As filed with the Securities and Exchange Commission on March 1, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ARROW ELECTRONICS, INC.
(Exact name of registrant as specified in its charter)
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New York
(State or other jurisdiction of
incorporation or organization)
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11 1806155
(I.R.S. Employer
Identification Number)
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9151 E Panorama Circle
Centennial, Colorado 80112
(303) 824-4000
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Carine L. Jean-Claude
Senior Vice President, Chief Legal Officer and Secretary
Arrow Electronics, Inc.
9151 E Panorama Circle
Centennial, Colorado 80112
(303) 824-4000
(Address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Michael Treska, Esq.
Roderick Branch, Esq.
Latham & Watkins LLP
650 Town Center Drive, 20th floor
Costa Mesa, CA 92626
(714) 540-1235
Approximate date of commencement of proposed sale to the public:
From time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☒
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer ☒
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Accelerated filer ☐
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Non-accelerated filer ☐
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Smaller reporting company
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Emerging growth company
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
Prospectus
Arrow Electronics, Inc.
Debt Securities
Preferred Stock
Common Stock
Warrants
Common Stock
Offered by the Selling Security Holders
We may offer and sell the securities identified above, and the selling security holders may offer and sell shares of common stock identified above, in each case from time to time in one or more offerings at prices and on terms to be determined at the time of offering. This prospectus provides you with a general description of the securities we or selling security holders may offer. We will not receive any proceeds from the sale of our common stock by the selling security holders.
Each time we or any of the selling security holders offer and sell securities, we or such selling security holders will provide a supplement to this prospectus that contains specific information about the offering and, if applicable, the selling security holders, as well as the amounts, prices and terms of the securities. The supplement may also add, update or change information contained in this prospectus with respect to that offering. You should carefully read this prospectus and any supplement before you invest in any of our securities.
We may offer and sell the securities described in this prospectus and any prospectus supplement to or through one or more underwriters, dealers and agents, or directly to purchasers, or through a combination of these methods. In addition, the selling security holders may offer and sell shares of our common stock from time to time, together or separately. If any underwriters, dealers or agents are involved in the sale of any of the securities, their names and any applicable purchase price, fee, commission or discount arrangement between or among them will be set forth, or will be calculable from the information set forth, in the applicable prospectus supplement. See the sections of this prospectus entitled “About this Prospectus” and “Plan of Distribution” for more information. No securities may be sold without delivery of this prospectus and the applicable prospectus supplement describing the method and terms of the offering of such securities.
Our common stock is listed on the New York Stock Exchange under the symbol “ARW.” Any common stock sold pursuant to this prospectus or any prospectus supplement will be listed on the New York Stock Exchange, subject to official notice of issuance. On February 29, 2024, the last reported sale price of our common stock on the New York Stock Exchange was $117.50 per share. The prospectus supplement for any other offering of securities will state whether such securities offered thereby will be listed on a securities exchange.
Investing in our securities involves risk. See the “Risk Factors” on page 5 of this prospectus and any similar section contained in the applicable prospectus supplement concerning factors you should consider before investing in our securities.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
This prospectus is dated March 1, 2024.
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the U.S. Securities and Exchange Commission (the “SEC”) as a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act of 1933, as amended, using a “shelf” registration process. By using a shelf registration statement, we may sell any combination of the securities described in this prospectus (from time to time and in one or more offerings) and the selling security holders to be named in a supplement to this prospectus may, from time to time, sell shares of common stock from time to time in one or more offerings as described in this prospectus. This prospectus only provides you with a general description of the securities that we or selling security holders may offer. Each time we or the selling security holders offer and sell securities, we or the selling security holders will provide a prospectus supplement to this prospectus that will contain specific information about the securities being offered and sold and the specific terms of that offering. We may also authorize one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings. The prospectus supplement or free writing prospectus may also add, update or change information contained in this prospectus with respect to that offering. If there is any inconsistency between the information in this prospectus and the applicable prospectus supplement or free writing prospectus, you should rely on the prospectus supplement or free writing prospectus, as applicable. Before purchasing any securities, you should carefully read both this prospectus and any supplement, together with any related free writing prospectus and the additional information described under the heading “Where You Can Find More Information.” Unless otherwise indicated or unless the context requires otherwise, all references in this prospectus to “Arrow,” the “company,” “we,” “our,” “us” or similar references mean Arrow Electronics, Inc. When we refer to “you,” we mean the potential holders of the applicable series of securities.
You should rely only on the information contained in this prospectus. Neither we, nor the selling security holders, have authorized anyone to provide you with any information different from what is contained in this prospectus, any applicable prospectus supplement or any free writing prospectuses prepared by or on behalf of us or to which we have referred you. We and the selling security holders take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. We and the selling security holders will not make an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. The information contained in this prospectus and any supplement to this prospectus is accurate only as of the dates of their respective covers, the information appearing in any applicable free writing prospectus is accurate only as of the date of that free writing prospectus, and any information incorporated by reference is accurate only as of the date of the document incorporated by reference, unless we indicate otherwise. Our business, financial condition, results of operations and prospects may have changed since these dates. This prospectus incorporates by reference, and any prospectus supplement or free writing prospectus may contain and incorporate by reference, market data and industry statistics and forecasts that are based on independent industry publications and other publicly available information. Although we believe these sources are reliable, we do not guarantee the accuracy or completeness of this information and we have not independently verified this information. In addition, the market and industry data and forecasts that may be included or incorporated by reference in this prospectus, any prospectus supplement or any applicable free writing prospectus may involve estimates, assumptions and other risks and uncertainties and are subject to change based on various factors, including those discussed under the heading “Risk Factors” contained in this prospectus, the applicable prospectus supplement and any applicable free writing prospectus, and under similar headings in other documents that are incorporated by reference into this prospectus. Accordingly, investors should not place undue reliance on this information.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus and any prospectus supplement constitutes a part of a registration statement on Form S-3 filed by us with the SEC under the Securities Act of 1933, as amended (the “Securities Act”) and does not contain all the information that is contained in the registration statement, some of which we are allowed to omit in accordance with the rules and regulations of the SEC. We refer you to the registration statement and to the exhibits filed with the registration statement for further information with respect to Arrow. Statements contained in this prospectus or any prospectus supplement concerning the provisions of documents are summaries of the material provisions of those documents and each statement is qualified in all respects by reference to the document to which it refers. Since this prospectus or any prospectus supplement may not contain all of the information that you may find important, you should review the full text of these documents.
We file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the public on the SEC’s website at http://www.sec.gov.
You may obtain a copy of any of documents incorporated by reference in this prospectus, without charge, by request directed to us at the following address and telephone number:
Arrow Electronics, Inc.
9151 E Panorama Circle
Centennial, Colorado 80112
(303) 824-4544
Attention: Investor Relations
Copies of these filings are also available from our website at http://investor.arrow.com. We do not intend this internet address to be an active link or to otherwise incorporate the contents of the website into this prospectus.
The SEC allows us to “incorporate by reference” in this prospectus the information that we file with them, which means that we can disclose important information to you by referring you to another document filed separately with the SEC. Accordingly, we are incorporating by reference in this prospectus the documents listed below and any future filings we make with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) between the date of this prospectus and the termination of the offering of securities described in this prospectus; provided, however, that we are not incorporating by reference any documents, portions of documents, exhibits or other information that is deemed to have been “furnished” to and not “filed” with the SEC:
(1) our Annual Report on Form 10-K for the year ended December 31, 2023, filed with the SEC on February 13, 2024;
(2) the portions of our Definitive Proxy Statement on Schedule 14A filed with the SEC on April 5, 2023, incorporated by reference in Part III of our Annual Report on Form 10-K for the year ended December 31, 2022;
(4) the description of our common stock contained in Exhibit 4(a) of our Annual Report on Form 10-K, for the year ended December 31, 2023, filed with the SEC on February 13, 2024, which updated the description thereof contained in our registration statement filed with the SEC pursuant to Section 12 of the Exchange Act, and any amendment or report filed with the SEC for the purpose of updating the description.
The information incorporated by reference is deemed to be part of this prospectus, except for any information superseded by information contained directly in this prospectus. Any information that we file later with the SEC will automatically update and supersede this information.
FORWARD-LOOKING STATEMENTS
This prospectus and any accompanying prospectus supplement includes forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act. Forward looking statements are those statements which are not statements of historical fact. These forward-looking statements can be identified by forward-looking words such as “expects,” “anticipates,” “intends,” “plans,” “may,” “will,” “believes,” “seeks,” “estimates” and similar expressions. These forward-looking statements are subject to numerous assumptions, risks, and uncertainties, which could cause actual results or facts to differ materially from such statements for a variety of reasons, including, but not limited to: unfavorable economic conditions; disruptions or inefficiencies in the supply chain; political instability; impacts of military conflict and sanctions; industry conditions; changes in product supply, pricing and customer demand; competition; other vagaries in the global components and the global enterprise computing solutions (“ECS”) markets; deteriorating economic conditions, including economic recession, inflation, tax rates, foreign currency exchange rates, or the availability of capital; the effects of natural or man-made catastrophic events; changes in relationships with key suppliers; increased profit margin pressure; changes in legal and regulatory matters; non-compliance with certain regulations, such as export, antitrust, and anti-corruption laws; foreign tax and other loss contingencies; breaches of security or privacy of business information; outbreaks, epidemics, pandemics, or public health crises; and the company’s ability to generate positive cash flow. For a further discussion of these and other factors that could cause the company’s future results to differ materially from any forward-looking statements, see the section entitled “Risk Factors” in our most recent Annual Report on Form 10-K, as well as in other filings the company makes with the SEC. Shareholders and other readers are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date on which they are made. The company undertakes no obligation to update publicly or revise any of the forward-looking statements.
ARROW ELECTRONICS, INC.
We are a global provider of products, services, and solutions to industrial and commercial users of electronic components and enterprise computing solutions. We have one of the world’s broadest portfolios of product offerings available from leading electronic components and enterprise computing solutions suppliers. Coupled with a range of services, solutions and software, we help industrial and commercial customers introduce innovative products, reduce their time to market, and enhance their overall competitiveness. We were incorporated in New York in 1946.
Our diverse worldwide customer base consists of original equipment manufacturers (“OEMs”), value-added resellers (“VARs”), managed service providers (“MSPs”), contract manufacturers (“CMs”), and other commercial customers. These customers include manufacturers of industrial equipment (such as machine tools, factory automation, and robotic equipment) and products serving industries ranging from industrial, automotive and transportation, telecommunications, and consumer electronics, among others.
We have two reportable segments, the global components business and our global enterprise computing solutions (“ECS”) business. We distribute electronic components to OEMs and CMs through our global components reportable segment and provide enterprise computing solutions to VARs and MSPs through our global ECS reportable segment. For 2023, approximately 77% of the company’s sales were from the global components reportable segment, and approximately 23% of the company’s sales were from the global ECS reportable segment.
We maintain over 180 sales facilities and 39 distribution and value-added centers, serving over 85 countries. We have operations in each of the three largest electronics markets; the Americas; Europe, Middle East, and Africa; and Asia-Pacific regions. Arrow’s business strategy is to be the premier, technology-centric, go-to-market and supply chain services company on the planet. We guide innovation forward by helping our customers in the areas of industrial automation, edge computing, cloud computing, and smart and connected devices, homes, cities, and transportation to deliver new technologies that improve businesses’ performance and consumers’ lives. We aggregate disparate sources of electronics components, infrastructure software, and IT hardware to increasingly provide complete solutions for customers on behalf of our suppliers. We aim to accelerate our customers’ time to market, enable secure and consistent supply chains, and drive growth on behalf of our suppliers.
Corporate Information
Our principal executive offices are located at 9151 E Panorama Circle, Centennial, Colorado 80112. Our telephone number is (303) 824-4000.
RISK FACTORS
Investment in any securities offered pursuant to this prospectus and the applicable prospectus supplement involves risks. Before deciding whether to invest in our securities, you should carefully consider the risk factors incorporated by reference to our most recent Annual Report on Form 10-K and any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, and all other information contained or incorporated by reference into this prospectus, as updated by our subsequent filings under the Exchange Act, and the risk factors and other information contained in the applicable prospectus supplement and any applicable free writing prospectus. If any of these risks actually occur, our business, financial condition, results of operations or cash flow could be adversely affected, and the trading price of our securities could decline.
USE OF PROCEEDS
We intend to use the net proceeds from the sale of the securities as set forth in the applicable prospectus supplement. We will not receive any proceeds from the sale of shares of our common stock by any selling security holders.
DESCRIPTION OF DEBT SECURITIES
The following description, together with the additional information we include in any applicable prospectus supplement or free writing prospectus, summarizes certain general terms and provisions of the debt securities that we may offer under this prospectus. When we offer to sell a particular series of debt securities, we will describe the specific terms of the series in a supplement to this prospectus. We will also indicate in the supplement to what extent the general terms and provisions described in this prospectus apply to a particular series of debt securities.
We may issue debt securities either separately, or together with, or upon the conversion or exercise of or in exchange for, other securities described in this prospectus. Debt securities may be our senior, senior subordinated or subordinated obligations and, unless otherwise specified in a supplement to this prospectus, the debt securities will be our direct, unsecured obligations and may be issued in one or more series.
The debt securities will be issued under an indenture between us and U.S. Bank, National Association, as trustee. We have summarized select portions of the indenture below. The summary is not complete. The form of the indenture has been filed as an exhibit to the registration statement and you should read the indenture for provisions that may be important to you. In the summary below, we have included references to the section numbers of the indenture so that you can easily locate these provisions. Capitalized terms used in the summary and not defined herein have the meanings specified in the indenture.
As used in this section only, Arrow,” “we,” “our” or “us” refer to Arrow Electronics, Inc. excluding our subsidiaries, unless expressly stated or the context otherwise requires.
General
The terms of each series of debt securities will be established by or pursuant to a resolution of our board of directors and set forth or determined in the manner provided in a resolution of our board of directors, in an officer’s certificate or by a supplemental indenture. (Section 2.2) The particular terms of each series of debt securities will be described in a prospectus supplement relating to such series (including any pricing supplement or term sheet).
We can issue an unlimited amount of debt securities under the indenture that may be in one or more series with the same or various maturities, at par, at a premium, or at a discount. (Section 2.1) We will set forth in a prospectus supplement (including any pricing supplement or term sheet) relating to any series of debt securities being offered, the aggregate principal amount and the following terms of the debt securities, if applicable:
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the title and ranking of the debt securities (including the terms of any subordination provisions);
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the price or prices (expressed as a percentage of the principal amount) at which we will sell the debt securities;
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any limit on the aggregate principal amount of the debt securities;
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the date or dates on which the principal of the securities of the series is payable;
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the rate or rates (which may be fixed or variable) per annum or the method used to determine the rate or rates (including any commodity, commodity index, stock exchange index or financial index) at which the debt securities will bear interest, the date or dates from which interest will accrue, the date or dates on which interest will commence and be payable and any regular record date for the interest payable on any interest payment date;
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the place or places where principal of, and interest, if any, on the debt securities will be payable (and the method of such payment), where the securities of such series may be surrendered for registration of transfer or exchange, and where notices and demands to us in respect of the debt securities may be delivered;
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the period or periods within which, the price or prices at which and the terms and conditions upon which we may redeem the debt securities;
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any obligation we have to redeem or purchase the debt securities pursuant to any sinking fund or analogous provisions or at the option of a holder of debt securities and the period or periods within which, the price or prices at which and in the terms and conditions upon which securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
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the dates on which and the price or prices at which we will repurchase debt securities at the option of the holders of debt securities and other detailed terms and provisions of these repurchase obligations;
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the denominations in which the debt securities will be issued, if other than denominations of $1,000 and any integral multiple thereof;
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whether the debt securities will be issued in the form of certificated debt securities or global debt securities;
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the portion of principal amount of the debt securities payable upon declaration of acceleration of the maturity date, if other than the principal amount;
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the currency of denomination of the debt securities, which may be United States Dollars or any foreign currency, and if such currency of denomination is a composite currency, the agency or organization, if any, responsible for overseeing such composite currency;
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the designation of the currency, currencies or currency units in which payment of principal of, premium and interest on the debt securities will be made;
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if payments of principal of, premium or interest on the debt securities will be made in one or more currencies or currency units other than that or those in which the debt securities are denominated, the manner in which the exchange rate with respect to these payments will be determined;
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the manner in which the amounts of payment of principal of, premium, if any, or interest on the debt securities will be determined, if these amounts may be determined by reference to an index based on a currency or currencies or by reference to a commodity, commodity index, stock exchange index or financial index;
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any provisions relating to any security provided for the debt securities;
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any addition to, deletion of or change in the Events of Default described in this prospectus or in the indenture with respect to the debt securities and any change in the acceleration provisions described in this prospectus or in the indenture with respect to the debt securities;
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any addition to, deletion of or change in the covenants described in this prospectus or in the indenture with respect to the debt securities;
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any depositaries, interest rate calculation agents, exchange rate calculation agents or other agents with respect to the debt securities;
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the provisions, if any, relating to conversion or exchange of any debt securities of such series, including if applicable, the conversion or exchange price and period, provisions as to whether conversion or exchange will be mandatory, the events requiring an adjustment of the conversion or exchange price and provisions affecting conversion or exchange;
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any other terms of the debt securities, which may supplement, modify or delete any provision of the indenture as it applies to that series, including any terms that may be required under applicable law or regulations or advisable in connection with the marketing of the securities; and
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whether any of our direct or indirect subsidiaries will guarantee the debt securities of that series, including the terms of subordination, if any, of such guarantees. (Section 2.2)
We may issue debt securities that provide for an amount less than their stated principal amount to be due and payable upon declaration of acceleration of their maturity pursuant to the terms of the indenture. We will provide you with information on the federal income tax considerations and other special considerations applicable to any of these debt securities in the applicable prospectus supplement.
If we denominate the purchase price of any of the debt securities in a foreign currency or currencies or a foreign currency unit or units, or if the principal of and any premium and interest on any series of debt
securities is payable in a foreign currency or currencies or a foreign currency unit or units, we will provide you with information on the restrictions, elections, general tax considerations, specific terms and other information with respect to that issue of debt securities and such foreign currency or currencies or foreign currency unit or units in the applicable prospectus supplement.
Transfer and Exchange
Each debt security will be represented by either one or more global securities registered in the name of The Depository Trust Company, or the Depositary, or a nominee of the Depositary (we will refer to any debt security represented by a global debt security as a “book-entry debt security”), or a certificate issued in definitive registered form (we will refer to any debt security represented by a certificated security as a “certificated debt security”) as set forth in the applicable prospectus supplement. Except as set forth under the heading “Global Debt Securities and Book-Entry System” below, book-entry debt securities will not be issuable in certificated form.
Certificated Debt Securities. You may transfer or exchange certificated debt securities at any office we maintain for this purpose in accordance with the terms of the indenture. (Section 2.4) No service charge will be made for any transfer or exchange of certificated debt securities, but we may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with a transfer or exchange. (Section 2.7)
You may effect the transfer of certificated debt securities and the right to receive the principal of, premium and interest on certificated debt securities only by surrendering the certificate representing those certificated debt securities and either reissuance by us or the trustee of the certificate to the new holder or the issuance by us or the trustee of a new certificate to the new holder.
Global Debt Securities and Book-Entry System. Each global debt security representing book-entry debt securities will be deposited with, or on behalf of, the Depositary, and registered in the name of the Depositary or a nominee of the Depositary. Please see “Global Securities.”
Covenants
We will set forth in the applicable prospectus supplement any restrictive covenants applicable to any issue of debt securities. (Article IV)
No Protection in the Event of a Change of Control
Unless we state otherwise in the applicable prospectus supplement, the debt securities will not contain any provisions which may afford holders of the debt securities protection in the event we have a change in control or in the event of a highly leveraged transaction (whether or not such transaction results in a change in control) which could adversely affect holders of debt securities.
Consolidation, Merger and Sale of Assets
We may not consolidate with or merge with or into, or convey, transfer or lease all or substantially all of our properties and assets to any person (a “successor person”) unless:
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we are the surviving entity or the successor person (if other than Arrow) is a corporation, partnership, trust or other entity organized and validly existing under the laws of any U.S. domestic jurisdiction and expressly assumes our obligations on the debt securities and under the indenture; and
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immediately after giving effect to the transaction, no Default or Event of Default, shall have occurred and be continuing.
Notwithstanding the above, any of our subsidiaries may consolidate with, merge into or transfer all or part of its properties to us. (Section 5.1)
Events of Default
“Event of Default” means with respect to any series of debt securities, any of the following:
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default in the payment of any interest upon any debt security of that series when it becomes due and payable, and continuance of such default for a period of 30 days (unless the entire amount of the payment is deposited by us with the trustee or with a paying agent prior to the expiration of the 30-day period);
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default in the payment of principal of any security of that series at its maturity;
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default in the performance or breach of any other covenant or warranty by us in the indenture (other than a covenant or warranty that has been included in the indenture solely for the benefit of a series of debt securities other than that series), which default continues uncured for a period of 60 days after we receive written notice from the trustee or Arrow and the trustee receive written notice from the holders of not less than 25% in principal amount of the outstanding debt securities of that series as provided in the indenture;
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certain voluntary or involuntary events of bankruptcy, insolvency or reorganization of Arrow;
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any other Event of Default provided with respect to debt securities of that series that is described in the applicable prospectus supplement. (Section 6.1)
No Event of Default with respect to a particular series of debt securities (except as to certain events of bankruptcy, insolvency or reorganization) necessarily constitutes an Event of Default with respect to any other series of debt securities. (Section 6.1) The occurrence of certain Events of Default or an acceleration under the indenture may constitute an event of default under certain indebtedness of ours or our subsidiaries outstanding from time to time.
We will provide the trustee written notice of any Default or Event of Default within 30 days of becoming aware of the occurrence of such Default or Event of Default, which notice will describe in reasonable detail the status of such Default or Event of Default and what action we are taking or propose to take in respect thereof. (Section 6.1)
If an Event of Default with respect to debt securities of any series at the time outstanding occurs and is continuing, then the trustee or the holders of not less than 25% in principal amount of the outstanding debt securities of that series may, by a notice in writing to us (and to the trustee if given by the holders), declare to be due and payable immediately the principal of (or, if the debt securities of that series are discount securities, that portion of the principal amount as may be specified in the terms of that series) and accrued and unpaid interest, if any, on all debt securities of that series. In the case of an Event of Default resulting from certain events of bankruptcy, insolvency or reorganization, the principal (or such specified amount) of and accrued and unpaid interest, if any, on all outstanding debt securities will become and be immediately due and payable without any declaration or other act on the part of the trustee or any holder of outstanding debt securities. At any time after a declaration of acceleration with respect to debt securities of any series has been made, but before a judgment or decree for payment of the money due has been obtained by the trustee, the holders of a majority in principal amount of the outstanding debt securities of that series may rescind and annul the acceleration if all Events of Default, other than the non-payment of accelerated principal and interest, if any, with respect to debt securities of that series, have been cured or waived as provided in the indenture. (Section 6.2) We refer you to the prospectus supplement relating to any series of debt securities that are discount securities for the particular provisions relating to acceleration of a portion of the principal amount of such discount securities upon the occurrence of an Event of Default.
The indenture provides that the trustee may refuse to perform any duty or exercise any of its rights or powers under the indenture unless the trustee receives indemnity satisfactory to it against any cost, liability or expense which might be incurred by it in performing such duty or exercising such right or power. (Section 7.1(e)) Subject to certain rights of the trustee, the holders of a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust or power conferred on the trustee with respect to the debt securities of that series. (Section 6.12)
No holder of any debt security of any series will have any right to institute any proceeding, judicial or otherwise, with respect to the indenture or for the appointment of a receiver or trustee, or for any remedy under the indenture, unless:
•
that holder has previously given to the trustee written notice of a continuing Event of Default with respect to debt securities of that series; and
•
the holders of not less than 25% in principal amount of the outstanding debt securities of that series have made written request, and offered indemnity or security satisfactory to the trustee, to the trustee to institute the proceeding as trustee, and the trustee has not received from the holders of not less than a majority in principal amount of the outstanding debt securities of that series a direction inconsistent with that request and has failed to institute the proceeding within 60 days. (Section 6.7)
Notwithstanding any other provision in the indenture, the holder of any debt security will have an absolute and unconditional right to receive payment of the principal of, premium and any interest on that debt security on or after the due dates expressed in that debt security and to institute suit for the enforcement of payment. (Section 6.8)
The indenture requires us, within 120 days after the end of our fiscal year, to furnish to the trustee a statement as to compliance with the indenture. (Section 4.3) If a Default or Event of Default occurs and is continuing with respect to the securities of any series and if it is known to a responsible officer of the trustee, the trustee shall mail to each Securityholder of the securities of that series notice of a Default or Event of Default within 90 days after it occurs or, if later, after a responsible officer of the trustee has knowledge of such Default or Event of Default. The indenture provides that the trustee may withhold notice to the holders of debt securities of any series of any Default or Event of Default (except in payment on any debt securities of that series) with respect to debt securities of that series if the trustee determines in good faith that withholding notice is in the interest of the holders of those debt securities. (Section 7.5)
Modification and Waiver
We and the trustee may modify, amend or supplement the indenture or the debt securities of any series without the consent of any holder of any debt security:
•
to cure any ambiguity, defect or inconsistency;
•
to comply with covenants in the indenture described above under the heading “Consolidation, Merger and Sale of Assets”;
•
to provide for uncertificated securities in addition to or in place of certificated securities;
•
to add guarantees with respect to debt securities of any series or secure debt securities of any series;
•
to surrender any of our rights or powers under the indenture;
•
to add covenants or events of default for the benefit of the holders of debt securities of any series;
•
to comply with the applicable procedures of the applicable depositary;
•
to make any change that does not adversely affect the rights of any holder of debt securities;
•
to provide for the issuance of and establish the form and terms and conditions of debt securities of any series as permitted by the indenture;
•
to effect the appointment of a successor trustee with respect to the debt securities of any series and to add to or change any of the provisions of the indenture to provide for or facilitate administration by more than one trustee; or
•
to comply with requirements of the SEC in order to effect or maintain the qualification of the indenture under the Trust Indenture Act. (Section 9.1)
We may also modify and amend the indenture with the consent of the holders of at least a majority in principal amount of the outstanding debt securities of each series affected by the modifications or amendments. We may not make any modification or amendment without the consent of the holders of each affected debt security then outstanding if that amendment will:
•
reduce the amount of debt securities whose holders must consent to an amendment, supplement or waiver;
•
reduce the rate of or extend the time for payment of interest (including default interest) on any debt security;
•
reduce the principal of or premium on or change the fixed maturity of any debt security or reduce the amount of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation with respect to any series of debt securities;
•
reduce the principal amount of discount securities payable upon acceleration of maturity;
•
waive a default in the payment of the principal of, premium or interest on any debt security (except a rescission of acceleration of the debt securities of any series by the holders of at least a majority in aggregate principal amount of the then outstanding debt securities of that series and a waiver of the payment default that resulted from such acceleration);
•
make the principal of or premium or interest on any debt security payable in currency other than that stated in the debt security;
•
make any change to certain provisions of the indenture relating to, among other things, the right of holders of debt securities to receive payment of the principal of, premium and interest on those debt securities and to institute suit for the enforcement of any such payment and to waivers or amendments; or
•
waive a redemption payment with respect to any debt security. (Section 9.3)
Except for certain specified provisions, the holders of at least a majority in principal amount of the outstanding debt securities of any series may on behalf of the holders of all debt securities of that series waive our compliance with provisions of the indenture. (Section 9.2) The holders of a majority in principal amount of the outstanding debt securities of any series may on behalf of the holders of all the debt securities of such series waive any past default under the indenture with respect to that series and its consequences, except a default in the payment of the principal of, premium or any interest on any debt security of that series; provided, however, that the holders of a majority in principal amount of the outstanding debt securities of any series may rescind an acceleration and its consequences, including any related payment default that resulted from the acceleration. (Section 6.13)
Defeasance of Debt Securities and Certain Covenants in Certain Circumstances
Legal Defeasance. The indenture provides that, unless otherwise provided by the terms of the applicable series of debt securities, we may be discharged from any and all obligations in respect of the debt securities of any series (subject to certain exceptions). We will be so discharged upon the irrevocable deposit with the trustee, in trust, of money and/or U.S. government obligations or, in the case of debt securities denominated in a single currency other than U.S. Dollars, government obligations of the government that issued or caused to be issued such currency, that, through the payment of interest and principal in accordance with their terms, will provide money or U.S. government obligations in an amount sufficient in the opinion of a nationally recognized firm of independent public accountants or investment bank to pay and discharge each installment of principal, premium and interest on and any mandatory sinking fund payments in respect of the debt securities of that series on the stated maturity of those payments in accordance with the terms of the indenture and those debt securities.
This discharge may occur only if, among other things, we have delivered to the trustee an opinion of counsel stating that we have received from, or there has been published by, the United States Internal Revenue Service a ruling or, since the date of execution of the indenture, there has been a change in the applicable United States federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the holders of the debt securities of that series will not recognize income, gain or loss for United States federal income tax purposes as a result of the deposit, defeasance and discharge and will be subject to United States federal income tax on the same amounts and in the same manner and at the same times as would have been the case if the deposit, defeasance and discharge had not occurred. (Section 8.3)
Defeasance of Certain Covenants. The indenture provides that, unless otherwise provided by the terms of the applicable series of debt securities, upon compliance with certain conditions:
•
we may omit to comply with the covenant described under the heading “Consolidation, Merger and Sale of Assets” and certain other covenants set forth in the indenture, as well as any additional covenants which may be set forth in the applicable prospectus supplement; and
•
any omission to comply with those covenants will not constitute a Default or an Event of Default with respect to the debt securities of that series (“covenant defeasance”).
The conditions include:
•
depositing with the trustee money and/or U.S. government obligations or, in the case of debt securities denominated in a single currency other than U.S. Dollars, government obligations of the government that issued or caused to be issued such currency, that, through the payment of interest and principal in accordance with their terms, will provide money in an amount sufficient in the opinion of a nationally recognized firm of independent public accountants or investment bank to pay and discharge each installment of principal of, premium and interest on and any mandatory sinking fund payments in respect of the debt securities of that series on the stated maturity of those payments in accordance with the terms of the indenture and those debt securities; and
•
delivering to the trustee an opinion of counsel to the effect that the holders of the debt securities of that series will not recognize income, gain or loss for United States federal income tax purposes as a result of the deposit and related covenant defeasance and will be subject to United States federal income tax on the same amounts and in the same manner and at the same times as would have been the case if the deposit and related covenant defeasance had not occurred. (Section 8.4)
No Personal Liability of Directors, Officers, Employees or Securityholders
None of our past, present or future directors, officers, employees or securityholders, as such, will have any liability for any of our obligations under the debt securities or the indenture or for any claim based on, or in respect or by reason of, such obligations or their creation. By accepting a debt security, each holder waives and releases all such liability. This waiver and release is part of the consideration for the issue of the debt securities. However, this waiver and release may not be effective to waive liabilities under U.S. federal securities laws, and it is the view of the SEC that such a waiver is against public policy.
Governing Law
The indenture and the debt securities, including any claim or controversy arising out of or relating to the indenture or the securities, will be governed by the laws of the State of New York.
The indenture will provide that we, the trustee and the holders of the debt securities (by their acceptance of the debt securities) irrevocably waive, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to the indenture, the debt securities or the transactions contemplated thereby.
The indenture will provide that any legal suit, action or proceeding arising out of or based upon the indenture or the transactions contemplated thereby may be instituted in the federal courts of the United States of America located in the City of New York or the courts of the State of New York in each case located in the City of New York, and we, the trustee and the holder of the debt securities (by their acceptance of the debt securities) irrevocably submit to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding. The indenture will further provide that service of any process, summons, notice or document by mail (to the extent allowed under any applicable statute or rule of court) to such party’s address set forth in the indenture will be effective service of process for any suit, action or other proceeding brought in any such court. The indenture will further provide that we, the trustee and the holders of the debt securities (by their acceptance of the debt securities) irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the courts specified above and irrevocably and unconditionally waive and agree not to plead or claim any such suit, action or other proceeding has been brought in an inconvenient forum. (Section 10.10).
DESCRIPTION OF CAPITAL STOCK
We have authority to issue 160,000,000 shares of common stock, par value $1.00 per share, and 2,000,000 shares of preferred stock, par value $1.00 per share. As of February 6, 2024, we had outstanding 53,813,931 shares of common stock and no shares of preferred stock. Our board of directors has authority, without action by our shareholders, to issue authorized and unissued shares of preferred stock in one or more series and, within certain limitations, to determine the voting rights (including the right to vote as a series on particular matters), preference as to dividends and in liquidation, conversion, redemption and other rights of each series.
The following description of our capital stock is a brief summary and does not purport to be complete and is subject to, and qualified in its entirety by, our Amended and Restated By-Laws and Restated Certificate of Incorporation, copies of which are filed with the SEC, and the applicable provisions of the Business Corporation Law of the State of New York (“NY Business Corporation Law”).
Common Stock
Voting Rights — Noncumulative Voting. The holders of our common stock are entitled to one vote per share on all matters to be voted on by shareholders, including the election of directors. Shareholders are not entitled to cumulative voting rights, and, accordingly, the holders of a majority of the shares voting for the election of directors can elect the entire board of directors if they choose to do so and, in that event, the holders of the remaining shares will not be able to elect any person to our board of directors.
Our Restated Certificate of Incorporation requires the affirmative vote of 90% of our outstanding shares of common stock to authorize certain mergers, sales of assets, corporate reorganizations and other transactions with or relating to any person or entity that has acquired 30% or more of our outstanding common stock.
Dividends; Restriction on Payment of Dividends. The holders of common stock are entitled to receive such dividends, if any, as may be declared from time to time by our board of directors, in its discretion, from funds legally available for the purpose and subject to prior dividend rights of holders of any shares of preferred stock which may be outstanding.
Liquidation Rights. Upon liquidation or dissolution of Arrow, subject to prior liquidation rights of the holders of preferred stock, if any, the holders of common stock are entitled to receive on a pro rata basis the remaining assets of Arrow available for distribution.
Other Rights. Holders of common stock have no preemptive or other subscription rights, and there are no conversion rights or redemption or sinking fund provisions with respect to our common stock. All outstanding shares of common stock are fully paid and not liable to further calls or assessment by us.
Preferred Stock
Our board of directors is authorized, without further vote or action by the holders of our common stock, to issue by resolution an aggregate of 2,000,000 shares of preferred stock. These shares of preferred stock may be issued in one or more series as established from time to time by our board of directors. Our board of directors also is authorized to fix the number of shares and the designation or title of each series of preferred stock prior to the issuance of any shares of that series. Regarding each class or series of preferred stock, our board of directors will fix the voting powers, which may be full or limited, or there may be no voting powers. Our board of directors will also determine the preferences and relative, participating, optional or other special rights and qualifications, limitations or restrictions of each series of preferred stock. Our board of directors is further authorized to increase or decrease the number of shares of any series subsequent to the issuance of shares of that series, but not below the number of shares of the class or series then outstanding.
No shares of preferred stock are presently outstanding and we have no plans to issue a new series of preferred stock. It is not possible to state the effect of the authorization and issuance of any series of preferred stock upon the rights of the holders of common stock until our board of directors determines the specific terms, rights and preferences of a series of preferred stock. However, possible effects might include restricting
dividends on the common stock, diluting the voting power of the common stock or impairing the liquidation rights of the common stock without further action by holders of common stock. In addition, under some circumstances, the issuance of preferred stock may render more difficult or tend to discourage a merger, tender offer or proxy contest, the assumption of control by a holder of a large block of our securities or the removal of incumbent management, which could thereby depress the market price of our common stock.
Anti-Takeover Provisions under New York Law
We are subject to Section 912 of the NY Business Corporation Law. With specified exemptions, this statute prohibits a New York corporation listed on a national securities exchange from engaging in a business combination (as defined in Section 912(a)(5)) with an interested shareholder (generally, a person that, together with its affiliates and associates, owns 20% or more of the corporation’s voting stock) for a period of five years after the date of the transaction in which the person became an interested shareholder.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Equiniti Trust Company.
DESCRIPTION OF WARRANTS
We will set forth in the applicable prospectus supplement a description of any warrants issued by us that may be offered and sold pursuant to this prospectus.
GLOBAL SECURITIES
Book-Entry, Delivery and Form
Unless we indicate differently in any applicable prospectus supplement or free writing prospectus, the securities initially will be issued in book-entry form and represented by one or more global notes or global securities, or, collectively, global securities. The global securities will be deposited with, or on behalf of, The Depository Trust Company, New York, New York, as depositary, or DTC, and registered in the name of Cede & Co., the nominee of DTC. Unless and until it is exchanged for individual certificates evidencing securities under the limited circumstances described below, a global security may not be transferred except as a whole by the depositary to its nominee or by the nominee to the depositary, or by the depositary or its nominee to a successor depositary or to a nominee of the successor depositary.
DTC has advised us that it 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 “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 Exchange Act.
DTC holds securities that its participants deposit with DTC. DTC also facilitates the settlement among its participants of securities transactions, such as transfers and pledges, in deposited securities through electronic computerized book-entry changes in participants’ accounts, thereby eliminating the need for physical movement of securities certificates. “Direct participants” in DTC include securities brokers and dealers, including underwriters, banks, trust companies, clearing corporations and other organizations. DTC is a wholly-owned subsidiary of The Depository Trust & Clearing Corporation, or DTCC. DTCC is the holding company for DTC, National Securities Clearing Corporation and Fixed Income Clearing Corporation, all of which are registered clearing agencies. DTCC is owned by the users of its regulated subsidiaries. Access to the DTC system is also available to others, which we sometimes refer to as indirect participants, that clear through or maintain a custodial relationship with a direct participant, either directly or indirectly. The rules applicable to DTC and its participants are on file with the SEC.
Purchases of securities under the DTC system must be made by or through direct participants, which will receive a credit for the securities on DTC’s records. The ownership interest of the actual purchaser of a security, which we sometimes refer to as a beneficial owner, is in turn recorded on the direct and indirect participants’ records. Beneficial owners of securities will not receive written confirmation from DTC of their purchases. However, beneficial owners are expected to receive written confirmations providing details of their transactions, as well as periodic statements of their holdings, from the direct or indirect participants through which they purchased securities. Transfers of ownership interests in global securities are to be accomplished by entries made on the books of participants acting on behalf of beneficial owners. Beneficial owners will not receive certificates representing their ownership interests in the global securities, except under the limited circumstances described below.
To facilitate subsequent transfers, all global securities deposited by direct participants with DTC will be registered in the name of DTC’s partnership nominee, Cede & Co., or such other name as may be requested by an authorized representative of DTC. The deposit of securities with DTC and their registration in the name of Cede & Co. or such other nominee will not change the beneficial ownership of the securities. DTC has no knowledge of the actual beneficial owners of the securities. DTC’s records reflect only the identity of the direct participants to whose accounts the securities are credited, which may or may not be the beneficial owners. The participants are responsible for keeping account of their holdings on behalf of their customers.
So long as the securities are in book-entry form, you will receive payments and may transfer securities only through the facilities of the depositary and its direct and indirect participants. We will maintain an office or agency in the location specified in the prospectus supplement for the applicable securities, where notices and demands in respect of the securities and the indenture may be delivered to us and where certificated securities may be surrendered for payment, registration of transfer or exchange.
Conveyance of notices and other communications by DTC to direct 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 legal requirements in effect from time to time.
Redemption notices will be sent to DTC. If less than all of the securities of a particular series are being redeemed, DTC’s practice is to determine by lot the amount of the interest of each direct participant in the securities of such series to be redeemed.
Neither DTC nor Cede & Co. (or such other DTC nominee) will consent or vote with respect to the securities. Under its usual procedures, DTC will mail an omnibus proxy to us as soon as possible after the record date. The omnibus proxy assigns the consenting or voting rights of Cede & Co. to those direct participants to whose accounts the securities of such series are credited on the record date, identified in a listing attached to the omnibus proxy.
So long as securities are in book-entry form, we will make payments on those securities to the depositary or its nominee, as the registered owner of such securities, by wire transfer of immediately available funds. If securities are issued in definitive certificated form under the limited circumstances described below and unless if otherwise provided in the description of the applicable securities herein or in the applicable prospectus supplement, we will have the option of making payments by check mailed to the addresses of the persons entitled to payment or by wire transfer to bank accounts in the United States designated in writing to the applicable trustee or other designated party at least 15 days before the applicable payment date by the persons entitled to payment, unless a shorter period is satisfactory to the applicable trustee or other designated party.
Redemption proceeds, distributions and dividend payments on the 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 DTC’s receipt of funds and corresponding detail information from us on the payment date in accordance with their respective holdings shown on DTC records. Payments by participants to beneficial owners will be governed by standing instructions and customary practices, as is the case with securities held for the account of customers in bearer form or registered in “street name.” Those payments will be the responsibility of participants and not of DTC or us, subject to any statutory or regulatory requirements in effect from time to time. Payment of redemption proceeds, distributions and dividend payments to Cede & Co., or such other nominee as may be requested by an authorized representative of DTC, is our responsibility, disbursement of payments to direct participants is the responsibility of DTC, and disbursement of payments to the beneficial owners is the responsibility of direct and indirect participants.
Except under the limited circumstances described below, purchasers of securities will not be entitled to have securities registered in their names and will not receive physical delivery of securities. Accordingly, each beneficial owner must rely on the procedures of DTC and its participants to exercise any rights under the securities and the indenture.
The laws of some jurisdictions may require that some purchasers of securities take physical delivery of securities in definitive form. Those laws may impair the ability to transfer or pledge beneficial interests in securities.
DTC may discontinue providing its services as securities depositary with respect to the securities at any time by giving reasonable notice to us. Under such circumstances, in the event that a successor depositary is not obtained, securities certificates are required to be printed and delivered.
As noted above, beneficial owners of a particular series of securities generally will not receive certificates representing their ownership interests in those securities. However, if:
•
DTC notifies us that it is unwilling or unable to continue as a depositary for the global security or securities representing such series of securities or if DTC ceases to be a clearing agency registered under the Exchange Act at a time when it is required to be registered and a successor depositary is not appointed within 90 days of the notification to us or of our becoming aware of DTC’s ceasing to be so registered, as the case may be;
•
we determine, in our sole discretion, not to have such securities represented by one or more global securities; or
•
an Event of Default has occurred and is continuing with respect to such series of securities,
we will prepare and deliver certificates for such securities in exchange for beneficial interests in the global securities. Any beneficial interest in a global security that is exchangeable under the circumstances described in the preceding sentence will be exchangeable for securities in definitive certificated form registered in the names that the depositary directs. It is expected that these directions will be based upon directions received by the depositary from its participants with respect to ownership of beneficial interests in the global securities.
Euroclear and Clearstream
If so provided in the applicable prospectus supplement, you may hold interests in a global security through Clearstream Banking S.A., which we refer to as “Clearstream,” or Euroclear Bank S.A./N.V., as operator of the Euroclear System, which we refer to as “Euroclear,” either directly if you are a participant in Clearstream or Euroclear or indirectly through organizations which are participants in Clearstream or Euroclear. Clearstream and Euroclear will hold interests on behalf of their respective participants through customers’ securities accounts in the names of Clearstream and Euroclear, respectively, on the books of their respective U.S. depositaries, which in turn will hold such interests in customers’ securities accounts in such depositaries’ names on DTC’s books.
Clearstream and Euroclear are securities clearance systems in Europe. Clearstream and Euroclear hold securities for their respective participating organizations and facilitate the clearance and settlement of securities transactions between those participants through electronic book-entry changes in their accounts, thereby eliminating the need for physical movement of certificates.
Payments, deliveries, transfers, exchanges, notices and other matters relating to beneficial interests in global securities owned through Euroclear or Clearstream must comply with the rules and procedures of those systems. Transactions between participants in Euroclear or Clearstream, on one hand, and other participants in DTC, on the other hand, are also subject to DTC’s rules and procedures.
Investors will be able to make and receive through Euroclear and Clearstream payments, deliveries, transfers and other transactions involving any beneficial interests in global securities held through those systems only on days when those systems are open for business. Those systems may not be open for business on days when banks, brokers and other institutions are open for business in the United States.
Cross-market transfers between participants in DTC, on the one hand, and participants in Euroclear or Clearstream, on the other hand, will be effected through DTC in accordance with the DTC’s rules on behalf of Euroclear or Clearstream, as the case may be, by their respective U.S. depositaries; however, such cross-market transactions will require delivery of instructions to Euroclear or Clearstream, as the case may be, by the counterparty in such system in accordance with the rules and procedures and within the established deadlines (European time) of such system. Euroclear or Clearstream, as the case may be, will, if the transaction meets its settlement requirements, deliver instructions to its U.S. depositary to take action to effect final settlement on its behalf by delivering or receiving interests in the global securities through DTC, and making or receiving payment in accordance with normal procedures for same-day fund settlement. Participants in Euroclear or Clearstream may not deliver instructions directly to their respective U.S. depositaries.
Due to time zone differences, the securities accounts of a participant in Euroclear or Clearstream purchasing an interest in a global security from a direct participant in DTC will be credited, and any such crediting will be reported to the relevant participant in Euroclear or Clearstream, during the securities settlement processing day (which must be a business day for Euroclear or Clearstream) immediately following the settlement date of DTC. Cash received in Euroclear or Clearstream as a result of sales of interests in a global security by or through a participant in Euroclear or Clearstream to a direct participant in DTC will be received with value on the settlement date of DTC but will be available in the relevant Euroclear or Clearstream cash account only as of the business day for Euroclear or Clearstream following DTC’s settlement date.
Other
The information in this section of this prospectus concerning DTC, Clearstream, Euroclear and their respective book-entry systems has been obtained from sources that we believe to be reliable, but we do not take responsibility for this information. This information has been provided solely as a matter of convenience. The rules and procedures of DTC, Clearstream and Euroclear are solely within the control of those organizations and could change at any time. Neither we nor the trustee nor any agent of ours or of the trustee has any control over those entities and none of us takes any responsibility for their activities. You are urged to contact DTC, Clearstream and Euroclear or their respective participants directly to discuss those matters. In addition, although we expect that DTC, Clearstream and Euroclear will perform the foregoing procedures, none of them is under any obligation to perform or continue to perform such procedures and such procedures may be discontinued at any time. Neither we nor any agent of ours will have any responsibility for the performance or nonperformance by DTC, Clearstream and Euroclear or their respective participants of these or any other rules or procedures governing their respective operations.
SELLING SECURITY HOLDERS
Information about any selling security holders, where applicable, will be set forth in a prospectus supplement, in a post-effective amendment or in filings we make with the SEC under the Exchange Act that are incorporated by reference.
PLAN OF DISTRIBUTION
We or any of the selling security holders may sell the offered securities from time to time:
•
directly to one of more purchasers;
•
through agents;
•
through underwriters;
•
through dealers; or
•
through a combination of any of these methods of sale.
We will identify the specific plan of distribution, including any underwriters, dealers, agents or direct purchasers and their compensation in the applicable prospectus supplement.
LEGAL MATTERS
Latham & Watkins LLP will pass upon certain legal matters relating to the issuance and sale of the securities offered hereby on behalf of Arrow Electronics, Inc. Additional legal matters may be passed upon for us, the selling securityholders or any underwriters, dealers or agents, by counsel that we will name in the applicable prospectus supplement.
EXPERTS
Ernst & Young LLP, independent registered public accounting firm, has audited our consolidated financial statements included in our Annual Report on Form 10-K for the year ended December 31, 2023, and the effectiveness of our internal control over financial reporting as of December 31, 2023, as set forth in their reports, which are incorporated by reference in this prospectus and elsewhere in the registration statement. Our financial statements are incorporated by reference in reliance on Ernst & Young LLP’s report, given on their authority as experts in accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth estimates of the costs and expenses, other than underwriting discounts and commissions, payable by us in connection with the sale and distribution of the securities being registered hereby.
| |
SEC registration fee
|
|
|
|
$ |
*
|
|
|
| |
FINRA filing fee
|
|
|
|
|
**
|
|
|
| |
The New York Stock Exchange supplemental listing fee
|
|
|
|
|
**
|
|
|
| |
Printing expenses
|
|
|
|
|
**
|
|
|
| |
Legal fees and expenses
|
|
|
|
|
**
|
|
|
| |
Accounting fees and expenses
|
|
|
|
|
**
|
|
|
| |
Blue Sky, qualification fees and expenses
|
|
|
|
|
**
|
|
|
| |
Transfer agent fees and expenses
|
|
|
|
|
**
|
|
|
| |
Trustee fees and expenses
|
|
|
|
|
**
|
|
|
| |
Warrant agent fees and expenses
|
|
|
|
|
**
|
|
|
| |
Miscellaneous expenses
|
|
|
|
|
**
|
|
|
| |
Total
|
|
|
|
$ |
**
|
|
|
*
Pursuant to Rules 456(b) and 457(r) under the Securities Act of 1933, as amended, the SEC registration fee will be paid at the time of any particular offering of securities under the registration statement, and is therefore not currently determinable.
**
These fees are calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this time.
Item 15. Indemnification of Directors and Officers.
Article 9 of the Company’s Restated Certificate of Incorporation permits the indemnification of officers and directors under certain circumstances to the full extent that such indemnification may be permitted by law.
Such rights of indemnification are in addition to, and not in limitation of, any rights to indemnification to which any officer or director of the registrant is entitled under the Business Corporation Law (Sections 721 through 726), which provides for indemnification by a corporation of its officers and directors under certain circumstances as stated in the Business Corporation Law and subject to specified limitations set forth in the Business Corporation Law.
The Company also maintains directors’ and officers’ liability insurance coverage which insures directors and officers of the Company against certain losses arising from claims made, and for which the Company has not provided reimbursement, by reason of their being directors and officers of the Company or its subsidiaries.
Item 16. Exhibits.
| |
EXHIBIT
NUMBER
|
|
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EXHIBIT DESCRIPTION
|
|
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1.1*
|
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|
Form of Underwriting Agreement
|
|
| |
3.1
|
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|
Restated Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3(a) to the Company’s Annual Report on Form 10-K for the year ended December 31, 2020, Commission File No. 001-04482).
|
|
| |
3.2
|
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Amended and Restated By-laws of the Company, dated December 14, 2022 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K dated December 19, 2022, Commission File No. 001-04482).
|
|
| |
4.1**
|
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|
Indenture, dated as of March 1, 2024, between Arrow Electronics, Inc. and U.S. Bank Trust Company, National Association, as trustee.
|
|
| |
4.2*
|
|
|
Form of Warrant.
|
|
| |
4.3*
|
|
|
Form of Warrant Agreement.
|
|
| |
5.1**
|
|
|
|
|
| |
23.1**
|
|
|
|
|
| |
23.2**
|
|
|
|
|
| |
24.1**
|
|
|
|
|
| |
25.1**
|
|
|
|
|
| |
107**
|
|
|
Filing Fee Table.
|
|
*
To be filed by amendment or incorporated by reference in connection with the offering of specific securities.
**
Filed herewith.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
i.
To include any prospectus required by Section 10(a)(3) of the Securities Act;
ii.
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Filing Fee Tables” or “Calculation of Registration Fee” table, as applicable, in the effective registration statement;
iii.
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (1)(i)-(iii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act to any purchaser:
a)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
b)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede
or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities:
The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
i.
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
ii.
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
iii.
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
iv.
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15 (d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(7) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Centennial, State of Colorado, on March 1, 2024.
ARROW ELECTRONICS, INC.
By:
/s/ Carine Jean-Claude
Carine Jean-Claude
Senior Vice President,
Chief Legal Officer and Secretary
POWER OF ATTORNEY
Each of the undersigned officers and directors whose name appears below hereby severally constitutes and appoints Rajesh K. Agrawal and Carine Jean-Claude, and each of them singly (with full power to each of them to act alone), as such person’s true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for such person and in such person’s name, place and stead, and in any and all capacities, to file and sign any and all amendments, including post-effective amendments, in connection with this registrant’s registration statement on Form S-3, and any other registration statement for the same offering that is to be effective under Rule 462(b) under the Securities Act, and to file the same, with all exhibits thereto and other documents in connection therewith, with the SEC, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith and about the premises as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. This power of attorney shall be governed by and construed with the laws of the State of New York and applicable federal securities laws.
Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| |
SIGNATURE
|
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TITLE
|
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|
DATE
|
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| |
/s/ Sean J. Kerins
Sean J. Kerins
|
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|
President, Chief Executive Officer, and Director (principal executive officer)
|
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|
March 1, 2024
|
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| |
/s/ Rajesh K. Agrawal
Rajesh K. Agrawal
|
|
|
Senior Vice President and Chief Financial Officer (principal financial officer)
|
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|
March 1, 2024
|
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| |
/s/ Yun S. Cho
Yun S. Cho
|
|
|
Vice President, Corporate Controller, and
Chief Accounting Officer
(principal accounting officer)
|
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|
March 1, 2024
|
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| |
/s/ Steven H. Gunby
Steven H. Gunby
|
|
|
Chair of the Board of Directors
|
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|
March 1, 2024
|
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| |
/s/ William F. Austen
William F. Austen
|
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Director
|
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March 1, 2024
|
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| |
SIGNATURE
|
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TITLE
|
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DATE
|
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/s/ Fabian T. Garcia
Fabian T. Garcia
|
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Director
|
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March 1, 2024
|
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/s/ Gail E. Hamilton
Gail E. Hamilton
|
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Director
|
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March 1, 2024
|
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/s/ Andrew C. Kerin
Andrew C. Kerin
|
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Director
|
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March 1, 2024
|
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/s/ Carol P. Lowe
Carol P. Lowe
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Director
|
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March 1, 2024
|
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| |
/s/ Gerry P. Smith
Gerry P. Smith
|
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Director
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March 1, 2024
|
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/s/ Mary T. McDowell
Mary T. McDowell
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Director
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March 1, 2024
|
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Exhibit 4.1
ARROW ELECTRONICS, INC.
INDENTURE
Dated as of March 1, 2024
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
Trustee
TABLE
OF CONTENTS
Page
| ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE |
1 |
| Section 1.1. |
Definitions |
1 |
| Section 1.2. |
Other Definitions |
4 |
| Section 1.3. |
Incorporation by Reference of Trust Indenture Act |
5 |
| Section 1.4. |
Rules of Construction |
5 |
| |
|
|
| ARTICLE II. THE SECURITIES |
5 |
| Section 2.1. |
Issuable in Series |
5 |
| Section 2.2. |
Establishment of Terms of Series of Securities |
6 |
| Section 2.3. |
Execution and Authentication |
8 |
| Section 2.4. |
Registrar, Paying Agent and Notice Agent |
8 |
| Section 2.5. |
Paying Agent to Hold Money in Trust |
9 |
| Section 2.6. |
Holder Lists |
10 |
| Section 2.7. |
Transfer and Exchange |
10 |
| Section 2.8. |
Mutilated, Destroyed, Lost and Stolen Securities |
11 |
| Section 2.9. |
Outstanding Securities |
11 |
| Section 2.10. |
Treasury Securities |
12 |
| Section 2.11. |
Temporary Securities |
12 |
| Section 2.12. |
Cancellation |
13 |
| Section 2.13. |
Defaulted Interest |
13 |
| Section 2.14. |
Global Securities |
13 |
| Section 2.15. |
CUSIP Numbers |
13 |
| |
|
|
| ARTICLE III. REDEMPTION |
16 |
| Section 3.1. |
Notice to Trustee |
16 |
| Section 3.2. |
Selection of Securities to be Redeemed |
16 |
| Section 3.3. |
Notice of Redemption |
17 |
| Section 3.4. |
Effect of Notice of Redemption |
18 |
| Section 3.5. |
Deposit of Redemption Price |
18 |
| Section 3.6. |
Securities Redeemed in Part |
18 |
| |
|
|
| ARTICLE IV. COVENANTS |
18 |
| Section 4.1. |
Payment of Principal and Interest |
18 |
| Section 4.2. |
SEC Reports |
18 |
| Section 4.3. |
Compliance Certificate |
19 |
| Section 4.4. |
Stay, Extension and Usury Laws |
19 |
| |
|
|
| ARTICLE V. SUCCESSORS |
|
20 |
| Section 5.1. |
When Company May Merge, Etc. |
20 |
| Section 5.2. |
Successor Corporation Substituted |
20 |
| |
|
|
| ARTICLE VI. DEFAULTS AND REMEDIES |
21 |
| Section 6.1. |
Events of Default |
21 |
| Section 6.2. |
Acceleration of Maturity; Rescission and Annulment |
22 |
| Section 6.3. |
Collection of Indebtedness and Suits for Enforcement by Trustee |
23 |
| Section 6.4. |
Trustee May File Proofs of Claim |
23 |
| Section 6.5. |
Trustee May Enforce Claims Without Possession of Securities |
24 |
| Section 6.6. |
Application of Money Collected |
24 |
| Section 6.7. |
Limitation on Suits |
25 |
| Section 6.8. |
Unconditional Right of Holders to Receive Principal and Interest |
25 |
| Section 6.9. |
Restoration of Rights and Remedies |
25 |
| Section 6.10. |
Rights and Remedies Cumulative |
26 |
| Section 6.11. |
Delay or Omission Not Waiver |
26 |
| Section 6.12. |
Control by Holders |
26 |
| Section 6.13. |
Waiver of Past Defaults |
27 |
| Section 6.14. |
Undertaking for Costs |
27 |
| |
|
|
| ARTICLE VII. TRUSTEE |
|
27 |
| Section 7.1. |
Duties of Trustee |
27 |
| Section 7.2. |
Rights of Trustee |
29 |
| Section 7.3. |
Individual Rights of Trustee |
30 |
| Section 7.4. |
Trustee’s Disclaimer |
30 |
| Section 7.5. |
Notice of Defaults |
30 |
| Section 7.6. |
Reports by Trustee to Holders |
31 |
| Section 7.7. |
Compensation and Indemnity |
31 |
| Section 7.8. |
Replacement of Trustee |
32 |
| Section 7.9. |
Successor Trustee by Merger, Etc. |
33 |
| Section 7.10. |
Eligibility; Disqualification |
33 |
| Section 7.11. |
Preferential Collection of Claims Against Company |
33 |
| |
|
|
| ARTICLE VIII. SATISFACTION AND DISCHARGE; DEFEASANCE |
33 |
| Section 8.1. |
Satisfaction and Discharge of Indenture |
33 |
| Section 8.2. |
Application of Trust Funds; Indemnification |
35 |
| Section 8.3. |
Legal Defeasance of Securities of any Series |
35 |
| Section 8.4. |
Covenant Defeasance |
37 |
| Section 8.5. |
Repayment to Company |
38 |
| Section 8.6. |
Reinstatement |
38 |
| |
|
|
| ARTICLE IX. AMENDMENTS AND WAIVERS |
38 |
| Section 9.1. |
Without Consent of Holders |
38 |
| Section 9.2. |
With Consent of Holders |
39 |
| Section 9.3. |
Limitations |
40 |
| Section 9.4. |
Compliance with Trust Indenture Act |
40 |
| Section 9.5. |
Revocation and Effect of Consents |
40 |
| Section 9.6. |
Notation on or Exchange of Securities |
41 |
| Section 9.7. |
Trustee Protected |
41 |
| |
|
|
| ARTICLE X. MISCELLANEOUS |
41 |
| Section 10.1. |
Trust Indenture Act Controls |
41 |
| Section 10.2. |
Notices |
41 |
| Section 10.3. |
Communication by Holders with Other Holders |
43 |
| Section 10.4. |
Certificate and Opinion as to Conditions Precedent |
43 |
| Section 10.5. |
Statements Required in Certificate or Opinion |
43 |
| Section 10.6. |
Rules by Trustee and Agents |
44 |
| Section 10.7. |
Legal Holidays |
44 |
| Section 10.8. |
No Recourse Against Others |
44 |
| Section 10.9. |
Counterparts |
44 |
| Section 10.10. |
Governing Law; Waiver of Jury Trial; Consent to Jurisdiction |
45 |
| Section 10.11. |
No Adverse Interpretation of Other Agreements |
45 |
| Section 10.12. |
Successors |
45 |
| Section 10.13. |
Severability |
45 |
| Section 10.14. |
Table of Contents, Headings, Etc. |
45 |
| Section 10.15. |
Securities in a Foreign Currency |
46 |
| Section 10.16. |
Judgment Currency |
46 |
| Section 10.17. |
Force Majeure |
47 |
| Section 10.18. |
U.S.A. Patriot Act |
47 |
| ARTICLE XI. SINKING FUNDS |
47 |
| Section 11.1. |
Applicability of Article |
47 |
| Section 11.2. |
Satisfaction of Sinking Fund Payments with Securities |
48 |
| Section 11.3. |
Redemption of Securities for Sinking Fund |
48 |
ARROW
ELECTRONICS, INC.
Reconciliation and tie between Trust Indenture
Act of 1939 and
Indenture, dated as of March 1, 2024
| § 310(a)(1) |
|
7.10 |
| (a)(2) |
|
7.10 |
| (a)(3) |
|
Not Applicable |
| (a)(4) |
|
Not Applicable |
| (a)(5) |
|
7.10 |
| (b) |
|
7.10 |
| § 311(a) |
|
7.11 |
| (b) |
|
7.11 |
| (c) |
|
Not Applicable |
| § 312(a) |
|
2.7 |
| (b) |
|
10.3 |
| (c) |
|
10.3 |
| § 313(a) |
|
7.6 |
| (b)(1) |
|
7.6 |
| (b)(2) |
|
7.6 |
| (c)(1) |
|
7.6 |
| (d) |
|
7.6 |
| § 314(a) |
|
4.2, 10.5 |
| (b) |
|
Not Applicable |
| (c)(1) |
|
10.4 |
| (c)(2) |
|
10.4 |
| (c)(3) |
|
Not Applicable |
| (d) |
|
Not Applicable |
| (e) |
|
10.5 |
| (f) |
|
Not Applicable |
| § 315(a) |
|
7.1 |
| (b) |
|
7.5 |
| (c) |
|
7.1 |
| (d) |
|
7.1 |
| (e) |
|
6.14 |
| § 316(a) |
|
2.11 |
| (a)(1)(A) |
|
6.12 |
| (a)(1)(B) |
|
6.13 |
| (b) |
|
6.8 |
| § 317(a)(1) |
|
6.3 |
| (a)(2) |
|
6.4 |
| (b) |
|
2.6 |
| § 318(a) |
|
10.1 |
Note: This reconciliation and tie shall not,
for any purpose, be deemed to be part of the Indenture.
Indenture dated as of March 1,
2024 between ARROW ELECTRONICS, INC., a company incorporated under the laws of the State of New York (“Company”),
and U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association, as trustee (“Trustee”).
Each party agrees as follows
for the benefit of the other party and for the equal and ratable benefit of the Holders of the Securities issued under this Indenture.
ARTICLE I.
DEFINITIONS
AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
“Affiliate”
of any specified person means any other person directly or indirectly controlling or controlled by or under common control with such
specified person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlled
by” and “under common control with”), as used with respect to any person, shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of such person, whether through the ownership of voting securities
or by agreement or otherwise.
“Agent”
means any Registrar, Paying Agent or Notice Agent.
“Board of Directors”
means the board of directors of the Company or any duly authorized committee thereof.
“Board Resolution”
means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been adopted by the Board of
Directors or pursuant to authorization by the Board of Directors and to be in full force and effect on the date of the certificate and
delivered to the Trustee.
“Business Day”
means any day except a Saturday, Sunday or a legal holiday in the City of New York, New York (or in connection with any payment, the
place of payment) on which banking institutions are authorized or required by law, regulation or executive order to close.
“Capital Stock”
means any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock.
“Code” means
the United States Internal Revenue Code of 1986, as amended.
“Company”
means the party named as such above until a successor replaces it and thereafter means the successor.
“Company Order”
means a written order signed in the name of the Company by an Officer and delivered to the Trustee.
“Corporate Trust Office”
means the office of the Trustee at which at any particular time its corporate trust business related to this Indenture shall be principally
administered.
“Default”
means any event which is, or after notice, passage of time or both would be, an Event of Default.
“Depositary”
means, with respect to the Securities of any Series issuable or issued in whole or in part in the form of one or more Global Securities,
the person designated as Depositary for such Series by the Company, which Depositary shall be a clearing agency registered under
the Exchange Act; and if at any time there is more than one such person, “Depositary” as used with respect to the Securities
of any Series shall mean the Depositary with respect to the Securities of such Series.
“Discount Security”
means any Security that provides for an amount less than the stated principal amount thereof to be due and payable upon declaration of
acceleration of the maturity thereof pursuant to Section 6.2.
“Dollars”
and “$” means the currency of the United States of America.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended.
“Foreign Currency”
means any currency or currency unit issued by a government other than the government of the United States of America.
“Foreign Government
Obligations” means, with respect to Securities of any Series that are denominated in a Foreign Currency, direct obligations
of, or obligations guaranteed by, the government that issued or caused to be issued such currency for the payment of which obligations
its full faith and credit is pledged and which are not callable or redeemable at the option of the issuer thereof.
“GAAP” means
generally accepted accounting principles in the United States of America set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession,
which are in effect as of the date of determination.
“Global Security”
or “Global Securities” means a Security or Securities, as the case may be, in the form established pursuant to Section 2.2
evidencing all or part of a Series of Securities, issued to the Depositary for such Series or its nominee, and registered in
the name of such Depositary or nominee.
“Holder”
means a person in whose name a Security is registered on the Registrar’s books.
“Indenture”
means this Indenture as amended or supplemented from time to time and shall include the form and terms of particular Series of Securities
established as contemplated hereunder.
“interest”
with respect to any Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.
“Maturity”
when used with respect to any Security, means the date on which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“Officer”
means the Chair of the Board of Directors, the Chief Executive Officer, the Chief Financial Officer, the Treasurer, a Treasury Director,
the Controller, the Secretary or an Assistant Secretary of the Company.
“Officer’s Certificate”
means a certificate signed by any Officer that meets the requirements of this Indenture.
“Opinion of Counsel”
means a written opinion of legal counsel who is acceptable to the Trustee. The counsel may be an employee of or counsel to the Company.
The opinion may contain customary limitations, conditions and exceptions.
“person”
means any individual, corporation, partnership, joint venture, association, limited liability company, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
“principal”
of a Security means the principal of the Security plus, when appropriate, the premium, if any, on, the Security.
“Responsible Officer”
when used with respect to the Trustee means any officer of the Trustee in its Corporate Trust Office, including any vice president, assistant
secretary, assistant treasurer, trust officer, assistant trust officer or assistant controller assigned to its Corporate Trust Office,
or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers
and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his
or her knowledge of and familiarity with the particular subject, and, in each case, who shall have direct responsibility for administration
of this Indenture.
“SEC” means
the Securities and Exchange Commission.
“Security”
or “Securities” means the debentures, notes or other debt instruments of the Company of any Series authenticated
and delivered under this Indenture.
“Series”
or “Series of Securities” means each series of debentures, notes or other debt instruments of the Company created
pursuant to Sections 2.1 and 2.2 hereof.
“Stated Maturity”
when used with respect to any Security, means the date specified in such Security as the fixed date on which the principal of such Security
or interest is due and payable.
“Subsidiary”
of any specified person means any corporation, association or other business entity of which more than 50% of the total voting power
of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled, directly or indirectly, by such person or one or more of the other Subsidiaries
of that person or a combination thereof.
“TIA” means
the Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) as in effect on the date of this Indenture; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such date, “TIA” means, to the extent
required by any such amendment, the Trust Indenture Act as so amended.
“Trustee”
means the person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each person
who is then a Trustee hereunder, and if at any time there is more than one such person, “Trustee” as used with respect to
the Securities of any Series shall mean the Trustee with respect to Securities of that Series.
“U.S. Government Obligations”
means securities which are direct obligations of, or guaranteed by, the United States of America for the payment of which its full faith
and credit is pledged and which are not callable or redeemable at the option of the issuer thereof and shall also include a depositary
receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest
on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depositary receipt,
provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the
holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation evidenced by
such depositary receipt.
Section 1.2. Other
Definitions.
| TERM |
DEFINED IN SECTION |
| |
|
| “Agent Member” |
2.15.6 |
| “Bankruptcy Law” |
6.1 |
| “Custodian” |
6.1 |
| “Event of Default” |
6.1 |
| “Judgment Currency” |
10.16 |
| “mandatory sinking fund payment” |
11.1 |
| “New York Banking Day” |
10.16 |
| “Notice Agent” |
2.5 |
| “optional sinking fund payment” |
11.1 |
| “Paying Agent” |
2.5 |
| “Registrar” |
2.5 |
| “Required Currency” |
10.16 |
| “Specified Courts” |
10.10 |
| “successor person” |
5.1 |
Section 1.3. Incorporation
by Reference of Trust Indenture Act.
Whenever this Indenture refers
to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
“Commission”
means the SEC.
“indenture securities”
means the Securities.
“indenture security
holder” means a Holder.
“indenture to be qualified”
means this Indenture.
“indenture trustee”
or “institutional trustee” means the Trustee.
“obligor” on the indenture
securities means the Company and any successor obligor upon the Securities.
All other terms used in this
Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA and not
otherwise defined herein are used herein as so defined.
Section 1.4. Rules of
Construction.
Unless the context otherwise
requires:
(a) a
term has the meaning assigned to it;
(b) an
accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(c) “or”
is not exclusive;
(d) words
in the singular include the plural, and in the plural include the singular;
(e) provisions
apply to successive events and transactions;
(f) in
the computation of periods of time from a specified date to a later specified date, the word “from” means “from and
including,” and the words “to” and “until” each mean “to but excluding”; and
(g) the
phrase “in writing” as used herein shall be deemed to include PDFs, e-mails and other electronic means of transmission, unless
otherwise indicated.
ARTICLE II.
THE SECURITIES
Section 2.1. Issuable
in Series.
The aggregate principal amount
of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more
Series. All Securities of a Series shall be identical except as may be set forth or determined in the manner provided in a Board
Resolution, a supplemental indenture or an Officer’s Certificate detailing the adoption of the terms thereof pursuant to authority
granted under a Board Resolution. In the case of Securities of a Series to be issued from time to time, the Board Resolution, Officer’s
Certificate or supplemental indenture detailing the adoption of the terms thereof pursuant to authority granted under a Board Resolution
may provide for the method by which specified terms (such as interest rate, maturity date, record date or date from which interest shall
accrue) are to be determined. Securities may differ between Series in respect of any matters, provided that all Series of Securities
shall be equally and ratably entitled to the benefits of the Indenture.
Section 2.2. Establishment
of Terms of Series of Securities.
At or prior to the issuance
of any Securities within a Series, the following shall be established (as to the Series generally, in the case of Subsection 2.2.1
and either as to such Securities within the Series or as to the Series generally in the case of Subsections 2.2.2 through 2.2.23)
by or pursuant to a Board Resolution, and set forth or determined in the manner provided in a Board Resolution, supplemental indenture
hereto or Officer’s Certificate:
2.2.1. the
title (which shall distinguish the Securities of that particular Series from the Securities of any other Series) and ranking (including
the terms of any subordination provisions) of the Series;
2.2.2. the
price or prices (expressed as a percentage of the principal amount thereof) at which the Securities of the Series will be issued;
2.2.3. any
limit upon the aggregate principal amount of the Securities of the Series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities
of the Series pursuant to Section 2.8, 2.9, 2.12, 3.6 or 9.6);
2.2.4. the
date or dates on which the principal of the Securities of the Series is payable;
2.2.5. the
rate or rates (which may be fixed or variable) per annum or, if applicable, the method used to determine such rate or rates (including,
but not limited to, any commodity, commodity index, stock exchange index or financial index) at which the Securities of the Series shall
bear interest, if any, the date or dates from which such interest, if any, shall accrue, the date or dates on which such interest, if
any, shall commence and be payable and any regular record date for the interest payable on any interest payment date;
2.2.6. the
place or places where the principal of and interest, if any, on the Securities of the Series shall be payable, where the Securities
of such Series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company
in respect of the Securities of such Series and this Indenture may be delivered, and the method of such payment, if by wire transfer,
mail or other means;
2.2.7. if
applicable, the period or periods within which, the price or prices at which and the terms and conditions upon which the Securities of
the Series may be redeemed, in whole or in part, at the option of the Company;
2.2.8. the
obligation, if any, of the Company to redeem or purchase the Securities of the Series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and
conditions upon which Securities of the Series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
2.2.9. the
dates, if any, on which and the price or prices at which the Securities of the Series will be repurchased by the Company at the
option of the Holders thereof and other detailed terms and provisions of such repurchase obligations;
2.2.10. if
other than denominations of $2,000 and any integral multiple of $1,000 in excess thereof, the denominations in which the Securities of
the Series shall be issuable;
2.2.11. the
forms of the Securities of the Series and whether the Securities will be issuable as Global Securities;
2.2.12. if
other than the principal amount thereof, the portion of the principal amount of the Securities of the Series that shall be payable
upon declaration of acceleration of the maturity thereof pursuant to Section 6.2;
2.2.13. the
currency of denomination of the Securities of the Series, which may be Dollars or any Foreign Currency, and if such currency of denomination
is a composite currency, the agency or organization, if any, responsible for overseeing such composite currency;
2.2.14. the
designation of the currency, currencies or currency units in which payment of the principal of and interest, if any, on the Securities
of the Series will be made;
2.2.15. if
payments of principal of or interest, if any, on the Securities of the Series are to be made in one or more currencies or currency
units other than that or those in which such Securities are denominated, the manner in which the exchange rate with respect to such payments
will be determined;
2.2.16. the
manner in which the amounts of payment of principal of or interest, if any, on the Securities of the Series will be determined,
if such amounts may be determined by reference to an index based on a currency or currencies or by reference to a commodity, commodity
index, stock exchange index or financial index;
2.2.17. the
provisions, if any, relating to any security provided for the Securities of the Series;
2.2.18. any
addition to, deletion of or change in the Events of Default which applies to any Securities of the Series and any change in the
right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to
Section 6.2;
2.2.19. any
addition to, deletion of or change in the covenants applicable to Securities of the Series;
2.2.20. any
Depositaries, interest rate calculation agents, exchange rate calculation agents or other agents with respect to Securities of such Series if
other than those appointed herein;
2.2.21. the
provisions, if any, relating to conversion or exchange of any Securities of such Series, including if applicable, the conversion or exchange
price, the conversion or exchange period, provisions as to whether conversion or exchange will be mandatory, at the option of the Holders
thereof or at the option of the Company, the events requiring an adjustment of the conversion price or exchange price and provisions
affecting conversion or exchange if such Series of Securities are redeemed;
2.2.22. any
other terms of the Series (which may supplement, modify or delete any provision of this Indenture insofar as it applies to such
Series), including any terms that may be required under applicable law or regulations or advisable in connection with the marketing of
Securities of that Series; and
2.2.23. whether
any of the Company’s direct or indirect Subsidiaries will guarantee the Securities of that Series, including the terms of subordination,
if any, of such guarantees.
All Securities of any one Series need
not be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by or
pursuant to the Board Resolution, supplemental indenture hereto or Officer’s Certificate referred to above.
Section 2.3. Denominations.
The
Securities of each Series shall be issuable only in registered form without coupons and only in such denominations as shall be specified
as contemplated by Section 2.2. In the absence of any such specified denomination with respect to the Securities of any Series,
the Securities of such Series shall be issuable in denominations of $2,000 and any integral multiple of $1,000 in excess thereof.
Section 2.4. Execution
and Authentication.
An Officer shall sign the Securities
for the Company by manual, facsimile or electronic signature.
If an Officer whose signature
is on a Security no longer holds that office at the time the Security is authenticated, the Security shall nevertheless be valid.
A Security shall not be valid
until authenticated by the manual, facsimile or electronic signature of the Trustee or an authenticating agent. The signature shall be
conclusive evidence that the Security has been authenticated under this Indenture.
The Trustee shall at any time,
and from time to time, authenticate Securities for original issue in the principal amount provided in the Board Resolution, supplemental
indenture hereto or Officer’s Certificate, upon receipt by the Trustee of a Company Order. Each Security shall be dated the date
of its authentication.
The aggregate principal amount
of Securities of any Series outstanding at any time may not exceed any limit upon the maximum principal amount for such Series set
forth in the Board Resolution, supplemental indenture hereto or Officer’s Certificate delivered pursuant to Section 2.2, except
as provided in Section 2.9.
Prior to the issuance of Securities
of any Series, the Trustee shall have received and (subject to Section 7.2) shall be fully protected in relying on: (a) the
Board Resolution, supplemental indenture hereto or Officer’s Certificate establishing the form of the Securities of that Series or
of Securities within that Series and the terms of the Securities of that Series or of Securities within that Series, (b) an
Officer’s Certificate complying with Sections 10.4 and 10.5, and (c) an Opinion of Counsel complying with Sections 10.4 and
10.5.
The Trustee shall have the
right to decline to authenticate and deliver any Securities of such Series: (a) if the Trustee, being advised by counsel, determines
that such action may not be taken lawfully; or (b) if the Trustee in good faith determines that such action may expose the Trustee
to personal liability.
The Trustee may appoint an
authenticating agent acceptable to the Company to authenticate Securities. An authenticating agent may authenticate Securities whenever
the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating
agent has the same rights as an Agent to deal with the Company or an Affiliate of the Company.
Section 2.5. Registrar,
Paying Agent and Notice Agent.
The Company shall maintain,
with respect to each Series of Securities, at the place or places specified with respect to such Series pursuant to Section 2.2,
an office or agency where Securities of such Series may be presented or surrendered for payment (“Paying Agent”),
where Securities of such Series may be surrendered for registration of transfer or exchange (“Registrar”) and
where notices and demands to or upon the Company in respect of the Securities of such Series and this Indenture may be delivered
(“Notice Agent”). The Registrar shall keep a register with respect to each Series of Securities and to their
transfer and exchange. The Company will give prompt written notice to the Trustee of the name and address, and any change in the name
or address, of each Registrar, Paying Agent or Notice Agent. If at any time the Company shall fail to maintain any such required Registrar,
Paying Agent or Notice Agent or shall fail to furnish the Trustee with the name and address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as
its agent to receive all such presentations, surrenders, notices and demands; provided, however, that any appointment of
the Trustee as the Notice Agent shall exclude the appointment of the Trustee or any office of the Trustee as an agent to receive the
service of legal process on the Company.
The Company may also from time
to time designate one or more co-registrars, additional paying agents or additional notice agents and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its
obligations to maintain a Registrar, Paying Agent and Notice Agent in each place so specified pursuant to Section 2.2 for Securities
of any Series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission
and of any change in the name or address of any such co-registrar, additional paying agent or additional notice agent. The term “Registrar”
includes any co-registrar; the term “Paying Agent” includes any additional paying agent; and the term “Notice
Agent” includes any additional notice agent. The Company or any of its Affiliates may serve as Registrar or Paying Agent.
The
Company hereby appoints the Trustee the initial Registrar, Paying Agent and Notice Agent for each Series unless another Registrar,
Paying Agent or Notice Agent, as the case may be, is appointed prior to the time Securities of that Series are first issued. The
rights, powers, duties, obligations and actions of each Agent under this Indenture are several and not joint or joint and several, and
the Agents shall only be obliged to perform those duties expressly set out in this Indenture and shall have no implied duties.
Section 2.6. Paying
Agent to Hold Money in Trust.
The Company shall require each
Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust, for the benefit of Holders of any Series of
Securities or the Trustee, all money held by the Paying Agent for the payment of principal of or interest on the Series of Securities
and will notify the Trustee in writing of any default by the Company in making any such payment. While any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to
pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary
of the Company) shall have no further liability for the money. If the Company or a Subsidiary of the Company acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit of Holders of any Series of Securities all money held by it as
Paying Agent. Upon any bankruptcy, reorganization or similar proceeding with respect to the Company, the Trustee shall serve as Paying
Agent for the Securities. For the avoidance of doubt, a Paying Agent and the Trustee shall be held harmless and have no liability with
respect to payments or disbursements (including to the Holders) until they have confirmed receipt of funds sufficient to make the relevant
payment. No money held by an Agent needs to be segregated except as is required by law.
Section 2.7. Holder
Lists.
If it is serving as Registrar,
the Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses
of Holders of each Series of Securities and shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar,
the Company shall furnish to the Trustee at least ten days before each interest payment date and at such other times as the Trustee may
request in writing a list, in such form and as of such date as the Trustee may reasonably require, of the names and addresses of Holders
of each Series of Securities.
Every
Holder, by receiving and holding Securities, agrees with the Company and the Trustee that neither the Company nor the Trustee or any
agent of either of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of
the Holders in accordance with TIA § 312, regardless of the source from which such information was derived, and that the Trustee
shall not be held accountable by reason of mailing any material pursuant to a request made under TIA § 312(b).
Section 2.8. Transfer
and Exchange.
Where Securities of a Series are
presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal principal amount
of Securities of the same Series, the Registrar shall register the transfer or make the exchange if its requirements for such transactions
are met. To permit registrations of transfers and exchanges, the Trustee shall authenticate Securities at the Registrar’s request.
No service charge shall be made for any registration of transfer or exchange (except as otherwise expressly permitted herein), but the
Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer tax or similar governmental charge payable upon exchanges pursuant to Sections 2.12, 3.6 or 9.6).
Neither the Company nor the
Registrar shall be required (a) to issue, register the transfer of or exchange Securities of any Series for the period beginning
at the opening of business 15 days immediately preceding the sending of a notice of redemption of Securities of that Series selected
for redemption and ending at the close of business on the day such notice is sent, (b) to register the transfer of or exchange Securities
of any Series selected, called or being called for redemption as a whole or the portion being redeemed of any such Securities selected,
called or being called for redemption in part or (c) to register the transfer of or exchange Securities of any Series between
a record date and payment date for such Series of Securities.
Section 2.9. Mutilated,
Destroyed, Lost and Stolen Securities.
If any mutilated Security is
surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security
of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered
to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such
security or indemnity bond as may be required by each of them to hold itself and any of its agents harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon
receipt of a Company Order the Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing
a new Security, pay such Security.
Upon the issuance of any new
Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any Series issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately with any and all other Securities of that Series duly issued hereunder.
The provisions of this Section are
exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
Section 2.10. Outstanding
Securities.
The Securities outstanding
at any time are all the Securities authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation,
those reductions in the interest on a Global Security effected by the Trustee in accordance with the provisions hereof and those described
in this Section as not outstanding.
If a Security is replaced pursuant
to Section 2.9, it ceases to be outstanding until the Trustee receives proof satisfactory to it that the replaced Security is held
by a bona fide purchaser.
If the Paying Agent (other
than the Company, a Subsidiary of the Company or an Affiliate of the Company) holds on the Maturity of Securities of a Series money
sufficient to pay such Securities payable on that date, then on and after that date such Securities of the Series cease to be outstanding
and interest on them ceases to accrue.
The Company may purchase or
otherwise acquire the Securities, whether by open market purchases, negotiated transactions or otherwise. A Security does not cease to
be outstanding because the Company or an Affiliate of the Company holds the Security (but see Section 2.11 below).
In determining whether the
Holders of the requisite principal amount of outstanding Securities have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, the principal amount of a Discount Security that shall be deemed to be outstanding for such purposes shall
be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 6.2.
Section 2.11. Treasury
Securities.
In determining whether the
Holders of the required principal amount of Securities of a Series have concurred in any request, demand, authorization, direction,
notice, consent or waiver, Securities of a Series owned by the Company or any Affiliate of the Company shall be disregarded, except
that for the purposes of determining whether the Trustee shall be protected in relying on any such request, demand, authorization, direction,
notice, consent or waiver only Securities of a Series that a Responsible Officer of the Trustee actually knows are so owned shall
be so disregarded.
Section 2.12. Temporary
Securities.
Until definitive Securities
are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary Securities upon a Company Order. Temporary
Securities shall be substantially in the form of definitive Securities but may have variations that the Company considers appropriate
for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee upon receipt of a Company Order shall
authenticate definitive Securities of the same Series and date of maturity in exchange for temporary Securities. Until so exchanged,
temporary Securities shall have the same rights under this Indenture as the definitive Securities.
Section 2.13. Cancellation.
The Company at any time may
deliver Securities to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered
to them for registration of transfer, exchange or payment. The Trustee and no one else shall cancel all Securities surrendered for transfer,
exchange, payment, replacement or cancellation and shall dispose of such canceled Securities in accordance with the Trustee’s customary
procedures (subject to the record retention requirements of the Exchange Act) and deliver a certificate of such cancellation to the Company
upon written request of the Company. The Company may not issue new Securities to replace Securities that it has paid or delivered to
the Trustee for cancellation.
Section 2.14. Defaulted
Interest.
If the Company defaults in
a payment of interest on a Series of Securities, it shall pay the defaulted interest, plus, to the extent permitted by law, any
interest payable on the defaulted interest, to the persons who are Holders of the Series on a subsequent special record date. The
Company shall fix the record date and payment date. At least ten days before the special record date, the Company shall send to the Trustee
and to each Holder of the Series a notice that states the special record date, the payment date and the amount of interest to be
paid. The Company may pay defaulted interest in any other lawful manner. The Trustee will not have any duty to determine whether any
defaulted interest is payable or the amount thereof.
Section 2.15. Global
Securities.
2.15.1. Terms
of Securities. A Board Resolution, a supplemental indenture hereto or an Officer’s Certificate shall establish whether the
Securities of a Series shall be issued in whole or in part in the form of one or more Global Securities and the Depositary for such
Global Security or Securities.
2.15.2. Transfer
and Exchange. Notwithstanding any provisions to the contrary contained in Section 2.8 of the Indenture and in addition thereto,
any Global Security shall be exchangeable pursuant to Section 2.8 of the Indenture for Securities registered in the names of Holders
other than the Depositary for such Security or its nominee only if (i) such Depositary notifies the Company that it is unwilling
or unable to continue as Depositary for such Global Security or if at any time such Depositary ceases to be a clearing agency registered
under the Exchange Act, and, in either case, the Company fails to appoint a successor Depositary registered as a clearing agency under
the Exchange Act within 90 days of such event or (ii) the Company executes and delivers to the Trustee an Officer’s Certificate
to the effect that such Global Security shall be so exchangeable. Any Global Security that is exchangeable pursuant to the preceding
sentence shall be exchangeable for Securities registered in such names as the Depositary shall direct in writing in an aggregate principal
amount equal to the principal amount of the Global Security with like tenor and terms.
Except as provided in this
Section 2.15.2, a Global Security may not be transferred except as a whole by the Depositary with respect to such Global Security
to a nominee of such Depositary, by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by the Depositary
or any such nominee to a successor Depositary or a nominee of such a successor Depositary.
None of the Trustee or any
Agent shall have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under
this Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers between
or among Depositary participants, members or beneficial owners in any Global Security) other than to require delivery of such certificates
and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture,
and to examine the same to determine substantial compliance as to form with the express requirements hereof.
None of the Trustee or any
Agent shall have any responsibility or obligation to any beneficial owner of a Global Security, a member of, or a participant in the
Depositary or other Person with respect to the accuracy of the records of the Depositary or its nominee or of any participant or member
thereof, with respect to any ownership interest in any Security or with respect to the delivery to any participant, member, beneficial
owner or other Person (other than the Depositary) of any notice (including any notice of optional redemption) or the payment of any amount,
under or with respect to such Security.
The transferor of any Security
shall provide or cause to be provided to the Trustee all information necessary to allow the Trustee to comply with any applicable tax
reporting obligations, including any cost basis reporting obligations under Section 6045 of the Code. The Trustee may rely on information
provided to it and shall have no responsibility to verify or ensure the accuracy of such information. In connection with any proposed
exchange of a Security that is not a Global Security for a Global Security, the Company or the Depositary shall be required to provide
or cause to be provided to the Trustee all information necessary to allow the Trustee to comply with any applicable tax reporting obligations,
including any cost basis reporting obligations under Section 6045 of the Code. The Trustee may rely on information provided to it
and shall have no responsibility to verify or ensure the accuracy of such information.
2.15.3. Legends.
Any Global Security issued hereunder shall bear a legend in substantially the following form:
“THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF
THE DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO
A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY
OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY.”
In addition, so long as the
Depository Trust Company (“DTC”) is the Depositary, each Global Security registered in the name of DTC or its nominee
shall bear a legend in substantially the following form:
“UNLESS THIS GLOBAL SECURITY
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY GLOBAL SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”
2.15.4. Acts
of Holders. The Depositary, as a Holder, may appoint agents and otherwise authorize participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a Holder is entitled to give or take under the Indenture.
2.15.5. Payments.
Notwithstanding the other provisions of this Indenture, unless otherwise specified as contemplated by Section 2.2, payment of the
principal of and interest, if any, on any Global Security shall be made to the Holder thereof.
2.15.6. Agent
Members. The registered Holder of a Security will be treated as the owner of such Security for all purposes and only registered Holders
shall have rights under this Indenture and the Securities. Members of, or participants in, the Depositary (“Agent Members”)
and persons who hold beneficial interests in a Global Security through an Agent Member shall have no rights under this Indenture with
respect to any Global Security held on their behalf by the Depositary. The Depositary may be treated by the Company, the Trustee, the
Paying Agent, the Registrar and any agent of the foregoing as the absolute owner of the Global Securities for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee, the Paying Agent, the Registrar or any agent of
the foregoing from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as
between the Depositary and its Agent Members, the operation of customary practices of such Depositary governing the exercise of the rights
of a Holder of a beneficial interest in any Global Security.
Section 2.16. CUSIP
Numbers.
The Company in issuing the
Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers
in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as
to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance
may be placed only on the other elements of identification printed on the Securities, and any such redemption shall not be affected by
any defect in or omission of such numbers. The Company will promptly notify the Trustee in writing of any change in the “CUSIP”
numbers.
ARTICLE III.
REDEMPTION
Section 3.1. Notice
to Trustee.
The Company may, with respect
to any Series of Securities, reserve the right to redeem and pay the Series of Securities or may covenant to redeem and pay
the Series of Securities or any part thereof prior to the Stated Maturity thereof at such time and on such terms as provided for
in such Securities. If a Series of Securities is redeemable and the Company wants or is obligated to redeem prior to the Stated
Maturity thereof all or part of the Series of Securities pursuant to the terms of such Securities, it shall furnish to the Trustee,
at least two Business Days prior to the giving of notice of redemption pursuant to Section 3.3 hereof (unless a shorter time
shall be acceptable to the Trustee), an Officer’s Certificate setting forth the redemption date, the principal amount of the Series of
Securities to be redeemed and the redemption price (if then determined and otherwise the method of determination).
Section 3.2. Selection
of Securities to be Redeemed.
Unless
otherwise indicated for a particular Series by a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate,
if less than all the Securities of a Series are to be redeemed, the Securities of the Series to be redeemed will be selected
as follows: (a) if the Securities are in the form of Global Securities, in accordance with the procedures of the Depositary, (b) if
the Securities are listed on any national securities exchange, in compliance with the requirements of the principal national securities
exchange, if any, on which the Securities are listed or (c) if not otherwise provided for under clause (a) or (b) in the
manner that the Trustee deems fair and appropriate, including by lot or other method, unless otherwise required by law or applicable
stock exchange requirements,. The Securities to be redeemed shall be selected from Securities of the Series outstanding not previously
called for redemption. Portions of the principal of Securities of the Series that have denominations larger than $2,000 may be selected
for redemption. Securities of the Series and portions of them it selected for redemption shall be in minimum amounts of $2,000 or
whole multiples of $1,000 in excess thereof or, with respect to Securities of any Series issuable in other denominations pursuant
to Section 2.2.10, the minimum principal denomination for each Series and the authorized integral multiples thereof. Provisions
of this Indenture that apply to Securities of a Series called for redemption also apply to portions of Securities of that Series called
for redemption. Neither the Trustee nor the Paying Agent shall be liable for any selection made by it in accordance with this paragraph
(including the procedures of the Depositary).
Section 3.3. Notice
of Redemption.
Unless otherwise indicated
for a particular Series by Board Resolution, a supplemental indenture hereto or an Officer’s Certificate, at least 10 days
but not more than 60 days before a redemption date, the Company shall send or cause to be sent by first-class mail or electronically,
in accordance with the procedures of the Depositary, a notice of redemption to each Holder whose Securities are to be redeemed.
The notice shall identify the
Securities of the Series to be redeemed and shall state:
(a) the
redemption date;
(b) the
redemption price (if then determined and otherwise the method of determination);
(c) the
name and address of the Paying Agent;
(d) if
any Securities are being redeemed in part, the portion of the principal amount of such Securities to be redeemed and that, after the
redemption date and upon surrender of such Security, a new Security or Securities in principal amount equal to the unredeemed portion
of the original Security shall be issued in the name of the Holder thereof upon cancellation of the original Security;
(e) that
Securities of the Series called for redemption must be surrendered to the Paying Agent to collect the redemption price;
(f) that
interest on Securities of the Series called for redemption ceases to accrue on and after the redemption date unless the Company
defaults in the deposit of the redemption price;
(g) the
“CUSIP” number, if any;
(h) the
paragraph of the Securities and/or Section of this Indenture pursuant to which the Securities called for redemption are being redeemed;
(i) that
no representation is made as to the correctness or accuracy of the CUSIP number listed in such notice or printed on the Securities;
(j) any
condition precedent to such redemption; and
(k) any
other information as may be required by the terms of the particular Series or the Securities of a Series being redeemed.
At the Company’s request,
the Trustee shall give the notice of redemption in the Company’s name and at its expense, provided, however, that the Company has
delivered to the Trustee, at least two Business Days prior to the giving of notice of redemption (unless a shorter time shall be acceptable
to the Trustee), an Officer’s Certificate requesting that the Trustee give such notice and setting forth the information to be
stated in such notice and the form of such notice.
Section 3.4. Effect
of Notice of Redemption.
Once notice of redemption is
sent as provided in Section 3.3, Securities of a Series called for redemption become due and payable on the redemption date
and at the redemption price, subject to any condition precedent. Upon surrender to the Paying Agent, such Securities shall be paid at
the redemption price plus accrued interest to the redemption date.
Section 3.5. Deposit
of Redemption Price.
On or before 11:00 a.m., New
York City time, on the redemption date, the Company shall deposit with the Paying Agent money sufficient to pay the redemption price
of and accrued interest, if any, on all Securities to be redeemed on that date.
Section 3.6. Securities
Redeemed in Part.
Upon surrender of a Security
that is redeemed in part, the Company will issue and, upon receipt of a Company Order, the Trustee shall authenticate for the Holder
a new Security of the same Series and the same maturity equal in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE IV.
COVENANTS
Section 4.1. Payment
of Principal and Interest.
The Company covenants and agrees
for the benefit of the Holders of each Series of Securities that it will duly and punctually pay the principal of and interest,
if any, on the Securities of that Series in accordance with the terms of such Securities and this Indenture. On or before 11:00
a.m., New York City time, on the applicable payment date, the Company shall deposit with the Paying Agent money sufficient to pay the
principal of and interest, if any, on the Securities of each Series in accordance with the terms of such Securities and this Indenture.
Section 4.2. SEC
Reports.
To the extent any Securities
of a Series are outstanding, the Company shall deliver to the Trustee, and transmit to the Holders, within 15 days after it files
them with the SEC copies of the annual reports and of the information, documents and other reports (or copies of such portions of any
of the foregoing as the SEC may by rules and regulations prescribe) which the Company is required to file with the SEC pursuant
to Section 13 or 15(d) of the Exchange Act. The Company also shall comply with the other provisions of TIA § 314(a). Reports,
information and documents filed with the SEC via the EDGAR system will be deemed to be delivered to the Trustee and transmitted to the
Holders as of the time of such filing via EDGAR for purposes of this Section 4.2.
Delivery of reports, information
and documents to the Trustee under this Section 4.2 is for informational purposes only and the Trustee’s receipt of the foregoing
shall not constitute constructive or actual knowledge or notice of any information contained therein or determinable from information
contained therein, including the Company’s compliance with any of the covenants hereunder (as to which the Trustee is entitled
to rely exclusively on Officer’s Certificates). All such reports, information or documents referred to in this Section 4.2
that the Company files with the SEC via the SEC’s EDGAR system shall be deemed to be filed with the Trustee and transmitted to
Holders at the time such reports, information or documents are filed via the EDGAR system (or any successor system). The Trustee shall
not be obligated to monitor or confirm, on a continuing basis or otherwise, the Company’s compliance with the covenants in this
Indenture or to monitor whether or not any such reports, information or other documents have been filed with the SEC with EDGAR (or any
successor filing system) or any website under this Indenture, or to participate in any conference calls. The Trustee shall have no responsibility
or liability for the filing, timeliness or content of any report required under this Section 4.2 or any other reports, information
and documents required under this Indenture.
Section 4.3. Compliance
Certificate.
To the extent any Securities
of a Series are outstanding, the Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of the
Company, an Officer’s Certificate stating that a review of the activities of the Company and its Subsidiaries during the preceding
fiscal year has been made under the supervision of the signing Officer with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further stating, as to such Officer signing such certificate, that
to the best of his/her knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture
and is not in default in the performance or observance of any of the terms, provisions and conditions hereof (or, if a Default or Event
of Default shall have occurred, describing all such Defaults or Events of Default of which the Officer may have knowledge).
Section 4.4. Stay,
Extension and Usury Laws.
The Company covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon, plead or in any manner whatsoever claim or take the benefit
or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture or the Securities; and the Company (to the extent it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law and covenants that it will not, by resort to any such law, hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law has been
enacted.
Section 4.5. Waiver
of Certain Covenants.
Except as otherwise specified
as contemplated by Section 2.2 for Securities of such Series, the Company may, with respect to the Securities of any Series, omit
in any particular instance to comply with any term, provision or condition set forth in any covenant provided pursuant to Section 2.2.19,
9.1(f) or 9.1(i) for the benefit of the Holders of such Series, if before the time for such compliance the Holders of
at least a majority in aggregate principal amount of the outstanding Securities of such Series shall, by act of such Holders, either
waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in full
force and effect.
ARTICLE V.
SUCCESSORS
Section 5.1. When
Company May Merge, Etc.
The Company shall not consolidate
with or merge with or into, or convey, transfer or lease all or substantially all of its properties and assets to, any person (a “successor
person”) unless:
(a) the
Company is the surviving entity or the successor person (if other than the Company) is a corporation, partnership, trust or other entity
organized and validly existing under the laws of any U.S. domestic jurisdiction and expressly assumes by supplemental indenture the Company’s
obligations on the Securities and under this Indenture; and
(b) immediately
after giving effect to the transaction, no Default or Event of Default, shall have occurred and be continuing.
The Company shall deliver to
the Trustee prior to the consummation of the proposed transaction an Officer’s Certificate and an Opinion of Counsel, each stating
that the proposed transaction and any supplemental indenture comply with this Indenture.
Notwithstanding the above,
any Subsidiary of the Company may consolidate with, merge into or transfer all or part of its properties to the Company. Neither an Officer’s
Certificate nor an Opinion of Counsel shall be required to be delivered in connection therewith.
Section 5.2. Successor
Corporation Substituted.
Upon any consolidation or merger,
or any sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company in accordance with Section 5.1,
the successor corporation formed by such consolidation or into or with which the Company is merged or to which such sale, lease, conveyance
or other disposition is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor person has been named as the Company herein; provided, however, that
the predecessor Company in the case of a sale, conveyance or other disposition (other than a lease) shall be released from all obligations
and covenants under this Indenture and the Securities.
ARTICLE VI.
DEFAULTS AND REMEDIES
Section 6.1. Events
of Default.
“Event of Default,”
wherever used herein with respect to Securities of any Series, means any one of the following events, unless in the establishing Board
Resolution, supplemental indenture or Officer’s Certificate it is provided that such Series shall not have the benefit of
said Event of Default:
(a) default
in the payment of any interest on any Security of that Series when it becomes due and payable, and continuance of such default for
a period of 30 days (unless the entire amount of such payment is deposited by the Company with the Trustee or with a Paying Agent prior
to 11:00 a.m., New York City time, on the 30th day of such period);
(b) default
in the payment of principal of any Security of that Series at its Maturity;
(c) default
in the performance or breach of any covenant or warranty of the Company in this Indenture (other than defaults pursuant to paragraph
(a) or (b) above or pursuant to a covenant or warranty that has been included in this Indenture solely for the benefit of a
Series of Securities other than that Series), which default continues uncured for a period of 60 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal
amount of the outstanding Securities of that Series a written notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a “Notice of Default” hereunder;
(d) the
Company pursuant to or within the meaning of any Bankruptcy Law:
(i) commences
a voluntary case,
(ii) consents
to the entry of an order for relief against it in an involuntary case,
(iii) consents
to the appointment of a Custodian of it or for all or substantially all of its property,
(iv) makes
a general assignment for the benefit of its creditors, or
(v) generally
is unable to pay its debts as the same become due;
(e) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is
for relief against the Company in an involuntary case,
(ii) appoints
a Custodian of the Company or for all or substantially all of its property, or
(iii) orders
the liquidation of the Company,
and the order or decree remains unstayed
and in effect for 60 days; or
(f) any
other Event of Default provided with respect to Securities of that Series, which is specified in a Board Resolution, a supplemental indenture
hereto or an Officer’s Certificate, in accordance with Section 2.2.18.
The term “Bankruptcy
Law” means title 11, U.S. Code or any similar Federal or State law for the relief of debtors. The term “Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
The Company will provide the
Trustee written notice of any Default or Event of Default within 30 days of becoming aware of the occurrence of such Default or Event
of Default, which notice will describe in reasonable detail the status of such Default or Event of Default and what action the Company
is taking or proposes to take in respect thereof.
Section 6.2. Acceleration
of Maturity; Rescission and Annulment.
If an Event of Default with
respect to Securities of any Series at the time outstanding occurs and is continuing (other than an Event of Default referred to
in Section 6.1(d) or (e)) then in every such case the Trustee or the Holders of not less than 25% in principal amount of the
outstanding Securities of that Series may declare the principal amount (or, if any Securities of that Series are Discount Securities,
such portion of the principal amount as may be specified in the terms of such Securities) of and accrued and unpaid interest, if any,
on all of the Securities of that Series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such principal amount (or specified amount) and accrued and unpaid interest, if any,
shall become immediately due and payable. If an Event of Default specified in Section 6.1(d) or (e) shall occur, the principal
amount (or specified amount) of and accrued and unpaid interest, if any, on all outstanding Securities shall ipso facto become
and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
At any time after such a declaration
of acceleration with respect to any Series has been made and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the outstanding Securities
of that Series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if all
Events of Default with respect to Securities of that Series, other than the non-payment of the principal and interest, if any, of Securities
of that Series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 6.13.
No such rescission shall affect
any subsequent Default or impair any right consequent thereon.
Section 6.3. Collection
of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that
if:
(a) default
is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period
of 30 days,
(b) default
is made in the payment of principal of any Security at the Maturity thereof, or
(c) default
is made in the deposit of any sinking fund payment, if any, when and as due by the terms of a Security,
then, the Company will, upon demand of
the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for
principal and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal
and any overdue interest at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the compensation, reasonable expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay
such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding
for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the moneys adjudged or deemed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with
respect to any Securities of any Series occurs and is continuing, the Trustee, subject to Article VII hereof, may in its discretion
proceed to protect and enforce its rights and the rights of the Holders of Securities of such Series by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 6.4. Trustee
May File Proofs of Claim.
In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding
relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors,
the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(a) to
file and prove a claim for the whole amount of principal and interest owing and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the compensation,
reasonable expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding,
and
(b) to
collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due it for the compensation, reasonable expenses, disbursements and advances of the Trustee, its agents and counsel
and any other amounts due the Trustee under Section 7.7.
Nothing herein contained shall
be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote
in respect of the claim of any Holder in any such proceeding.
Section 6.5. Trustee
May Enforce Claims Without Possession of Securities.
All rights of action and claims
under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities
or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the compensation, reasonable
expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities
in respect of which such judgment has been recovered.
Section 6.6. Application
of Money Collected.
Any money or property collected
by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money or property on account of principal or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
First: To
the payment of all amounts due the Trustee, its agents and attorneys under Section 7.7; and
Second: To
the payment of the amounts then due and unpaid for principal of and interest on the Securities in respect of which or for the benefit
of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable
on such Securities for principal and interest, respectively; and
Third: To
the Company.
Section 6.7. Limitation
on Suits.
No Holder of any Security of
any Series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment
of a receiver or trustee, or for any other remedy hereunder, unless
(a) such
Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that Series;
(b) the
Holders of not less than 25% in principal amount of the outstanding Securities of that Series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(c) such
Holder or Holders have offered to the Trustee indemnity or security reasonably satisfactory to the Trustee against the costs, expenses
and liabilities which might be incurred by the Trustee in compliance with such request;
(d) the
Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(e) no
direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the outstanding Securities of that Series;
it
being understood, intended and expressly covenanted by the Holder of every Security with every other Holder and the Trustee that no one
or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture
to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over
any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders of the applicable Series. The Trustee will have no duty to determine whether any Holder’s use of this
Indenture complies with the preceding sentence.
Section 6.8. Unconditional
Right of Holders to Receive Principal and Interest.
Notwithstanding any other provision
in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal
of and interest, if any, on such Security on the Maturity of such Security, including the Stated Maturity expressed in such Security
(or, in the case of redemption, on the redemption date) and to institute suit for the enforcement of any such payment, and such rights
shall not be impaired without the consent of such Holder.
Section 6.9. Restoration
of Rights and Remedies.
If the Trustee or any Holder
has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned
for any reason or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination
in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder
and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 6.10. Rights
and Remedies Cumulative.
Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in Section 2.9, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder
or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise,
shall not, to the extent permitted by law, prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 6.11. Delay
or Omission Not Waiver.
No delay or omission of the
Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or
by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or
by the Holders, as the case may be.
Section 6.12. Control
by Holders.
The Holders of a majority in
principal amount of the outstanding Securities of any Series shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the
Securities of such Series, provided that
(a) such
direction shall not be in conflict with any rule of law or with this Indenture,
(b) the
Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction,
(c) subject
to the provisions of Section 7.1, the Trustee shall have the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer of the Trustee, determine that the proceeding so directed may involve the Trustee in personal liability,
and
(d) prior
to taking any action as directed under this Section 6.12, the Trustee shall be entitled to indemnity satisfactory to it against
the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
Section 6.13. Waiver
of Past Defaults.
The Holders of not less than
a majority in principal amount of the outstanding Securities of any Series may on behalf of the Holders of all the Securities of
such Series, by written notice to the Trustee and the Company, waive any past Default hereunder with respect to such Series and
its consequences, except a Default in the payment of the principal of or interest on any Security of such Series (provided, however,
that the Holders of a majority in principal amount of the outstanding Securities of any Series may rescind an acceleration and its
consequences, including any related payment default that resulted from such acceleration). Upon any such waiver, such Default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no
such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
Section 6.14. Undertaking
for Costs.
All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party
litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder or group
of Holders, holding in the aggregate more than 10% in principal amount of the outstanding Securities of any Series, or to any suit instituted
by any Holder for the enforcement of the payment of the principal of or interest on any Security on or after the Maturity of such Security,
including the Stated Maturity expressed in such Security (or, in the case of redemption, on the redemption date).
ARTICLE VII.
TRUSTEE
Section 7.1. Duties
of Trustee.
(a) If
an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct
of such person’s own affairs.
(b) Except
during the continuance of an Event of Default:
(i) The
Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations
will be read into this Indenture against the Trustee.
(ii) In
the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon Officer’s Certificates or Opinions of Counsel furnished to the Trustee and conforming to the requirements
of this Indenture; however, in the case of any such Officer’s Certificates or Opinions of Counsel which by any provisions
hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such Officer’s Certificates and Opinions
of Counsel to determine whether or not they conform to the form requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein).
(c) The
Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct,
except that:
(i) This
paragraph does not limit the effect of paragraph (b) of this Section.
(ii) The
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts.
(iii) The
Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it with respect to Securities of any
Series in good faith in accordance with the direction of the Holders of a majority in principal amount of the outstanding Securities
of such Series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such Series in accordance
with Section 6.12.
(d) Every
provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The
Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against the costs,
expenses and liabilities which might be incurred by it in performing such duty or exercising such right or power.
(f) The
Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money
held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
(g) No
provision of this Indenture shall require the Trustee to risk its own funds or otherwise incur any financial liability in the performance
of any of its duties or in the exercise of any of its rights or powers. The Trustee will be under no obligation to exercise any of its
rights and powers under this Indenture at the request of any Holders, unless such Holders has offered to the Trustee indemnity satisfactory
to it against such any loss, liability or expense.
(h) The
Paying Agent, the Notice Agent, the Registrar, any authenticating agent and the Trustee when acting in any other capacity hereunder shall
be entitled to the protections and immunities as are set forth in this Article VII.
(i) The
rights, privileges, protections, immunities and benefits given to the Trustee, including its right to be indemnified, are extended to,
and will be enforceable by, the Trustee in each of its capacities under this Indenture.
Section 7.2. Rights
of Trustee.
(a) The
Trustee may rely on and shall be protected in acting or refraining from acting upon any document (whether in its original or facsimile
form) believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact
or matter stated in the document.
(b) Before
the Trustee acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion
of Counsel.
(c) The
Trustee may act through agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care. No
Depositary shall be deemed an agent of the Trustee, and the Trustee shall not be responsible for any act or omission by any Depositary.
(d) The
Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights
or powers conferred upon it by this Indenture.
(e) The
Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(f) The
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against
the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
(g) The
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see
fit.
(h) The
Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a default is received by a Responsible Officer at the Corporate
Trust Office of the Trustee, and such notice references the Securities generally or the Securities of a particular Series and this
Indenture and states on its face that a Default or Event of Default has occurred.
(i) In
no event shall the Trustee be liable to any person for special, punitive, indirect, consequential or incidental loss or damage of any
kind whatsoever (including but not limited to lost profits), even if the Trustee has been advised of the likelihood of such loss or damage
and regardless of the form of action.
(j) The
permissive right of the Trustee to take the actions permitted by this Indenture shall not be construed as an obligation or duty to do
so.
(k) The
Trustee will not be required to give any bond or surety in respect of the execution of this Indenture or otherwise.
(l) Unless
otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company will be sufficient if signed
by an Officer of the Company.
(m) The
Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any
person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate previously
delivered and not superseded.
Section 7.3. Individual
Rights of Trustee.
The Trustee in its individual
or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or an Affiliate of the Company
with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. The Trustee is also subject to
Sections 7.10 and 7.11.
Section 7.4. Trustee’s
Disclaimer.
The Trustee makes no representation
as to the validity or adequacy of this Indenture or the Securities. The Trustee shall not be accountable for the Company’s use
of the proceeds from the Securities or any money paid to the Company or upon the Company’s direction under any provision of this
Indenture, it will not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and
shall not be responsible for any statement or recital herein or any statement in the Securities or any other document in connection with
the sale of the Securities or pursuant to this Indenture other than its certificate of authentication.
Section 7.5. Notice
of Defaults.
If
a Default or Event of Default occurs and is continuing with respect to the Securities of any Series and if it is actually known
to a Responsible Officer of the Trustee as provided in Section 7.2(h), the Trustee shall send to each Holder of the Securities of
that Series notice of a Default or Event of Default within 90 days after it occurs or, if later, after a Responsible Officer of
the Trustee has actual knowledge of such Default or Event of Default. Except in the case of a Default or Event of Default in payment
of principal of or interest on any Security of any Series, the Trustee may withhold the notice if and so long as its corporate trust
committee or a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of Holders
of that Series.
Section 7.6. Reports
by Trustee to Holders.
Within 60 days after each March 1,
2025, the Trustee shall transmit by mail to all Holders, as their names and addresses appear on the register kept by the Registrar, a
brief report dated as of such anniversary date, in accordance with, and to the extent required under, TIA § 313.
A copy of each report at the
time of its mailing to Holders of any Series shall be filed with the SEC and each national securities exchange on which the Securities
of that Series are listed. The Company shall promptly notify the Trustee in writing when Securities of any Series are listed
on any national securities exchange.
Section 7.7. Compensation
and Indemnity.
The Company shall pay to the
Trustee from time to time compensation for its services as the Company and the Trustee shall from time to time agree upon in writing.
The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred by it. Such expenses shall include the reasonable
compensation and expenses of the Trustee’s agents and counsel.
The Company shall indemnify,
defend and protect each of the Trustee and any predecessor Trustee for, and hold them harmless against any and all loss, damage, claim,
cost, expense or liability, including taxes (other than taxes based upon, measured by or determined by the income of the Trustee) and
court costs, arising out of or in connection with the acceptance or administration of its duties under this Indenture, including the
costs and expenses of enforcing this Indenture against the Company (including this Section 7.7) and defending itself against any
claim (whether asserted by the Company or any other person) or liability in connection with the exercise or performance of any of its
powers or duties hereunder, except as set forth in the next paragraph. The Trustee shall notify the Company promptly of any claim for
which it may seek indemnity. Failure by the Trustee to so notify the Company shall not relieve the Company of its obligations hereunder,
unless and to the extent that the Company is materially prejudiced thereby. The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel, and the Company shall pay the reasonable fees and expenses of such counsel.
The Company need not pay for any settlement made without its consent, which consent will not be unreasonably withheld. This indemnification
shall apply to officers, directors, employees, shareholders and agents of the Trustee.
The Company need not reimburse
any expense or indemnify against any loss or liability incurred by the Trustee or by any officer, director, employee, shareholder or
agent of the Trustee through willful misconduct or negligence, as determined by a final, non-appealable decision of a court of competent
jurisdiction.
To secure the Company’s
payment obligations in this Section, the Trustee shall have a lien prior to the Securities of any Series on all money or property
held or collected by the Trustee, except that held in trust to pay principal of and interest on particular Securities of that Series.
When the Trustee incurs expenses
or renders services after an Event of Default specified in Section 6.1(d) or (e) occurs, the expenses and the compensation
for the services are intended to constitute expenses of administration under any Bankruptcy Law.
The provisions of this Section shall
survive the termination of this Indenture and the resignation or removal of the Trustee.
Section 7.8. Replacement
of Trustee.
A resignation or removal of
the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment
as provided in this Section.
The Trustee may resign with
respect to the Securities of one or more Series by so notifying the Company at least 30 days prior to the date of the proposed resignation.
The Trustee may be removed at any time with respect to the Securities of any Series by (a) the Holders of a majority in principal
amount of the Securities of any Series by so notifying the Trustee and the Company in writing at least 30 days in advance of such
removal or (b) subject to the right of Holders in the foregoing clause (a), the Company, in its sole discretion, unless an Event
of Default shall have occurred and be continuing. The Company may remove the Trustee with respect to all Securities if:
(a) the
Trustee fails to comply with Section 7.10;
(b) the
Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a
Custodian or public officer takes charge of the Trustee or its property; or
(d) the
Trustee becomes incapable of acting.
If the Trustee resigns or is
removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. Within
one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Securities may
appoint a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee with
respect to the Securities of any one or more Series does not take office within 60 days after the retiring Trustee resigns or is
removed, the retiring Trustee (at the Company’s expense), the Company or the Holders of at least a majority in principal amount
of the Securities of the applicable Series may petition any court of competent jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall deliver
a written acceptance of its appointment to the retiring Trustee and to the Company. Immediately after that, the retiring Trustee shall
transfer all property held by it as Trustee to the successor Trustee subject to the lien provided for in Section 7.7, the resignation
or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of
the Trustee with respect to each Series of Securities for which it is acting as Trustee under this Indenture. A successor Trustee
shall send a notice of its succession to each Holder of each such Series. Notwithstanding replacement of the Trustee pursuant to this
Section 7.9, the Company’s obligations under Section 7.7 hereof shall continue for the benefit of the retiring Trustee
with respect to expenses and liabilities incurred by it for actions taken or omitted to be taken in accordance with its rights, powers
and duties under this Indenture prior to such replacement.
Section 7.9. Successor
Trustee by Merger, Etc.
Any organization or entity
into which the Trustee may be merged or converted or with which it may be consolidated, or any organization or entity resulting from
any merger, conversion or consolidation to which the Trustee shall be a party, or any organization or entity succeeding to all or substantially
all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such organization or entity
shall be otherwise qualified and eligible under Section 7.10, without the execution or filing of any paper or any further act on
the part of any of the parties hereto.
Section 7.10. Eligibility;
Disqualification.
This Indenture shall always
have a Trustee who satisfies the requirements of TIA § 310(a)(1), (2) and (5). The Trustee shall always have a combined capital
and surplus of at least $25,000,000 as set forth in its most recent published annual report of condition. The Trustee shall comply with
TIA § 310(b).
Section 7.11. Preferential
Collection of Claims Against Company.
The Trustee is subject to TIA
§ 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall be subject
to TIA § 311(a) to the extent indicated.
ARTICLE VIII.
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 8.1. Satisfaction
and Discharge of Indenture.
This Indenture shall upon Company
Order be discharged with respect to the Securities of any Series and cease to be of further effect as to all Securities of such
Series (except as hereinafter provided in this Section 8.1), and the Trustee, at the expense of the Company, shall execute
instruments acknowledging satisfaction and discharge of this Indenture, when
(a) either
(i) all
Securities of such Series theretofore authenticated and delivered (other than Securities that have been destroyed, lost or stolen
and that have been replaced or paid) have been delivered to the Trustee for cancellation; or
(ii) all
such Securities of such Series not theretofore delivered to the Trustee for cancellation:
(1) have
become due and payable by reason of sending a notice of redemption or otherwise,
(2) will
become due and payable at their Stated Maturity within one year,
(3) have
been called for redemption or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, or
(4) are
deemed paid and discharged pursuant to Section 8.3, as applicable;
and the Company, in the case of (1), (2) or
(3) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust an amount of money or U.S.
Government Obligations, which amount shall be sufficient, in the opinion of the Company expressed in a written certification thereof
delivered to the Trustee (in the case of a deposit of U.S. Government Obligations), for the purpose of paying and discharging each installment
of principal (including mandatory sinking fund payments or analogous payments) of and interest on all the Securities of such Series on
the dates such installments of principal or interest are due;
(b) the
Company has paid or caused to be paid all other sums payable hereunder by the Company;
(c) the
Company has delivered irrevocable instructions to the Trustee to apply the deposited money toward the payment of the Securities at their
Stated Maturity or the redemption date, as the case may be; and
(d) the
Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent
provided for relating to the satisfaction and discharge contemplated by this Section have been complied with.
Notwithstanding the satisfaction
and discharge of this Indenture, (x) the obligations of the Company to the Trustee under Section 7.7, (y) if money shall
have been deposited with the Trustee pursuant to clause (a) of this Section, the provisions of Sections 2.5, 2.8, 2.9, 8.2 and 8.5,
and (z) the rights, powers, trusts and immunities of the Trustee hereunder and the Company’s obligations in connection therewith
shall survive.
Section 8.2. Application
of Trust Funds; Indemnification.
(a) Subject
to the provisions of Section 8.5, all money and U.S. Government Obligations or Foreign Government Obligations deposited with the
Trustee pursuant to Section 8.1, 8.3 or 8.4 and all money received by the Trustee in respect of U.S. Government Obligations or Foreign
Government Obligations deposited with the Trustee pursuant to Section 8.1, 8.3 or 8.4, shall be held in trust and applied by it,
in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including
the Company acting as its own Paying Agent) as the Trustee may determine, to the persons entitled thereto, of the principal and interest
for whose payment such money has been deposited with or received by the Trustee or to make mandatory sinking fund payments or analogous
payments as contemplated by Sections 8.1, 8.3 or 8.4.
(b) The
Company shall pay and shall indemnify the Trustee (which indemnity shall survive termination of this Indenture) against any tax, fee
or other charge imposed on or assessed against U.S. Government Obligations or Foreign Government Obligations deposited pursuant to Sections
8.1, 8.3 or 8.4 or the interest and principal received in respect of such obligations other than any payable by or on behalf of Holders.
(c) The
Trustee shall deliver or pay to the Company from time to time upon Company Order any U.S. Government Obligations or Foreign Government
Obligations or money held by it as provided in Sections 8.3 or 8.4 which, in the opinion of a nationally recognized firm of independent
certified public accountants or investment bank expressed in a written certification thereof delivered to the Trustee, are then in excess
of the amount thereof which then would have been required to be deposited for the purpose for which such U.S. Government Obligations
or Foreign Government Obligations or money were deposited or received. This provision shall not authorize the sale by the Trustee of
any U.S. Government Obligations or Foreign Government Obligations held under this Indenture.
Section 8.3. Legal
Defeasance of Securities of any Series.
Unless this Section 8.3
is otherwise specified, pursuant to Section 2.2, to be inapplicable to Securities of any Series, the Company shall be deemed to
have paid and discharged the entire indebtedness on all the outstanding Securities of any Series on the 91st day after the date
of the deposit referred to in subparagraph (d) hereof, and the provisions of this Indenture, as it relates to such outstanding Securities
of such Series, shall no longer be in effect (and the Trustee, at the expense of the Company, shall, upon receipt of a Company Order,
execute instruments acknowledging the same), except as to:
(a) the
rights of Holders of Securities of such Series to receive, from the trust funds described in subparagraph (d) hereof, (i) payment
of the principal of and each installment of principal of and interest on the outstanding Securities of such Series on the Maturity
of such principal or installment of principal or interest and (ii) the benefit of any mandatory sinking fund payments applicable
to the Securities of such Series on the day on which such payments are due and payable in accordance with the terms of this Indenture
and the Securities of such Series;
(b) the
provisions of Sections 2.5, 2.6, 2.8, 2.9, 7.7, 8.2, 8.3, 8.5 and 8.6; and
(c) the
rights, powers, trusts and immunities of the Trustee hereunder and the Company’s obligations in connection therewith;
provided that, the following conditions shall
have been satisfied:
(d) the
Company shall have irrevocably deposited or caused to be deposited (except as provided in Section 8.2(c)) with the Trustee as trust
funds specifically pledged as security for and dedicated solely to the benefit of the Holders of such Securities (i) in the case
of Securities of such Series denominated in Dollars, cash in Dollars and/or U.S. Government Obligations or (ii) in the case
of Securities of such Series denominated in a Foreign Currency (other than a composite currency), money and/or Foreign Government
Obligations, which through the payment of interest and principal in respect thereof in accordance with their terms, will provide (and
without reinvestment and assuming no tax liability will be imposed on such Trustee), not later than one day before the due date of any
payment of money, an amount in cash, sufficient, in the opinion of the Company expressed in a written certification thereof delivered
to the Trustee (in the case of a deposit of U.S. Government Obligations and/or Foreign Government Obligations), to pay and discharge
each installment of principal of and interest, on and any mandatory sinking fund payments in respect of all the Securities of such Series on
the dates such installments of principal or interest and such sinking fund payments are due;
(e) such
deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound;
(f) no
Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such
deposit or during the period ending on the 91st day after such date;
(g) the
Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel to the effect that (i) the
Company has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the date of execution
of this Indenture, there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon
such Opinion of Counsel shall confirm that, the Holders of the Securities of such Series will not recognize income, gain or loss
for Federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to Federal income tax on the
same amount and in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not
occurred;
(h) the
Company shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company with
the intent of defeating, hindering, delaying or defrauding any other creditors of the Company; and
(i) the
Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this Section have been complied with.
Section 8.4. Covenant
Defeasance.
Unless this Section 8.4
is otherwise specified pursuant to Section 2.2 to be inapplicable to Securities of any Series, the Company may omit to comply with
respect to the Securities of any Series with any term, provision or condition set forth under Sections 4.2, 4.3, 4.4 and 5.1 and,
unless otherwise specified therein, any additional covenants specified in a supplemental indenture for such Series of Securities
or a Board Resolution or an Officer’s Certificate delivered pursuant to Section 2.2 (and the failure to comply with any such
covenants shall not constitute a Default or Event of Default with respect to such Series under Section 6.1) and the occurrence
of any event specified in a supplemental indenture for such Series of Securities or a Board Resolution or an Officer’s Certificate
delivered pursuant to Section 2.2 and designated as an Event of Default shall not constitute a Default or Event of Default hereunder,
with respect to the Securities of such Series, but, except as specified above, the remainder of this Indenture and such Securities will
be unaffected thereby; provided that the following conditions shall have been satisfied:
(a) with
reference to this Section 8.4, the Company has irrevocably deposited or caused to be irrevocably deposited (except as provided in
Section 8.2(c)) with the Trustee as trust funds in trust for the purpose of making the following payments specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of such Securities (i) in the case of Securities of such Series denominated
in Dollars, cash in Dollars and/or U.S. Government Obligations or (ii) in the case of Securities of such Series denominated
in a Foreign Currency (other than a composite currency), money and/or Foreign Government Obligations, which through the payment of interest
and principal in respect thereof in accordance with their terms, will provide (and without reinvestment and assuming no tax liability
will be imposed on such Trustee), not later than one day before the due date of any payment of money, an amount in cash, sufficient,
in the opinion of a nationally recognized firm of independent certified public accountants or investment bank expressed in a written
certification thereof delivered to the Trustee, to pay and discharge each installment of principal (including mandatory sinking fund
payments or analogous payments) of and interest on all the Securities of such Series on the dates such installments of principal
or interest are due;
(b) such
deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound;
(c) no
Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such
deposit;
(d) the
Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel to the effect that the Holders of
the Securities of such Series will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit
and covenant defeasance and will be subject to Federal income tax on the same amount and in the same manner and at the same times as
would have been the case if such deposit and covenant defeasance had not occurred;
(e) The
Company shall have delivered to the Trustee an Officer’s Certificate stating the deposit was not made by the Company with the intent
of defeating, hindering, delaying or defrauding any other creditors of the Company; and
(f) The
Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the covenant defeasance contemplated by this Section have been complied with.
Section 8.5. Repayment
to Company.
Subject to applicable abandoned
property law, the Trustee and the Paying Agent shall pay to the Company upon request any money held by them for the payment of principal
and interest that remains unclaimed for two years. After that, Holders entitled to the money must look to the Company for payment as
general creditors unless an applicable abandoned property law designates another person.
Section 8.6. Reinstatement.
If the Trustee or the Paying
Agent is unable to apply any money deposited with respect to Securities of any Series in accordance with Section 8.1 by reason
of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the obligations of the Company under this Indenture with respect to the Securities of such Series and
under the Securities of such Series shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.1
until such time as the Trustee or the Paying Agent is permitted to apply all such money in accordance with Section 8.1; provided,
however, that if the Company has made any payment of principal of or interest on any Securities because of the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money
or U.S. Government Obligations held by the Trustee or Paying Agent after payment in full to the Holders.
ARTICLE IX.
AMENDMENTS AND WAIVERS
Section 9.1. Without
Consent of Holders.
The Company and the Trustee
may amend or supplement this Indenture or the Securities of one or more Series without the consent of any Holder:
(a) to
cure any ambiguity, defect or inconsistency;
(b) to
comply with Article V;
(c) to
provide for uncertificated Securities in addition to or in place of certificated Securities;
(d) to
add guarantees with respect to Securities of any Series or secure Securities of any Series;
(e) to
surrender any of the Company’s rights or powers under this Indenture;
(f) to
add covenants or events of default for the benefit of the holders of Securities of any Series;
(g) to
comply with the applicable procedures of the applicable depositary;
(h) to
make any change that does not adversely affect the rights of any Holder;
(i) to
provide for the issuance of and establish the form and terms and conditions of Securities of any Series as permitted by this Indenture;
(j) to
evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more
Series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee; or
(k) to
comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA.
Section 9.2. With
Consent of Holders.
Subject to Section 9.3,
the Company and the Trustee may enter into a supplemental indenture with the written consent of the Holders of at least a majority in
principal amount of the outstanding Securities of each Series affected by such supplemental indenture (including consents obtained
in connection with a tender offer or exchange offer for the Securities of such Series), for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any
manner the rights of the Holders of each such Series. Except as provided in Section 6.13, and subject to Section 9.3, the Holders
of at least a majority in principal amount of the outstanding Securities of any Series by notice to the Trustee (including consents
obtained in connection with a tender offer or exchange offer for the Securities of such Series) may waive compliance by the Company with
any provision of this Indenture or the Securities with respect to such Series.
It shall not be necessary for
the consent of the Holders of Securities under this Section 9.2 to approve the particular form of any proposed supplemental indenture
or waiver, but it shall be sufficient if such consent approves the substance thereof. After a supplemental indenture or waiver under
this section becomes effective, the Company shall send to the Holders of Securities affected thereby, a notice briefly describing the
supplemental indenture or waiver. Any failure by the Company to send such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture or waiver.
Section 9.3. Limitations.
Without the consent of each
Holder affected, an amendment or waiver may not:
(a) reduce
the principal amount of Securities whose Holders must consent to an amendment, supplement or waiver;
(b) reduce
the rate of or extend the time for payment of interest (including default interest) on any Security;
(c) reduce
the principal or change the Stated Maturity of any Security or reduce the amount of, or postpone the date fixed for, the payment of any
sinking fund or analogous obligation;
(d) reduce
the principal amount of Discount Securities payable upon acceleration of the maturity thereof;
(e) waive
a Default or Event of Default in the payment of the principal of or interest, if any, on any Security (except a rescission of acceleration
of the Securities of any Series by the Holders of at least a majority in principal amount of the outstanding Securities of such
Series and a waiver of the payment default that resulted from such acceleration);
(f) make
the principal of or interest, if any, on any Security payable in any currency other than that stated in the Security;
(g) make
any change in Sections 6.8, 6.13 or 9.3 (this sentence); or
(h) waive
a redemption payment with respect to any Security, provided that such redemption is made at the Company’s option.
Section 9.4. Compliance
with Trust Indenture Act.
Every amendment to this Indenture
or the Securities of one or more Series shall be set forth in a supplemental indenture hereto that complies with the TIA as then
in effect.
Section 9.5. Revocation
and Effect of Consents.
Until an amendment is set forth
in a supplemental indenture or a waiver becomes effective, a consent to it by a Holder of a Security is a continuing consent by the Holder
and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security,
even if notation of the consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent as
to his Security or portion of a Security if the Trustee receives the notice of revocation before the date of the supplemental indenture
or the date the waiver becomes effective.
Any amendment or waiver once
effective shall bind every Holder of each Series affected by such amendment or waiver unless it is of the type described in any
of clauses (a) through (h) of Section 9.3. In that case, the amendment or waiver shall bind each Holder of a Security
who has consented to it and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting
Holder’s Security.
The Company may, but shall
not be obligated to, fix a record date for the purpose of determining the Holders entitled to give their consent or take any other action
described above or required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the
second immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any consent previously given or take any such action, whether or not
such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 120 days after
such record date.
Section 9.6. Notation
on or Exchange of Securities.
The Company or the Trustee
may, but shall not be obligated to, place an appropriate notation about an amendment or waiver on any Security of any Series thereafter
authenticated. The Company in exchange for Securities of that Series may issue and the Trustee shall authenticate upon receipt of
a Company Order in accordance with Section 2.4 new Securities of that Series that reflect the amendment or waiver.
Section 9.7. Trustee
Protected.
In executing, or accepting
the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, upon request, an Officer’s Certificate and an Opinion of Counsel
complying with Sections 10.4 and 10.5, in addition to any documents required by Section 7.2, and (subject to Section 7.1) shall
be fully protected in relying upon such Officer’s Certificate and Opinion of Counsel. The Trustee shall sign all supplemental indentures
upon delivery of such an Officer’s Certificate and Opinion of Counsel, except that the Trustee need not sign any supplemental indenture
that adversely affects its rights, duties, liabilities or immunities under this Indenture.
ARTICLE X.
MISCELLANEOUS
Section 10.1. Trust
Indenture Act Controls.
If any provision of this Indenture
limits, qualifies or conflicts with another provision which is required or deemed to be included in this Indenture by the TIA, such required
or deemed provision shall control.
Section 10.2. Notices.
Any notice or communication
by the Company or the Trustee to the other, or by a Holder to the Company or the Trustee, is duly given if in writing and delivered in
person or mailed by first-class mail (registered or certified, return receipt requested), email or overnight air courier guaranteeing
next day delivery, to the others’ address:
if to the Company:
Arrow Electronics, Inc.
9151 E. Panorama Circle
Centennial, CO 80112
Attention: Treasurer or Assistant Secretary
Email: globaltreasury@arrow.com
if to the Trustee:
U.S. Bank Trust Company, National Association
950 17th Street, 5th Floor
Denver, Colorado 80202
Attention: Global Corporate Trust
The Company or the Trustee
by notice to the other may designate additional or different addresses for subsequent notices or communications.
All notices and communications
(other than those sent to Holders) will be deemed to have been duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if transmitted by electronic
image scan or facsimile; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing
next day delivery. Any notice or other communication to the Trustee shall be deemed delivered until actual receipt by a Responsible Officer.
Any notice or communication
to a Holder shall be sent electronically or by first-class mail or overnight air courier to his, her or its address shown on the register
kept by the Registrar, in accordance with the procedures of the Depositary. Failure to send a notice or communication to a Holder of
any Series or any defect in it shall not affect its sufficiency with respect to other Holders of that or any other Series.
If a notice or communication
is sent or published in the manner provided above, within the time prescribed, it is duly given, whether or not the Holder receives it.
If the Company sends a notice
or communication to Holders, it shall send a copy to the Trustee and each Agent at the same time.
The
Trustee shall not have any duty to confirm that the person sending any notice, instruction or other communication by electronic transmission
(including by e-mail, facsimile transmission, web portal or other electronic methods) is, in fact, a person authorized to do so. Electronic
signatures believed by the Trustee to comply with the ESIGN Act of 2000 or other applicable law (including electronic images of handwritten
signatures and digital signatures provided by DocuSign, Orbit, Adobe Sign or any other digital signature provider acceptable to the Trustee)
shall be deemed original signatures for all purposes. The Company assumes all risks arising out of the use of electronic signatures and
electronic methods to send communications to the Trustee, including without limitation the risk of the Trustee acting on an unauthorized
communication, and the risk of interception or misuse by third parties.
Notwithstanding any other provision
of this Indenture or any Security, where this Indenture or any Security provides for notice of any event (including any notice of redemption)
to a Holder of a Global Security (whether by mail or otherwise), such notice shall be sufficiently given to the Depositary for such Security
(or its designee) pursuant to the customary procedures of such Depositary.
Section 10.3. Communication
by Holders with Other Holders.
Holders of any Series may
communicate pursuant to TIA § 312(b) with other Holders of that Series or any other Series with respect to their
rights under this Indenture or the Securities of that Series or all Series. The Company, the Trustee, the Registrar and anyone else
shall have the protection of TIA § 312(c).
Section 10.4. Certificate
and Opinion as to Conditions Precedent.
Upon any request or application
by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:
(a) an
Officer’s Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an
Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with.
Section 10.5. Statements
Required in Certificate or Opinion.
Each certificate or opinion
with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to
TIA § 314(a)(4)) shall comply with the provisions of TIA § 314(e) and shall include:
(a) a
statement that the person making such certificate or opinion has read such covenant or condition;
(b) a
brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a
statement that, in the opinion of such person, such person has made such examination or investigation as is necessary to enable such
person to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a
statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
Section 10.6. Rules by
Trustee and Agents.
The Trustee may make reasonable
rules for action by or a meeting of Holders of one or more Series. Any Agent may make reasonable rules and set reasonable requirements
for its functions.
Section 10.7. Legal
Holidays.
If a payment date for any payment
made under this Indenture is not a Business Day, payment may be made on the next succeeding Business Day, and no interest shall accrue
for the intervening period.
Section 10.8. No
Recourse Against Others.
A director, officer, employee
or stockholder (past or present), as such, of the Company shall not have any liability for any obligations of the Company under the Securities
or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder by accepting
a Security waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities.
Section 10.9. Counterparts.
This Indenture may be executed
in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same agreement. The exchange of copies of this Indenture and
of signature pages by facsimile or electronic format (e.g., “.pdf” or “.tif”) transmission shall constitute
effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all
purposes. Signatures of the parties hereto transmitted by facsimile or electronic format (e.g., “.pdf” or “.tif”)
shall be deemed to be their original signatures for all purposes.
The Trustee shall have
the right to accept and act upon any notice, instruction, or other communication, including any funds transfer instruction (each, a “Notice”),
received pursuant to this Indenture by electronic transmission (including by e-mail, facsimile transmission, web portal or other electronic
methods) and shall not have any duty to confirm that the person sending such Notice is, in fact, a person authorized to do so. Electronic
signatures believed by the Trustee to comply with the ESIGN Act of 2000 or other applicable law (including electronic images of handwritten
signatures and digital signatures provided by DocuSign, Orbit, Adobe Sign or any other digital signature provider identified by any other
party hereto and acceptable to the Trustee) shall be deemed original signatures for all purposes. Each other party to this Indenture
assumes all risks arising out of the use of electronic signatures and electronic methods to send Notices to the Trustee, including without
limitation the risk of the Trustee acting on an unauthorized Notice and the risk of interception or misuse by third parties. Notwithstanding
the foregoing, the Trustee may in any instance and in its sole discretion require that a Notice in the form of an original document bearing
a manual signature be delivered to the Trustee in lieu of, or in addition to, any such electronic Notice.
Section 10.10. Governing
Law; Waiver of Jury Trial; Consent to Jurisdiction.
THIS INDENTURE AND THE SECURITIES, INCLUDING
ANY CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THE INDENTURE OR THE SECURITIES, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK.
THE
COMPANY, THE TRUSTEE AND THE HOLDERS (BY THEIR ACCEPTANCE OF THE SECURITIES) EACH HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES
OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Any legal suit, action or proceeding
arising out of or based upon this Indenture or the transactions contemplated hereby may be instituted in the federal courts of the United
States of America located in the City of New York or the courts of the State of New York in each case located in the City of New York
(collectively, the “Specified Courts”), and each party irrevocably submits to the non-exclusive jurisdiction of such
courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail (to the extent allowed under
any applicable statute or rule of court) to such party’s address set forth above shall be effective service of process for
any suit, action or other proceeding brought in any such court. The Company, the Trustee and the Holders (by their acceptance of the
Securities) each hereby irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding
in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim any such suit, action or other proceeding
has been brought in an inconvenient forum.
Section 10.11. No
Adverse Interpretation of Other Agreements.
This Indenture may not be used
to interpret another indenture, loan or debt agreement of the Company or a Subsidiary of the Company. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
Section 10.12. Successors.
All agreements of the Company
in this Indenture and the Securities shall bind its successor. All agreements of the Trustee in this Indenture shall bind its successor.
Section 10.13. Severability.
In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 10.14. Table
of Contents, Headings, Etc.
The Table of Contents, Cross
Reference Table, headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not
to be considered a part hereof and shall in no way modify or restrict any of the terms or provisions hereof.
Section 10.15. Securities
in a Foreign Currency.
Unless otherwise specified
in a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate delivered pursuant to Section 2.2 of this
Indenture with respect to a particular Series of Securities, whenever for purposes of this Indenture any action may be taken by
the Holders of a specified percentage in aggregate principal amount of Securities of all Series or all Series affected by a
particular action at the time outstanding and, at such time, there are outstanding Securities of any Series which are denominated
in more than one currency, then the principal amount of Securities of such Series which shall be deemed to be outstanding for the
purpose of taking such action shall be determined by converting any such other currency into a currency that is designated upon issuance
of any particular Series of Securities. Unless otherwise specified in a Board Resolution, a supplemental indenture hereto or an
Officer’s Certificate delivered pursuant to Section 2.2 of this Indenture with respect to a particular Series of Securities,
such conversion shall be at the spot rate for the purchase of the designated currency as published in The Financial Times in the “Currency
Rates” section (or, if The Financial Times is no longer published, or if such information is no longer available in The Financial
Times, such source as may be selected in good faith by the Company) on any date of determination. The provisions of this paragraph shall
apply in determining the equivalent principal amount in respect of Securities of a Series denominated in currency other than Dollars
in connection with any action taken by Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations
provided for in the preceding paragraph shall, in the absence of manifest error, to the extent permitted by law, be conclusive for all
purposes and irrevocably binding upon the Trustee and all Holders.
Section 10.16. Judgment
Currency.
The Company agrees, to the
fullest extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court
it is necessary to convert the sum due in respect of the principal of or interest or other amount on the Securities of any Series (the
“Required Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”),
the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in the City
of New York the Required Currency with the Judgment Currency on the day on which final unappealable judgment is entered, unless such
day is not a New York Banking Day, then the rate of exchange used shall be the rate at which in accordance with normal banking procedures
the Trustee could purchase in the City of New York the Required Currency with the Judgment Currency on the New York Banking Day preceding
the day on which final unappealable judgment is entered and (b) its obligations under this Indenture to make payments in the Required
Currency (i) shall not be discharged or satisfied by any tender, any recovery pursuant to any judgment (whether or not entered in
accordance with subsection (a)), in any currency other than the Required Currency, except to the extent that such tender or recovery
shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of such
payments, (ii) shall be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to
be payable, and (iii) shall not be affected by judgment being obtained for any other sum due under this Indenture. For purposes
of the foregoing, “New York Banking Day” means any day except a Saturday, Sunday or a legal holiday in the City of
New York on which banking institutions are authorized or required by law, regulation or executive order to close.
Section 10.17. Force
Majeure.
In no event shall the Trustee
be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly
or indirectly, forces beyond its control, including, without limitation, any act or provision of any present or future law or regulation
or governmental authority, civil unrest, strikes, work stoppages, labor disputes, accidents, acts of war or terrorism, national emergency,
civil or military disturbances, nuclear or natural catastrophes, disease, pandemics, epidemics or other public health emergencies, quarantine,
or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, communications
system failure, malware or ransomware, unavailability of the Federal Reserve Bank wire or telex system or other wire or other funds transfer
systems, or unavailability of securities clearing system, it being understood that the Trustee shall use reasonable best efforts which
are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 10.18. U.S.A.
Patriot Act.
The parties hereto acknowledge
that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee is required to obtain, verify and record information
that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this
Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements
of the U.S.A. Patriot Act.
ARTICLE XI.
SINKING FUNDS
Section 11.1. Applicability
of Article.
The provisions of this Article shall
be applicable to any sinking fund for the retirement of the Securities of a Series if so provided by the terms of such Securities
pursuant to Section 2.2, except as otherwise permitted or required by any form of Security of such Series issued pursuant to
this Indenture.
The minimum amount of any sinking
fund payment provided for by the terms of the Securities of any Series is herein referred to as a “mandatory sinking fund
payment” and any other amount provided for by the terms of Securities of such Series is herein referred to as an “optional
sinking fund payment.” If provided for by the terms of Securities of any Series, the cash amount of any sinking fund payment
may be subject to reduction as provided in Section 11.2. Each sinking fund payment shall be applied to the redemption of Securities
of any Series as provided for by the terms of the Securities of such Series.
Section 11.2. Satisfaction
of Sinking Fund Payments with Securities.
The Company may, in satisfaction
of all or any part of any sinking fund payment with respect to the Securities of any Series to be made pursuant to the terms of
such Securities (1) deliver outstanding Securities of such Series to which such sinking fund payment is applicable (other than
any of such Securities previously called for mandatory sinking fund redemption) and (2) apply as credit Securities of such Series to
which such sinking fund payment is applicable and which have been repurchased by the Company or redeemed either at the election of the
Company pursuant to the terms of such Series of Securities (except pursuant to any mandatory sinking fund) or through the application
of permitted optional sinking fund payments or other optional redemptions pursuant to the terms of such Securities, provided that such
Securities have not been previously so credited. Such Securities shall be received by the Trustee, together with an Officer’s Certificate
with respect thereto, not later than 15 days prior to the date on which the Trustee begins the process of selecting Securities for redemption
and shall be credited for such purpose by the Trustee at the price specified in such Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced accordingly. If as a result of the delivery or credit of Securities
in lieu of cash payments pursuant to this Section 11.2, the principal amount of Securities of such Series to be redeemed in
order to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee need not call Securities of such Series for
redemption, except upon receipt of a Company Order that such action be taken, and such cash payment shall be held by the Trustee or a
Paying Agent and applied to the next succeeding sinking fund payment, provided, however, that the Trustee or such Paying
Agent shall from time to time upon receipt of a Company Order pay over and deliver to the Company any cash payment so being held by the
Trustee or such Paying Agent upon delivery by the Company to the Trustee of Securities of that Series purchased by the Company having
an unpaid principal amount equal to the cash payment required to be released to the Company.
Section 11.3. Redemption
of Securities for Sinking Fund.
Not less than 45 days (unless
otherwise indicated in the Board Resolution, supplemental indenture hereto or Officer’s Certificate in respect of a particular
Series of Securities) prior to each sinking fund payment date for any Series of Securities, the Company will deliver to the
Trustee an Officer’s Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that Series pursuant
to the terms of that Series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting of Securities of that Series pursuant to Section 11.2, and the optional
amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and the Company shall thereupon be obligated
to pay the amount therein specified. Not less than 30 days (unless otherwise indicated in the Board Resolution, Officer’s Certificate
or supplemental indenture in respect of a particular Series of Securities) before each such sinking fund payment date the Securities
to be redeemed upon such sinking fund payment date will be selected in the manner specified in Section 3.2, and the Company shall
send or cause to be sent a notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner
provided in and in accordance with Section 3.3. Such notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 3.4, 3.5 and 3.6.
[Signatures on following page]
IN WITNESS WHEREOF, the parties
hereto have caused this Indenture to be duly executed as of the day and year first above written.
| |
Arrow Electronics, Inc. |
| |
|
| |
By: |
/s/ Bradley A. Windbigler |
| |
|
Name: Bradley A. Windbigler |
| |
|
Title: Vice President, Treasurer |
| |
|
| |
By: |
/s/ Carine L. Jean-Claude |
| |
|
Name: Carine L. Jean-Claude |
| |
|
Title: Senior Vice President, Chief Legal Officer and Secretary |
| |
|
| |
|
| |
U.S. Bank Trust Company, National Association, as Trustee |
| |
|
| |
By: |
/s/ Michael W. McGuire |
| |
|
Name: Michael W. McGuire |
| |
|
Title: Vice President |
[Signature Page to Indenture]
Exhibit 5.1
|
|
|
|
|
1271 Avenue of
the Americas |
|
New York, New York
10020-1401 |
|
Tel: +1.212.906.1200
Fax: +1.212.751.4864 |
|
www.lw.com |
|
|
|
|
 |
FIRM / AFFILIATE
OFFICES |
|
Austin |
|
Milan |
|
Beijing |
|
Munich |
|
Boston |
|
New York |
|
Brussels |
|
Orange County |
|
Century City |
|
Paris |
|
Chicago |
|
Riyadh |
| March 1, 2024 |
Dubai |
|
San Diego |
|
Düsseldorf |
|
San Francisco |
|
Frankfurt |
|
Seoul |
|
Hamburg |
|
Silicon Valley |
| Arrow Electronics, Inc. |
Hong Kong |
|
Singapore |
| 9151 E Panorama Circle |
Houston |
|
Tel Aviv |
| Centennial, Colorado 80112 |
London |
|
Tokyo |
|
Los Angeles |
|
Washington, D.C. |
|
Madrid |
| Re: | Registration
Statement on Form S-3 |
To the addressees set forth above:
We have acted as special counsel to Arrow Electronics, Inc.,
a New York corporation (the “Company”), in connection with its filing on the date hereof with the Securities
and Exchange Commission (the “Commission”) of a registration statement on Form S-3 (as amended, the “Registration
Statement”), including a base prospectus (the “Base Prospectus”), which provides that it will
be supplemented by one or more prospectus supplements (each such prospectus supplement, together with the Base Prospectus, a “Prospectus”),
under the Securities Act of 1933, as amended (the “Act”), relating to the registration (a) for issue and
sale by the Company of (i) shares of the Company’s common stock, $1.00 par value per share (“Common Stock”),
(ii) shares of one or more series of the Company’s preferred stock, $1.00 par value per share (“Preferred
Stock”), (iii) one or more series of the Company’s debt securities (collectively, “Debt Securities”)
to be issued under an indenture between the Company, as issuer, and U.S. Bank Trust Company, National Association, as trustee (which
is included as Exhibit 4.1 to the Registration Statement) and one or more board resolutions, supplements thereto or officer’s
certificates thereunder (such indenture, together with the applicable board resolution, supplement or officer’s certificate pertaining
to the applicable series of Debt Securities, the “Applicable Indenture”), and (iv) warrants (“Warrants”),
and (b) shares of Common Stock to be resold from time to time by certain securityholders of the Company (the “Selling
Securityholder Shares”). The Common Stock, Preferred Stock, Debt Securities, Warrants, and Selling Securityholder Shares
are referred to herein collectively as the “Securities.”
This opinion is being furnished in connection
with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter pertaining
to the contents of the Registration Statement or related applicable Prospectus, other than as expressly stated herein with respect to
the issue of the Securities.
As such counsel, we have examined such matters
of fact and questions of law as we have considered appropriate for purposes of this letter. With your consent, we have relied upon certificates
and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters.
We are opining herein as to the Business Corporation Law of the State of New York, and with respect to the opinions set forth in paragraphs
3 and 4 below, the internal laws of the State of New York, and we express no opinion with respect to the applicability thereto, or the
effect thereon, of the laws of any other jurisdiction or as to any matters of municipal law or the laws of any local agencies within
any state.
March 1, 2024
Page 2
Subject to the foregoing and the other matters
set forth herein, it is our opinion that, as of the date hereof:
1. When
an issuance of Common Stock has been duly authorized by all necessary corporate action of the Company, upon issuance, delivery and payment
therefor in an amount not less than the par value thereof in the manner contemplated by the applicable Prospectus and by such corporate
action, and in total amounts and numbers of shares that do not exceed the respective total amounts and numbers of shares (a) available
under the certificate of incorporation, and (b) authorized by the board of directors in connection with the offering contemplated
by the applicable Prospectus, such shares of Common Stock will be validly issued, fully paid and nonassessable. In rendering the foregoing
opinion, we have assumed that the Company will comply with all applicable notice requirements regarding uncertificated shares provided
in the Business Corporation Law of the State of New York.
2. When
a series of Preferred Stock has been duly established in accordance with the terms of the Company’s Certificate of Incorporation
and authorized by all necessary corporate action of the Company, upon issuance, delivery and payment therefor in an amount not less than
the par value thereof in the manner contemplated by the applicable Prospectus and by such corporate action, and in total amounts and
numbers of shares that do not exceed the respective total amounts and numbers of shares (a) available under the certificate of incorporation,
and (b) authorized by the board of directors in connection with the offering contemplated by the applicable Prospectus, such shares
of such series of Preferred Stock will be validly issued, fully paid and nonassessable. In rendering the foregoing opinion, we have assumed
that the Company will comply with all applicable notice requirements regarding uncertificated shares provided in the Business Corporation
Law of the State of New York.
3. When
the Applicable Indenture has been duly authorized, executed and delivered by all necessary corporate action of the Company, and when
the specific terms of a particular series of Debt Securities have been duly established in accordance with the terms of the Applicable
Indenture and authorized by all necessary corporate action of the Company, and such Debt Securities have been duly executed, authenticated,
issued and delivered against payment therefor in accordance with the terms of the Applicable Indenture and in the manner contemplated
by the applicable Prospectus and by such corporate action, such Debt Securities will be the legally valid and binding obligations of
the Company, enforceable against the Company in accordance with their terms.
4. When
the applicable warrant agreement has been duly authorized, executed and delivered by all necessary corporate action of the Company, and
when the specific terms of a particular issuance of Warrants have been duly established in accordance with the terms of the applicable
warrant agreement and authorized by all necessary corporate action of the Company, and such Warrants have been duly executed, authenticated,
issued and delivered against payment therefor in accordance with the terms of the applicable warrant agreement and in the manner contemplated
by the applicable Prospectus and by such corporate action (assuming the securities issuable upon exercise of such Warrants have been
duly authorized and reserved for issuance by all necessary corporate action), such Warrants will be the legally valid and binding obligations
of the Company, enforceable against the Company in accordance with their terms.
March 1, 2024
Page 3
Our opinions are subject to: (i) the effect
of bankruptcy, insolvency, reorganization, preference, fraudulent transfer, moratorium or other similar laws relating to or affecting
the rights and remedies of creditors; (ii) (a) the effect of general principles of equity, whether considered in a proceeding
in equity or at law (including the possible unavailability of specific performance or injunctive relief), (b) concepts of materiality,
reasonableness, good faith and fair dealing, and (c) the discretion of the court before which a proceeding is brought; and (iii) the
invalidity under certain circumstances under law or court decisions of provisions providing for the indemnification of or contribution
to a party with respect to a liability where such indemnification or contribution is contrary to public policy. We express no opinion
as to (a) any provision for liquidated damages, default interest, late charges, monetary penalties, make-whole premiums or other
economic remedies to the extent such provisions are deemed to constitute a penalty, (b) consents to, or restrictions upon, governing
law, jurisdiction, venue, arbitration, remedies, or judicial relief, (c) waivers of rights or defenses, (d) any provision requiring
the payment of attorneys’ fees, where such payment is contrary to law or public policy, (e) any provision permitting, upon
acceleration of any Debt Securities, collection of that portion of the stated principal amount thereof which might be determined to constitute
unearned interest thereon, (f) the creation, validity, attachment, perfection, or priority of any lien or security interest, (g) advance
waivers of claims, defenses, rights granted by law, or notice, opportunity for hearing, evidentiary requirements, statutes of limitation,
trial by jury or at law, or other procedural rights, (h) waivers of broadly or vaguely stated rights, (i) provisions for exclusivity,
election or cumulation of rights or remedies, (j) provisions authorizing or validating conclusive or discretionary determinations,
(k) grants of setoff rights, (l) proxies, powers and trusts, (m) provisions prohibiting, restricting, or requiring consent
to assignment or transfer of any right or property, (n) any provision to the extent it requires that a claim with respect to a security
denominated in other than U.S. dollars (or a judgment in respect of such a claim) be converted into U.S. dollars at a rate of exchange
at a particular date, to the extent applicable law otherwise provides, and (o) the severability, if invalid, of provisions to the
foregoing effect.
With your consent, we have assumed (a) that
each of the Debt Securities and Warrants and the Applicable Indenture and warrant agreements governing such Securities (collectively,
the “Documents”) will be governed by the internal laws of the State of New York, (b) that each of the
Documents has been or will be duly authorized, executed and delivered by the parties thereto, (c) that each of the Documents constitutes
or will constitute legally valid and binding obligations of the parties thereto other than the Company, enforceable against each of them
in accordance with their respective terms, and (d) that the status of each of the Documents as legally valid and binding obligations
of the parties will not be affected by any (i) breaches of, or defaults under, agreements or instruments, (ii) violations of
statutes, rules, regulations or court or governmental orders, or (iii) failures to obtain required consents, approvals or authorizations
from, or to make required registrations, declarations or filings with, governmental authorities.
March 1, 2024
Page 4
This opinion is for your benefit in connection
with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions
of the Act. We consent to your filing this opinion as an exhibit to the Registration Statement and to the reference to our firm contained
in the Prospectus under the heading “Legal Matters.” In giving such consent, we do not thereby admit that we are in the category
of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
| |
Sincerely, |
| |
|
| |
/s/ Latham & Watkins LLP |
Exhibit 23.2
Consent of Independent Registered Public Accounting
Firm
We consent to the reference to our firm under the caption
"Experts" in this Registration Statement (Form S-3) and related Prospectus of Arrow Electronics, Inc. for the
registration of debt securities, preferred stock, common stock, and warrants and common stock to be sold by selling security
holders, and to the incorporation by reference therein of our reports dated February 13, 2024, with respect to the consolidated
financial statements of Arrow Electronics, Inc., and the effectiveness of internal control over financial reporting of Arrow
Electronics, Inc., included in its Annual Report (Form 10-K) for the year ended December 31, 2023, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
Denver, Colorado
March 1, 2024
Exhibit 25.1
securities
and exchange commission
Washington, D.C. 20549
FORM T-1
Statement
of Eligibility Under
The
Trust Indenture Act of 1939 of a
Corporation
Designated to Act as Trustee
Check if an Application to Determine Eligibility
of
a
Trustee Pursuant to Section 305(b)(2) ¨
_______________________________________________________
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
91-1821036
I.R.S. Employer Identification No.
|
800 Nicollet Mall
Minneapolis, Minnesota |
55402 |
| (Address of principal executive offices) |
(Zip Code) |
Michael McGuire
U.S. Bank Trust Company, National Association
950 17th St
Denver, CO 80202
(303) 585-4594
(Name, address and telephone number of agent for
service)
Arrow Electronics, Inc.
(Issuer with respect to the Securities)
| New York |
11-1806155 |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
| |
|
|
9151 E Panorama Circle
Centennial, Colorado |
80112 |
| (Address of Principal Executive Offices) |
(Zip Code) |
Senior Debt Securities
(Title of the Indenture
Securities)
FORM T-1
Item
1. GENERAL INFORMATION. Furnish the following information as to the Trustee.
| a) | Name and address of each examining or supervising authority to which it is subject. |
Comptroller of the Currency
Washington, D.C.
| b) | Whether it is authorized
to exercise corporate trust powers. |
Yes
Item
2. AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation.
None
| Items 3.15 | Items
3-15 are not applicable because to the best of the Trustee's knowledge, the obligor is not in default under any Indenture for which the
Trustee acts as Trustee. |
Item
16. LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and qualification.
| 1. | A copy of the Articles of Association of the Trustee, attached
as Exhibit 1. |
| 2. | A copy of the certificate of authority of the Trustee to
commence business, attached as Exhibit 2. |
| 3. | A copy of the authorization of the Trustee to exercise corporate
trust powers, included as Exhibit 2. |
| 4. | A copy of the existing bylaws of the Trustee, attached as Exhibit 4. |
| 5. | A copy of each Indenture referred to in Item 4. Not applicable. |
| 6. | The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 6. |
| 7. | Report of Condition of the Trustee as of December 31, 2023, published pursuant to law or the requirements of its supervising
or examining authority, attached as Exhibit 7. |
SIGNATURE
Pursuant
to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
a national banking association organized and existing under the laws of the United States of America, has
duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized,
all in the City of Denver, State of Colorado on the 1st of March, 2024.
| |
By: |
/s/ Michael McGuire |
| |
|
Michael McGuire |
| |
|
Vice President |
Exhibit 1
ARTICLES OF ASSOCIATION
OF
U. S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
For the purpose of organizing an association (the
“Association”) to perform any lawful activities of national banks, the undersigned enter into the following Articles of Association:
FIRST.
The title of this Association shall be U. S. Bank Trust Company, National Association.
SECOND.
The main office of the Association shall be in the city of Portland, county of Multnomah, state of Oregon. The business of
the Association will be limited to fiduciary powers and the support of activities incidental to the exercise of those powers. The Association
may not expand or alter its business beyond that stated in this article without the prior approval of the Comptroller of the Currency.
THIRD.
The board of directors of the Association shall consist of not less than five nor more than twenty-five persons, the exact number to be
fixed and determined from time to time by resolution of a majority of the full board of directors or by resolution of a majority of the
shareholders at any annual or special meeting thereof. Each director shall own common or preferred stock of the Association or of a holding
company owning the Association, with an aggregate par, fair market, or equity value of not less than $1,000, as of either (i) the
date of purchase, (ii) the date the person became a director, or (iii) the date of that person's most recent election to the
board of directors, whichever is more recent. Any combination of common or preferred stock of the Association or holding company may be
used.
Any vacancy in the board of directors may be filled
by action of a majority of the remaining directors between meetings of shareholders. The board of directors may increase the number of
directors up to the maximum permitted by law. Terms of directors, including directors selected to fill vacancies, shall expire at the
next regular meeting of shareholders at which directors are elected, unless the directors resign or are removed from office. Despite the
expiration of a director's term, the director shall continue to serve until his or her successor is elected and qualified or until there
is a decrease in the number of directors and his or her position is eliminated.
Honorary or advisory members of the board of directors,
without voting power or power of final decision in matters concerning the business of the Association, may be appointed by resolution
of a majority of the full board of directors, or by resolution of shareholders at any annual or special meeting. Honorary or advisory
directors shall not be counted to determined the number of directors of the Association or the presence of a quorum in connection with
any board action, and shall not be required to own qualifying shares.
FOURTH.
There shall be an annual meeting of the shareholders to elect directors and transact whatever other business may be brought
before the meeting. It shall be held at the main office or any other convenient place the board of directors may designate, on the day
of each year specified therefor in the Bylaws, or if that day falls on a legal holiday in the state in which the Association
is located, on the next following banking day. If no election is held on the day fixed or in the event of a legal holiday on the
following banking day, an election may be held on any subsequent day within 60 days of the day fixed, to be designated by the board of
directors, or, if the directors fail to fix the day, by shareholders
representing two-thirds of the shares issued and outstanding. In all cases, at least 10 days’ advance notice of the meeting shall
be given to the shareholders by first-class mail.
In all elections of directors, the number of votes
each common shareholder may cast will be determined by multiplying the number of shares he or she owns by the number of directors to be
elected. Those votes may be cumulated and cast for a single candidate or may be distributed among two or more candidates in the manner
selected by the shareholder. On all other questions, each common shareholder shall be entitled to one vote for each share of stock held
by him or her.
A director may
resign at any time by delivering written notice to the board of directors, its chairperson, or to the Association, which resignation shall
be effective when the notice is delivered unless the notice specifies a later effective date.
A
director may be removed by the shareholders at a meeting called to remove him or her, when notice of the meeting stating that the purpose
or one of the purposes is to remove him or her is provided, if there
is a failure to fulfill one of the affirmative requirements for qualification, or for cause; provided, however, that a director may not
be removed if the number of votes sufficient to elect him or her under
cumulative voting is voted against his or her removal.
FIFTH.
The authorized amount of capital stock of the Association shall be 1,000,000 shares of common stock of the par value of ten
dollars ($10) each; but said capital stock may be increased or decreased from time to time, according to the provisions of the laws of
the United States. The Association shall have only one class of capital stock.
No holder of shares of the capital stock of any
class of the Association shall have any preemptive or preferential right of subscription to any shares of any class of stock of the Association,
whether now or hereafter authorized, or to any obligations convertible into stock of the Association, issued, or sold, nor any right of
subscription to any thereof other than such, if any, as the board of directors, in its discretion, may from time to time determine and
at such price as the board of directors may from time to time fix.
Transfers
of the Association's stock are subject to the prior written approval of a federal depository institution regulatory agency. If no
other agency approval is required, the approval of the Comptroller of the Currency must be obtained prior to any such transfers.
Unless otherwise specified in the Articles
of Association or required by law, (1) all matters requiring shareholder action, including amendments to the Articles of
Association must be approved by shareholders owning a majority voting interest in the outstanding voting stock, and (2) each
shareholder shall be entitled to one vote per share.
Unless otherwise specified in the Articles of
Association or required by law, all shares of voting stock shall be voted together as a class, on any matters requiring shareholder approval.
Unless otherwise provided in the Bylaws, the record
date for determining shareholders entitled to notice of and to vote at any meeting is the close of business on the day before the first
notice is mailed or otherwise sent to the shareholders, provided that in no event may a record date be more than 70 days before the meeting.
The Association,
at any time and from time to time, may authorize and issue debt obligations, whether subordinated, without the approval of the shareholders.
Obligations classified as debt, whether subordinated, which may be issued by the Association without the approval of shareholders, do
not carry voting rights on any issue, including an increase or decrease in the aggregate number of the securities, or the exchange or
reclassification of all or part of securities into securities of another class or series.
SIXTH.
The board of directors shall appoint one of its members president of this Association and one of its members chairperson of
the board and shall have the power to appoint one or more vice presidents, a secretary who shall keep minutes of the directors' and shareholders'
meetings and be responsible for authenticating the records of the Association, and such other officers and employees as may be required
to transact the business of this Association. A duly appointed officer may appoint one or more officers or assistant officers if authorized
by the board of directors in accordance with the Bylaws.
The board of directors shall have the power to:
| (1) | Define the duties of the officers, employees, and agents of the Association. |
| (2) | Delegate the performance of its duties, but not the responsibility for its duties, to the officers, employees,
and agents of the Association. |
| (3) | Fix the compensation and enter employment contracts with its officers and employees upon reasonable terms
and conditions consistent with applicable law. |
| (4) | Dismiss officers and employees. |
| (5) | Require bonds from officers and employees and to fix the penalty thereof. |
| (6) | Ratify written policies authorized by the Association's management or committees of the board. |
| (7) | Regulate the manner any increase or decrease of the capital of the Association shall be made; provided
that nothing herein shall restrict the power of shareholders to increase or decrease the capital of the Association in accordance with
law, and nothing shall raise or lower from two-thirds the percentage required for shareholder approval to increase or reduce the capital. |
| (8) | Manage and administer the business and affairs of the Association. |
| (9) | Adopt initial Bylaws, not inconsistent with law or the Articles of Association, for managing the business and regulating the affairs
of the Association. |
| (10) | Amend or repeal Bylaws, except to the extent that the Articles of Association reserve this power in whole or in part to the shareholders. |
| (12) | Generally perform all acts that are legal for a board of directors to perform. |
SEVENTH.
The board of directors shall have the power to change the location of the main office to any authorized branch within the limits
of the city of Portland, Oregon, without the approval of the shareholders, or with a vote of shareholders owning two-thirds of the stock
of the Association for a location outside such limits and upon receipt of a certificate of approval from the Comptroller of the Currency,
to any other location within or outside the limits of the city of Portland, Oregon, but not more than thirty miles beyond such limits.
The board of directors shall have the power to establish or change the location of any office or offices of the Association to any other
location permitted under applicable law, without approval of shareholders, subject to approval by the Comptroller of the Currency.
EIGHTH.
The corporate existence of this Association shall continue until termination according to the laws of the United States.
NINTH.
The board of directors of the Association, or any shareholder owning, in the aggregate, not less than 25 percent of the stock
of the Association, may call a special meeting of shareholders at any time. Unless otherwise provided by the Bylaws or the laws of the
United States, or waived by shareholders, a notice of the time, place, and purpose of every annual and special meeting of the shareholders
shall be given by first-class mail, postage prepaid, mailed at least 10, and no more than 60, days prior to the date of the meeting to
each shareholder of record at his/her address as shown upon the books of the Association. Unless otherwise provided by the Bylaws, any
action requiring approval of shareholders must be effected at a duly called annual or special meeting.
TENTH.
These Articles of Association may be amended at any regular or special meeting of the shareholders by the affirmative vote
of the holders of a majority of the stock of the Association, unless the vote of the holders of a greater amount of stock is required
by law, and in that case by the vote of the holders of such greater amount; provided, that the scope of the Association's activities and
services may not be expanded without the prior written approval of the Comptroller of the Currency. The Association's board of directors
may propose one or more amendments to the Articles of Association for submission to the shareholders.
In
witness whereof, we have hereunto set our hands this 11th of June, 1997.
| /s/ Jeffrey T. Grubb |
|
| Jeffrey T. Grubb |
|
| |
|
| /s/ Robert D. Sznewajs |
|
| Robert D. Sznewajs |
|
| |
|
| /s/ Dwight V. Board |
|
| Dwight V. Board |
|
| |
|
| /s/ P.K. Chatterjee |
|
| P.K. Chatterjee |
|
| |
|
| /s/ Robert Lane |
|
| Robert Lane |
|
Exhibit 2
Exhibit 4
U.S. BANK TRUST COMPANY, NATIONAL
ASSOCIATION
AMENDED AND RESTATED BYLAWS
ARTICLE I
Meetings of Shareholders
Section 1.1. Annual
Meeting. The annual meeting of the shareholders, for the election of directors and the transaction of any other proper business, shall
be held at a time and place as the Chairman or President may designate. Notice of such meeting shall be given not less than ten (10) days
or more than sixty (60) days prior to the date thereof, to each shareholder of the Association, unless the Office of the Comptroller of
the Currency (the “OCC”) determines that an emergency circumstance exists. In accordance with applicable law, the sole shareholder
of the Association is permitted to waive notice of the meeting. If, for any reason, an election of directors is not made on the designated
day, the election shall be held on some subsequent day, as soon thereafter as practicable, with prior notice thereof. Failure to hold
an annual meeting as required by these Bylaws shall not affect the validity of any corporate action or work a forfeiture or dissolution
of the Association.
Section 1.2. Special
Meetings. Except as otherwise specially provided by law, special meetings of the shareholders may be called for any purpose, at any
time by a majority of the board of directors (the “Board”), or by any shareholder or group of shareholders owning at least
ten percent of the outstanding stock.
Every such special meeting, unless otherwise provided
by law, shall be called upon not less than ten (10) days nor more than sixty (60) days prior notice stating the purpose of the meeting.
Section 1.3. Nominations
for Directors. Nominations for election to the Board may be made by the Board or by any shareholder.
Section 1.4. Proxies.
Shareholders may vote at any meeting of the shareholders by proxies duly authorized in writing. Proxies shall be valid only for one meeting
and any adjournments of such meeting and shall be filed with the records of the meeting.
Section 1.5. Record
Date. The record date for determining shareholders entitled to notice and to vote at any meeting will be thirty days before the date
of such meeting, unless otherwise determined by the Board.
Section 1.6. Quorum
and Voting. A majority of the outstanding capital stock, represented in person or by proxy, shall constitute a quorum at any meeting
of shareholders, unless otherwise provided by law, but less than a quorum may adjourn any meeting, from time to time, and the meeting
may be held as adjourned without further notice. A majority of the votes cast shall decide every question or matter submitted to the
shareholders at any meeting, unless otherwise provided by law or by the Articles of Association.
Section 1.7. Inspectors.
The Board may, and in the event of its failure so to do, the Chairman of the Board may appoint Inspectors of Election who shall determine
the presence of quorum, the validity of proxies, and the results of all elections and all other matters voted upon by shareholders at
all annual and special meetings of shareholders.
Section 1.8. Waiver
and Consent. The shareholders may act without notice or a meeting by a unanimous written consent by all shareholders.
Section 1.9. Remote
Meetings. The Board shall have the right to determine that a shareholder meeting not be held at a place, but instead be held solely
by means of remote communication in the manner and to the extent permitted by the General Corporation Law of the State of Delaware.
ARTICLE II
Directors
Section 2.1. Board
of Directors. The Board shall have the power to manage and administer the business and affairs of the Association. Except as expressly
limited by law, all corporate powers of the Association shall be vested in and may be exercised by the Board.
Section 2.2. Term
of Office. The directors of this Association shall hold office for one year and until their successors are duly elected and qualified,
or until their earlier resignation or removal.
Section 2.3. Powers.
In addition to the foregoing, the Board shall have and may exercise all of the powers granted to or conferred upon it by the Articles
of Association, the Bylaws and by law.
Section 2.4. Number.
As provided in the Articles of Association, the Board of this Association shall consist of no less than five nor more than twenty-five
members, unless the OCC has exempted the Association from the twenty-five- member limit. The Board shall consist of a number of members
to be fixed and determined from time to time by resolution of the Board or the shareholders at any meeting thereof, in accordance with
the Articles of Association. Between meetings of the shareholders held for the purpose of electing directors, the Board by a majority
vote of the full Board may increase the size of the Board but not to more than a total of twenty-five directors, and fill any vacancy
so created in the Board; provided that the Board may increase the number of directors only by up to two directors, when the number of
directors last elected by shareholders was fifteen or fewer, and by up to four directors, when the number of directors last elected by
shareholders was sixteen or more. Each director shall own a qualifying equity interest in the Association or a company that has control
of the Association in each case as required by applicable law. Each director shall own such qualifying equity interest in his or her
own right and meet any minimum threshold ownership required by applicable law.
Section 2.5. Organization
Meeting. The newly elected Board shall meet for the purpose of organizing the new Board and electing and appointing such officers
of the Association as may be appropriate. Such meeting shall be held on the day of the election or as soon thereafter as practicable,
and, in any event, within thirty days thereafter, at such time and place as the Chairman or President may designate. If, at the time fixed
for such meeting, there shall not be a quorum present, the directors present may adjourn the meeting until a quorum is obtained.
Section 2.6. Regular
Meetings. The regular meetings of the Board shall be held, without notice, as the Chairman or President may designate and deem suitable.
Section 2.7. Special
Meetings. Special meetings of the Board may be called at any time, at any place and for any purpose by the Chairman of the Board or
the President of the Association, or upon the request of a majority of the entire Board. Notice of every special meeting of the Board
shall be given to the directors at their usual places of business, or at such other addresses as shall have been furnished by them for
the purpose. Such notice shall be given at least twelve hours (three hours if meeting is to be conducted by conference telephone) before
the meeting by telephone or by being personally delivered, mailed, or electronically delivered. Such notice need not include a statement
of the business to be transacted at, or the purpose of, any such meeting.
Section 2.8. Quorum
and Necessary Vote. A majority of the directors shall constitute a quorum at any meeting of the Board, except when otherwise provided
by law; but less than a quorum may adjourn any meeting, from time to time, and the meeting may be held as adjourned without further notice.
Unless otherwise provided by law or the Articles or Bylaws of this Association, once a quorum is established, any act by a majority of
those directors present and voting shall be the act of the Board.
Section 2.9. Written
Consent. Except as otherwise required by applicable laws and regulations, the Board may act without a meeting by a unanimous written
consent by all directors, to be filed with the Secretary of the Association as part of the corporate records.
Section 2.10. Remote
Meetings. Members of the Board, or of any committee thereof, may participate in a meeting of such Board or committee by means of conference
telephone, video or similar communications equipment by means of which all persons participating in the meeting can hear each other and
such participation shall constitute presence in person at such meeting.
Section 2.11. Vacancies.
When any vacancy occurs among the directors, the remaining members of the Board may appoint a director to fill such vacancy at any regular
meeting of the Board, or at a special meeting called for that purpose.
ARTICLE III
Committees
Section 3.1. Advisory
Board of Directors. The Board may appoint persons, who need not be directors, to serve as advisory directors on an advisory board
of directors established with respect to the business affairs of either this Association alone or the business affairs of a group of affiliated
organizations of which this Association is one. Advisory directors shall have such powers and duties as may be determined by the Board,
provided, that the Board's responsibility for the business and affairs of this Association shall in no respect be delegated or diminished.
Section 3.2. Trust
Audit Committee. At least once during each calendar year, the Association shall arrange for a suitable audit (by internal or external
auditors) of all significant fiduciary activities under the direction of its trust audit committee, a function that will be fulfilled
by the Audit Committee of the financial holding company that is the ultimate parent of this Association. The Association shall note the
results of the audit (including significant actions taken as a result of the audit) in the minutes of the Board. In lieu of annual audits,
the Association may adopt a continuous audit system in accordance with 12 C.F.R. § 9.9(b).
The Audit Committee of the financial holding company
that is the ultimate parent of this Association, fulfilling the function of the trust audit committee:
(1) Must
not include any officers of the Association or an affiliate who participate significantly in the administration of the Association’s
fiduciary activities; and
(2) Must
consist of a majority of members who are not also members of any committee to which the Board has delegated power to manage and control
the fiduciary activities of the Association.
Section 3.3. Executive
Committee. The Board may appoint an Executive Committee which shall consist of at least three directors and which shall have, and
may exercise, to the extent permitted by applicable law, all the powers of the Board between meetings of the Board or otherwise when the
Board is not meeting.
Section 3.4. Trust
Management Committee. The Board of this Association shall appoint a Trust Management Committee to provide oversight of the fiduciary
activities of the Association. The Trust Management Committee shall determine policies governing fiduciary activities. The Trust Management
Committee or such sub-committees, officers or others as may be duly designated by the Trust Management Committee shall oversee the processes
related to fiduciary activities to assure conformity with fiduciary policies it establishes, including ratifying the acceptance and the
closing out or relinquishment of all trusts. The Trust Management Committee will provide regular reports of its activities to the Board.
Section 3.5. Other
Committees. The Board may appoint, from time to time, committees of one or more persons who need not be directors, for such purposes
and with such powers as the Board may determine; however, the Board will not delegate to any committee any powers or responsibilities
that it is prohibited from delegating under any law or regulation. In addition, either the Chairman or the President may appoint, from
time to time, committees of one or more officers, employees, agents or other persons, for such purposes and with such powers as either
the Chairman or the President deems appropriate and proper. Whether appointed by the Board, the Chairman, or the President, any such committee
shall at all times be subject to the direction and control of the Board.
Section 3.6. Meetings,
Minutes and Rules. An advisory board of directors and/or committee shall meet as necessary in consideration of the purpose of the
advisory board of directors or committee, and shall maintain minutes in sufficient detail to indicate actions taken or recommendations
made; unless required by the members, discussions, votes or other specific details need not be reported. An advisory board of directors
or a committee may, in consideration of its purpose, adopt its own rules for the exercise of any of its functions or authority.
ARTICLE IV
Officers
Section 4.1. Chairman
of the Board. The Board may appoint one of its members to be Chairman of the Board to serve at the pleasure of the Board. The Chairman
shall supervise the carrying out of the policies adopted or approved by the Board; shall have general executive powers, as well as the
specific powers conferred by these Bylaws; and shall also have and may exercise such powers and duties as from time to time may be conferred
upon or assigned by the Board.
Section 4.2. President.
The Board may appoint one of its members to be President of the Association. In the absence of the Chairman, the President shall preside
at any meeting of the Board. The President shall have general executive powers, and shall have and may exercise any and all other powers
and duties pertaining by law, regulation or practice, to the office of President, or imposed by these Bylaws. The President shall also
have and may exercise such powers and duties as from time to time may be conferred or assigned by the Board.
Section 4.3. Vice
President. The Board may appoint one or more Vice Presidents who shall have such powers and duties as may be assigned by the Board
and to perform the duties of the President on those occasions when the President is absent, including presiding at any meeting of the
Board in the absence of both the Chairman and President.
Section 4.4. Secretary.
The Board shall appoint a Secretary, or other designated officer who shall be Secretary of the Board and of the Association, and shall
keep accurate minutes of all meetings. The Secretary shall attend to the giving of all notices required by these Bylaws to be given; shall
be custodian of the corporate seal, records, documents and papers of the Association; shall provide for the keeping of proper records
of all transactions of the Association; shall, upon request, authenticate any records of the Association; shall have and may exercise
any and all other powers and duties pertaining by law, regulation or practice, to the Secretary, or imposed by these Bylaws; and shall
also perform such other duties as may be assigned from time to time by the Board. The Board may appoint one or more Assistant Secretaries
with such powers and duties as the Board, the President or the Secretary shall from time to time determine.
Section 4.5. Other
Officers. The Board may appoint, and may authorize the Chairman, the President or any other officer to appoint, any officer as from
time to time may appear to the Board, the Chairman, the President or such other officer to be required or desirable to transact the business
of the Association. Such officers shall exercise such powers and perform such duties as pertain to their several offices, or as may be
conferred upon or assigned to them by these Bylaws, the Board, the Chairman, the President or such other authorized officer. Any person
may hold two offices.
Section 4.6. Tenure
of Office. The Chairman or the President and all other officers shall hold office until their respective successors are elected and
qualified or until their earlier death, resignation, retirement, disqualification or removal from office, subject to the right of the
Board or authorized officer to discharge any officer at any time.
ARTICLE V
Stock
Section 5.1. The Board
may authorize the issuance of stock either in certificated or in uncertificated form. Certificates for shares of stock shall be in such
form as the Board may from time to time prescribe. If the Board issues certificated stock, the certificate shall be signed by the President,
Secretary or any other such officer as the Board so determines. Shares of stock shall be transferable on the books of the Association,
and a transfer book shall be kept in which all transfers of stock shall be recorded. Every person becoming a shareholder by such transfer
shall, in proportion to such person's shares, succeed to all rights of the prior holder of such shares. Each certificate of stock shall
recite on its face that the stock represented thereby is transferable only upon the books of the Association properly endorsed. The Board
may impose conditions upon the transfer of the stock reasonably calculated to simplify the work of the Association for stock transfers,
voting at shareholder meetings, and related matters, and to protect it against fraudulent transfers.
ARTICLE VI
Corporate Seal
Section 6.1. The Association
shall have no corporate seal; provided, however, that if the use of a seal is required by, or is otherwise convenient or advisable pursuant
to, the laws or regulations of any jurisdiction, the following seal may be used, and the Chairman, the President, the Secretary and any
Assistant Secretary shall have the authority to affix such seal:
ARTICLE VII
Miscellaneous Provisions
Section 7.1. Execution
of Instruments. All agreements, checks, drafts, orders, indentures, notes, mortgages, deeds, conveyances, transfers, endorsements,
assignments, certificates, declarations, receipts, discharges, releases, satisfactions, settlements, petitions, schedules, accounts, affidavits,
bonds, undertakings, guarantees, proxies and other instruments or documents may be signed, countersigned, executed, acknowledged, endorsed,
verified, delivered or accepted on behalf of the Association, whether in a fiduciary capacity or otherwise, by any officer of the Association,
or such employee or agent as may be designated from time to time by the Board by resolution, or by the Chairman or the President by written
instrument, which resolution or instrument shall be certified as in effect by the Secretary or an Assistant Secretary of the Association.
The provisions of this section are supplementary to any other provision of the Articles of Association or Bylaws.
Section 7.2. Records.
The Articles of Association, the Bylaws as revised or amended from time to time and the proceedings of all meetings of the shareholders,
the Board, and standing committees of the Board, shall be recorded in appropriate minute books provided for the purpose. The minutes of
each meeting shall be signed by the Secretary, or other officer appointed to act as Secretary of the meeting.
Section 7.3. Trust
Files. There shall be maintained in the Association files all fiduciary records necessary to assure that its fiduciary responsibilities
have been properly undertaken and discharged.
Section 7.4. Trust
Investments. Funds held in a fiduciary capacity shall be invested according to the instrument establishing the fiduciary relationship
and according to law. Where such instrument does not specify the character and class of investments to be made and does not vest in the
Association a discretion in the matter, funds held pursuant to such instrument shall be invested in investments in which corporate fiduciaries
may invest under law.
Section 7.5. Notice.
Whenever notice is required by the Articles of Association, the Bylaws or law, such notice shall be by mail, postage prepaid, e- mail,
in person, or by any other means by which such notice can reasonably be expected to be received, using the address of the person to receive
such notice, or such other personal data, as may appear on the records of the Association.
Except where specified otherwise in these Bylaws,
prior notice shall be proper if given not more than 30 days nor less than 10 days prior to the event for which notice is given.
ARTICLE VIII
Indemnification
Section 8.1. The Association
shall indemnify such persons for such liabilities in such manner under such circumstances and to such extent as permitted by Section 145
of the Delaware General Corporation Law, as now enacted or hereafter amended. The Board may authorize the purchase and maintenance of
insurance and/or the execution of individual agreements for the purpose of such indemnification, and the Association shall advance all
reasonable costs and expenses (including attorneys’ fees) incurred in defending any action, suit or proceeding to all persons entitled
to indemnification under this Section 8.1. Such insurance shall be consistent with the requirements of 12 C.F.R. § 7.2014 and
shall exclude coverage of liability for a formal order assessing civil money penalties against an institution-affiliated party, as defined
at 12 U.S.C. § 1813(u).
Section 8.2. Notwithstanding
Section 8.1, however, (a) any indemnification payments to an institution-affiliated party, as defined at 12 U.S.C. § 1813(u),
for an administrative proceeding or civil action initiated by a federal banking agency, shall be reasonable and consistent with the requirements
of 12 U.S.C. § 1828(k) and the implementing regulations thereunder; and (b) any indemnification payments and advancement
of costs and expenses to an institution-affiliated party, as defined at 12 U.S.C. § 1813(u), in cases involving an administrative
proceeding or civil action not initiated by a federal banking agency, shall be in accordance with Delaware General Corporation Law and
consistent with safe and sound banking practices.
ARTICLE IX
Bylaws: Interpretation and Amendment
Section 9.1. These Bylaws
shall be interpreted in accordance with and subject to appropriate provisions of law, and may be added to, altered, amended, or repealed,
at any regular or special meeting of the Board.
Section 9.2. A copy of
the Bylaws and all amendments shall at all times be kept in a convenient place at the principal office of the Association, and shall be
open for inspection to all shareholders during Association hours.
ARTICLE X
Miscellaneous Provisions
Section 10.1. Fiscal
Year. The fiscal year of the Association shall begin on the first day of January in each year and shall end on the thirty-first
day of December following.
Section 10.2. Governing
Law. This Association designates the Delaware General Corporation Law, as amended from time to time, as the governing law for its
corporate governance procedures, to the extent not inconsistent with Federal banking statutes and regulations or bank safety and soundness.
***
(February 8, 2021)
Exhibit 6
CONSENT
In accordance with Section 321(b) of
the Trust Indenture Act of 1939, the undersigned, U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION hereby consents that reports of examination
of the undersigned by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange
Commission upon its request therefor.
Dated: March 1, 2024
| |
By: |
/s/ Michael McGuire |
| |
|
Michael McGuire |
| |
|
Vice President |
Exhibit 7
U.S. Bank Trust Company, National Association
Statement of Financial Condition
as of 12/31/2023
($000’s)
| | |
12/31/2023 | |
| Assets | |
| |
| Cash and Balances Due From Depository Institutions | |
$ | 1,171,838 | |
| Securities | |
| 4,441 | |
| Federal Funds | |
| 0 | |
| Loans & Lease Financing Receivables | |
| 0 | |
| Fixed Assets | |
| 1,409 | |
| Intangible Assets | |
| 578,492 | |
| Other Assets | |
| 218,268 | |
| Total Assets | |
$ | 1,974,448 | |
| | |
| | |
| Liabilities | |
| | |
| Deposits | |
$ | 0 | |
| Fed Funds | |
| 0 | |
| Treasury Demand Notes | |
| 0 | |
| Trading Liabilities | |
| 0 | |
| Other Borrowed Money | |
| 0 | |
| Acceptances | |
| 0 | |
| Subordinated Notes and Debentures | |
| 0 | |
| Other Liabilities | |
| 255,900 | |
| Total Liabilities | |
$ | 255,900 | |
| | |
| | |
| Equity | |
| | |
| Common and Preferred Stock | |
| 200 | |
| Surplus | |
| 1,171,635 | |
| Undivided Profits | |
| 546,713 | |
| Minority Interest in Subsidiaries | |
| 0 | |
| Total Equity Capital | |
$ | 1,718,548 | |
| | |
| | |
| Total Liabilities and Equity Capital | |
$ | 1,974,448 | |
Exhibit 107
Calculation of Filing Fee Tables
Form S-3
(Form Type)
Arrow Electronics, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1—Newly Registered and Carry Forward
Securities
| |
Security Type |
Security Class Title |
Fee
Calculation or
Carry Forward
Rule |
Amount
Registered |
Proposed
Maximum
Offering Price
Per Unit |
Maximum
Aggregate
Offering
Price |
Fee
Rate |
Amount of
Registration
Fee |
Carry
Forward
Form
Type |
Carry
Forward
File
Number |
Carry
Forward
Initial
effective
date |
Filing Fee
Previously
Paid In
Connection
with
Unsold
Securities
to be
Carried
Forward |
| Newly Registered Securities |
| Fees to Be Paid |
Debt |
Debt Securities |
Rule 456(b)
Rule 457(r) |
(1) |
(1) |
(1) |
(2) |
(2) |
|
|
|
|
| Equity |
Preferred Stock, par value $1.00 per share |
Rule 456(b)
Rule 457(r) |
(1) |
(1) |
(1) |
(2) |
(2) |
|
|
|
|
| Equity |
Common Stock, par value $1.00 per share |
Rule 456(b)
Rule 457(r) |
(1) |
(1) |
(1) |
(2) |
(2) |
|
|
|
|
| Other |
Warrants(3) |
Rule 456(b)
Rule 457(r) |
(1) |
(1) |
(1) |
(2) |
(2) |
|
|
|
|
| Fees Previously Paid |
— |
— |
— |
— |
— |
— |
— |
— |
|
|
|
|
| Carry Forward Securities |
| Carry Forward Securities |
— |
— |
— |
— |
|
— |
|
|
— |
— |
— |
— |
| |
Total Offering Amounts |
|
— |
|
|
|
|
|
|
| Total Fees Previously Paid |
|
— |
|
|
|
|
|
|
| Total Fee Offsets |
|
— |
|
|
|
|
|
|
| Net Fee Due |
|
— |
|
|
|
|
|
|
| (1) |
An unspecified amount of securities or aggregate principal amount, as applicable, is being registered as may from time to time be offered at unspecified prices along with an unspecified number of securities that may be issued upon exercise, settlement, exchange or conversion of securities offered or sold hereunder. Pursuant to Rule 416 under the Securities Act of 1933, as amended, this registration statement also covers any additional securities that may be offered or issued in connection with any stock split, stock dividend, or pursuant to anti-dilution provisions of any of the securities. |
| (2) |
In accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended, the Company is deferring payment of the entire registration fee and will pay the registration fees subsequently in advance or on a “pay-as-you-go” basis. |
| (3) |
Warrants to purchase Debt Securities, Preferred Stock or Common Stock of Arrow Electronics, Inc. may be sold separately or with Debt Securities, Preferred Stock or Common Stock of Arrow Electronics, Inc. |
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