorporate by reference into this\nprospectus the following documents, and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after the date of this prospectus until we sell all of the securities that we have\nregistered under the registration statement of which this is a part:
\n
| \n | • | \n\n | Our Annual Report on Form 10-K for the year ended July 31, 2011; |
\n
| \n | • | \n\n | Our Current Reports on Form 8-K filed September 2, 2011 and September 15, 2011 (incorporated only with respect to the information disclosed\npursuant to Item 8.01); and |
\n
| \n | • | \n\n | That portion of our Registration Statement on Form 8-A filed April 27, 1999 that describes our Class A Nonvoting Common Stock in Item 1\nthereof, which incorporates the description from the description of our capital stock contained in our Registration Statement on Form S-3 (Registration Statement No. 333-04155), filed May 21, 1996, and any further amendment or report\nupdating that description. |
You may request a copy of any of these filings, at no cost, by writing to\nInvestor Relations, Brady Corporation, P.O. Box 571, Milwaukee, WI 53201-0571, or e-mail at investor@bradycorp.com, or by calling Investor Relations at (414) 438-6895.
\nIf we have incorporated by reference any statement or information into this prospectus and we subsequently modify that statement or\ninformation, the statement or information incorporated into this prospectus is also modified or superseded in the same manner. This prospectus incorporates by reference any subsequently filed document.
\n\n
| \n | • | \n\n | refinance, in part, existing indebtedness; |
\n
| \n | • | \n\n | finance, in part, the cost of acquisitions; |
\n
| \n | • | \n\n | finance capital expenditures and capacity expansion; and/or |
\n
| \n | • | \n\n | general corporate purposes and working capital. |
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RATIO OF EARNINGS TO FIXED CHARGES
\nThe following table sets forth our ratio of earnings to fixed charges for each of the five years ended July 31, 2011, 2010, 2009, 2008\nand 2007.
\n
| \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | |
| \n | \n | Years Ended July 31, | \n||||||||||||||||||
| \n | \n | 2011 | \n\n | \n | 2010 | \n\n | \n | 2009 | \n\n | \n | 2008 | \n\n | \n | 2007 | \n||||||
| Ratio of Earnings to Fixed Charges | \n\n | \n | 7.0 | \n\n | \n | \n | 5.7 | \n\n | \n | \n | 4.6 | \n\n | \n | \n | 7.4 | \n\n | \n | \n | 7.0 | \n|
| \n | \n | \n | \n | \n | ||||||||||||||||
| Ratio of Earnings to Fixed Charges | \n\n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n |
For the purposes of computing the ratio of earnings to fixed charges, earnings consist of income before\nincome taxes plus fixed charges, less interest capitalized, preferred stock dividends and premium on redemption of preferred stock. Fixed charges consist of interest expensed and capitalized, amortization of debt expenses, 8.5% of rent expenses,\nwhich is deemed representative of an interest factor and preferred stock dividends and premium on redemption of preferred stock. Interest excludes uncertain tax positions which is included in income tax expense.
\nDESCRIPTION OF DEBT SECURITIES
The particular terms of the debt securities offered by a prospectus\nsupplement will be described in that supplement, along with any applicable modifications of or additions to the general terms of the debt securities as described herein and in the Indenture. Accordingly, for a description of the terms of any series\nof debt securities, reference must be made to both the description of the debt securities in this prospectus and the prospectus supplement.
\nGeneral
The Indenture\ndoes not limit the amount of debt securities that can be issued or our ability or that of our subsidiaries to incur, assume or guarantee debt. Also, the Indenture does not restrict our ability or that of our subsidiaries to create or permit liens.\nIt provides that the debt securities may be issued from time to time in one or more series pursuant to the terms of one or more Securities Resolutions or supplemental indentures creating the series.
\nAs of the date of this prospectus, there were no debt securities outstanding under the Indenture. The ranking of a series of debt\nsecurities with respect to all our indebtedness will be established by a Securities Resolution or supplemental indenture creating the series.
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\n\n\n\n
Terms
\n
| \n | • | \n\n | the designation, denominations, aggregate principal amount, currency or composite currency in which principal or interest may be paid;\n |
\n
| \n | • | \n\n | the price at which those debt securities will be issued and, if an index formula or other method is used, the method for determining amounts of\nprincipal or interest; |
\n
| \n | • | \n\n | the maturity date and other dates, if any, on which principal will be payable; |
\n
| \n | • | \n\n | the interest rate or rates, if any, or method of calculating the interest rate or rates; |
\n
| \n | • | \n\n | the date or dates from which interest will accrue and on which interest will be payable, and the record dates for the payment of interest;\n |
\n
| \n | • | \n\n | the manner of paying principal and interest; |
\n
| \n | • | \n\n | the place or places where principal and interest will be payable; |
\n
| \n | • | \n\n | provisions relating to subsidiary guarantees, if any; |
\n
| \n | • | \n\n | the terms of any mandatory or optional redemption by us including any sinking fund; |
\n
| \n | • | \n\n | whether the debt securities may be converted into or exchanged for common stock or any other securities, and the terms of any conversion or exchange\nright; |
\n
| \n | • | \n\n | the terms of any redemption at the option of holders; |
\n
| \n | • | \n\n | any tax indemnity provisions; |
\n
| \n | • | \n\n | if the debt securities provide that payments of principal or interest may be made in a currency other than that in which debt securities are\ndenominated, the manner for determining those payments; |
\n
| \n | • | \n\n | the portion of principal payable upon acceleration of a discounted debt security (as defined below); |
\n
| \n | • | \n\n | whether and upon what terms debt securities may be defeased; |
\n
| \n | • | \n\n | whether any events of default or covenants in addition to or in lieu of those set forth in the Indenture apply; |
\n
| \n | • | \n\n | provisions for electronic issuance of debt securities or for debt securities in uncertificated form; |
\n
| \n | • | \n\n | the ranking of the debt securities; and |
\n
| \n | • | \n\n | any other terms not inconsistent with the provisions of the Indenture, including any covenants or other terms that may be required or advisable.\n |
We may issue debt securities as registered debt securities, bearer debt securities or uncertificated debt\nsecurities, and in any denominations specified in the terms of the series.
In connection with its original issuance, no\nbearer debt security will be offered, sold or delivered to any location in the United States, and a bearer debt security in definitive form may be delivered in connection with its original issuance only upon presentation of a certificate in a form\nprescribed by us to comply with United States laws and regulations.
Registration of transfer of registered debt securities\nmay be requested upon surrender thereof at any office or agency we maintain for that purpose and upon fulfillment of all other requirements of the agent.
The terms, if any, on which debt securities of any\nseries will be convertible into or exchangeable for our common stock or other equity or debt securities, property, cash or obligations, or a combination of any of the foregoing, will be summarized in a prospectus supplement relating to that series.\nThe terms may include provisions for conversion or exchange, either on a mandatory basis, at the option of the holder or at our option.
\nCovenants
Any covenants\nthat may apply to a particular series of debt securities will be described in the prospectus supplement relating to that series.
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\n\n\n\n
Ranking of Debt Securities
Successor Obligor\n
The Indenture provides that, unless otherwise specified in the securities resolution which establishes a series of debt\nsecurities, we shall not consolidate with or merge into, or transfer all or substantially all of our assets to, any person in any transaction in which we are not the survivor, unless:
\n\n
| \n | • | \n\n | the person is organized under the laws of the United States or a state thereof or is organized under the laws of a foreign jurisdiction and consents to\nthe jurisdiction of the courts of the United States or a state thereof; |
\n
| \n | • | \n\n | the person assumes by supplemental indenture all of our obligations under the Indenture, the debt securities and any coupons;\n |
\n
| \n | • | \n\n | all required approvals of any regulatory body having jurisdiction over the transaction shall have been obtained; and |
\n
| \n | • | \n\n | immediately after the transaction no default, as defined below, exists. |
Default and Remedies
\nUnless the Securities Resolution establishing the series otherwise provides (in which event the prospectus supplement will so state), an\n“event of default” with respect to a series of debt securities will occur if:
\n
| \n | • | \n\n | we default in any payment of interest on any debt securities of that series when the same becomes due and payable and the default continues for the\nperiod of time set forth in the prospectus supplement; |
\n
| \n | • | \n\n | we default in the payment of the principal and premium, if any, of any debt securities of the series when the same becomes due and payable at maturity\nor upon redemption, acceleration or otherwise; |
\n
| \n | • | \n\n | we default in the performance of any of our other agreements applicable to the series and the default continues for the period of time set forth in the\nprospectus supplement after the notice specified below; |
\n
| \n | • | \n\n | pursuant to or within the meaning of any Bankruptcy Law, as defined below, we: |
\n
| \n | • | \n\n | commence a voluntary case; |
\n
| \n | • | \n\n | consent to the entry of an order for relief against us in an involuntary case; |
\n
| \n | • | \n\n | consent to the appointment of a custodian for us or for all or substantially all of our property; or |
\n
| \n | • | \n\n | make a general assignment for the benefit of our creditors; |
\n
| \n | • | \n\n | a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: |
\n
| \n | • | \n\n | is for relief against us in an involuntary case; |
\n
| \n | • | \n\n | appoints a custodian for us or for all or substantially all of our property; or |
\n
| \n | • | \n\n | orders our liquidation, |
\n
| \n | • | \n\n | there occurs any other event of default provided for in such series. |
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\n\n\n\n
The term “Bankruptcy Law” means Title 11, U.S. Code or any similar federal or\nstate law for the relief of debtors. The term “Custodian” means any receiver, trustee, assignee, liquidator or a similar official under any Bankruptcy Law.
The Indenture does not have a cross-default provision. Thus, a default by us on any other debt, including any\nother series of debt securities, would not constitute an event of default. A Securities Resolution which establishes a series of debt securities may provide for a cross-default provision, in which case the prospectus supplement will describe the\nterms of that provision.
Amendments and Waivers
\n
| \n | • | \n\n | reduce the amount of debt securities whose holders must consent to an amendment or waiver; |
\n
| \n | • | \n\n | reduce the rate of or change or have the effect of changing the time for payment of interest, including defaulted interest, on any debt securities;\n |
\n
| \n | • | \n\n | reduce the principal of or change or have the effect of changing the fixed maturity of any debt securities, or change the date on which any debt\nsecurities may be subject to redemption or reduce the redemption price therefor; |
\n
| \n | • | \n\n | make any debt securities payable in money other than that stated in the debt securities; |
\n
| \n | • | \n\n | make any change in provisions of the Indenture protecting the right of each holder to receive payment of principal of and interest on the debt\nsecurities on or after the due date thereof or to bring suit to enforce such payment, or permitting holders of a majority in principal amount of debt securities to waive defaults or events of default; or |
\n
| \n | • | \n\n | make any change that materially adversely affects the right to convert or exchange any debt security. |
Without the consent of any debt security holder, we and the trustee may amend the Indenture, the debt securities or any coupons to:\n
\n
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\n\n\n\n
| \n | • | \n\n | cure any ambiguity, defect, or inconsistency; |
\n
| \n | • | \n\n | provide for uncertificated debt securities in addition to or in place of certificated debt securities; |
\n
| \n | • | \n\n | comply with the Indenture’s provisions relating to corporate successors or rules relating to the conduct of meetings;\n |
\n
| \n | • | \n\n | make any change that would provide any additional rights or interests under the holders of debt securities or that does not materially adversely affect\nthe rights or interests under the Indenture of any such holder; |
\n
| \n | • | \n\n | create a series and establish its terms; |
\n
| \n | • | \n\n | comply with requirements of the SEC in order to effect or maintain qualification of the Indenture under the Trust Indenture Act;\n |
\n
| \n | • | \n\n | provide that specific provisions of the Indenture shall not apply to a series not previously issued; or |
\n
| \n | • | \n\n | provide for a separate trustee for one or more series. |
Debt securities of a series may\nbe defeased in accordance with their terms and, unless the Securities Resolution establishing the terms of the series otherwise provides, as set forth in the Indenture and described briefly below. We, at any time, may terminate as to a series all of\nour obligations (except certain obligations, including obligations with respect to the defeasance trust and obligations to register the transfer or exchange of a Security, to replace destroyed, lost or stolen debt securities and coupons, and to\nmaintain paying agencies in respect of the debt securities) with respect to the debt securities of the series and any related coupons and the Indenture (“legal defeasance”). We, at any time, may terminate as to a series our obligations, if\nany, with respect to the debt securities and coupons of the series under any restrictive covenants which may be applicable to a particular series (“covenant defeasance”).
\nWe may exercise our legal defeasance option notwithstanding our prior exercise of our covenant defeasance option. If we exercise our\nlegal defeasance option, a series may not be accelerated because of an event of default. If we exercise our covenant defeasance option, a series may not be accelerated by reference to any restrictive covenants which may be applicable to the\nparticular series.
To exercise either defeasance option as to a series, we must:
\n\n
| \n | • | \n\n | irrevocably deposit in trust (the “defeasance trust”) with the trustee or another trustee money or U.S. government obligations;\n |
\n
| \n | • | \n\n | deliver a certificate from a nationally recognized firm of independent accountants expressing their opinion that the payments of principal and interest\nwhen due on the deposited U.S. government obligations, without reinvestment, plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient to pay the principal and interest when due on all debt\nsecurities of the series to maturity or redemption, as the case may be; and |
\n
| \n | • | \n\n | comply with other specified conditions; in particular, we must obtain an opinion of tax counsel that the defeasance will not result in recognition of\nany gain or loss to holders for federal income tax purposes. |
The term “government obligations”\nmeans direct obligations of, or obligations guaranteed by, the United States and for payment of which the United States pledges its full faith and credit.
A series of debt securities may be guaranteed by some of our\nsubsidiary corporations, if those guarantees are provided for in the Securities Resolution or the supplemental indenture relating to that series of debt securities. If guarantees are issued in connection with any debt securities, the terms of those\nguarantees, the names of our subsidiaries which are providing the guarantees, and additional financial information regarding the guarantor subsidiaries will be contained in the applicable prospectus supplement.
\n
9
\n\n\n\n
Regarding the Trustee
Under Brady’s Restated Articles of Incorporation, the\nauthorized capital stock of Brady consists of 100 million shares of Class A Nonvoting Common Stock, $.01 par value; 10 million shares of Class B Voting Common Stock, $.01 par value; 45,000 shares of Cumulative Preferred Stock,\n$100 par value; and 5 million shares of Preferred Stock, $.01 par value, issuable in series. The Cumulative Preferred Stock is divided into series as follows: 5,000 shares of 6.0% Cumulative Preferred Stock (entitled to a $6.00 per annum\ncumulative dividend, payable quarterly), 10,000 shares of Cumulative Preferred Stock, 1972 Series (also entitled to cumulative dividends at $6.00 per annum, payable quarterly) and 30,000 shares of Cumulative Preferred Stock, 1979 Series (entitled to\ncumulative dividends of $10.00 per annum, payable quarterly). No shares of Cumulative Preferred Stock or Preferred Stock are issued and outstanding at this time. As of September 22, 2011, there were 49,244,116, shares of Class A Nonvoting\nCommon Stock issued and outstanding and 3,538,628 shares of Class B Voting Common Stock issued and outstanding. No Brady shareholder has cumulative voting rights or preemptive or other rights to subscribe for additional Brady shares. All of the\noutstanding shares are fully paid and non-assessable (subject to the personal liability which may be imposed upon a shareholder of Wisconsin corporations by former Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially\ninterpreted, for debts incurred prior to June 14, 2006 (for debts incurred on or after such date, Section 180.0622(2)(b) has been repealed) owing to employees for services performed, but not exceeding six months service in any one case).\n
Common Stock
\nThe following is a brief description of Brady’s Common Stock. The rights of holders of the Common Stock are subject to the rights of\nholders of Brady’s Cumulative Preferred Stock and Preferred Stock.
Holders of the Class A Nonvoting Common Stock\nare not entitled to vote on any corporate matters, except as may be required by law, unless, in each of the three proceeding fiscal years, the $0.01665 preferential dividend described below has not been paid in full. Holders of the Class A\nNonvoting Common Stock are entitled to one vote per share for the election of directors and for all other purposes for the entire fiscal year immediately following the third consecutive fiscal year in which the preferential dividend is not paid in\nfull. Holders of Class B Voting Common Stock are entitled to one vote per share for the election of directors and for all other purposes.
Subject to the prior rights of any shares of Cumulative Preferred Stock and/or Preferred Stock, upon\nliquidation, dissolution, or winding up of Brady, holders of the Class A Nonvoting Common Stock are entitled to receive the sum of $0.8333 per share (subject to adjustment in the event of stock splits, stock dividends or similar events\ninvolving shares of Class A Nonvoting Common Stock) before any payment or distribution to holders of the Class B Voting Common Stock. Holders of the Class B Voting Common Stock are then entitled to receive a payment or distribution of $0.8333\nper share (subject to adjustment for stock splits, stock dividends or similar
\n
10
\n\n\n\n\n
\ntransactions involving shares of the Class B Voting Common Stock). Thereafter, holders of the Common Stock share on a pro rata basis all payments or distributions upon liquidation, dissolution or\nwinding up of Brady. The preferences in dividends and liquidation rights of the Class A Nonvoting Common Stock over the Class B Voting Common Stock will terminate at any time that the voting rights of Class A Nonvoting Common Stock and\nClass B Voting Common Stock become equal, other than as required by law or upon nonpayment of dividends as described above.
\nThe transfer agent for the Class A Nonvoting Common Stock is Wells Fargo Bank Minnesota, N.A., St. Paul, Minnesota.
\nCumulative Preferred Stock
No\ndividends may be paid and no distributions may be made on the Common Stock (except dividends payable in Common Stock) and no shares of Common Stock may be purchased or acquired for value by Brady (except shares acquired in exchange for, or through\napplication of the proceeds or sale of, shares of Common Stock), unless (a) all accrued dividends on all classes of the Cumulative Preferred Stock have been paid and (b) the net assets of Brady which would remain after the dividend,\ndistribution or acquisition relating to the Common Stock would be at least twice the amount payable to holders of the Cumulative Preferred Stock in the event of voluntary liquidation, or unless authorized by the affirmative vote or written consent\nof the holders of at least two-thirds of the outstanding shares of the Cumulative Preferred Stock.
In the event of\ndissolution, liquidation or winding up of our affairs and after payment of all our debts, the Cumulative Preferred Stock must be redeemed at par value plus accrued but unpaid dividends, if any, before any payment may be made on account of the Common\nStock, and, in the case of a voluntary dissolution, a premium of $6.00 per share must also be paid on each share of Cumulative Preferred Stock before any payment may be made on account of the Common Stock. The Cumulative Preferred Stock is subject\nto redemption at our option on any quarterly dividend paying date at par plus all accrued and unpaid dividends plus a premium of $6.00 per share.
Preferred Stock
\nOur Restated Articles of Incorporation authorize our Board of Directors to issue from time to time Preferred Stock in series and to fix\nthe powers, preferences, rights, qualifications, limitations or restrictions of any series with respect to the rate of dividend, price and terms of redemption, the amounts payable in the event of voluntary or involuntary liquidation, any sinking\nfund provisions for redemption or repurchase, the terms and conditions of conversion into any other class or series of our stock and voting rights, if any. No series of Preferred Stock is issued and outstanding at this time.
\nOur Board of Directors, without shareholder approval, could issue Preferred Stock with voting and conversion rights which could adversely\naffect the voting power and liquidation rights of the holders of Common Stock.
\n
11
\n\n\n\n\n
Additional Terms and Certain Statutory Provisions
\nThe provisions of our Restated Articles of Incorporation and our By-Laws may delay or make more difficult acquisitions or changes of\ncontrol of Brady not approved by our Board of Directors. Such provisions could have the effect of discouraging third parties from making proposals involving an acquisition or change of control of us, although such proposals, if made, might be\nconsidered desirable by a majority of our shareholders. Such provisions may also have the effect of making it more difficult for third parties to cause the replacement of our current management without the concurrence of the Board of Directors.\n
Voting control of Brady is vested in the holders of Class B Voting Common Stock. As a result, the holders of the Class B\nVoting Common Stock will be able to elect or remove all of our Board of Directors and, except as otherwise required by applicable law or the Restated Articles of Incorporation, will be able to determine the outcome of all matters submitted for\nshareholder consideration. Such control may have the effect of discouraging certain types of transactions involving an actual or potential change of control of Brady, including transactions in which the holders of Class A Nonvoting Common Stock\nmight otherwise receive a premium for their shares over then-current market prices.
Because Brady’s Class B Voting\nCommon Stock, the only class of Brady’s capital stock generally entitled to vote on the election of directors, is not registered or traded on a national securities exchange or registered under Section 12(g) of the Securities Exchange Act\nof 1934, and Brady has not elected in its Restated Articles of Incorporation to adopt the various anti-takeover provisions of the Wisconsin Business Corporation Law, such anti-takeover provisions do not currently apply to Brady.
\nDTC, the\nworld’s largest securities depository, is a limited-purpose trust company organized under the New York Banking Law, a “banking organization” within the meaning of the New York Banking Law, a member of the Federal Reserve System, a\n“clearing corporation” within the meaning of the New York Uniform Commercial Code, and a “clearing agency” registered pursuant to the provisions of Section 17A of the Securities Exchange Act of 1934. DTC holds and provides\nasset servicing for over 3.5 million issues of U.S. and non-U.S. equity, corporate and municipal debt issues, and money market instruments from over 100 countries that DTC’s participants (“Direct Participants”) deposit with DTC.\nDTC also facilitates the post-trade settlement among Direct Participants of sales and other securities transactions in deposited securities through electronic computerized book-entry transfers and pledges between Direct Participants’ accounts.\nThis eliminates the need for physical movement of securities certificates. Direct Participants include both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, clearing corporations, and certain other organizations. DTC is a\nwholly-owned subsidiary of The Depository Trust & Clearing Corporation (“DTCC”). DTCC is the holding company for DTC, National Securities Clearing Corporation and Fixed Income Clearing Corporation, all of which are registered\nclearing agencies. DTCC is owned by the users of its regulated subsidiaries. Access to the DTC system is also available to others such as both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, and clearing corporations that\nclear through or maintain a custodial relationship with a Direct Participant, either directly or indirectly (“Indirect Participants” and together with the Direct Participants, the “Participants”). DTC has Standard &\nPoor’s highest rating: AAA. The DTC rules applicable to its Participants are on file with the Securities and Exchange Commission.
12
\n\n\n\n\n
\nreceive written confirmations providing details of the transaction, as well as periodic statements of their holdings, from the Direct or Indirect Participant through which the Beneficial owner\nentered into the transaction. Transfers of ownership interests in the securities are to be accomplished by entries made on the books of Direct and Indirect Participants acting on behalf of beneficial owners. Beneficial owners will not receive\ncertificates representing their ownership interests in Securities, except in the event that use of the book-entry system for the debt securities is discontinued.
Conveyance of notices and other communications by DTC to\nDirect Participants, by Direct Participants to Indirect Participants, and by Direct Participants and Indirect Participants to beneficial owners will be governed by arrangements among them, subject to any statutory or regulatory requirements as may\nbe in effect from time to time.
Redemption notices shall be sent to DTC. If less than all of the securities within an issue\nare being redeemed, DTC’s practice is to determine by lot the amount of the interest of each Direct Participant in such issue to be redeemed.
Redemption proceeds,\ndistributions, and dividend payments on debt Securities will be made to Cede & Co., or such other nominee as may be requested by an authorized representative of DTC. DTC’s practice is to credit Direct Participants’ accounts, upon\nDTC’s receipt of funds and corresponding detail information from Issuer or Agent on the payable date in accordance with their respective holdings shown on DTC’s records. Payments by Participants to beneficial owners will be governed by\nstanding instructions and customary practices, as is the case with securities held for the accounts of customers in bearer form or registered in “street name,” and will be the responsibility of such Participant and not of DTC, Brady, or\nany agent of either of them, subject to any statutory or regulatory requirements as may be in effect from time to time. Payment of redemption proceeds, distributions, and dividend payments to Cede & Co. (or such other nominee as may be\nrequested by an authorized representative of DTC) is the responsibility of Brady or the trustee, disbursement of such payments to Direct Participants will be the responsibility of DTC, and disbursement of such payments to the beneficial owners will\nbe the responsibility of Direct and Indirect Participants.
DTC may discontinue providing its services as securities\ndepository with respect to the securities at any time by giving reasonable notice to Brady or the trustee. Under such circumstances, in the event that a successor securities depository is not obtained, security certificates are required to be\nprinted and delivered.
We may also decide to discontinue use of the system of book-entry-only transfers through DTC (or a\nsuccessor securities depository). In that event, security certificates will be printed and delivered.
We will not have any\nresponsibility or obligation to Participants or to the persons for whom they act as nominees with respect to the accuracy of the records of DTC, its nominees or any Direct or Indirect Participants with respect to any ownership interest in the\nsecurities, or with respect to payments or providing of notice to the Direct Participants, the Indirect Participants, or the beneficial owners.
13
\n\n\n\n\n
We may sell the securities offered under this prospectus to or through underwriting syndicates represented by managing underwriters,\nthough one or more underwriters without a syndicate for them to offer and sell to the public, agents or dealers or to investors directly in negotiated sales or in competitively bid transactions.
\n
14
\n\n\n\n\n
Underwriters
The distribution of securities under this prospectus may occur from time to time in one or more transactions at a fixed price or prices,\nwhich may be changed, at market prices prevailing at the time of sale, at prices related to those prevailing market prices or at negotiated prices.
If the applicable prospectus supplement indicates,\nwe will authorize dealers or our agents to solicit offers by various institutions to purchase offered securities from us pursuant to contracts that provide for payment and delivery on a future date. We must approve all institutions, but they may\ninclude, among others:
\n
| \n | • | \n\n | commercial and savings banks; |
\n
| \n | • | \n\n | insurance companies; |
\n
| \n | • | \n\n | pension funds; |
\n
| \n | • | \n\n | investment companies; and |
\n
| \n | • | \n\n | educational and charitable institutions. |
General Information
\nUnderwriters, dealers and agents participating in a sale of securities may be deemed to be underwriters as defined in the Securities Act,\nand any discounts and commissions received by them and any profit realized by them on resale of the securities may be deemed to be underwriting discounts and commissions under the Securities Act. We may have agreements with the agents, underwriters\nand dealers to indemnify them against various civil liabilities, including liabilities under the Securities Act, or to contribute to payments that the agents, underwriters or dealers may be required to make as a result of those civil liabilities.\n
Our Class A Nonvoting Common Stock is quoted on the New York Stock Exchange under the symbol “BRC.” However,\nunless we indicate differently in a prospectus supplement, we will not list the debt securities on any securities exchange or seek to have them included on the New York Stock Exchange or any other automated quotation system. If we sell a security\noffered under this prospectus to an underwriter for public offering and sale, the underwriter may make a market for that security, but is not obligated to do so. Therefore, we cannot give any assurances to you concerning the liquidity of any\nsecurity offered under this prospectus.
Agents and underwriters and their affiliates may be customers of, engage in\ntransactions with, or perform services for us or our subsidiary companies in the ordinary course of business.
\nLEGAL MATTERS
The validity of the securities to be sold pursuant to this prospectus will be passed upon for us by\nQuarles & Brady LLP, Milwaukee, Wisconsin counsel to the Company. Legal matters will be passed upon for the underwriters, dealers or agents by counsel we will name in the applicable prospectus supplement.
\n
15
\n\n\n\n\n
The consolidated financial statements, and the related financial statement schedule, incorporated in this Prospectus by reference from\nthe Company's Annual Report on Form 10-K and the effectiveness of Brady Corporation’s internal control over financial reporting have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in\ntheir reports, which are incorporated herein by reference. Such consolidated financial statements and financial statement schedule have been so incorporated in reliance upon the reports of such firm given upon their authority as experts in\naccounting and auditing.
\n
16
\n\n\n\n\n
PART II
Item 14. Other Expenses of Issuance and\nDistribution.
The aggregate estimated expenses, other than underwriting discounts and commissions, in connection with the\nissuance and distribution of the securities covered by this Registration Statement are currently anticipated to be as follows. All expenses of the offering will be paid by the Company.
\n\n
| \n | \n | \n | \n | |
| SEC registration fee (actual) | \n\n | $ | \n(1 | \n) |
| Printing expenses | \n\n | \n | (2 | \n) |
| Legal fees and expenses | \n\n | \n | (2 | \n) |
| Accounting fees and expenses | \n\n | \n | (2 | \n) |
| Miscellaneous (including any applicable listing fees, rating agency fees, Trustee and transfer agent’s fees and\nexpenses) | \n\n | \n | (2 | \n) |
| \n | \n |
| \n
| \n|
| Total | \n\n | $ | \n(2 | \n) |
| \n | \n |
| \n
| \n
\n
| (1) | \nDeferred in accordance with Rules 456(b) and 457(r) under the Securities Act of 1933. |
| (2) | \nThe amount of securities and number of offerings are indeterminable, and the expenses cannot be estimated at this time. |
Item 15. Indemnification of Directors and Officers.
Section 180.0859 of the WBCL provides that it is\nthe public policy of the State of Wisconsin to require or permit indemnification, allowance of expenses and insurance to the extent required or permitted under Sections 180.0850 to 180.0858 of the WBCL for any liability incurred in connection\nwith a proceeding involving a federal or state statute, rule or regulation regulating the offer, sale or purchase of securities.
\n
17
\n\n\n\n\n
Section 180.0828 of the WBCL provides that, with certain exceptions, a director is not\nliable to a corporation, its shareholders, or any person asserting rights on behalf of the corporation or its shareholders, for damages, settlements, fees, fines, penalties or other monetary liabilities arising from a breach of, or failure to\nperform, any duty resulting solely from his or her status as a director, unless the person asserting liability proves that the breach or failure to perform constitutes any of the four exceptions to mandatory indemnification under\nSection 180.0851(2) referred to above.
Under Section 180.0833 of the WBCL, directors of the Registrant against whom\nclaims are asserted with respect to the declaration of an improper dividend or other distribution to shareholders to which the directors assented are entitled to contribution from other directors who assented to such distribution and from\nshareholders who knowingly accepted the improper distribution, as provided therein.
The Registrant’s Bylaws contain\nprovisions that generally parallel the indemnification provisions of the WBCL and cover certain procedural matters not dealt with in the WBCL. Directors and officers of the Registrant are also covered by directors’ and officers’ liability\ninsurance under which they are insured (subject to certain exceptions and limitations specified in the policy) against expenses and liabilities arising out of proceedings to which they are parties by reason of being or having been directors or\nofficers.
\nSee the Exhibit Index following the Signatures page in this Registration Statement, which Exhibit Index is incorporated herein by\nreference.
Item 17. Undertakings.
(1) To file, during any\nperiod in which offers or sales are being made, a post-effective amendment to this Registration Statement:
\n
| \n | (i) | \nto include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
\n
| \n | (ii) | \nto 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)\nwhich, 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\nsecurities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the\naggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and\n |
\n
| \n | (iii) | \nto include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such\ninformation in the Registration Statement; |
Provided, however, that paragraphs (a)(1)(i)\nand (a)(1)(ii) of this section do not apply if the Registration Statement is on Form S-3 or Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or\nfurnished to the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement.
\n
18
\n\n\n\n\n
(2) That, for the purpose of determining any liability under the Securities Act of 1933,\neach 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.\n
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain\nunsold at the termination of the offering.
(4) That, for purposes of determining any liability under the Securities Act of\n1933 to any purchaser:
\n
| \n | (i) | \nEach 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\ndeemed part of and included in the registration statement; and |
\n
| \n | (ii) | \nEach 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\noffering made pursuant to Rule 415(a)(1)(i),(vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be a part of and included in the registration statement as of\nthe 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\nissuer 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\nof 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\nincorporated 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 sale prior to such effective date, supersede or modify any\nstatement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. |
(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial\ndistribution 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\nto 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\npurchaser:
\n
| \n | (i) | \nAny preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;\n |
\n
| \n | (ii) | \nAny 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;\n |
\n
| \n | (iii) | \nThe portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or it securities provided by\nor on behalf of the undersigned registrant; and |
\n
| \n | (iv) | \nAny other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
19
\n\n\n\n\n
(b) The undersigned Registrant hereby undertakes that for purposes of determining any\nliability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Act of 1934 (and, where applicable, each filing of an employee benefits plan’s annual\nreport pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the\noffering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as\nindemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in\nthe opinion of the SEC such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of\nexpenses 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 against the registrant by such director, officer or controlling person in connection\nwith 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\nagainst public policy as expressed in the Act and will be governed by the final adjudication of such issue.
(d) The\nundersigned Registrants hereby undertake to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and\nregulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act.
\n
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\n\n\n\n\n
SIGNATURES
| \n | \n | |
| BRADY CORPORATION (Registrant) | ||
| \n | ||
| By: | \n\n | /s/ THOMAS J. FELMER |
| \n | \n | Thomas J. Felmer |
| \n | \n | Senior Vice President and Chief Financial Officer |
| \n | \n | (Principal Financial Officer) |
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of\n1933, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.*
\n
| \n | \n | \n | \n | |
| Signature | \n\n | Title | \n\n | |
| \n | \n | |||
| /S/ FRANK M. JAEHNERT | \n\n | President and Chief Executive Officer; Director \n(Principal Executive Officer) | \n\n | |
| \n | \n | |||
| /S/ THOMAS J. FELMER | \n\n | Senior Vice President and Chief Financial Officer \n(Principal Financial Officer) | \n\n | |
| \n | \n | |||
| /S/ KATHLEEN M. JOHNSON | \n\n | Vice President and Chief Accounting Officer \n(Principal Accounting Officer) | \n\n | |
| \n | \n | |||
| /S/ BRADLEY C. RICHARDSON | \n\n | Director | \n\n | |
| \n | \n | |||
| /S/ PATRICK W. ALLENDER | \n\n | Director | \n\n | |
| \n | \n | |||
| /S/ CHAN W. GALBATO | \n\n | Director | \n\n | |
| \n | \n | |||
| /S/ FRANK W. HARRIS | \n\n | Director | \n\n | |
| \n | \n | |||
| /S/ GARY S. BALKEMA | \n\n | Director | \n\n |
EI-1\n
\n\n\n\n
| \n | \n | \n | \n | |
| \n | \n | |||
| /S/ ELIZABETH P. PUNGELLO | \n\n | Director | \n\n | |
| \n | \n | |||
| /S/ CONRAD A. GOODKIND | \n\n | Director | \n\n |
\n
| * | \nEach of the above signatures is affixed as of October 26, 2011. |
EI-2\n
\n\n\n\n
BRADY CORPORATION
\n(the “Registrant”)
EXHIBIT INDEX
\nTO
FORM\nS-3 REGISTRATION STATEMENT
The following exhibits are filed with or incorporated by reference in this Registration\nStatement:
\n
| \n | \n | \n | \n | \n | \n | |
| Exhibit | \n\n | Description | \n\n | Incorporated Herein \nBy Reference To | \n\n | Filed |
| \n | \n | \n | ||||
| 1.1* | \n\n | Underwriting Agreement | \n\n | \n | \n | |
| \n | \n | \n | ||||
| 4.1 | \n\n | Restated Articles of Incorporation of the Registrant | \n\n | Exhibit 4.1 to the Registrant’s Registration Statement on Form S-3 (Registration No. 333-04155) | \n\n | |
| \n | \n | \n | ||||
| 4.2 | \n\n | By-Laws of the Registrant, as amended | \n\n | Exhibit 3.2 to the Registrant’s Current Report on Form 8-K filed November 23, 2010. | \n\n | |
| \n | \n | \n | ||||
| 4.3 | \n\n | Form of Indenture | \n\n | \n | \n | X |
| \n | \n | \n | ||||
| 4.4* | \n\n | Form of Debt Securities | \n\n | \n | \n | |
| \n | \n | \n | ||||
| 4.5 | \n\n | Credit Agreement, dated October 5, 2006, among the Registrant, Brady Worldwide, Inc., Tricor Direct, Inc., the lenders party thereto and Bank of America, N.A., as\nAdministrative Agent | \n\n | Exhibit 10.14 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended July 31, 2006. | \n\n | |
| \n | \n | \n | ||||
| 4.6 | \n\n | First Amendment to Credit Agreement, dated March 18, 2008 among the Registrant, Brady Worldwide, Inc., Tricor Direct, Inc., the lenders party thereto and Bank of America, N.A.,\nas Administrative Agent. | \n\n | Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed March 19, 2008. | \n\n | |
| \n | \n | \n | ||||
| 4.7 | \n\n | Note Purchase Agreement, dated June 28, 2004, among the Registrant, Brady Worldwide, Inc., Tricor Direct, Inc., and the purchasers party thereto | \n\n | Exhibit 10.1 to the Registrant’s Current Report on Form 8-K/A filed on August 3, 2004 | \n\n | |
| \n | \n | \n | ||||
| 4.8 | \n\n | First Supplement to Note Purchase Agreement dated February 14, 2006, among the Registrant, Brady Worldwide, Inc., Tricor Direct, Inc., and the purchasers party\nthereto | \n\n | Exhibit 10.1 to Registrant’s Current Report on Form 8-K filed February 17, 2006. | \n\n | |
| \n | \n | \n | ||||
| 4.9 | \n\n | Second Supplement to Note Purchase Agreement dated March 23, 2007, among the Registrant, Brady Worldwide, Inc., Tricor Direct, Inc., and the purchasers party\nthereto | \n\n | Exhibit 10.1 to Registrant’s Current Report on Form 8-K filed March 26, 2007. | \n\n |
\n
| \n | \n | \n | \n | \n | \n | |
| Exhibit | \n\n | Description | \n\n | Incorporated Herein \nBy Reference To | \n\n | Filed |
| \n | \n | \n | ||||
| 5.0 | \n\n | Note Purchase Agreement dated May 13, 2010, among the Registrant, Brady Worldwide Inc., Tricor Direct, Inc., and the purchasers party thereto | \n\n | Exhibit 10.1 to Registrant’s Current Report on Form 8-K filed May 14, 2010. | \n\n | |
| \n | \n | \n | ||||
| 5.1 | \n\n | Opinion of Quarles & Brady LLP as to the legality of the securities being registered | \n\n | \n | \n | X |
| \n | \n | \n | ||||
| 12.1 | \n\n | Statement of Computation of Ratio of Earnings to Fixed Charges | \n\n | \n | \n | X |
| \n | \n | \n | ||||
| 23.1 | \n\n | Consent of Deloitte & Touche LLP | \n\n | \n | \n | X |
| \n | \n | \n | ||||
| 23.2 | \n\n | Consent of Quarles & Brady LLP | \n\n | \n | \n | (Included \n in Exhibit |
| \n | \n | \n | ||||
| 24.1 | \n\n | Powers of Attorney | \n\n | \n | \n | (Included in the Signature Pages) |
\n
| * | \nTo be filed by amendment or as an exhibit to a Current Report on Form 8-K. |
BRADY CORPORATION,
\nas Issuer,
and\n
[ ],
\nas Trustee
\nIndenture
Dated\nas of , 201
\n\n\n
TABLE OF CONTENTS
\n\n
| \n | \n | \n | \n | |
| \n | \n | Page | \n||
| ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE | \n\n | \n | 1 | \n|
| \n | ||||
| SECTION 1.01 DEFINITIONS | \n\n | \n | 1 | \n|
| SECTION 1.02 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT | \n\n | \n | 6 | \n|
| SECTION 1.03 RULES OF CONSTRUCTION | \n\n | \n | 7 | \n|
| \n | ||||
| ARTICLE 2 THE NOTES | \n\n | \n | 7 | \n|
| \n | ||||
| SECTION 2.01 ISSUABLE IN SERIES | \n\n | \n | 7 | \n|
| SECTION 2.02 EXECUTION AND AUTHENTICATION | \n\n | \n | 9 | \n|
| SECTION 2.03 REGISTRAR AND PAYING AGENT | \n\n | \n | 10 | \n|
| SECTION 2.04 HOLDERS TO BE TREATED AS OWNERS; PAYMENTS OF INTEREST | \n\n | \n | 10 | \n|
| SECTION 2.05 PAYING AGENT TO HOLD MONEY IN TRUST | \n\n | \n | 10 | \n|
| SECTION 2.06 TRANSFER AND EXCHANGE | \n\n | \n | 11 | \n|
| SECTION 2.07 REPLACEMENT NOTES | \n\n | \n | 11 | \n|
| SECTION 2.08 OUTSTANDING NOTES | \n\n | \n | 11 | \n|
| SECTION 2.09 GLOBAL NOTES | \n\n | \n | 12 | \n|
| SECTION 2.10 TEMPORARY NOTES | \n\n | \n | 12 | \n|
| SECTION 2.11 CANCELLATION | \n\n | \n | 13 | \n|
| SECTION 2.12 DEFAULTED INTEREST | \n\n | \n | 13 | \n|
| SECTION 2.13 CUSIP NUMBERS | \n\n | \n | 13 | \n|
| \n | ||||
| ARTICLE 3 REDEMPTION | \n\n | \n | 14 | \n|
| \n | ||||
| SECTION 3.01 NOTICES TO TRUSTEE | \n\n | \n | 14 | \n|
| SECTION 3.02 SELECTION OF NOTES TO BE REDEEMED | \n\n | \n | 14 | \n|
| SECTION 3.03 NOTICE OF REDEMPTION | \n\n | \n | 14 | \n|
| SECTION 3.04 EFFECT OF NOTICE OF REDEMPTION | \n\n | \n | 15 | \n|
| SECTION 3.05 DEPOSIT OF REDEMPTION PRICE | \n\n | \n | 15 | \n|
| SECTION 3.06 PAYMENT OF NOTES CALLED FOR REDEMPTION | \n\n | \n | 15 | \n|
| SECTION 3.07 NOTES REDEEMED IN PART | \n\n | \n | 15 | \n|
| \n | ||||
| ARTICLE 4 COVENANTS | \n\n | \n | 16 | \n|
| \n | ||||
| SECTION 4.01 PAYMENT OF NOTES | \n\n | \n | 16 | \n|
| SECTION 4.02 MAINTENANCE OF OFFICE OR AGENCY | \n\n | \n | 16 | \n|
| SECTION 4.03 WAIVER OF STAY, EXTENSION OR USURY LAWS | \n\n | \n | 16 | \n|
| SECTION 4.04 COMPLIANCE CERTIFICATES | \n\n | \n | 16 | \n|
| SECTION 4.05 MAINTENANCE OF PROPERTIES | \n\n | \n | 17 | \n|
| SECTION 4.06 INSURANCE | \n\n | \n | 17 | \n|
| \n | ||||
| ARTICLE 5 SUCCESSOR CORPORATION | \n\n | \n | 17 | \n|
| \n | ||||
| SECTION 5.01 MERGER, CONSOLIDATION AND SALE OF ASSETS | \n\n | \n | 17 | \n
i
\n\n\n\n
TABLE OF CONTENTS
\n(continued)
\n
| \n | \n | \n | \n | |
| \n | \n | Page | \n||
| SECTION 5.02 SUCCESSOR SUBSTITUTED | \n\n | \n | 18 | \n|
| \n | ||||
| ARTICLE 6 DEFAULT AND REMEDIES | \n\n | \n | 18 | \n|
| \n | ||||
| SECTION 6.01 EVENTS OF DEFAULT | \n\n | \n | 18 | \n|
| SECTION 6.02 NOTICE OF DEFAULTS | \n\n | \n | 20 | \n|
| SECTION 6.03 OTHER REMEDIES | \n\n | \n | 20 | \n|
| SECTION 6.04 WAIVER OF PAST DEFAULTS | \n\n | \n | 20 | \n|
| SECTION 6.05 CONTROL BY MAJORITY | \n\n | \n | 21 | \n|
| SECTION 6.06 LIMITATION ON SUITS | \n\n | \n | 21 | \n|
| SECTION 6.07 RIGHTS OF HOLDERS TO RECEIVE PAYMENT | \n\n | \n | 22 | \n|
| SECTION 6.08 COLLECTION SUIT BY TRUSTEE | \n\n | \n | 22 | \n|
| SECTION 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM | \n\n | \n | 22 | \n|
| SECTION 6.10 PRIORITIES | \n\n | \n | 22 | \n|
| SECTION 6.11 UNDERTAKING FOR COSTS | \n\n | \n | 23 | \n|
| SECTION 6.12 RESTORATION OF RIGHTS AND REMEDIES | \n\n | \n | 23 | \n|
| SECTION 6.13 RIGHTS AND REMEDIES CUMULATIVE | \n\n | \n | 23 | \n|
| SECTION 6.14 DELAY OR OMISSION NOT WAIVER | \n\n | \n | 23 | \n|
| \n | ||||
| ARTICLE 7 TRUSTEE | \n\n | \n | 24 | \n|
| \n | ||||
| SECTION 7.01 GENERAL | \n\n | \n | 24 | \n|
| SECTION 7.02 CERTAIN RIGHTS, DUTIES AND RESPONSIBILITIES OF TRUSTEE | \n\n | \n | 24 | \n|
| SECTION 7.03 INDIVIDUAL RIGHTS OF TRUSTEE | \n\n | \n | 26 | \n|
| SECTION 7.04 TRUSTEE’S DISCLAIMER | \n\n | \n | 26 | \n|
| SECTION 7.05 NOTICE OF DEFAULT | \n\n | \n | 26 | \n|
| SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS | \n\n | \n | 26 | \n|
| SECTION 7.07 COMPENSATION AND INDEMNITY | \n\n | \n | 26 | \n|
| SECTION 7.08 REPLACEMENT OF TRUSTEE | \n\n | \n | 27 | \n|
| SECTION 7.09 SUCCESSOR TRUSTEE BY MERGER, ETC | \n\n | \n | 28 | \n|
| SECTION 7.10 ELIGIBILITY | \n\n | \n | 28 | \n|
| SECTION 7.11 MONEY HELD IN TRUST | \n\n | \n | 28 | \n|
| SECTION 7.12 WITHHOLDING TAXES | \n\n | \n | 28 | \n|
| SECTION 7.13 TRUSTEE’S APPLICATION FOR INSTRUCTIONS FROM THE COMPANY | \n\n | \n | 29 | \n|
| SECTION 7.14 APPOINTMENT OF CO-TRUSTEE | \n\n | \n | 29 | \n|
| \n | ||||
| ARTICLE 8 DISCHARGE OF INDENTURE | \n\n | \n | 30 | \n|
| \n | ||||
| SECTION 8.01 TERMINATION OF COMPANY’S OBLIGATIONS | \n\n | \n | 30 | \n|
| SECTION 8.02 DEFEASANCE AND DISCHARGE OF INDENTURE | \n\n | \n | 31 | \n|
| SECTION 8.03 DEFEASANCE OF CERTAIN OBLIGATIONS | \n\n | \n | 33 | \n|
| SECTION 8.04 APPLICATION OF TRUST MONEY | \n\n | \n | 34 | \n
ii
\n\n\n\n\n
TABLE OF CONTENTS
\n(continued)
\n
| \n | \n | \n | \n | |
| \n | \n | Page | \n||
| SECTION 8.05 REPAYMENT TO COMPANY | \n\n | \n | 34 | \n|
| SECTION 8.06 REINSTATEMENT | \n\n | \n | 35 | \n|
| \n | ||||
| ARTICLE 9 AMENDMENTS, SUPPLEMENTS AND WAIVERS | \n\n | \n | 35 | \n|
| \n | ||||
| SECTION 9.01 WITHOUT CONSENT OF HOLDERS | \n\n | \n | 35 | \n|
| SECTION 9.02 WITH CONSENT OF HOLDERS | \n\n | \n | 36 | \n|
| SECTION 9.03 REVOCATION AND EFFECT OF CONSENT | \n\n | \n | 37 | \n|
| SECTION 9.04 NOTATION ON OR EXCHANGE OF NOTES | \n\n | \n | 37 | \n|
| SECTION 9.05 TRUSTEE TO SIGN AMENDMENTS, ETC | \n\n | \n | 37 | \n|
| SECTION 9.06 CONFORMITY WITH TRUST INDENTURE ACT | \n\n | \n | 38 | \n|
| \n | ||||
| ARTICLE 10 CONVERSION | \n\n | \n | 38 | \n|
| \n | ||||
| ARTICLE 11 MISCELLANEOUS | \n\n | \n | 38 | \n|
| \n | ||||
| SECTION 11.01 TRUST INDENTURE ACT OF 1939 | \n\n | \n | 38 | \n|
| SECTION 11.02 NOTICES | \n\n | \n | 38 | \n|
| SECTION 11.03 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT | \n\n | \n | 39 | \n|
| SECTION 11.04 STATEMENTS REQUIRED IN CERTIFICATE | \n\n | \n | 39 | \n|
| SECTION 11.05 RULES BY TRUSTEE, PAYING AGENT OR REGISTRAR | \n\n | \n | 40 | \n|
| SECTION 11.06 PAYMENT DATE OTHER THAN A BUSINESS DAY | \n\n | \n | 40 | \n|
| SECTION 11.07 GOVERNING LAW | \n\n | \n | 40 | \n|
| SECTION 11.08 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS | \n\n | \n | 40 | \n|
| SECTION 11.09 NO RECOURSE AGAINST OTHERS | \n\n | \n | 40 | \n|
| SECTION 11.10 SUCCESSORS | \n\n | \n | 41 | \n|
| SECTION 11.11 DUPLICATE ORIGINALS | \n\n | \n | 41 | \n|
| SECTION 11.12 SEPARABILITY | \n\n | \n | 41 | \n|
| SECTION 11.13 TABLE OF CONTENTS, HEADINGS, ETC | \n\n | \n | 41 | \n|
| SECTION 11.14 WAIVER OF JURY TRIAL | \n\n | \n | 41 | \n|
| SECTION 11.15 UNCLAIMED MONEY; PRESCRIPTION | \n\n | \n | 41 | \n|
| \n | ||||
| ARTICLE 12 PAYING AGENT, TRANSFER AGENT AND REGISTRAR | \n\n | \n | 41 | \n|
| \n | ||||
| SECTION 12.01 DUTIES OF THE PAYING AGENT, TRANSFER AGENT AND REGISTRAR | \n\n | \n | 41 | \n|
| SECTION 12.02 AGENT OF THE COMPANY | \n\n | \n | 42 | \n|
| SECTION 12.03 CERTAIN RIGHTS OF PAYING AGENT, TRANSFER AGENT AND REGISTRAR | \n\n | \n | 42 | \n|
| SECTION 12.04 MAY HOLD NOTES | \n\n | \n | 42 | \n|
| SECTION 12.05 APPOINTMENT OF AGENTS | \n\n | \n | 42 | \n|
| SECTION 12.06 MONEY HELD | \n\n | \n | 43 | \n
iii\n
\n\n\n\n
TABLE OF CONTENTS
\n(continued)
\n
| \n | \n | \n | \n | |
| \n | \n | Page | \n||
| SECTION 12.07 PAYING AGENT, TRANSFER AGENT AND REGISTRAR NOT RESPONSIBLE FOR NOTES | \n\n | \n | 43 | \n|
| SECTION 12.08 COMPENSATION AND INDEMNIFICATION | \n\n | \n | 43 | \n
iv
\n\n\n\n\n
CROSS-REFERENCE TABLE
\n\n
| \n | \n | \n | \n | |
| TIA SECTIONS | \n\n | INDENTURE SECTIONS | \n||
| \n | ||||
| Section 310(a)(1) | \n\n | \n | 7.10 | \n|
| \n | ||||
| (a)(2) | \n\n | \n | 7.10 | \n|
| \n | ||||
| (b) | \n\n | \n | 7.03; 7.08 | \n|
| \n | ||||
| Section 311 | \n\n | \n | 7.03 | \n|
| \n | ||||
| Section 313(a) | \n\n | \n | 7.06 | \n|
| \n | ||||
| (c) | \n\n | \n | 7.05; 7.06 | \n|
| \n | ||||
| Section 314(a) | \n\n | \n | 13.02 | \n|
| \n | ||||
| (a)(4) | \n\n | \n | 4.18 | \n|
| \n | ||||
| (b) | \n\n | \n | N/A | \n|
| \n | ||||
| (c)(1) | \n\n | \n | N/A | \n|
| \n | ||||
| (c)(2) | \n\n | \n | N/A | \n|
| \n | ||||
| (d) | \n\n | \n | N/A | \n|
| \n | ||||
| (e) | \n\n | \n | 13.04 | \n|
| \n | ||||
| Section 315(a) | \n\n | \n | 7.02 | \n|
| \n | ||||
| (b) | \n\n | \n | 7.02; 7.05 | \n|
| \n | ||||
| (c) | \n\n | \n | 7.02 | \n|
| \n | ||||
| (d) | \n\n | \n | 7.02 | \n|
| \n | ||||
| Section 316(a) | \n\n | \n | 6.05; 6.06 | \n|
| \n | ||||
| (a)(1)(A) | \n\n | \n | 6.05 | \n|
| \n | ||||
| (a)(1)(B) | \n\n | \n | 6.04 | \n|
| \n | ||||
| (b) | \n\n | \n | 6.07 | \n
\n
| \n | \n | \n | \n | |
| TIA SECTIONS | \n\n | INDENTURE SECTIONS | \n||
| \n | ||||
| Section 317(a)(1) | \n\n | \n | 6.08 | \n|
| \n | ||||
| (a)(2) | \n\n | \n | 6.09 | \n|
| \n | ||||
| (b) | \n\n | \n | 2.08 | \n|
| \n | ||||
| Section 318(a) | \n\n | \n | N/A | \n|
| \n | ||||
| (c) | \n\n | \n | N/A | \n
Note: The Cross-Reference Table shall not for any purpose be deemed to be a part of this indenture.
\n\n\n
INDENTURE, dated as of\n , 201 , by and between BRADY CORPORATION, a Wisconsin corporation (the “COMPANY”), and\n[ ], a banking corporation, as trustee (the “TRUSTEE”), registrar, paying agent and transfer\nagent.
ARTICLE 1
SECTION 1.01 DEFINITIONS.
\n“ACCELERATION NOTICE” has the meaning given such term in Section 6.01(b).
\n“AFFILIATE” means, with respect to any specified Person, any other Person who directly or indirectly through one or more\nintermediaries controls, or is controlled by, or is under common control with, such specified Person. The term “CONTROL” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and\npolicies of a Person, whether through the ownership of voting securities, by contract or otherwise; and the terms “CONTROLLING” and “CONTROLLED” have meanings correlative of the foregoing.
\n“AGENT” means any Registrar, Paying Agent, Transfer Agent, authenticating agent or co-Registrar.
\n“AMEND” means to amend, supplement, restate, amend and restate or otherwise modify; and “AMENDMENT” shall have a\ncorrelative meaning.
“BANKRUPTCY LAW” means Title 11 of the United States Code, as amended, or any similar federal\nor state law for the relief of debtors.
“BOARD OF DIRECTORS” means, as to any Person, the board of directors of\nsuch Person or any duly authorized committee thereof.
“BOARD RESOLUTION” means, with respect to any Person, a copy\nof a resolution certified by the Secretary or an Assistant Secretary of such Person to have been duly adopted by the Board of Directors of such Person and to be in full force and effect on the date of such certification, and delivered to the\nTrustee.
“BUSINESS DAY” means any day excluding Saturday, Sunday and any day which is a legal holiday under the\nlaws of New York or is a day on which banking institutions in New York are authorized or required by law or other governmental action to close.
(1) with respect to any Person that is a corporation, any\nand all shares, interests, participations or other equivalents (however designated and whether or not voting) of corporate stock, including each class of Common Stock and Preferred Stock of such Person; and (2) with respect to any Person that\nis not a corporation, any and all partnership, membership or other equity interests of such Person.
\n\n\n
“COMMISSION” means the United States Securities and Exchange Commission.\n
“COMMON STOCK” of any Person means any and all shares, interests or other participations in, and other equivalents\n(however designated and whether voting or non-voting) of, such Person’s common stock, whether outstanding on the Issue Date or issued after the Issue Date, and includes, without limitation, all series and classes of such common stock.\n
“COMPANY” means BRADY CORPORATION until a successor replaces it and thereafter means the Surviving Entity.\n
“CORPORATE TRUST OFFICE” means the office of the Trustee at which the corporate trust business of the Trustee\nshall, at any particular time, be principally administered.
“COVENANT DEFEASANCE” has the meaning given such term\nin Section 8.03.
“CURRENCY AGREEMENT” means any foreign exchange contract, currency swap agreement or other\nsimilar agreement or arrangement designed to protect the Company or any Restricted Subsidiary of the Company against fluctuations in currency values.
“DISQUALIFIED CAPITAL STOCK” means that portion of any Capital Stock which, by its terms (or by the terms of any security into\nwhich it is convertible or for which it is exchangeable at the option of the holder thereof), or upon the happening of any event (other than an event which would constitute a Change of Control), matures or is mandatorily redeemable, pursuant to a\nsinking fund obligation or otherwise, or is redeemable at the sole option of the holder thereof (except, in each case, upon the occurrence of a Change of Control), on or prior to the final maturity date of the Notes.
\n“EVENTS OF DEFAULT” has the meaning provided in Section 6.01.
\n“EXCHANGE ACT” means the Securities Exchange Act of 1934, as amended, or any successor statute or statutes thereto.
\n“GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles\nBoard of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as may be approved by a significant segment of the\naccounting profession of the United States, which are in effect as of the Issue Date.
\n
-2-\n
\n\n\n\n
“GOVERNMENT OBLIGATIONS” means direct obligations of, or obligations guaranteed\nby, the United States of America, and for the payment of which the United States pledges its full faith and credit.
\n“HOLDER” means any Person shown on the Register as the registered holder, from time to time, of the Notes.
\n“INDEBTEDNESS” means, with respect to any Person, without duplication:
\n\n
| \n | (1) | \nall Obligations of such Person for borrowed money; |
\n
| \n | (2) | \nall Obligations of such Person evidenced by bonds, debentures, notes or other similar instruments; |
\n
| \n | (3) | \nall Capitalized Lease Obligations of such Person; |
\n
| \n | (4) | \nall Obligations of such Person issued or assumed as the deferred purchase price of property, all conditional sale obligations and all Obligations under any title\nretention agreement (but excluding trade accounts payable and other accrued liabilities arising in the ordinary course of business); |
\n
| \n | (5) | \nall Obligations for the reimbursement of any obligor on any letter of credit, banker’s acceptance or similar credit transaction; |
\n
| \n | (6) | \nguarantees and other contingent obligations in respect of Indebtedness referred to in clauses (1) through (5) above and clause (8) below;\n |
\n
| \n | (7) | \nall Obligations of any other Person of the type referred to in clauses (1) through (6) above that are secured by any Lien on any property or asset of such\nPerson, the amount of such Obligation being deemed to be the lesser of the fair market value of such property or asset or the amount of the Obligation so secured; |
\n
| \n | (8) | \nall Obligations under Currency Agreements and interest swap agreements of such Person; and |
\n
| \n | (9) | \nall Disqualified Capital Stock issued by such Person, with the amount of Indebtedness represented by such Disqualified Capital Stock being equal to the greater of its\nvoluntary or involuntary liquidation preference and its maximum fixed repurchase price, but excluding accrued dividends, if any. |
-3-\n
\n\n\n\n
“INDENTURE” means this Indenture as originally executed or as it may be amended or\nsupplemented from time to time by one or more indentures supplemental to this Indenture entered into pursuant to the applicable provisions of this Indenture.
“INTEREST PAYMENT\nDATE” means each semi-annual interest payment date on and of each year, commencing.
“INVERSION TRANSACTION”\nmeans a transaction or series of related transactions undertaken to facilitate the global movement of cash assets among affiliated group members in a tax efficient manner pursuant to which (i) a U.S. parent company (“FORMER PARENT”)\nbecomes a wholly owned subsidiary of a newly organized offshore/foreign entity or entities (in either case, or together, “NEW PARENT”); (ii) all of the issued and outstanding capital stock of Former Parent is converted into an\nequivalent number of shares of capital stock of New Parent; and (iii) the foreign subsidiaries of Former Parent would then be owned by New Parent, either directly or through a foreign subsidiary of New Parent, and would be sister companies of\nFormer Parent, and the domestic subsidiaries would be held through Former Parent as a U.S. subsidiary of New Parent.
\n“LEGAL DEFEASANCE” has the meaning given such term in Section 8.02.
\n“LIEN” means any lien, mortgage, deed of trust, pledge, security interest, charge or encumbrance of any kind (including any\nconditional sale or other title retention agreement, any lease in the nature thereof and any agreement to give any security interest).
“OBLIGATIONS” means all obligations for principal, premium, interest, penalties, fees, indemnification, reimbursements, damages\nand other liabilities payable under the documentation governing any Indebtedness.
“OFFICER” means any of the\nfollowing of the Company: the Chief Executive Officer, the Chief Financial Officer, the President, any Vice President, the Treasurer or the Secretary.
“OPINION OF COUNSEL” means a written opinion from legal counsel reasonably acceptable to the Trustee. The counsel may be an\nemployee of or counsel to the Company.
“PAYING AGENT” has the meaning provided in Section 2.04, except that,\nfor the purposes of Article Eight, the Paying Agent shall not be the Company or any Subsidiary of the Company or an Affiliate of any of them. The term “Paying Agent” includes any additional Paying Agent.
\n
-4-\n
\n\n\n\n
“PERSON” means an individual, partnership, corporation, limited liability company,\nunincorporated organization, trust or joint venture, or a governmental agency or political subdivision thereof.
\n“PREFERRED STOCK” of any Person means any Capital Stock of such Person that has preferential rights to any other Capital Stock\nof such Person with respect to dividends or redemptions or upon liquidation.
“PRINCIPAL” means, with respect to the\nNotes, the principal of, and premium, if any, on the Notes.
“QUALIFIED CAPITAL STOCK” means any Capital Stock that\nis not Disqualified Capital Stock.
“REDEEM” means to redeem, repurchase, purchase, defease, retire, discharge or\notherwise acquire or retire for value; and “REDEMPTION” shall have a correlative meaning.
“REGISTER” has\nthe meaning provided in Section 2.04.
“REGISTRAR” has the meaning provided in Section 2.04.
\n“REGULAR RECORD DATE” for the interest payable on any Interest Payment Date means the or (whether or not a Business Day), as\nthe case may be, next preceding such Interest Payment Date.
“REGULATION S” means Regulation S under the\nSecurities Act.
“RESPONSIBLE OFFICER,” when used with respect to the Trustee or any Paying Agent means any vice\npresident, any assistant vice president, any assistant treasurer, any trust officer or assistant trust officer or any other officer of the Trustee or such Paying Agent, as the case may be, customarily performing functions similar to those performed\nby any of the above designated officers in each case assigned to or employed by the corporate trust department of the Trustee or such Paying Agent, as the case may be, and also means, with respect to a particular corporate trust matter, any other\nofficer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
\n“SECURITIES ACT” means the United States Securities Act of 1933, as amended.
\n“SECURITIES RESOLUTION” means a resolution adopted by the Board or by a committee of Officers or an Officer pursuant to Board\ndelegation authorizing a series or a supplemental indenture authorizing a series executed by an authorized Officer.
\n
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\n\n\n\n
“STATED MATURITY” means, with respect to any installment of interest or principal\non any Indebtedness, the date on which such payment of interest or principal is scheduled to be paid in the documentation governing such Indebtedness (after giving effect to any amendments, modifications or waivers thereto), and shall not include\nany contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.
\n
| \n | (1) | \nany corporation of which the outstanding Capital Stock having at least a majority of the votes entitled to be cast in the election of directors under ordinary\ncircumstances shall at the time be owned, directly or indirectly, by such Person; or |
\n
| \n | (2) | \nany other Person of which at least a majority of the voting interest under ordinary circumstances is at the time, directly or indirectly, owned by such Person.\n |
“SURVIVING ENTITY” has the meaning given such term in Section 5.01(a)(1)(B).
\n“TIA” or “TRUST INDENTURE ACT” means the Trust Indenture Act of 1939, as amended (15 U.S. Code\nSections 77aaa-77bbb), as in effect on the date this Indenture was executed, except as provided in Section 9.06.
\n“TRANSFER AGENT” means the Trustee in its capacity as transfer agent.
\n“TRUSTEE” means the party named as such in the first paragraph of this Indenture until a successor replaces it in accordance\nwith the provisions of Article Seven of this Indenture and thereafter means such successor.
“WHOLLY OWNED\nSUBSIDIARY” of any Person means any Subsidiary of such Person of which all the outstanding voting securities (other than in the case of a Restricted Subsidiary that is incorporated in a jurisdiction other than a state in the United States or\nthe District of Columbia, directors’ qualifying shares or an immaterial amount of shares required to be owned by other Persons pursuant to applicable law are owned by such Person or any Wholly Owned Subsidiary of such Person.
\nSECTION 1.02 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. Whenever this Indenture refers to a provision of the TIA, the provision\nis incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings:
“indenture note holder”\nmeans a Holder or a Noteholder;
“indenture to be qualified” means this Indenture;
\n
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\n\n\n\n
“indenture trustee” or “institutional trustee” means the Trustee; and\n
“obligor” on the indenture securities means the Company or any other obligor on the Notes.
\nAll other TIA terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by a rule\nof the Commission and not otherwise defined herein have the meanings assigned to them therein.
SECTION 1.03 RULES OF\nCONSTRUCTION. Unless the context otherwise requires:
\n
| \n | (i) | \na term has the meaning assigned to it; |
\n
| \n | (ii) | \nan accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; |
\n
| \n | (iii) | \n“or” is not exclusive; |
\n
| \n | (iv) | \nwords in the singular include the plural, and words in the plural include the singular; |
\n
| \n | (v) | \nprovisions apply to successive related events and transactions; |
\n
| \n | (vi) | \n“herein,” “hereof” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other\nsubdivision; |
\n
| \n | (vii) | \nall ratios and computations based on GAAP contained in this Indenture shall be computed in accordance with the definition of “GAAP” set forth in\nSection 1.01; |
\n
| \n | (viii) | \nall references to Sections or Articles refer to Sections or Articles of this Indenture unless otherwise indicated; and |
\n
| \n | (ix) | \nall references to “$,” “Dollars,” “U.S. Dollars” or money refer to the lawful currency of the United States, unless the content expressly\ncontemplates otherwise. |
ARTICLE 2
SECTION 2.01 ISSUABLE IN SERIES. The aggregate principal amount of\nNotes that may be issued under this Indenture is unlimited. The Notes may be issued from time to time in one or more series. Each series shall be created by a Securities Resolution that establishes the terms of the series, which may include the\nfollowing:
\n
| \n | (1) | \nthe title of the series; |
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\n\n\n\n
| \n | (2) | \nthe aggregate principal amount of the series; |
\n
| \n | (3) | \nthe interest rate or rates, if any, or method of calculating the interest rate or rates; |
\n
| \n | (4) | \nthe date from which interest will accrue; |
\n
| \n | (5) | \nthe record dates for interest payable on registered Notes; |
\n
| \n | (6) | \nthe dates when principal and interest are payable; |
\n
| \n | (7) | \nthe manner of paying principal and interest; |
\n
| \n | (8) | \nthe places where principal and interest are payable; |
\n
| \n | (9) | \nthe Registrar, Transfer Agent and Paying Agent; |
\n
| \n | (10) | \nthe terms of any mandatory or optional redemption by the Company including any sinking fund; |
\n
| \n | (11) | \nthe terms of any redemption at the option of Holders; |
\n
| \n | (12) | \nthe denominations in which Notes are issuable; |
\n
| \n | (13) | \nwhether Notes will be issuable as registered Notes or uncertificated Notes; |
\n
| \n | (14) | \nwhether and upon what terms registered Notes and uncertificated Securities may be exchanged; |
\n
| \n | (15) | \nwhether any Notes will be represented by a Note in global form; |
\n
| \n | (16) | \nthe terms of any global Note; |
\n
| \n | (17) | \nthe terms of any tax indemnity; |
\n
| \n | (18) | \nthe currencies (including any composite currency) in which principal or interest may be paid; |
\n
| \n | (19) | \nif payments of principal or interest may be made in a currency other than that in which Notes are denominated, the manner for determining such payments;\n |
\n
| \n | (20) | \nif amounts of principal or interest may be determined by reference to an index, formula or other method, the manner for determining such amounts;\n |
\n
| \n | (21) | \nprovisions for electronic issuance of Notes or for Notes in uncertificated form; |
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\n\n\n\n
| \n | (22) | \nwhether any Events of Default or covenants in addition to or in lieu of those set forth in this Indenture apply; |
\n
| \n | (23) | \nwhether and upon what terms Notes may be defeased; |
\n
| \n | (24) | \nthe form of the Notes, which may be in the form of Exhibit A; |
\n
| \n | (25) | \nany terms that may be required by or advisable under U.S. or other applicable laws or regulations; |
\n
| \n | (26) | \nwhether and upon what terms the Notes will be convertible into or exchangeable for Capital Stock of the company or other equity or debt securities, which may include\nthe terms provided in Article 10; |
\n
| \n | (27) | \nthe ranking of the Notes, including the relative degree, if any, to which the Notes of such series shall be subordinated to one or more other series of Notes in right\nof payment, whether outstanding or not; |
\n
| \n | (28) | \nany provisions relating to extending or shortening the date on which the principal and premium, if any, of the Notes of such series is payable;\n |
\n
| \n | (29) | \nany provisions relating to the deferral of payment of any interest; and |
\n
| \n | (30) | \nany other terms not inconsistent with this Indenture. |
The creation and issuance of a series and the authentication and delivery thereof are not subject to any conditions precedent.\n
SECTION 2.02 EXECUTION AND AUTHENTICATION. The Notes shall be executed by an Officer or an authorized signatory as identified\nin an Officers’ Certificate (pursuant to a power of attorney or other similar instrument). The signature of any such Officer (or authorized signatory) on the Notes shall be by manual or facsimile signature in the name and on behalf of the\nCompany.
If an Officer whose signature is on a Note no longer holds that office at the time the Trustee or authenticating\nagent authenticates the Note, the Note shall be valid nevertheless.
A Note shall not be valid until the Trustee or\nauthenticating agent manually signs the certificate of authentication on the Note. The signature shall be conclusive evidence that the Note has been authenticated under this Indenture.
\nThe Trustee may appoint an authenticating agent to authenticate Notes. An authenticating agent may authenticate Notes whenever the\nTrustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such authenticating agent. An authenticating agent has the same rights as an Agent to deal with the Company or an Affiliate of the\nCompany.
\n
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\n\n\n\n
SECTION 2.03 REGISTRAR AND PAYING AGENT. The Company shall maintain an office or agency\nwhere (a) Notes may be presented or surrendered for registration of transfer or for exchange (“REGISTRAR”), (b) Notes may be presented or surrendered for payment (the “PAYING AGENT”) and (c) notices and demands in\nrespect of the Notes and this Indenture may be served. The Registrar shall keep a register or registers of the Notes and of their transfer and exchange. The Company, upon notice to the Trustee, may appoint one or more co-Registrars and one or more\nadditional Paying Agents. The term “Paying Agent” includes any additional Paying Agent. Except as provided herein, the Company or any Subsidiary may act as Paying Agent, Registrar or co-Registrar. The Company shall enter into an\nappropriate agency agreement with any Agent not a party to this Indenture and the agreement shall implement the provisions of this Indenture that relate to such Agent and shall incorporate the provisions of the TIA. Without limiting the foregoing,\neach such agreement appointing a Paying Agent must contain provisions substantially to the effect of Section 2.06 hereof. The Company shall notify the Trustee in writing of the name and address of any such Agent. If the Company fails to\nmaintain a Registrar or Paying Agent or fails to give the foregoing notice, the Trustee shall act as such and shall be entitled to appropriate compensation in accordance with Section 7.07.
\nThe Registrar shall keep a register (the “REGISTER”) of the Definitive Registered Notes and of their transfer and exchange. Any\nnotice to be given under this Indenture or under the Notes by the Trustee or the Company to Noteholders shall be mailed by first class mail to each Holder of Definitive Registered Notes at its address as it appears at the time of such mailing in the\nRegister, and to the Holders of the Global Notes.
The Company, any Subsidiary of the Company, or any Affiliate of any of them\nmay act as Registrar or co-Registrar, and/or agent for service of notice and demands.
If, at any time, the Trustee is not the\nRegistrar, the Registrar shall make available to the Trustee on or before each Interest Payment Date and at such other times as the Trustee may reasonably request, the names and addresses of the Holders as they appear in the Register.
\nSECTION 2.04 HOLDERS TO BE TREATED AS OWNERS; PAYMENTS OF INTEREST. The Company, the Paying Agents, the Registrar, the Trustee and any\nagent of the Company, the Paying Agents, the Registrar or the Trustee may deem and treat the person in whose name a Note is registered as the absolute owner of such Note for the purpose of receiving payment of or on account of the principal of and,\nsubject to the provisions of this Indenture, interest, Additional Interest, if any on such Note and for all other purposes; and neither the Company, any Paying Agent, the Registrar, the Trustee nor any agent of the Company, the Paying Agent, the\nRegistrar or the Trustee shall be affected by any notice to the contrary. All such payments so made to any such Person, or upon his order, shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the\nliability for moneys payable upon any Note.
SECTION 2.05 PAYING AGENT TO HOLD MONEY IN TRUST. Not later than 12:00 noon (New\nYork Time) one Business Day prior to each due date of the principal and interest on any Notes, the Company shall deposit with the Paying Agent money in immediately available funds sufficient to pay such principal and interest so becoming due on the\ndue date for payment under the Notes. The Company shall require each Paying Agent other than the Trustee to agree in writing that such Paying Agent shall hold in trust for the benefit of the Holders or the Trustee all money held by the Paying Agent\nfor the payment of principal of and interest on the Notes (whether such money has been paid to it by the Company or any other obligor on the Notes), and such Paying Agent shall promptly notify the Trustee of any default by the Company (or any other\nobligor on the Notes) in making any such payment. Money held in trust by any Paying Agent need not be segregated except as required by law and in no event shall any Paying Agent be liable for any interest on any money received by it hereunder.\n
\n
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\n\n\n\n
The Company at any time may require a Paying Agent to pay all money held by it to the\nTrustee and account for any funds disbursed, and the Trustee may at any time during the continuance of any payment default, upon written request to a Paying Agent, require such Paying Agent to pay all money held by it to the Trustee and to account\nfor any funds disbursed. Upon doing so, the Paying Agent shall have no further liability for the money so paid over to the Trustee.
The Transfer Agent may require a Holder to pay a sum\nsufficient to cover any taxes imposed on a transfer or exchange.
SECTION 2.07 REPLACEMENT NOTES. If a mutilated Note is\nsurrendered to the Trustee or if the Holder claims that the Note has been lost, destroyed or wrongfully taken, the Company shall issue and the Trustee shall authenticate a replacement Note of like tenor and amount and bearing a number not\ncontemporaneously outstanding; provided that the requirements of this Section 2.07 are met. An indemnity bond must be furnished that is sufficient in the judgment of both the Trustee and the Company to protect the Company, the Trustee or any\nAgent from any loss that any of them may suffer if a Note is replaced. The Company may charge such Holder for its expenses and the expenses of the Trustee in replacing a Note. In case any such mutilated, lost, destroyed or wrongfully taken Note has\nbecome or is about to become due and payable, the Company in its discretion may pay such Note instead of issuing a new Note in replacement thereof.
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\n\n\n\n
If a Note is replaced pursuant to Section 2.07, it ceases to be outstanding unless and\nuntil the Trustee and the Company receive proof satisfactory to them that the replaced Note is held by a bona fide purchaser.
\nIf the Paying Agent (other than the Company or an Affiliate of the Company) holds on any redemption date, the maturity date or any date\nof repurchase money sufficient to pay Notes payable on that date, then on and after that date such Notes cease to be outstanding and interest on them shall cease to accrue.
SECTION 2.09 GLOBAL NOTES. If a Securities Resolution so\nprovides, the Company may issue some or all of the Notes of a series in temporary or permanent global form. A global Note may be in registered form or in uncertificated form. A global Note shall represent that amount of Notes of a series as\nspecified in the global Note or as endorsed thereon from time to time. At the Company’s request, the Registrar shall endorse a global Security to reflect the amount of any increase or decrease in the Notes represented thereby.
\nThe Company may issue a global Note only to a depository designated by the Company. A depository may transfer a global Note only as a\nwhole to its nominee or to a successor depository.
The Notes Resolution may establish, among other things, the manner of\npaying principal and interest on a global Note and whether and upon what terms a beneficial owner of an interest in a global Note may exchange such interest for definitive Notes.
\nThe Company, an Affiliate, the Trustee and any Agent shall not be responsible for any acts or omissions of a depository, for any\ndepository records of beneficial ownership interests or for any transactions between the depository and beneficial owners.
\nSECTION 2.10 TEMPORARY NOTES. Until definitive permanent Notes are ready for delivery, the Company may prepare and the Trustee shall\nauthenticate temporary Notes. Temporary Notes shall be substantially in the form of definitive permanent Notes but may have insertions, substitutions, omissions and other variations determined to be appropriate by the officers executing the\ntemporary Notes, as evidenced by their execution of such temporary Notes. If temporary Notes are issued, the Company shall cause definitive permanent notes to be prepared without unreasonable delay. After the preparation of definitive permanent\nNotes, the temporary Notes shall be exchangeable for definitive permanent Notes upon surrender of the temporary Notes at the office or agency of the Company designated for such purpose pursuant to Section 4.02, without charge to the Holder.\nUpon surrender for cancellation of any one or more temporary Notes, the Company shall execute and the Trustee shall authenticate and make available for delivery in exchange therefor a like principal amount of definitive permanent Notes of authorized\ndenominations. Until so exchanged, the temporary Notes shall be entitled to the same benefits under this Indenture as definitive permanent Notes.
\n
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\n\n\n\n
SECTION 2.11 CANCELLATION. The Company at any time may deliver to the Trustee for\ncancellation any Notes previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee for cancellation any Notes previously authenticated hereunder which the Company has\nnot issued and sold. The Registrar and the Paying Agent shall forward to the Trustee any Notes surrendered to them for transfer, exchange or payment. The Trustee shall cancel all Notes surrendered for transfer, exchange, payment or cancellation in\naccordance with its normal procedure.
SECTION 2.12 DEFAULTED INTEREST. If the Company defaults on a payment of interest on\nthe Notes, it shall pay, or shall deposit with the Paying Agent money in immediately available funds sufficient to pay the defaulted interest, plus (to the extent lawful) any interest payable on the defaulted interest, to the Persons who are Holders\non a subsequent special record date. A special record date, as used in this Section 2.12 with respect to the payment of any defaulted interest, shall mean the 15th day next preceding the date fixed by the Company for the payment of defaulted\ninterest, whether or not such day is a Business Day. At least 15 days before the subsequent special record date, the Company shall mail to each Holder and to a Responsible Officer of the Trustee a notice that states the subsequent special\nrecord date, the payment date and the amount of defaulted interest to be paid.
SECTION 2.13 CUSIP NUMBERS.
\nThe Company in issuing the Notes may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use\n“CUSIP” numbers in notices of redemption as a convenience to Holders; PROVIDED that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice\nof a redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee\nof any change in the “CUSIP” numbers.
\n
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\n\n\n\n
ARTICLE 3
SECTION 3.01 NOTICES TO TRUSTEE. Notes of a series that are redeemable before\nmaturity shall be redeemed in accordance with their terms and, unless the Securities Resolution otherwise provides, in accordance with this Article.
The Company shall give each notice provided for in this Section 3.01 in an Officers’ Certificate at least 60 days before\nthe redemption date (unless a shorter period shall be satisfactory to the Trustee).
SECTION 3.02 SELECTION OF NOTES TO BE\nREDEEMED. In the case of any partial redemption, selection of the Notes for redemption will be made by the Trustee in compliance with the requirements of the principal securities exchange where the Notes are so listed or, if the Notes are not listed\non a principal securities exchange, PRO RATA, by lot or by such other method as the Trustee shall deem fair and appropriate; PROVIDED that no Note of $1,000 principal amount or less shall be redeemed in part. The Trustee shall make the selection\nfrom the Notes outstanding and not previously called for redemption. Provisions of this Indenture that apply to Notes called for redemption also apply to portions of Notes called for redemption. The Trustee shall notify the Company and the Registrar\npromptly in writing of the Notes or portions of Notes to be called for redemption.
SECTION 3.03 NOTICE OF REDEMPTION. With\nrespect to any redemption of Notes, at least 30 days but not more than 60 days before a redemption date, the Company shall mail a notice of redemption by first class mail to each Holder whose Notes are to be redeemed at its registered\naddress.
The notice shall identify the Notes to be redeemed (including CUSIP number) and shall state:
\n\n
| \n | (i) | \nthe redemption date; |
\n
| \n | (ii) | \nthe redemption price; |
\n
| \n | (iii) | \nthe name and address of each Paying Agent; |
\n
| \n | (iv) | \nthat Notes called for redemption must be surrendered to the applicable Paying Agent in order to collect the redemption price; |
\n
| \n | (v) | \nthat, unless the Company defaults in making the redemption payment, interest on Notes called for redemption ceases to accrue on and after the redemption date and the\nonly remaining right of the Holders is to receive payment of the redemption price plus accrued interest, if any, to the redemption date upon surrender of the Notes to the Paying Agent; and |
\n
| \n | (vi) | \nif the redemption is conditioned upon any subsequent event, a description of such condition or event. |
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\n\n\n\n
At the Company’s request (which request may be revoked by the Company at any time prior\nto the time at which the Trustee shall have given such notice to the Holders), made in writing to the Trustee at least 60 days (or such shorter period as shall be satisfactory to the Trustee) before a redemption date, the Trustee shall give the\nnotice of redemption in the name and at the expense of the Company. If, however, the Company gives such notice to the Holders, the Company shall concurrently deliver to the Trustee an Officers’ Certificate stating that such notice has been\ngiven.
SECTION 3.04 EFFECT OF NOTICE OF REDEMPTION. Once notice of redemption is mailed, Notes called for redemption become\ndue and payable on the redemption date and at the redemption price, unless the redemption is conditioned upon the occurrence of a subsequent event. Upon surrender of any Notes to the Paying Agent, unless such redemption is conditioned upon the\noccurrence of a subsequent event, such Notes shall be paid at the redemption price, plus accrued interest, if any, to the redemption date.
SECTION 3.05 DEPOSIT\nOF REDEMPTION PRICE. On or before 12:00 noon (New York City time) one Business Day prior to any redemption date, the Company shall deposit with the Paying Agent (or, if the Company is acting as its own Paying Agent, shall segregate and hold in trust\nas provided in Section 2.05) money sufficient to pay the redemption price of and accrued interest on all Notes to be redeemed on that date other than Notes or portions thereof called for redemption on that date that have been delivered by the\nCompany to the Trustee for cancellation.
SECTION 3.06 PAYMENT OF NOTES CALLED FOR REDEMPTION. If notice of redemption has\nbeen given in the manner provided above, and unless such redemption is conditioned upon a subsequent event, the Notes or portion of Notes specified in such notice to be redeemed shall become due and payable on the redemption date at the redemption\nprice stated therein, together with accrued interest, if any, to such redemption date, and so long as the Company has deposited with the Paying Agent funds in satisfaction of the redemption price pursuant to the terms of this Indenture on and after\nsuch date (unless the Company shall default in the payment of such Notes at the redemption price and accrued interest, if any, to the redemption date, in which case the principal, until paid, shall bear interest from the redemption date at the rate\nprescribed in the Notes), such Notes shall cease to accrue interest. Upon surrender of any Note for redemption in accordance with a notice of redemption, such Note shall be paid and redeemed by the Company at the redemption price, together with\naccrued interest, if any, to the redemption date; PROVIDED that installments of interest whose Stated Maturity is on or prior to the redemption date shall be payable to the Holders registered as such at the close of business on the relevant Regular\nRecord Date.
SECTION 3.07 NOTES REDEEMED IN PART. Upon surrender of any Note that is redeemed in part, the Company shall\nexecute and the Trustee shall authenticate and deliver to the Holder a new Note equal in principal amount to the unredeemed portion of such surrendered Note.
\n
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\n\n\n\n
ARTICLE 4
SECTION 4.01 PAYMENT OF NOTES. The Company shall pay the principal of\nand interest on the Notes in the manner provided in the Notes and this Indenture. An installment of principal or interest shall be considered paid on the date due if the Trustee or Paying Agent (other than the Company, a Subsidiary of the Company,\nor any Affiliate of any of them) holds on that date money designated for and sufficient to pay the installment. As provided in Section 6.09, upon a bankruptcy or reorganization procedure relative to the Company, the Trustee shall serve as the\nPaying Agent, if any, for the Notes.
The Company shall pay interest on overdue principal and interest on overdue installments\nof interest, to the extent lawful, at the rate per annum then borne upon the Notes.
SECTION 4.02 MAINTENANCE OF OFFICE OR\nAGENCY. The Company shall maintain the offices and agencies specified in Section 2.04.
SECTION 4.03 WAIVER OF STAY,\nEXTENSION OR USURY LAWS. The Company covenants (to the extent that it may lawfully do so) that it 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 or any\nusury law or other law that would prohibit or forgive the Company from paying all or any portion of the principal of, premium, if any, or interest on the Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or that\nmay affect the covenants or the performance of this Indenture; and (to the extent that it may lawfully do so) the Company hereby expressly waives all benefit or advantage of any such law and covenants that it shall not hinder, delay or impede the\nexecution 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.
(b) The Company\nshall, so long as any of the Notes are outstanding, deliver to the Trustee, promptly after any Officer of the Company becomes aware of any Default or Event of Default, an Officers’ Certificate specifying such Default or Event of Default and\nwhat action the Company is taking or proposes to take with respect thereto.
\n
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\n\n\n\n
SECTION 4.05 MAINTENANCE OF PROPERTIES. The Company shall cause all material properties\nowned by it or used or held for use in the conduct of its business to be maintained and kept in good condition, repair and working order (ordinary wear and tear and damage by casualty excepted) and supplied with all necessary equipment and shall\ncause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of the Company may be necessary so that the business carried on in connection therewith may be properly and advantageously\nconducted at all times; PROVIDED, HOWEVER, that nothing in this Section 4.05 shall prevent the Company from discontinuing the maintenance of any such properties if such discontinuance is, in the judgment of the Company, desirable in the conduct\nof the business of the Company as a whole and not disadvantageous in any material respect to the Holders.
SECTION 4.06\nINSURANCE. The Company shall maintain insurance with carriers believed by the Company to be responsible, against such risks and in such amounts, and with such deductibles, retentions, self-insured amounts and coinsurance provisions, as the Company\nbelieves are customarily carried by similar businesses, of similar size, including as appropriate general liability, property and casualty loss and interruption of business insurance.
\nARTICLE 5
\nSUCCESSOR CORPORATION
(1) either:
\n
| \n | (A) | \nthe Company shall be the surviving or continuing corporation; or |
\n
| \n | (B) | \nthe Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer,\nlease, conveyance or other disposition the properties and assets of the Company substantially as an entirety (the “SURVIVING ENTITY”): |
\n
| \n | (i) | \nthe person is organized under the laws of the United States or a State thereof or is organized under the laws of a foreign jurisdiction and consents to the jurisdiction\nof the courts of the United States or a State thereof; |
\n
| \n | (ii) | \nthe person assumes by supplemental indenture all the obligations of the Company under this Indenture and the Notes; |
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\n\n\n\n
| \n | (iii) | \nimmediately after the transaction no Default exists; and |
\n
| \n | (iv) | \nthe Company provides an Officer’s Certificate and an Opinion of Counsel to the effect that all the provisions in this Section 5.01 have been complied with.\n |
The provisions of this Section 5.01 shall not apply to transactions undertaken pursuant to an Inversion\nTransaction to the extent provided in and permitted by any supplemental indenture for a series of Notes.
SECTION 5.02\nSUCCESSOR SUBSTITUTED. In the event of a sale, assignment, transfer, conveyance or other disposition (other than a lease) described in and complying with the conditions listed in Section 5.01 in which the Company is not the Surviving Entity and\nthe Surviving Entity assumes all the obligations of the Company under the Notes and this Indenture, the Surviving Entity will succeed to, and be substituted for, and may exercise every right and power of, the Company under such agreements and the\nCompany shall be discharged from its obligations under the Notes and this Indenture.
ARTICLE 6
\nDEFAULT AND REMEDIES
\n
| \n | (1) | \nthe failure to pay interest on any such Notes when the same becomes due and payable and the default continues for a period of 30 days (whether or not such payment\nshall be prohibited by any applicable subordination provisions); |
\n
| \n | (2) | \nthe failure to pay the principal on any such Notes, when such principal becomes due and payable, at maturity, upon redemption or otherwise on the date specified for\nsuch payment in the applicable offer to purchase (whether or not such payment shall be prohibited by any applicable subordination provisions); |
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| \n | (3) | \na default in the observance or performance of any other covenant or agreement contained in this Indenture, which default continues for a period of 45 days after\nthe Company receives written notice specifying the default (and demanding that such default be remedied) from the Trustee or the Holders of at least 25% of the outstanding principal amount of such Notes (except in the case of a default with respect\nto Section 5.01, which will constitute an Event of Default with such notice requirement but without such passage of time requirement); |
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| \n | (4) | \nthe failure to pay at final stated maturity (giving effect to any applicable grace periods and any extensions thereof) the principal amount of any Indebtedness of the\nCompany, or the acceleration of the final stated maturity of any such Indebtedness (which acceleration is not rescinded, annulled or otherwise cured within 20 days of receipt by the Company of notice of any such acceleration);\n |
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| \n | (5) | \nthe Company pursuant to or within the meaning of any Bankruptcy Law, |
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| \n | (i) | \ncommences a voluntary case, |
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| \n | (ii) | \nconsents to the entry of an order for relief against it in an involuntary case, |
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| \n | (iii) | \nconsents to the appointment of a Custodian of it or for all or substantially all of its assets, or |
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| \n | (iv) | \nmakes a general assignment for the benefit of its creditors; or |
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| \n | (6) | \na court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: |
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| \n | (i) | \nis for relief against the Company as debtor in an involuntary case, |
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| \n | (ii) | \nappoints a Custodian of the Company or a Custodian for all or substantially all of the assets of the Company, or |
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| \n | (iii) | \norders the liquidation of the Company, and in each case, the order or decree remains unstayed and in effect for 60 days; or |
(b) If an Event of Default (other than an Event of Default specified in Section 6.01(a)(5) or 6.01(a)(6) above with respect to\nthe Company) shall occur and be continuing, the Trustee or the Holders of at least 25% in principal amount of outstanding Notes of such series may declare the principal of and accrued interest on all the Notes to be due and payable by notice in\nwriting to the Company and the Trustee specifying the applicable Event of Default and that it is a “notice of acceleration” (the “ACCELERATION NOTICE”), and the same shall become immediately due and payable.
\nIf an Event of Default specified in Section 6.01(a)(5) or 6.01(a)(6) above with respect to the Company occurs and is continuing,\nthen all unpaid principal of, and premium, if any, and accrued and unpaid interest on all of the outstanding Notes of such series shall IPSO FACTO become and be immediately due and payable without any declaration or other act on the part of the\nTrustee or any Holder.
(c) At any time after a declaration of acceleration with respect to the Notes as described in\nSection 6.01(b), the Holders of a majority in principal amount of such Notes may rescind and cancel such declaration and its consequences:
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| \n | (1) | \nif the rescission would not conflict with any judgment or decree; |
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| \n | (2) | \nif all existing Events of Default have been cured or waived except nonpayment of principal or interest that has become due solely because of the acceleration;\n |
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| \n | (3) | \nto the extent the payment of such interest is lawful, interest on overdue installments of interest and overdue principal, which has become due otherwise than by such\ndeclaration of acceleration, has been paid; |
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| \n | (4) | \nif the Company has paid the Trustee its reasonable compensation and reimbursed the Trustee for its expenses, disbursements and advances; and |
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| \n | (5) | \nin the event of the cure or waiver of an Event of Default of the type described in Section 6.01(a)(5) or 6.01(a)(6), the Trustee shall have received an\nOfficers’ Certificate and an Opinion of Counsel that such Event of Default has been cured or waived. |
No\nsuch rescission shall affect any subsequent Default or impair any right consequent thereto.
The Holders of a majority in\nprincipal amount of the Notes of such series may waive any existing Default or Event of Default under this Indenture, and its consequences, except a default in the payment of the principal of or interest on such Notes.
\nHolders of the Notes may not enforce this Indenture or the Notes except as provided in this Indenture and under the TIA. The Trustee is\nunder no obligation to exercise any of its rights or powers under this Indenture at the request, order or direction of any of the Holders, unless such Holders have offered to the Trustee reasonable indemnity. Subject to all provisions of this\nIndenture and applicable law, the Holders of a majority in aggregate principal amount of the then outstanding Notes of a series have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee\nor exercising any trust or power conferred on the Trustee.
SECTION 6.02 NOTICE OF DEFAULTS. The Trustee shall, within\n90 days after the occurrence of any Default with respect to the Notes, give the Holders thereof notice of all uncured Defaults thereunder known to it; PROVIDED, HOWEVER, that, except in the case of an Event of Default in payment with respect to\nthe Notes or a Default in complying with Section 5.01, the Trustee shall be protected in withholding such notice if and so long as a committee of its trust officers in good faith determines that the withholding of such notice is in the interest\nof the Holders.
SECTION 6.03 OTHER REMEDIES. If an Event of Default occurs and is continuing on a series of Notes, the\nTrustee may pursue any available remedy by proceeding at law or in equity to collect the payment of principal of, premium, if any, or interest on the Notes of such series or to enforce the performance of any provision of the Notes of such series or\nthis Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of\nthem in the proceeding. Holders of such Notes may not enforce this Indenture or the Notes of such series except as provided in Section 6.02, Section 6.05, Section 6.06 and Section 6.07.
\nSECTION 6.04 WAIVER OF PAST DEFAULTS. Subject to Sections 6.02, 6.07 and 9.02, the Holders of at least a majority in principal\namount of the outstanding Notes of a series, by notice to the Trustee, may waive an existing Default or Event of Default and its consequences, except a Default in the payment of principal of, premium, if any, or interest on any Note of such series\nas specified in clause (a) or (b) of Section 6.01 which cannot be waived without the consent of the Holder of such Note or in respect of a covenant or provision of this Indenture which cannot be modified or amended without the consent\nof the Holder of each outstanding Note affected. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall\nextend to any subsequent or other Default or Event of Default or impair any right consequent thereto.
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SECTION 6.05 CONTROL BY MAJORITY. Subject to Section 7.02(e), the Holders of a majority\nin aggregate principal amount of the Notes of a 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. However, the Trustee may\nrefuse to follow any direction that conflicts with law or this Indenture or that the Trustee determines is unduly prejudicial to the rights of other Holders or would involve the Trustee in personal liability; PROVIDED, HOWEVER, that the Trustee may\ntake any other action deemed proper by the Trustee that is not inconsistent with such direction.
SECTION 6.06 LIMITATION ON\nSUITS. A Holder may not pursue any proceeding, judicial or otherwise, with respect to this Indenture and the Notes of a series or for the appointment of a receiver or trustee, or for any other remedy hereunder unless:
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| \n | (i) | \nthe Holder gives the Trustee written notice of a continuing Event of Default; |
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| \n | (ii) | \nthe Holders of at least 25% in aggregate principal amount of outstanding Notes make a written request to the Trustee to pursue the remedy; |
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| \n | (iii) | \nsuch Holder or Holders offer the Trustee indemnity satisfactory to the Trustee against any costs, liability or expense; |
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| \n | (iv) | \nthe Trustee does not comply with the request within 15 days after receipt of the request and the offer of indemnity; and |
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| \n | (v) | \nduring such 15-day period, the Holders of a majority in aggregate principal amount of the outstanding Notes of a series do not give the Trustee a direction that is\ninconsistent with the request. |
However, such limitations do not apply to a suit instituted by a Holder of any\nNote for enforcement of payment of the principal of or interest on such Note on or after the due date therefor (after giving effect to any grace period specified in Section 6.01(a) and only with respect to the amount of such missed payment).\n
For purposes of Section 6.05 of this Indenture and this Section 6.06, the Trustee shall comply with TIA\nSection 316(a) in making any determination of whether the Holders of the required aggregate principal amount of outstanding Notes have concurred in any request or direction of the Trustee to pursue any remedy available to the Trustee or the\nHolders with respect to this Indenture and such Notes or otherwise under the law.
A Holder may not use this Indenture to\nprejudice the rights of another Holder or to obtain a preference or priority over such other Holder.
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SECTION 6.07 RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding any other provision of\nthis Indenture, the right of any Holder of a Note to receive payment of the principal amount of, Additional Interest, if any, or interest on, such Note or to bring suit for the enforcement of any such payment, on or after the due date expressed in\nthe Notes of a series, shall not be impaired or affected without the consent of such Holder.
SECTION 6.08 COLLECTION SUIT BY\nTRUSTEE. If an Event of Default in payment of principal, premium or interest specified in clause (1) or (2) of Section 6.01(a) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express\ntrust against the Company or any other obligor of the Notes for the whole amount of principal, premium, if any, and accrued interest remaining unpaid, together with interest on overdue principal and premium and, to the extent that payment of such\ninterest is lawful, interest on overdue installments of interest, in each case at the rate specified in the Notes of such series, and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable\ncompensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09 TRUSTEE MAY FILE\nPROOFS 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 (including any claim for the reasonable compensation, expenses, disbursements and\nadvances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07) and the Holders allowed in any judicial proceedings relative to the Company (or any other obligor of the Notes), its creditors or its\nproperty and shall be entitled and empowered to collect and receive any monies, securities or other property payable or deliverable upon conversion or exchange of the Notes or upon any such claims and to distribute the same, and any custodian,\nreceiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making\nof such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation expenses, disbursements and advances of the Trustee, its agent and counsel, and any other amounts due the Trustee under\nSection 7.07. Nothing herein contained shall be deemed to empower the Trustee to authorize or consent to, or accept or adopt on behalf of any Holder, any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the\nrights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
\nSECTION 6.10 PRIORITIES. If the Trustee collects any money pursuant to this Article Six it shall pay out the money in the following\norder:
First: to the Trustee for all amounts due under Section 7.07 and any receiver, manager, administrative receiver, liquidator or\nagent appointed subject to this Indenture;
Second: to Holders for amounts then due and unpaid for principal of, premium, if any, and interest\non the Notes of a series in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Notes for principal, premium, if any, and\ninterest, respectively; and
Third: to the Company and any other obligors of such Notes, as their interests may appear, or as a court of\ncompetent jurisdiction may direct.
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The Trustee, upon prior written notice to the Company, may fix a record date and payment\ndate for any payment to Holders pursuant to this Section 6.10.
SECTION 6.11 UNDERTAKING FOR COSTS. In any suit for the\nenforcement 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 may require any party litigant in such suit to file an undertaking to pay the costs of the suit, and\nthe court 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\nSection 6.11 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 outstanding Notes.
\nSECTION 6.12 RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or any Holder has instituted any proceeding to enforce any right or\nremedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then, and in every such case, subject to any determination in such proceeding, the\nCompany, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Company, Trustee and the Holders shall continue as though no such proceeding had been\ninstituted.
SECTION 6.13 RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise provided with respect to the replacement or\npayment of mutilated, destroyed, lost or wrongfully taken Notes in Section 2.07, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and\nremedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder,\nor otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
SECTION 6.14\nDELAY OR OMISSION NOT WAIVER. No delay or omission of the Trustee or of any Holder to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an\nacquiescence therein. Every right and remedy given by this Article Six or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.\n
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ARTICLE 7
SECTION 7.01 GENERAL. The duties and responsibilities of the Trustee\nshall be as provided by the TIA and as set forth herein. The Trustee undertakes to perform such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee.\nNotwithstanding the foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its\nrights or powers, if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not reasonably assured to it. Whether or not therein expressly so provided, every\nprovision 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 Article Seven.
\nSECTION 7.02 CERTAIN RIGHTS, DUTIES AND RESPONSIBILITIES OF TRUSTEE. Subject to TIA Sections 315(a) through (d):
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| \n | (a) | \nif any Event of Default has occurred and is continuing of which a Responsible Officer of the Trustee has actual knowledge, the Trustee shall exercise such of the rights\nand 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; |
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| \n | (b) | \nthe Trustee may conclusively rely and shall be protected in acting or refraining from acting, upon any resolution, certificate, statement, instrument, opinion, report,\nnotice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document (whether in its original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper\nperson. The Trustee need not investigate any fact or matter stated in the document; |
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| \n | (c) | \nbefore the Trustee acts or refrains from acting, it may require an Officers’ Certificate and/or an Opinion of Counsel, which shall conform to the certificate or\nopinion described in Section 11.03 or Section 11.04, as the case may be. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion; |
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| \n | (d) | \nthe Trustee may consult with and act through attorneys and agents of its selection and the advice of such attorneys and agents shall be full and complete authorization\nand protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; |
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| \n | (e) | \nthe 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,\nunless such Holders shall have offered to the Trustee reasonable security or indemnity satisfactory to it against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction;\n |
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| \n | (f) | \nthe Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers or for any\naction it takes or omits to take in accordance with the direction of the Holders of the requisite percentage in principal amount of the outstanding Notes required by this Indenture relating to the time, method and place of conducting any proceeding\nfor any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture; |
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| \n | (g) | \nwhenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any\naction hereunder, the Trustee (unless other evidence be herein specifically prescribed), in the absence of bad faith on its part, may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon an\nOfficers’ Certificate or an Opinion of Counsel furnished to it and conforming with the requirements of this Indenture; but in the case of any such Officers’ Certificate or Opinion of Counsel which by provision hereof are specifically\nrequired to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical\ncalculations or other facts stated therein); |
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| \n | (h) | \nthe Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report,\nnotice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see\nfit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company personally or by agent or attorney at the sole cost of the Company and shall incur\nno liability or additional liability of any kind by reason of such inquiry or investigation; |
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| \n | (i) | \nthe Trustee shall not be deemed to have knowledge of any Default or Event of Default except any Default or Event of Default of which a Responsible Officer of the\nTrustee shall have received written notification, or obtained actual knowledge; |
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| \n | (j) | \nthe Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall\nnot be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; |
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| \n | (k) | \nthe rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and\nshall be enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and other Person employed to act hereunder; and |
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| \n | (l) | \nthe Trustee may request that the Company deliver an Officers’ Certificate setting forth the names of individuals and/or titles of officers authorized at such time\nto take specified actions pursuant to this Indenture, which Officers’ Certificate may be signed by any person authorized to sign an Officers’ Certificate, including any person specified as so authorized in any such certificate previously\ndelivered and not superseded. |
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SECTION 7.03 INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee, in its individual or any other\ncapacity, may become the owner or pledgee of Notes and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not the Trustee. Any Agent may do the same with like rights. However, the Trustee is subject\nto TIA Sections 310(b) and 311.
SECTION 7.04 TRUSTEE’S DISCLAIMER. The Trustee (a) makes no representation as to\nthe validity, accuracy or adequacy of this Indenture, any offering materials or the Notes, (b) shall not be accountable for the Company’s use or application of the proceeds from the Notes and (c) shall not be responsible for any\nstatement in the Notes other than its certificate of authentication.
SECTION 7.05 NOTICE OF DEFAULT. If any Default or any\nEvent of Default occurs and is continuing and if such Default or Event of Default is actually known to a Responsible Officer of the Trustee, the Trustee shall mail to each Holder in the manner and to the extent provided in TIA Section 313(c)\nnotice of the Default or Event of Default within 90 days after it occurs, unless such Default or Event of Default has been cured; PROVIDED, HOWEVER, that, except in the case of a default in the payment of the principal of, premium, if any, or\ninterest on any Note, the Trustee shall be protected in withholding such notice if and so long as the Board of Directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determine\nthat the withholding of such notice is in the interest of the Holders. The Company shall give the Trustee notice of any uncured Default or Event of Default within 30 days after any Responsible Officer of the Company becomes aware of or receives\nactual notice of such Event of Default.
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS. Within 60 days after each\nMay 15 following initial issuance, the Trustee shall mail to each Holder as provided in TIA Section 313(c) a brief report dated as of such May 15 if required by TIA Section 313(a).
\nSECTION 7.07 COMPENSATION AND INDEMNITY. The Company shall pay to the Trustee such compensation as shall be agreed upon in writing for\nits services hereunder. The compensation of the Trustee shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses and advances\nincurred or made by the Trustee in each of its capacities hereunder. Such expenses shall include the reasonable compensation and expenses of the Trustee’s agents and counsel.
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The Company shall indemnify the Trustee, in each of its capacities, and any successor of the\nTrustee, in each of its capacities, for, and hold it harmless against, any and all claims, damages, losses, costs, liability or expense (including, without limitation, the reasonable fees and expenses of its counsel and advisors) and taxes (other\nthan taxes based on the income of the Trustee) incurred by it without negligence or willful misconduct on its part arising out of or in connection with the acceptance or administration of this Indenture and its duties under this Indenture and the\nNotes and the exercise of its rights and powers under this Indenture, including the costs and expenses of defending itself against any claim or liability (whether asserted by the Company, any Holder or any other Person) and of complying with any\nprocess served upon it or any of its officers in connection with the exercise or performance of any of its powers or duties under this Indenture and the Notes and the exercise of the rights of the Trustee thereunder. The Company need not pay for any\nsettlement made without its consent, which consent shall not be unreasonably withheld.
To secure the Company’s payment\nobligations in this Section 7.07, the Trustee shall have a lien prior to the Notes on all money or property held or collected by the Trustee, in its capacity as Trustee, except money or property held in trust to pay principal of, Additional\nInterest, if any, and interest on particular Notes.
If the Trustee incurs expenses or renders services after the occurrence\nof an Event of Default specified in Sections 6.01(a)(5) and/or 6.01(a)(6), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services will be intended to constitute expenses of\nadministration under Title 11 of the United States Bankruptcy Code or any applicable foreign, federal or state law for the relief of debtors.
SECTION 7.08 REPLACEMENT OF TRUSTEE. A resignation or removal of the Trustee and appointment of a successor Trustee shall become\neffective only upon the successor Trustee’s acceptance of appointment as provided in this Section 7.08.
The Trustee\nmay resign at any time by so notifying the Company in writing at least 30 days prior to the date of the proposed resignation. The Holders of a majority in principal amount of the outstanding Notes may remove the Trustee by so notifying the\nTrustee in writing and may appoint a successor Trustee with the prior written consent of the Company. The Company may remove the Trustee by a Board Resolution if: (a) the Trustee is no longer eligible under Section 7.10; (b) the\nTrustee is adjudged a bankrupt or an insolvent; (c) a receiver or other public officer takes charge of the Trustee or its property; or (d) the Trustee becomes incapable of acting.
\nIf the Trustee resigns or is removed, or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint\na successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Company. If the\nsuccessor Trustee does not deliver its written acceptance required by the next succeeding paragraph of this Section 7.08 within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of a\nmajority in principal amount of the outstanding Notes may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee.
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A successor Trustee shall deliver a written acceptance of its appointment to the retiring\nTrustee and to the Company. Immediately after the delivery of such written acceptance, subject to the lien provided in Section 7.07, (i) the retiring Trustee shall transfer all property held by it as Trustee to the successor Trustee,\n(ii) the resignation or removal of the retiring Trustee shall become effective and (iii) the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. A successor Trustee shall mail notice of its\nsuccession to each Holder.
If the Trustee is no longer eligible under Section 7.10, any Holder who satisfies the\nrequirements of TIA Section 310(b) may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the\nCompany’s obligation under Section 7.07 shall continue for the benefit of the retiring Trustee.
SECTION 7.09\nSUCCESSOR TRUSTEE BY MERGER, ETC. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation or national banking association, the resulting, surviving or\ntransferee corporation or national banking association without any further act shall be the successor Trustee with the same effect as if the successor Trustee had been named as the Trustee herein.
\nSECTION 7.10 ELIGIBILITY. This Indenture shall always have a Trustee who satisfies the requirements of TIA Section 310(a)(1). The\nTrustee shall have a combined capital and surplus of at least $50.0 million as set forth in its most recent published annual report of condition.
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SECTION 7.13 TRUSTEE’S APPLICATION FOR INSTRUCTIONS FROM THE COMPANY. Any application\nby the Trustee for written instructions from the Company may, at the option of the Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee under this Indenture and the date on and/or after which such actions shall be\ntaken or such omission shall be effective. The Trustee shall not be liable for any action taken by, or omission of, the Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date\nshall not be less than three Business Days after the date any Officer of the Company actually receives such application, unless any such Officer shall have consented in writing to any earlier date) unless prior to taking any such action (or the\neffective date in the case of an omission), the Trustee shall have received written instructions in response to such application specifying the action to be taken or omitted.
(b) Every separate trustee and co-trustee shall, to the extent permitted by law, be appointed and act subject to the following\nprovisions and conditions:
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| \n | (i) | \nall rights, powers, duties and obligations conferred or imposed upon the Trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such\nseparate trustee or co-trustee jointly (it being understood that such separate trustee or co-trustee is not authorized to act separately without the Trustee joining in such act) except to the extent that under any law of any jurisdiction in which\nany particular act or acts are to be performed the Trustee shall be incompetent or unqualified or it shall be unreasonably burdensome for the Trustee to perform such act or acts, in which event such rights, powers, duties and obligations (including\nthe holding of title to the Notes or any portion thereof in any such jurisdiction) shall be exercised and performed singly by such separate trustee or co-trustee, but solely at the direction of the Trustee; |
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| \n | (ii) | \nno trustee hereunder shall be personally liable by reason of any act or omission of any other trustee hereunder; and |
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| \n | (iii) | \nthe Trustee may at any time accept the resignation of or remove any separate trustee or co-trustee. |
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(c) Any notice, request or other writing given to the Trustee shall be deemed to have\nbeen given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Indenture and the conditions of this Article Seven.\nEach separate trustee and co-trustee, upon its acceptance of the appointment, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided therein, subject\nto all the provisions of this Indenture, specifically including every provision of this Indenture relating to the conduct of, affecting the liability of, or affording protection or rights (including the rights to compensation, reimbursement and\nindemnification hereunder) to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate\ntrustee or co-trustee may at any time constitute the Trustee its agent or attorney-in-fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Indenture on its behalf and in its name.\nIf any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, until the\nappointment of a new trustee or successor to such separate or co-trustee.
ARTICLE 8
\nDISCHARGE OF INDENTURE
(1) either:
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| \n | a) | \nall the Notes theretofore authenticated and delivered (except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose payment money has\ntheretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust) have been delivered to the Trustee for cancellation; or |
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| \n | b) | \nall Notes not theretofore delivered to the Trustee for cancellation have become due and payable, and the Company has irrevocably deposited or caused to be deposited\nwith the Trustee funds in an amount sufficient to pay and discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, and interest on the Notes to the date of deposit\ntogether with irrevocable instructions from the Company directing the Trustee to apply such funds to the payment thereof at maturity or redemption, as the case may be; |
(2) the Company has paid all other sums payable under this Indenture by the Company; and
\n(3) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel stating that all conditions\nprecedent under this Indenture relating to the satisfaction and discharge of this Indenture have been complied with.
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\n\n\n\n
With respect to the foregoing clause (1), the Company’s obligations under\nSections 7.07 and 12.08 shall survive such satisfaction and discharge. With respect to the foregoing clause (2), the Company’s obligations in Sections 2.02, 2.03, 2.04, 2.05, 2.07, 2.10, 2.12, 4.02, 7.07, 7.08, 8.04, 8.05, 8.06 and\n12.08 shall survive until the Notes are no longer outstanding. Thereafter, only the Company’s obligations in Sections 7.07, 8.05, 8.06 and 12.08 shall survive. After any such irrevocable deposit, the Trustee upon written request of the\nCompany shall acknowledge in writing the discharge of the Company’s obligations under the Notes and this Indenture, except for those surviving obligations specified above.
\nSECTION 8.02 DEFEASANCE AND DISCHARGE OF INDENTURE. The Company will be deemed to have paid and will be discharged from any and all\nobligations in respect of this Indenture and a series of Notes on the date of the deposit referred to in clause (A) of this Section 8.02, and the provisions of this Indenture will no longer be in effect with respect to such series of Notes\n(“LEGAL DEFEASANCE”), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same, except for the following provisions which shall survive until otherwise terminated or discharged hereunder:\n(a) the rights of Holders of outstanding Notes to receive solely from the trust fund described in clause (A) below payments in respect of the principal of, premium, if any, and interest on such Notes when such payments are due,\n(b) the Company’s obligations with respect to such Notes under Article Two and Section 4.02 hereof, (c) the rights, powers, trusts, duties, indemnities and immunities of the Trustee hereunder, including, without limitation,\nSection 7.07 hereof and the Company’s obligations in connection therewith and (d) this Article Eight. Subject to compliance with this Article Eight, the Company may exercise its option under this Section 8.02\nnotwithstanding the prior exercise of its option under Section 8.03 hereof. The following conditions shall apply to Legal Defeasance:
\n
| \n | (A) | \nthe Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of such Notes, cash in United States dollars, non callable Government\nSecurities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay and discharge the principal of, premium, if any, and interest on the outstanding\nNotes on the Stated Maturity thereof or on the applicable redemption date (such date being referred to as the “DEFEASANCE REDEMPTION DATE”), as the case may be, and any other amounts owing under this Indenture, if in the case of a\nDefeasance Redemption Date prior to electing to exercise either Legal Defeasance or Covenant Defeasance, the Company has delivered to the Trustee an irrevocable notice to redeem all of the outstanding Notes on such Defeasance Redemption Date;\n |
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| \n | (B) | \nthe Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that:\n |
\n
| \n | (i) | \nthe Company has received from, or there has been published by the United States Internal Revenue Service, a ruling, or |
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| \n | (ii) | \nsince the date of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon this\nOpinion of Counsel shall confirm that, the Holders will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same\nmanner and at the same times as would have been the case if such Legal Defeasance had not occurred; |
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| \n | (C) | \nno Default shall have occurred and be continuing on the date of such deposit (other than a Default resulting from the borrowing of funds to be applied to such deposit\nand the grant of any Lien securing such borrowing); |
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| \n | (D) | \nthe Legal Defeasance shall not result in a breach or violation of, or constitute a default under this Indenture (other than a Default resulting from the borrowing of\nfunds to be applied to such deposit and the grant of any Lien securing such borrowing) or any other material agreement or instrument (including, without limitation, the Credit Agreement) to which the Company or any of its Subsidiaries is a party or\nby which the Company or any of its Subsidiaries is bound; |
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| \n | (E) | \nthe Company shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by it with the intent of preferring the Holders over\nany other of its creditors or with the intent of defeating, hindering, delaying or defrauding any other of its creditors or others; |
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| \n | (F) | \nthe Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the conditions provided for in, in the case\nof the Officers’ Certificate, clauses (A) through (E) and, in the case of the Opinion of Counsel, clauses (A) (with respect to the validity and perfection of the security interest), (B) and (D) of this Section 8.02\nhave been complied with; and |
\n
| \n | (G) | \nthe Company shall have delivered to the Trustee an Opinion of Counsel to the effect that assuming no intervening bankruptcy of the Company between the date of deposit\nand the 124th day following the date of deposit and that no Holder is an insider of the Company, after the 124th day following the date of deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency,\nreorganization or similar laws affecting creditors’ rights generally |
The Company’s obligations in\nSections 2.02, 2.03, 2.04, 2.05, 2.07, 2.10, 2.12, 4.02, 7.07, 7.08,, 8.04, 8.05, 8.06 and 12.08 shall survive until the Notes are no longer outstanding. Thereafter, only the Company’s obligations in Sections 7.07, 8.05, 8.06 and\n12.08 shall survive.
\n
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\n\n\n\n
After any such irrevocable deposit, the Trustee upon written request shall acknowledge in\nwriting the discharge of the Company’s obligations under the Notes and this Indenture except for those surviving obligations in the immediately preceding paragraph.
SECTION 8.03 DEFEASANCE OF CERTAIN OBLIGATIONS. Unless the Securities\nResolution otherwise provides, the Company may omit to comply with certain terms, provisions or conditions (“COVENANT DEFEASANCE”), with respect to a series of Notes if:
\n\n
| \n | (A) | \nthe Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of such Notes, cash in United States dollars, non callable Government\nSecurities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay and discharge the principal of, premium, if any, and interest on the outstanding\nNotes on the Stated Maturity thereof or on the applicable redemption date (such date being referred to as the “DEFEASANCE REDEMPTION DATE”), as the case may be, and any other amounts owing under this Indenture, if in the case of a\nDefeasance Redemption Date prior to electing to exercise either Legal Defeasance or Covenant Defeasance, the Company has delivered to the Trustee an irrevocable notice to redeem all of the outstanding Notes on such Defeasance Redemption Date;\n |
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| \n | (B) | \nthe Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to such Trustee confirming that the Holders will not\nrecognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if\nthe Covenant Defeasance had not occurred; |
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| \n | (C) | \nno Default shall have occurred and be continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be\napplied to such deposit and the grant of any Lien securing such borrowing); |
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| \n | (D) | \nthe Covenant Defeasance shall not result in a breach or violation of, or constitute a default under this Indenture (other than a Default or Event of Default resulting\nfrom the borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowing) or any other material agreement or instrument (including, without limitation, the Credit Agreement) to which the Company or any of its\nSubsidiaries is a party or by which the Company or any of its Subsidiaries is bound; |
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| \n | (E) | \nthe Company shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by it with the intent of preferring the Holders over\nany other of its creditors or with the intent of defeating, hindering, delaying or defrauding any other of its creditors or others; |
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| \n | (F) | \nthe Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that the conditions provided for in, in the case\nof the Officers’ Certificate, clauses (A) through (E) and, in the case of the Opinion of Counsel, clauses (A) (with respect to the validity and perfection of the security interest), (B) and (D) of this Section 8.03\nhave been complied with; and |
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| \n | (G) | \nthe Company shall have delivered to the Trustee an Opinion of Counsel to the effect that assuming no inervening bankruptcy of the Company between the date of deposit\nand the 124th day following the date of deposit and that no Holder is an insider of the Company, after the 124th day following the date of deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency,\nreorganization or similar laws affecting creditors’ rights generally. |
If the funds deposited with the\nTrustee to effect Covenant Defeasance are insufficient to pay the principal of and interest on the Notes when due, then the Company’s obligations under this Indenture will be revived and no such defeasance will be deemed to have occurred.\n
SECTION 8.04 APPLICATION OF TRUST MONEY. Subject to Section 8.06, the Trustee or Paying Agent shall hold in trust money\nor Government Obligations deposited with it pursuant to Section 8.01, 8.02 or 8.03, as the case may be, and shall apply the deposited money and the money from Government Obligations in accordance with the Notes and this Indenture to the payment\nof principal of, premium, if any, and interest on the Notes.
SECTION 8.05 REPAYMENT TO COMPANY. Subject to\nSections 7.07, 8.01, 8.02 and 8.03, the Trustee and the Paying Agent shall promptly pay to the Company upon request set forth in an Officers’ Certificate any excess money held by them at any time and thereupon shall be relieved from all\nliability with respect to such money. The Trustee and the Paying Agent shall pay to the Company upon written request any money held by them for the payment of principal, premium, if any, or interest that remains unclaimed for two years; PROVIDED\nthat the Trustee or such Paying Agent before being required to make any payment shall cause to be published at the expense of the Company once in a newspaper of general circulation in the City of New York or mail to each Holder entitled to such\nmoney at such Holder’s address (as set forth in the Register) notice that such money remains unclaimed and that after a date specified therein (which shall be at least 30 days from the date of such publication or mailing) any unclaimed\nbalance of such money then remaining will be repaid to the Company. After payment to the Company, Holders entitled to such money must look to the Company for payment as general creditors unless an applicable law designates another Person, and all\nliability of the Trustee and such Paying Agent with respect to such money shall cease.
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SECTION 8.06 REINSTATEMENT. If the Trustee or Paying Agent is unable to apply any money or\nGovernment Obligations in accordance with Section 8.01, 8.02 or 8.03, as the case may be, by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise\nprohibiting such application, the Company’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.01, 8.02 or 8.03, as the case may be, until such time as the\nTrustee or Paying Agent is permitted to apply all such money or Government Obligations in accordance with Section 8.01, 8.02 or 8.03, as the case may be; PROVIDED that if the Company has made any payment of principal of, premium, if any, or\ninterest on any Notes because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or Government Obligations held by the Trustee or Paying Agent.\n
ARTICLE 9
SECTION 9.01 WITHOUT CONSENT OF HOLDERS. The\nCompany, when authorized by a resolution of its Board of Directors (as evidenced by a Board Resolution), and the Trustee may amend or supplement this Indenture and the Notes without notice to or the consent of any Holder:
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| \n | (i) | \nto cure any ambiguity, defect or inconsistency; |
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| \n | (ii) | \nto provide for uncertificated Notes in addition to or in place of certificated Notes; |
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| \n | (iii) | \nto comply with Article 5 or Section 11.06; |
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| \n | (iv) | \nto make any change that would provide any additional rights or benefits to the Holders of Notes or that does not materially adversely affect the rights or interests\nunder this Indenture of any such Holder; |
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| \n | (v) | \nto create a series and establish its terms; |
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| \n | (vi) | \nto comply with requirements of the Commission in order to effect or maintain the qualification of this Indenture under the Trust Indenture Act;\n |
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| \n | (vii) | \nto alter the form of Notes to provide for any changes in applicable tax laws to the extent that such changes do not materially adversely affect the rights or interests\nof any Holder; |
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| \n | (viii) | \nto comply with the requirements of any supplemental indenture relating to an Inversion Transaction; |
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| \n | (ix) | \nto provide that specific provisions of this Indenture shall not apply to a series not previously issued; or |
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| \n | (x) | \nto provide for a separate Trustee for one or more series. |
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This Section 9.01 is subject to Section 9.05.
\nSECTION 9.02 WITH CONSENT OF HOLDERS. Unless the Securities Resolution otherwise provides, subject to Sections 6.04 and 6.07 and\nwithout prior notice to the Holders, the Company, when authorized by its Board of Directors (as evidenced by a Board Resolution), and the Trustee may amend this Indenture and the Notes with the written consent of the Holders of a majority in\naggregate principal amount of the Notes then outstanding, and the Holders of a majority in aggregate principal amount of the Notes then outstanding by written notice to the Trustee may waive compliance by the Company with any provision of this\nIndenture and the Notes.
Notwithstanding the foregoing provisions of this Section 9.02, without the consent of each\nHolder affected, an amendment or waiver, including a waiver pursuant to Section 6.04, may not:
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| \n | (i) | \nreduce the amount of Notes whose Holders must consent to an amendment; |
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| \n | (ii) | \nreduce the rate of or change or have the effect of changing the time for payment of interest, including defaulted interest, on any Notes; |
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| \n | (iii) | \nreduce the principal of or change or have the effect of changing the fixed maturity of any Notes, or change the date on which any Notes may be subject to redemption or\nreduce the redemption price therefor; |
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| \n | (iv) | \nmake any Notes payable in money other than that stated in the Notes; |
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| \n | (v) | \nmake any change in provisions of this Indenture protecting the right of each Holder to receive payment of principal of and interest on such Note on or after the due\ndate thereof or to bring suit to enforce such payment, or permitting Holders of a majority in principal amount of Notes to waive Defaults or Events of Default; or |
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| \n | (vi) | \nmake any change that materially adversely affects the right to convert or exchange any Notes. |
It shall not be necessary for the consent of the Holders under this Section 9.02 to approve the particular form of any proposed\namendment, supplement or waiver, but it shall be sufficient if such consent approves the substance thereof.
After an\namendment, supplement or waiver under this Section 9.02 becomes effective, the Company shall mail to the Holders affected thereby a notice briefly describing the amendment, supplement or waiver. The Company shall mail supplemental indentures to\nHolders upon request. Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture or waiver.
\nThis Section 9.02 is subject to Section 9.05.
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SECTION 9.03 REVOCATION AND EFFECT OF CONSENT. Until an amendment or waiver becomes\neffective, a consent to it by a Holder is a continuing consent by the Holder and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the Note of the consenting Holder, even if notation of the consent is not made on\nany Note. However, any such Holder or subsequent Holder may revoke the consent as to its Note or portion of its Note. Such revocation shall be effective only if the Trustee receives the notice of revocation before the date the amendment, supplement\nor waiver becomes effective. An amendment, supplement or waiver shall become effective on receipt by the Trustee of written consents from the Holders of the requisite percentage in principal amount of the outstanding Notes and any other conditions\nthereto specified in the notice relating thereto.
The Company may, but shall not be obligated to, fix a record date for the\npurpose of determining the Holders entitled to consent to any amendment, supplement or waiver. If a record date is fixed, then, notwithstanding the last two sentences of the immediately preceding paragraph, those persons who were Holders at such\nrecord date (or their duly designated proxies) and only those persons shall be entitled to consent to such amendment, supplement or waiver or to revoke any consent previously given, whether or not such persons continue to be Holders after such\nrecord date. No such consent shall be valid or effective for more than 90 days after such record date.
After an\namendment, supplement or waiver becomes effective, it shall bind every Holder unless it is of the type described in any of clauses (i) through (vi) of Section 9.02. In case of an amendment or waiver of the type described in clauses\n(i) through (vi) of Section 9.02, the amendment or waiver shall bind each Holder who has consented to it and every subsequent Holder of a Note that evidences the same indebtedness as the Note of the consenting Holder.
\nSECTION 9.04 NOTATION ON OR EXCHANGE OF NOTES. If an amendment, supplement or waiver changes the terms of a Note, the Trustee may require\nthe Holder to deliver it to the Trustee. The Trustee shall, if directed in writing by the Company, place an appropriate notation on the Note about the changed terms and return it to the Holder and the Trustee shall, if directed in writing by the\nCompany, place an appropriate notation on any Note thereafter authenticated. Alternatively, if the Company so determines, the Company in exchange for the Note shall issue and the Trustee upon the Company’s written direction in the form of a\nCompany Order shall authenticate a new Note that reflects the changed terms.
SECTION 9.05 TRUSTEE TO SIGN AMENDMENTS, ETC.\nThe Trustee shall receive, and shall be fully protected in relying upon an Officers’ Certificate and an Opinion of Counsel stating that the execution of any amendment, supplement or waiver authorized pursuant to this Article Nine is\nauthorized and permitted by this Indenture (and otherwise in form and substance satisfactory to the Trustee) and, in the case of an Inversion Transaction, that the Supplemental Indenture is a legal and binding obligation of the New Parent and\nenforceable against the New Parent in accordance with its terms. Subject to the preceding sentence, the Trustee shall sign such amendment, supplement or waiver if the same does not adversely affect the rights, duties, liabilities or immunities of\nthe Trustee. The Trustee may, but shall not be obligated to, execute any such amendment, supplement or waiver that affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
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SECTION 9.06 CONFORMITY WITH TRUST INDENTURE ACT. Every supplemental indenture executed\npursuant to this Article Nine shall conform to the requirement of the TIA as then in effect.
ARTICLE 10
\nCONVERSION
The\nterms and right of conversion, if any, of the Notes shall be set forth in an amendment or supplement to this Indenture.
\nARTICLE 11
\nMISCELLANEOUS
\nSECTION 11.01 TRUST INDENTURE ACT OF 1939. Prior to the effectiveness of the Registration Statement, this Indenture shall incorporate and\nbe governed by the provisions of the TIA that are required to be part of and to govern indentures qualified under the TIA. After the effectiveness of the Registration Statement, this Indenture shall be subject to the provisions of the TIA that are\nrequired to be a part of this Indenture and shall, to the extent applicable, be governed by such provisions.
SECTION 11.02\nNOTICES. Any notice or communication shall be sufficiently given if in writing and delivered in person or mailed by first class mail addressed or via facsimile as follows:
Brady Corporation
Milwaukee, Wisconsin 53223
\nFax: 414-438-6957
Attention: Chief Financial\nOfficer
if to the Trustee, Paying Agent or Registrar:
[ ]
\n[ ]
\n[ ]
\nThe Company or the Trustee by notice to the other (and to each Representative for Designated Senior Debt known to it to be then\noutstanding) may designate additional or different addresses for subsequent notices or communications.
Any notice or\ncommunication mailed to a Holder shall be mailed to it at such Holder’s address as it appears on the Register by first class mail and shall be sufficiently given to it if so mailed within the time prescribed. Copies of any such communication or\nnotice to a Holder shall also be mailed to the Trustee and each Agent at the same time.
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All notices shall be deemed to have been given upon the mailing by first class mail, postage\nprepaid, of such notices to Holders of the Notes at their registered addresses as recorded in the Register.
Failure to mail a\nnotice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. Except for a notice to the Trustee, which is deemed given only when received, and except as otherwise provided in this Indenture,\nif a notice or communication is mailed in the manner provided in this Section 11.02, it is duly given, whether or not the addressee receives it.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice\nby mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
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| \n | (i) | \nan Officers’ Certificate, upon which the Trustee may conclusively rely, stating that, in the opinion of the signers, all conditions precedent, if any, provided for\nin this Indenture relating to the proposed action have been complied with; and |
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| \n | (ii) | \nan Opinion of Counsel, upon which the Trustee may conclusively rely, in form and substance satisfactory to the Trustee stating that, in the opinion of such counsel, all\nsuch conditions precedent have been complied with; PROVIDED, HOWEVER, that, with respect to matters of fact, an Opinion of Counsel may rely on an Officers’ Certificate or certificates of public officials. |
SECTION 11.04 STATEMENTS REQUIRED IN CERTIFICATE. Each Officers’ Certificate with respect to compliance with a condition or covenant\nprovided for in this Indenture shall include:
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| \n | (i) | \na statement that each person signing such certificate has read such covenant or condition and the definitions herein relating thereto; |
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| \n | (ii) | \na brief statement as to the nature and scope of the examination or investigation upon which the statements contained in such certificate are based;\n |
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| \n | (iii) | \na statement that, in the opinion of each such person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to\nwhether or not such covenant or condition has been complied with; and |
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| \n | (iv) | \na statement as to whether or not, in the opinion of each such person, such condition or covenant has been complied with. |
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SECTION 11.05 RULES BY TRUSTEE, PAYING AGENT OR REGISTRAR. The Trustee may make reasonable\nrules for action by or at a meeting of Holders. The Paying Agent or Registrar may make reasonable rules for its functions.
\nSECTION 11.06 PAYMENT DATE OTHER THAN A BUSINESS DAY. If an Interest Payment Date, Redemption Date, Stated Maturity or date of maturity\nor repurchase of any Note or any other payment date shall not be a Business Day, then payment of principal of, premium, if any, or interest on such Note, as the case may be, need not be made on such date, but may be made on the next succeeding\nBusiness Day with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity or date of maturity or repurchase of such Note; PROVIDED that no interest shall accrue for the period from and after\nsuch Interest Payment Date, Redemption Date, Stated Maturity or date of maturity or repurchase, as the case may be.
SECTION\n11.07 GOVERNING LAW. The laws of the State of New York shall govern this Indenture and the Notes, without regard to conflict of laws principles thereof. The Trustee, the Company agrees to submit to the jurisdiction of any federal or state court\nsituated in the State of New York, the City of New York, the Borough of Manhattan in any action or proceeding arising out of or relating to this Indenture and the Notes. The Company hereby irrevocably submits to the non-exclusive jurisdiction of\neach such court for the purpose of any such action or proceeding. The Company irrevocably waives, to the fullest extent it may effectively do so, any objection to the laying of venue of any such action or proceeding in any such court and the defense\nof inconvenient forum to the maintenance of any such action or proceeding in any such court.
SECTION 11.08 NO ADVERSE\nINTERPRETATION OF OTHER AGREEMENTS. This Indenture may not be used to interpret another indenture, loan or debt agreement of the Company. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
\nSECTION 11.09 NO RECOURSE AGAINST OTHERS. No recourse for the payment of the principal of, premium, if any, or interest on any of the\nNotes, or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company contained in this Indenture or in any of the Notes, or because of the creation of any\nIndebtedness represented thereby, shall be had against any incorporator or against any past, present or future partner, shareholder, other equityholder, officer, director, employee, management board member, supervisory board member or controlling\nperson, as such, of the Company or of any successor Person, either directly or through the Company or any successor Person, whether by virtue of any constitution, statute or
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\nrule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and\nas a consideration for, the execution of this Indenture and the issue of the Notes.
SECTION 11.10 SUCCESSORS. All agreements\nof the Company in this Indenture and the Notes shall bind its successors. All agreements of the Trustee of this Indenture shall bind its successor.
SECTION 11.12 SEPARABILITY. In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the\nvalidity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
\nSECTION 11.13 TABLE OF CONTENTS, HEADINGS, ETC. The Table of Contents, Cross-Reference Table and headings of the Articles and Sections of\nthis Indenture have been inserted for convenience of reference only, are not to be considered a part hereof and shall in no way modify or restrict any of the terms and provisions hereof.
\nSECTION 11.14 WAIVER OF JURY TRIAL. Each of the Company, Trustee, Paying Agent, and Registrar hereby irrevocably waives, to the fullest\nextent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Indenture, the Notes or the transactions contemplated hereby.
\nSECTION 11.15 UNCLAIMED MONEY; PRESCRIPTION. If money deposited with the Trustee or any Paying Agent for the payment of principal,\npremium (if any), interest or Additional Interest (if any) remains unclaimed for two years, the Trustee and such Paying Agent shall, upon written request of the Company, pay such money back to the Company. Following such repayment to the Company,\nHolders of the Notes entitled to such payment must look to the Company for such payment unless applicable abandoned property law designates another Person and all liability of the Trustee and Paying Agent shall cease. Other than as set forth in this\nparagraph, this Indenture does not provide for any prescription period for the payment of principal, premium (if any), interest and Additional Interest (if any) on the Notes.
PAYING AGENT, TRANSFER AGENT AND REGISTRAR
\nSECTION 12.01 DUTIES OF THE PAYING AGENT, TRANSFER AGENT AND REGISTRAR. Each of the Paying Agent, Transfer Agent and the Registrar shall\nbe obliged to perform such duties, and only such duties, as are herein specifically set forth, and no implied duties or obligations shall be read into this Indenture against it. No provision of this Indenture shall require the Paying Agent, the\nTransfer Agent or the Registrar to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties, or in the exercise of its rights and powers, hereunder.
\n
-41-\n
\n\n\n\n
SECTION 12.02 AGENT OF THE COMPANY. In acting hereunder and in connection with the\nSecurities, the Paying Agent, the Transfer Agent and the Registrar shall act solely as agents of the Company and will not thereby assume any obligations towards, or relationship of agency or trust for, any of the Holders.
\nSECTION 12.03 CERTAIN RIGHTS OF PAYING AGENT, TRANSFER AGENT AND REGISTRAR.
\n\n
| \n | a) | \nEach of the Paying Agent, the Transfer Agent and the Registrar may consult with legal or other professional advisers satisfactory to it, and the opinion of such\nadvisers shall be full and complete protection in respect of any action taken, omitted or suffer hereunder in good faith and in accordance with the opinion of such advisers. |
\n
| \n | b) | \nEach of the Paying Agent, the Transfer Agent and the Registrar shall be protected and shall incur no liability for or in respect of any action taken, omitted or\nsuffered in reliance upon any instruction, request or order from the Company or the Trustee, or any Note, form or transfer, resolution, direction, consent, certificate, affidavit, statement, telex, facsimile transmission or other paper or document\nbelieved by it in good faith to be genuine and to have been delivered, signed or sent by the proper party or parties. |
\n
| \n | c) | \nExcept as may be required by law, each of the Paying Agent, the Transfer Agent and the Registrar shall (whether or not the relevant Note is overdue and regardless of\nany notice of ownership, trust or any interest, or writing on, or the loss or theft of, the certificate issued in respect of such Note) be entitled to treat the registered owner of any Note as the absolute owner for all purposes.\n |
\n
| \n | d) | \nEach of the Paying Agent, the Transfer Agent and the Registrar shall not be liable for any action taken, suffered or omitted by it in good faith and believed by it to\nbe authorized or within the discretion or rights or powers conferred upon it by this Indenture. |
\n
| \n | e) | \nNone of the Paying Agent, the Transfer Agent or the Registrar shall have any duty or responsibility in case of any default by the Company in the performance of its\nobligations hereunder or under the Notes (including, without limitation, the generality of the foregoing, any duty or responsibility to accelerate all or any of the Notes or to initiate or to attempt to initiate any proceedings at law or otherwise\nor to make any demand for the payment thereof upon the Company). |
SECTION 12.04 MAY HOLD NOTES. Each of the\nPaying Agent, the Transfer Agent and the Registrar and each’s respective officers, directors and employees, may become the owner of, or acquire any interest in, any Notes with the same rights that it or they would have if it were not appointed\nhereunder, and may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of Holders of Securities or other obligations of the Company as freely as\nif it were not appointed hereunder.
SECTION 12.05 APPOINTMENT OF AGENTS. Each of the Paying Agent, the Transfer Agent and the\nRegistrar may perform the services required to be rendered by it hereunder either directly or through attorneys-in-fact or agents not regularly in its employ and the Paying Agent, the Transfer Agent or the Registrar, as the case may be, shall not be\nresponsible or liable for any willful misconduct or negligence on the part of any such attorney or agent appointed by it with due care hereunder.
\n
-42-\n
\n\n\n\n
SECTION 12.06 MONEY HELD. The Paying Agent shall be entitled to deal with moneys paid to it\nhereunder in the same manner as other moneys paid to it as a banker by its customers except that the Paying Agent shall not be liable to any Person for interest on, or have any responsibility to invest, any sums held by it under this Indenture.\n
SECTION 12.07 PAYING AGENT, TRANSFER AGENT AND REGISTRAR NOT RESPONSIBLE FOR NOTES. The recitals contained herein and in the\nNotes shall be taken as the statements of the Company and the Paying Agent, the Transfer Agent and the Registrar assume no responsibility for the correctness of the same. None of the Paying Agent, the Transfer Agent or the Registrar makes any\nrepresentation as to the validity or sufficiency of this Indenture, the Notes or any offering material. The Paying Agent, the Transfer Agent and the Registrar shall not be accountable for the use or application by the Company of the proceeds of any\nNotes.
SECTION 12.08 COMPENSATION AND INDEMNIFICATION. (a) The Company shall pay to each of the Paying Agent, the\nTransfer Agent and the Registrar from time to time such compensation as may be agreed upon in writing by the Company and each such agent for all services rendered by it hereunder and shall reimburse each such agent upon its request for all\nreasonable expenses, disbursements and advances incurred or made by it in accordance with or in connection with this Indenture (including the reasonable compensation and expenses of its agents and counsel), except any such expense, disbursement or\nadvance as may be attributable to its negligence or willful misconduct.
(b) The Company shall indemnify and hold\nharmless each of the Paying Agent, the Transfer Agent and the Registrar, and any successor thereto, as and to the same extent provided that the Trustee shall be indemnified and held harmless under Section 7.07 hereof. The provision of this\nsubsection (b) of Section 12.08 shall remain in full force and effect notwithstanding the resignation or removal of any of the Paying Agent, the Transfer Agent and the Registrar, the payment of the Notes or the termination of this\nIndenture.
[Signature Pages to Follow]
\n
-43-\n
\n\n\n\n
SIGNATURES
| \n | \n | |
| BRADY CORPORATION \nas the Company | ||
| \n | ||
| By: | \n\n |
|
| \n | \n | Name: |
| \n | \n | Title: |
| \n [ ] | ||
| \n | ||
| By: | \n\n |
|
| \n | \n | Name: |
| \n | \n | Title: |
S-1\n
\n\n\n\n
EXHIBIT A
[Insert Private Placement Legend and Global Notes if Applicable]\n
BRADY CORPORATION
\n
| \n | \n | \n | \n | |
| [Date] \nNo.[ ] | \n\n | CUSIP No. | \n\n | $[ ] |
BRADY CORPORATION, a Wisconsin corporation (the “COMPANY”, which term includes any successor\nunder the Indenture hereinafter referred to), for value received, promise to pay to , or its registered assigns, the\nprincipal sum of on .
\nInterest Payment Dates:
Reference is hereby made to the further provisions of this\nNote set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
\n
A-1\n
\n\n\n\n
IN WITNESS WHEREOF, the Company has caused this Note to be signed manually by its duly\nauthorized signatories.
| \n | \n | |
| BRADY CORPORATION, | ||
| \n | ||
| By: | \n\n |
|
| \n | \n | Name: |
| \n | \n | Title: |
Date: [ ], 201
\n
| \n | \n | |
| [NAME OF TRUSTEE], as Trustee | ||
| \n | ||
| By: | \n\n |
|
| \n | \n | Authorized Signatory |
A-2\n
\n\n\n\n
{REVERSE SIDE OF NOTE}
[Title of Security]
\n\n
| 1. | \nPRINCIPAL AND INTEREST. |
The\nCompany shall pay the principal of this Note on .
The Company promises to pay interest on the principal amount of this Note\non each Interest Payment Date, as set forth below, at the rate per annum shown above.
Interest will be paid semi-annually in\narrears on each Interest Payment Date, commencing . Interest on this Note will accrue from the latest date to which interest has been paid on the Notes or, if no interest has been paid, the Issue Date. Interest will be computed on the basis of a\n360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal and premium, if any, and interest\non overdue installments of interest, to the extent lawful, at a rate per annum that is the then applicable interest rate borne by the Notes.
\n
| 2. | \nMETHOD OF PAYMENT. |
The Company\nshall pay interest on the principal amount of the Notes on each and to the persons who are Holders of\nthe relevant Notes on the or\n , as the case may be, immediately preceding such Interest Payment Date (as reflected in the Register at the close of business on\nthe Regular Record Date), in each case, even if the Note is canceled on registration of transfer or registration of exchange after such record date. The Company shall make payments of principal on the Notes to Holders that surrender Notes to the\nPaying Agent.
If a Holder has given wire transfer instructions to the Paying Agent at least 15 days prior to any\npayment, the Company shall make all principal, premium and interest and Additional Interest, if any, payments on the Notes owned by such Holder in accordance with those instructions. All other payments on the Notes shall be made by check mailed to\nthe Holders at their address set forth in the register of Holders, or in the case of the final payment of principal and interest, if any, on any Note, upon presentation and surrender of such Note at the office of the Paying Agent. All payments on\nthe Notes will be made in U.S. Dollars.
\n
| 3. | \nPAYING AGENT AND REGISTRAR. |
Initially, the Company has appointed the corporate trust office of the Trustee located at the address set forth in Section 11.02 of\nthe Indenture as Paying Agent.
\n
| 4. | \nINDENTURE; LIMITATIONS. |
The\nCompany issued the Notes under an Indenture dated as of , 201 , (the “INDENTURE”), between the Company and\n (the “TRUSTEE”). Capitalized
\n
A-3\n
\n\n\n\n
\nterms herein are used as defined in the Indenture unless otherwise indicated. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the\nTrust Indenture Act. The Notes are subject to all such terms, and Holders are referred to the Indenture and the Trust Indenture Act for a statement of all such terms. To the extent permitted by applicable law, in the event of any inconsistency\nbetween the terms of this Note and the terms of the Indenture, the terms of the Indenture shall control. This is one of the Notes referred to in the Indenture.
\n
| 5. | \nREDEMPTION. |
OPTIONAL\nREDEMPTION. Except as described below, the Notes are not redeemable before . Thereafter, the Company may redeem the Notes at its\noption, in whole or in part, upon not less than 30 nor more than 60 days’ notice to the Holders, at the following redemption prices (expressed as percentages of the principal amount thereof) if redeemed during the twelve-month period\ncommencing on of the years set forth below:
\n
| \n | \n | \n | \n | |
| YEAR | \n\n | \n | PERCENTAGE | \n
and thereafter at 100.000%
\n
| 6. | \nREDEMPTION FOR CHANGES IN WITHHOLDING TAXES. |
\n
| 7. | \nDENOMINATIONS; TRANSFER; EXCHANGE. |
\n
| 8. | \nPERSONS DEEMED OWNERS. |
A Holder\nshall be treated as the owner of a Note for all purposes.
\n
| 9. | \nUNCLAIMED MONEY. |
If money\ndeposited with the Trustee or any Paying Agent for the payment of principal, premium (if any), interest or Additional Interest (if any) remains unclaimed for two years, the Trustee and each such Paying Agent shall pay such money back to the Company\nupon written request of the Company. Following such repayment to the Company, Holders of the Notes entitled to such payment must look to the Company for such payment unless applicable
\n
A-4\n
\n\n\n\n
\nabandoned property law designates another Person and all liability of the Trustee and such Paying Agent shall cease. Other than as set forth in this paragraph, the Indenture does not provide for\nany prescription period for the payment of principal, premium (if any), interest and Additional Interest (if any) on the Notes.
\n
| 10. | \nDISCHARGE PRIOR TO REDEMPTION OR MATURITY. |
\n
| 11. | \nLEGAL DEFEASANCE AND COVENANT DEFEASANCE. |
\n
| 12. | \nAMENDMENT; SUPPLEMENT; WAIVER. |
Subject to certain exceptions, the Indenture and the Notes may be amended or supplemented with the consent of the Holders of at least a\nmajority in principal amount of the Notes then outstanding, and any existing default or compliance with any provision may be waived with the consent of the Holders of at least a majority in principal amount of the Notes then outstanding. Without\nnotice to or the consent of any Holder, the parties thereto may amend or supplement the Indenture and the Notes to, among other things, cure any ambiguity, defect or inconsistency. Certain modifications will require the consent of each Holder\naffected thereby.
\n
| 13. | \nRESTRICTIVE COVENANTS. |
The\nNotes are unsecured obligations of the Company limited to principal amount. The Indenture does not limit other unsecured debt.
\n\n
| 14. | \nSUCCESSOR PERSONS. |
When a\nsuccessor person or other entity assumes all the obligations of its predecessor under the Notes and the Indenture, the predecessor person will be released from those obligations.
\n\n
| 15. | \nDEFAULTS AND REMEDIES. |
If an\nEvent of Default (other than an Event of Default specified in clause (a)(5) or (a)(6) of Section 6.01 of the Indenture that occurs with respect to the Company) occurs and is continuing, the Trustee by notice to the Company, or the Holders of at\nleast 25% in aggregate principal amount of the Notes then outstanding under the Indenture by notice to the Company and the Trustee, may declare the principal of, premium, if any, and accrued interest, if any, on all Notes to be due and payable. If\nan Event of Default specified in clause (a)(5) or (a)(6) of Section
\n
A-5\n
\n\n\n\n
\n6.01 occurs and is continuing with respect to the Company, such amount with respect to all the Notes shall, IPSO FACTO, become and be immediately due and payable without any declaration or other\nact on the part of the Trustee or any Holders. Holders may not enforce the Indenture and the Notes except as provided in the Indenture. The Trustee may require indemnity satisfactory to it before it enforces the Indenture or the Notes. Subject to\ncertain limitations, Holders of at least a majority in principal amount of the Notes then outstanding may direct the Trustee in its exercise of any trust or power.
\n
| 16. | \nTRUSTEE DEALINGS WITH COMPANY. |
Subject to the Trust Indenture Act, the Trustee under the Indenture, in its individual or any other capacity, may make loans to, accept\ndeposits from and perform services for the Company or its Affiliates and may otherwise deal with the Company or its Affiliates as if it were not the Trustee.
\n
| 17. | \nNO RECOURSE AGAINST OTHERS. |
No\nrecourse for the payment of the principal of, premium, if any, or interest on any of the Notes, or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company\ncontained in the Indenture, in any of the Notes, or because of the creation of any Indebtedness represented thereby, shall be had against any incorporator or against any past, present or future partner, shareholder, other equityholder, officer,\ndirector, employee, management board member, supervisory board member or controlling person, as such, of the Company or of any successor Person, either directly or through the Company or any successor Person, whether by virtue of any constitution,\nstatute or rule of law, or by the enforcement of any assessment or penalty or otherwise.
\n
| 18. | \nAUTHENTICATION. |
This Note shall\nnot be valid until the Trustee or authenticating agent signs the certificate of authentication on the other side of this Note.
\n
| 19. | \nABBREVIATIONS. |
Customary\nabbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian) and\nU/G/M/A (= Uniform Gifts to Minors Act).
The Company shall furnish to any Holder upon written request and without charge a\ncopy of the Indenture. Requests may be made to Brady Corporation, 6555 West Good Hope Road, Milwaukee, Wisconsin 53223.
\n
| 20. | \nCHOICE OF LAW. |
The laws of the\nState of New York shall govern the Indenture and this Note, without regard to conflicts of laws provisions thereof.
\n
A-6\n
\n\n\n\n
ASSIGNMENT FORM
Print or type name, address and zip code of assignee or\ntransferee)
(Insert Company Registration, Social Security or other identifying number of assignee or transferee)
\nand irrevocably appoint
\n
| \n | \n | \n | \n | \n | \n | |
| Dated: | \n\n | \n | \n | Signed: | \n\n |
|
| \n | \n | \n | \n | \n | \n | (Sign exactly as name |
| \n | \n | \n | \n | \n | \n | appears on the other side |
| \n | \n | \n | \n | \n | \n | of this Note) |
\n
| \n | \n | |
| Signature | \n\n | Participant in a recognized Signature Guarantee Medallion Program |
| Guarantee: | \n\n | (or other signature guarantor program reasonably acceptable to the Trustee) |
A-7\n
\n\n\n\n
SCHEDULE A
OF INDEBTEDNESS EVIDENCED BY THIS NOTE
\nThe initial principal amount of indebtedness evidenced by this Note shall be $ .\nThe following decreases/increases in the principal amount of indebtedness evidenced by this Note have been made:
\n
| \n | \n | \n | \n | \n | \n | \n | \n | |
| Date of | \n\n | Decrease in Principal Amount of Indebtedness Evidenced | \n\n | Increase in Principal Amount of Indebtedness Evidenced | \n\n | Total Principal Indebtedness | \n\n | Notation Made by or on Behalf of Trustee |
A-8\n
\n\n\n\nQuarles & Brady LLP
Milwaukee, Wisconsin 53202-4497
\nPhone: (414) 277-5000
www.quarles.com
\nOctober 26, 2011
6555 West Good Hope Road
\nMilwaukee, Wisconsin 53223
Ladies and\nGentlemen:
We are providing this opinion in connection with the Registration Statement of Brady Corporation (the\n“Company”) on Form S-3 (the “Registration Statement”) to be filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”). The Registration\nStatement relates to the proposed offering on a delayed basis pursuant to Rule 415 under the Act, together or separately, of an indeterminate amount of the Company’s (i) unsecured debt securities (the “Debt Securities”) and/or\n(ii) Class A Nonvoting Common Stock, par value $0.01 per share (the “Common Stock”). The Debt Securities and the Common Stock are collectively referred to herein as the “Offered Securities.”
\nWe have examined (i) the Registration Statement; (ii) the Company’s Restated Articles of Incorporation and By-Laws, as\namended to date; (iii) corporate proceedings of the Company relating to the Registration Statement and the transactions contemplated thereby; and (iv) such other documents, and such matters of law, as we have deemed necessary in order to\nrender this opinion.
In connection with this opinion, we have assumed that, at or prior to the time of delivery of the\nOffered Securities, (i) the Registration Statement and any amendments thereto (including post-effective amendments) will have become effective under the Act; (ii) a prospectus supplement will have been prepared and filed with the\nCommission describing the terms of each particular issue of Offered Securities offered and the terms of the offering thereof; (iii) all Offered Securities will be issued and sold in compliance with applicable federal and state securities laws\nand in the manner stated in the Registration Statement and the applicable prospectus supplement; (iv) with respect to an offering of Debt Securities, any indenture providing for the issuance of Debt Securities (the “Indenture”) will\nhave been duly qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and will have been duly authorized, executed and delivered by the Company and the trustee under the Indenture, and any securities\nresolutions setting forth the terms of a series of Debt Securities to be issued under the Indenture (the “Securities Resolution”) will have been duly authorized by the Company; (v) a Form T-1 will be filed with the Commission with\nrespect to the trustee executing any Indenture or any supplemental indenture to any such Indenture; (vi) as appropriate, a definitive purchase, underwriting or similar agreement with respect to any Offered Securities offered will have been duly\nauthorized, executed and delivered by the Company and the other parties thereto; and (vii) with respect to shares of Common Stock offered, there will be sufficient shares of Common Stock authorized under the Company’s Restated Articles of\nIncorporation, as amended, and not otherwise reserved for issuance.
\n\n\n
On the basis and subject to the foregoing, we advise you that, in our opinion:
\n\n
| \n | (1) | \nThe Company is a corporation validly existing under the laws of the State of Wisconsin. |
\n
| \n | (2) | \nWhen (i) the Registration Statement has become effective under the Act and the Indenture has been duly qualified under the Trust Indenture Act, (ii) the terms\nof any class or series of Offered Securities have been authorized by appropriate action of the Company, (iii) any Debt Securities have been duly executed, authenticated, issued and delivered in accordance with the provisions of the Indenture\nand the applicable Securities Resolution, and (iv) any such class or series of Offered Securities has been duly issued and sold, and payment has been received for such Offered Securities in the manner contemplated in the Registration Statement\nand the prospectus supplement relating thereto, then (a) if the Offered Securities are shares of Common Stock, such shares will be validly issued, fully paid and nonassessable, subject to the personal liability which may be imposed on\nshareholders by former Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted, for debts incurred prior to June 14, 2006 (for debts incurred on or after such date, Section 180.0622(2)(b) has been\nrepealed) owing to employees for services performed, but not exceeding six months service in any one case; and (b) if the Offered Securities are Debt Securities, they will be legally issued and will constitute valid and binding obligations of\nthe Company. |
We are qualified to practice law in the State of Wisconsin and we do not purport to be experts on\nthe law other than that of the State of Wisconsin and the federal laws of the United States of America. We express no opinion as to the laws of any jurisdiction other than the State of Wisconsin and the federal laws of the United States.
\nWe consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to our firm under the caption\n“Legal Matters” in the prospectus constituting a part thereof. In giving our consent, we do not admit that we come within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the\nCommission thereunder.
| Very truly yours, |
| /s/ Quarles & Brady LLP |
| QUARLES & BRADY LLP |
Computation of Ratio of Earnings to Fixed Charges
\n
| \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | |
| \n | \n | Years Ended July 31, | \n||||||||||||||||||
| \n | \n | 2011 | \n\n | \n | 2010 | \n\n | \n | 2009 | \n\n | \n | 2008 | \n\n | \n | 2007 | \n||||||
| Earnings: | \n\n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | |
| Income before income taxes | \n\n | $ | \n144,058 | \n\n | \n | \n | 109,402 | \n\n | \n | \n | 97,272 | \n\n | \n | $ | \n186,187 | \n\n | \n | $ | \n151,928 | \n|
| Add back: | \n\n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | |
| Fixed charges less interest capitalized | \n\n | \n | 24,012 | \n\n | \n | \n | 23,248 | \n\n | \n | \n | 27,128 | \n\n | \n | \n | 29,059 | \n\n | \n | \n | 25,156 | \n|
| Less: | \n\n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | |
| Preferential stock dividends and premium on redemption of preferred stock | \n\n | \n | — | \n\n | \n | \n | — | \n\n | \n | \n | — | \n\n | \n | \n | — | \n\n | \n | \n | — | \n|
| \n | \n |
| \n
| \n\n | \n |
| \n
| \n\n | \n |
| \n
| \n\n | \n |
| \n
| \n\n | \n |
| \n
| \n|
| Total earnings | \n\n | $ | \n168,070 | \n\n | \n | \n | 132,650 | \n\n | \n | $ | \n124,400 | \n\n | \n | $ | \n215,246 | \n\n | \n | $ | \n177,084 | \n|
| \n | \n |
| \n
| \n\n | \n |
| \n
| \n\n | \n |
| \n
| \n\n | \n |
| \n
| \n\n | \n |
| \n
| \n|
| Fixed Charges: | \n\n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | \n | |
| Interest, capitalized and expensed | \n\n | $ | \n21,777 | \n\n | \n | \n | 20,852 | \n\n | \n | \n | 24,541 | \n\n | \n | $ | \n26,385 | \n\n | \n | $ | \n22,936 | \n|
| Amortization of debt expense | \n\n | \n | 347 | \n\n | \n | \n | 379 | \n\n | \n | \n | 379 | \n\n | \n | \n | 341 | \n\n | \n | \n | 284 | \n|
| Interest portion of rent expense | \n\n | \n | 1,888 | \n\n | \n | \n | 2,017 | \n\n | \n | \n | 2,208 | \n\n | \n | \n | 2,333 | \n\n | \n | \n | 1,936 | \n|
| Preferential stock dividends and premium on redemption of preferred stock | \n\n | \n | — | \n\n | \n | \n | — | \n\n | \n | \n | — | \n\n | \n | \n | — | \n\n | \n | \n | — | \n|
| \n | \n |
| \n
| \n\n | \n |
| \n
| \n\n | \n |
| \n
| \n\n | \n |
| \n
| \n\n | \n |
| \n
| \n|
| Total Fixed Charges | \n\n | $ | \n24,012 | \n\n | \n | \n | 23,248 | \n\n | \n | $ | \n27,128 | \n\n | \n | $ | \n29,059 | \n\n | \n | $ | \n25,156 | \n|
| \n | \n |
| \n
| \n\n | \n |
| \n
| \n\n | \n |
| \n
| \n\n | \n |
| \n
| \n\n | \n |
| \n
| \n|
| Ratio of Earnings to Fixed Charges (1) | \n\n | \n | 7.0 | \n\n | \n | \n | 5.7 | \n\n | \n | \n | 4.6 | \n\n | \n | \n | 7.4 | \n\n | \n | \n | 7.0 | \n|
| \n | \n |
| \n
| \n\n | \n |
| \n
| \n\n | \n |
| \n
| \n\n | \n |
| \n
| \n\n | \n |
| \n
| \n
\n
| (1) | \nThe ratio of earnings to fixed charges has been computed by adding income before income taxes and fixed charges less interest capitalized and subtracting preferred\nstock dividends and premium on redemption of preferred stock to derive total earnings, and dividing total earnings by fixed charges. Fixed charges consist of interest expensed and capitalized, amortization of debt expense, 8.5% of rent expense which\nis deemed representative of an interest factor and preferred stock dividends and premium on redemption of preferred stock. Interest excludes uncertain tax positions which is included in income tax expense. |
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
/s/ Deloitte &\nTouche LLP
Milwaukee, Wisconsin
\nOctober 26, 2011
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