0001001746-11-000005.txt : 20110613
0001001746-11-000005.hdr.sgml : 20110613
20110331162624
ACCESSION NUMBER: 0001001746-11-000005
CONFORMED SUBMISSION TYPE: S-3
PUBLIC DOCUMENT COUNT: 6
FILED AS OF DATE: 20110331
DATE AS OF CHANGE: 20110428
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: DATARAM CORP
CENTRAL INDEX KEY: 0000027093
STANDARD INDUSTRIAL CLASSIFICATION: COMPUTER STORAGE DEVICES [3572]
IRS NUMBER: 221831409
STATE OF INCORPORATION: NJ
FISCAL YEAR END: 0430
FILING VALUES:
FORM TYPE: S-3
SEC ACT: 1933 Act
SEC FILE NUMBER: 333-173212
FILM NUMBER: 11726569
BUSINESS ADDRESS:
STREET 1: P O BOX 7528
CITY: PRINCETON
STATE: NJ
ZIP: 08543
BUSINESS PHONE: 6097990071
MAIL ADDRESS:
STREET 1: PO BOX 7528
CITY: PRINCETON
STATE: NJ
ZIP: 08543-7528
S-3
1
s32011.txt
FORM S-3 REGISTRATION STATEMENT
As filed with the Securities and Exchange Commission on March 31, 2011
Registration No. 333-______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
Form S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
_________________________
DATARAM CORPORATION
_____________________________________________________________________________
(Exact name of registrant as specified in its charter)
New Jersey 22-1831409
_____________________________________________________________________________
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
P.O. Box 7528, Princeton, NJ 08543
_____________________________________________________________________________
(Address of principal executive offices) (Zip Code)
(609) 799-0071
_____________________________________________________________________________
(Registrant's telephone number, including area code)
Agent For Service
MARK E. MADDOCKS
Dataram Corporation
186 Princeton-Hightstown Road
West Windsor, New Jersey 08550
(609) 799-0071
With Copies To:
THOMAS J. BITAR, ESQ.
Dillon, Bitar & Luther, L.L.C.
200 Park Avenue, Suite 301
Florham Park, NJ 07932
(973) 539-3100
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, check the following box. [x]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same 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. [ ]
Large accelerated filer [ ] Accelerated filer [ ]
Non-accelerated filer [ ] Smaller reporting company [x]
CALCULATION OF REGISTRATION FEE
Title of Each Class of Proposed Maximum Amount of
Securities to be Registered Aggregate Registration Fee
Offering Price
Offering:
Common Stock,
$1.00 par value per share (2) -
Debt Securities (2) -
Warrants (2) -
Units (2) -
Total Offering $20,000,000.00 $2,322.00(3)
(1) There are being registered hereunder such indeterminate number of
shares of common stock, such indeterminate principal amount of debt
securities, such indeterminate number of warrants to purchase common stock
or debt securities, and such indeterminate number of units, as shall have an
aggregate initial offering price not to exceed $20,000,000.00. If any debt
securities are issued at an original issue discount, then the offering price
of such debt securities shall be in such greater principal amount as shall
result in an aggregate initial offering price not to exceed $20,000,000.00,
less the aggregate dollar amount of all securities previously issued
hereunder. Any securities registered hereunder may be sold separately or as
units with other securities registered hereunder. The proposed maximum
initial offering price per unit will be determined, from time to time, by
the registrant in connection with the issuance by the registrant of the
securities registered hereunder. The securities registered also include such
indeterminate number of shares of common stock and amount of debt securities
as may be issued upon conversion of or exchange for debt securities that
provide for conversion or exchange, upon exercise of warrants or pursuant to
the anti-dilution provisions of any such securities. In addition, pursuant
to Rule 416 under the Securities Act of 1933, as amended, the shares being
registered hereunder include such indeterminate number of shares of common
stock as may be issuable with respect to the shares being registered
hereunder as a result of stock splits, stock dividends or similar
transactions.
(2) The proposed maximum aggregate offering price per class of
security will be determined from time to time by the registrant in
connection with the issuance by the registrant of the securities registered
hereunder and is not specified as to each class of security pursuant to
General Instruction II(D) of Form S-3 under the Securities Act of 1933, as
amended.
(3) Calculated pursuant to Rule 457(o) under the Securities Act of
1933, as amended, based on the proposed maximum aggregate offering price.
The registrant hereby amends this registration statement on such date as may
be necessary to delay its effective date until we shall further file a
further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act or until this registration statement shall become effective
on such date as the Commission, acting pursuant to said Section 8(a), may
determine.
The information in this prospectus is not complete and may be changed. We
will not sell the securities described in this document until the
registration statement filed with the Securities and Exchange Commission
is declared effective. This prospectus is not an offer to sell these
securities, nor are we soliciting an offer to buy these securities in any
state where the offer or sale is not permitted.
PRELIMINARY PROSPECTUS
SUBJECT TO COMPLETION, DATED March 31, 2011
Dataram Corporation
$20,000,000.00
Debt Securities
Common Stock
Warrants
Units
This prospectus provides you with a general description of debt and
equity securities that we may offer and sell from time to time, in one or
more series or issuances. Each time we sell securities we will provide a
prospectus supplement that will contain specific information about the terms
of that sale and may add to or update the information in this prospectus.
You should carefully read this prospectus and the applicable prospectus
supplement as well as any documents incorporated or deemed to be
incorporated in this prospectus before you invest in any of our securities
offered hereby. This prospectus may not be used to sell securities unless
accompanied by a prospectus supplement.
Dataram Corporation may offer and sell securities directly to
purchasers or through one or more underwriters, dealers and/or agents on a
continuous or delayed basis. For additional information on the methods of
sale, you should refer to the section entitled "Plan of Distribution." If
any underwriters or agents are involved in the sale of any securities with
respect to which this prospectus is being delivered, the names of such
underwriters or agents and any applicable discounts or commissions and over-
allotment options will be set forth in the prospectus supplement. The price
to the public of such securities and the net proceeds we expect to receive
from such sale will also be set forth in a prospectus supplement.
Our common stock is listed on The Nasdaq Capital Market under the
symbol "DRAM." On March 28, 2011, the last reported sale price of our common
stock on The Nasdaq Capital Market was $2.19.
Investing in our common stock involves risk. See "Risk Factors" on page 6.
You should carefully review the risks and uncertainties described under the
heading "Risk Factors" contained in the applicable prospectus supplement and
under similar headings in the documents that are incorporated by reference
in this prospectus.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon
the accuracy or adequacy of this prospectus. Any representation to the
contrary is a criminal offense.
The date of this prospectus is March 31, 2011
You should rely only on the information contained or incorporated by
reference in this prospectus. We have not authorized anyone to provide you
with additional information or information different from that contained in
this prospectus. The information contained or incorporated by reference in
this prospectus is accurate only as of the date of this prospectus,
regardless of the time of delivery of this prospectus or of any sale of
securities offered by this prospectus. Our business, financial condition,
results of operations and prospects may have changed since that date.
In this prospectus, the "Company", "Dataram", "we", "us", and "our" refer to
Dataram Corporation and its subsidiaries. Our fiscal year ends on April 30
of each calendar year. For example, fiscal year 2010 refers to the year
ended April 30, 2010. Dataram is a registered trademark of Dataram
Corporation. This prospectus contains product names, trade names and
trademarks of Dataram and other organizations.
TABLE OF CONTENTS
Page
About this Prospectus............................................. 3
Special Note Regarding Forward-Looking Statements ................ 4
Business Summary ................................................. 5
Risk Factors...................................................... 6
Use of Proceeds .................................................. 9
Dilution of Existing Common Stock ................................ 9
Description of Common Stock ...................................... 9
Description of Debt Securities ................................... 10
Description of Warrants .......................................... 19
Description of Units ............................................. 20
Plan of Distribution ............................................. 21
Anti-takeover Effects of Provisions of Our Restated Certificate of
Incorporation and By-Laws ...................................... 23
New Jersey Shareholders Protection Act ........................... 24
Legal Matters .................................................... 24
Experts .......................................................... 25
Where You Can Find More Information .............................. 25
Information Incorporated by Reference ............................ 25
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we have filed with
the Securities and Exchange Commission (the "SEC" or "Commission") using a
"shelf" registration process. Under this shelf process, we may sell:
Debt securities;
Common stock;
Warrants; and
Units
either separately or in units, in one or more offerings. This prospectus
provides you with a general description of those securities. We will offer
our securities in amounts, at prices and on terms to be determined at the
time we offer such securities. Each time we sell securities, we will provide
a prospectus supplement that will contain specific information about the
terms of that offering. The prospectus supplement may also add, update or
change information contained in this prospectus. Before purchasing any
securities, you should carefully read this prospectus and the applicable
prospectus supplement and any applicable free writing prospectus together
with the additional information described under the headings "Where You Can
Find More Information" and "Information Incorporated by Reference." Under
no circumstances should the delivery to you of this prospectus or any
offering or sales made pursuant to this prospectus create any implication
that the information contained in this prospectus is correct as of any time
after the date of this prospectus.
SPECIAL NOTE REGARDING FORWARD LOOKING STATEMENTS
This prospectus and the information incorporated by reference include
forward-looking statements, within the meaning of Section 27A of the
Securities Act of 1933, or the Securities Act, and Section 21E of the
Securities Exchange Act of 1934, or the Exchange Act. These statements are
based on management's current expectations or predictions of future results
or events. We make these forward-looking statements in reliance on the safe
harbor provisions provided under the Private Securities Litigation Reform
Act of 1995.
All statements, other than statements of historical fact, included in this
prospectus and information incorporated by reference which relate to
performance, development or activities that we expect or anticipate will or
may happen in the future, are forward-looking statements. Other forward-
looking statements may be identified by the use of forward-looking words
such as "believe," "expect," "may," "might," "will," "should," "seek,"
"could," "approximately," "intend," "plan," "estimate," or "anticipate" or
the negative of those words or other similar expressions.
Forward-looking statements involve inherent risks and uncertainties and are
based on numerous assumptions. They are not guarantees of future
performance. A number of important factors could cause actual results to
differ materially from those in the forward-looking statement. Some factors
include:
- our ability to obtain financing or sell assets and achieve levels
of revenue and cost reductions that are adequate to support our
capital and operating requirements;
- our ability to remain competitive and a leader in our industries
and our future growth, our industries, and the economy in general;
- our ability to achieve structural and material cost reductions
without impacting product development or manufacturing execution;
- expected improvements in our product and technology development
programs;
- our ability to successfully develop, introduce, market and qualify
new products;
- our ability to identify and acquire suitable acquisition targets
and difficulties in integrating recent or future acquisitions into our
operations;
- other risks and uncertainties described in our filings with the SEC
such as: cancellations, rescheduling, or delays in product shipments;
manufacturing capacity constraints; lengthy sales and qualification
cycles; difficulties in the production process; changes in
semiconductor industry growth; increased competition; delays in
developing and commercializing new products; and other factors.
Forward-looking statements contained herein are made only as of the date
made, and we do not undertake any obligation to update them to reflect
events or circumstances after the date of this prospectus to reflect the
occurrence of unanticipated events.
Business Summary
We are a developer, manufacturer and marketer of large capacity memory
products primarily used in high performance network servers and
workstations. We provide customized memory solutions for original equipment
manufacturers (OEMs) and compatible memory for leading brands including
Dell, HP, IBM and Sun Microsystems. We also manufacture a line of memory
products for Intel and AMD motherboard based servers. We have developed and
are continuing the development of a line of high performance storage caching
products (our "XcelaSAN" product line). XcelaSAN is a unique intelligent
Storage Area Network ("SAN") optimization solution designed to deliver
substantive application performance improvement to applications such as
Oracle, SQL and VMware. XcelaSAN augments existing storage systems by
transparently applying intelligent caching algorithms that serve the most
active block-level data from high-speed storage, creating an intelligent,
virtual solid state SAN, allowing organizations to dramatically increase the
performance of their business-critical applications without the costly
hardware upgrades or over-provisioning of storage typically found in current
solutions for increased performance. We have made and are continuing to make
significant investments in research and development in XcelaSAN.
Our memory products are sold worldwide to OEMs, distributors, value-
added resellers and end-users. We have a manufacturing facility in the
United States with sales offices in the United States, Europe and Japan.
We are an independent memory manufacturer specializing in high capacity
memory and competes with several other large independent memory
manufacturers as well as the OEMs mentioned above. The primary raw material
used in producing memory boards is dynamic random access memory (DRAM)
chips. The purchase cost of DRAMs is the largest single component of the
total cost of a finished memory board. Consequently, average selling prices
for computer memory boards are significantly dependent on the pricing and
availability of DRAM chips.
On March 31, 2009, we acquired certain assets of Micro Memory Bank,
Inc. (MMB), a privately held corporation. MMB is a manufacturer of legacy to
advanced solutions in laptop, desktop and server memory products. The
acquisition expanded our memory product offerings and routes to market.
Our principal executive office is located at 186 Princeton Road
(Route 571), West Windsor, New Jersey 08550, our telephone number is (609)
799-0071, our fax is (609) 799-6734 and our website is located at
http://www.dataram.com. Proxy Statements, Annual Reports on Form 10-K,
Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, and all
amendments thereto, are available on this website free of charge. For
specific information about our company, our products or the markets we
serve, please visit our website at http://www.dataram.com. The information
contained in or linked to our website is not part of this prospectus.
RISK FACTORS
Investing in our securities involves risks. You should carefully read and
consider the risk factors and other disclosures relating to any investment
in securities issued by Dataram Corporation set forth below, as well as
those described in the SEC reports incorporated by reference herein, as
updated by annual, quarterly and other reports and documents we file with
the SEC after the date of this prospectus and that are also incorporated by
reference herein. Before making an investment decision, you should
carefully consider those risks as well as other information we include or
incorporate by reference in this prospectus and the applicable prospectus
supplement. The risks and uncertainties we have described are not the only
ones facing our company. Additional risks and uncertainties not presently
known to us or that we currently consider immaterial may also affect our
business operations. To the extent a particular offering implicates
additional risk, we will include a discussion of those risks in the
applicable prospectus supplement.
WE MAY NEED TO OBTAIN ADDITIONAL WORKING CAPITAL FOR CONTINUED RESEARCH
AND DEVELOPMENT. The development of the XcelaSAN product line has required
and will continue to require substantial capital investment. We believe
hat we have obtained sufficient financing for the continued development of
the products through fiscal 2011. However, such financing may not be
sufficient for our purposes and additional sources of financing may not be
available if needed. If we require and are unable to raise additional
funds, we may need to delay, scale-back or eliminate some or all of our
research and product development programs and/or license third parties to
develop and commercialize products or technologies that we would otherwise
seek to develop and commercialize ourselves.
WE MAY HAVE TO SUBSTANTIALLY INCREASE OUR WORKING CAPITAL REQUIREMENTS
IN THE EVENT OF DRAM ALLOCATIONS. Over the past 20 years, availability of
DRAMs has swung back and forth from oversupply to shortage. In times of
shortage, we have been forced to invest substantial working capital
resources in building and maintaining inventory. At such times we have
bought DRAMs in excess of our customers' needs in order to ensure future
allocations from DRAM manufacturers. In the event of a shortage, we may not
be able to obtain sufficient DRAMs to meet customers' needs in the short
term, and we may have to invest substantial working capital resources in
order to meet long-term customer needs.
WE COULD SUFFER LOSSES IF DRAM PRICES DECLINE SUBSTANTIALLY. We are at
times required to maintain substantial inventories during periods of
shortage and allocation. Thereafter, during periods of increasing
availability of DRAMs and rapidly declining prices, we have been forced to
write down inventory. There can be no assurance that we will not suffer
losses in the future based upon high inventories and declining DRAM prices.
OUR PRODUCTS MAY VIOLATE OTHERS' PATENTS. Certain of our products
are designed to be used with proprietary computer systems built by
various OEM manufacturers. We often have to comply with the OEM's
proprietary designs which may be patented, now or at some time in the
future. OEMs have, at times, claimed that we have violated their patent
rights by adapting our products to meet the requirements of
their systems. It is our policy to, in unclear cases, either obtain an
opinion of patent counsel prior to marketing, or obtain a license from the
patent holder. We are presently licensed by Sun Microsystems and Silicon
Graphics to sell memory products for certain of their products. However,
there can be no assurance that product designs will not be created in the
future which will, in fact, be patented and which patent holders will
require the payment of substantial royalties as a condition for our
continued presence in the segment of the market covered by the patent or
they may not give us a license. Nor can there be any assurance that our
existing products do not violate one or more existing patents.
WE MAY LOSE AN IMPORTANT CUSTOMER. During fiscal 2010, the largest ten
customers accounted for approximately 34% of our revenues and one
customer accounted for 11% of our revenues. There can be no assurance that
one or more of these customers will not cease or materially decrease their
business with us in the future and that our financial performance will not
be adversely affected thereby.
SALES DIRECTLY TO OEM'S CAN MAKE OUR REVENUES, EARNINGS, BACKLOG AND
INVENTORY LEVELS UNEVEN. Revenue and earnings from OEM sales may become
uneven as order sizes are typically large and often a completed order cannot
be shipped until released by the OEM, e.g., to meet a "just in time"
inventory requirement. This may occur at or near the end of an accounting
period. In such case, revenues and earnings could decline for the period
and inventory and backlog could increase.
WE FACE COMPETITION FROM OEMs. In the compatibles market we sell our
products at a lower price than OEMs. Customers will often pay some premium
for the "name brand" product when buying additional memory and OEMs seek to
exploit this tendency by having a high profit margin on memory products.
However, individual OEMs can change their policy and price memory products
competitively. While we believe that with our manufacturing efficiency and
low overhead we still would be able to compete favorably with OEMs, in such
an event profit margins and earnings would be adversely affected. Also,
OEMs could choose to use "free memory" as a promotional device in which case
our ability to compete would be severely impaired.
WE FACE COMPETITION FROM DRAM MANUFACTURERS. DRAM manufacturers not
only sell their product as discreet devices, but also as finished memory
modules. They primarily sell these modules directly to OEMs and large
distributors and as such compete with us. There can be no assurance that
DRAM manufacturers will not expand their market and customer base, and our
profit margins and earnings could be adversely affected.
THE MARKET FOR OUR PRODUCTS MAY NARROW OVER TIME. The principal market
for our memory products consists of the manufacturers, buyers and owners of
workstations and enterprise servers, classes of machines lying between large
mainframe computers and personal computers. Personal computers are
increasing in their power and sophistication and, as a result, are now
filling some of the computational needs traditionally filled by
workstations. The competition for the supply of after-market memory
products in the PC industry is very competitive and to the extent we compete
in this market we can be expected to have lower profit margins. There can
be no assurance that this trend will not continue in the future, and that
our financial performance will not be adversely affected.
A PORTION OF OUR OPERATIONS IS DESIGNED TO MEET THE NEEDS OF THE VERY
COMPETITIVE INTEL AND AMD PROCESSOR-BASED MOTHERBOARD MARKET. In addition
to selling server memory systems, we develop, manufacture and market a
variety of memory products for motherboards that are Intel or AMD processor
based. Many of these products are sold to OEMs and incorporated into
computers and other equipment. This is an intensely competitive market with
high volumes but lower margins.
WE MAY MAKE UNPROFITABLE ACQUISITIONS. We actively seek to acquire
complementary products and related intellectual property. The
possibility exists that an acquisition will be made at some time in the
future. Uncertainty surrounds all acquisitions and it is possible that a
particular acquisition may not result in a benefit to shareholders,
particularly in the short-term. In addition, there can be no assurance that
the recently acquired business of MMB will be, or remain, a profitable
operating unit of ours or that expected savings from having a larger
consolidated business operation will occur.
THE INVESTMENTS WE MAKE IN RESEARCH AND DEVELOPMENT MAY NOT LEAD TO
PROFITABLE NEW PRODUCTS. We have implemented a strategy to introduce
new and complementary products into our offerings portfolio, and expect to
spend substantial sums of money on research and development of such possible
new products. These research and development expenditures may not result in
the identification or exploitation of any products that can be profitably
sold by us.
WE MAY BE ADVERSELY AFFECTED BY EXCHANGE RATE FLUCTUATIONS. A portion
of our accounts receivable and a portion of our expenses are denominated in
foreign currencies. These proportions change over time. As a result, our
revenues and expenses may be adversely affected, from time to time, by
changes in the relationship of the dollar to various foreign currencies on
foreign exchange markets. We do not currently hedge our foreign currency
risks.
WE MAY INCUR INTANGIBLE ASSET AND GOODWILL IMPAIRMENT CHARGES WHICH
COULD HARM OUR PROFITABILITY. We periodically review the carrying values of
our intangible assets and goodwill to determine whether such carrying values
exceed the fair market value. Our goodwill is subject to an annual review
for goodwill impairment. If impairment testing indicates that the carrying
value exceeds its fair value, the intangible assets or goodwill is deemed
impaired. Accordingly, an impairment charge would be recognized in the
period identified, which could reduce our profitability.
OUR STOCK HAS LIMITED LIQUIDITY. Although our stock is publicly
traded, it has been observed that this market is "thin." As a result, the
common stock may trade at a discount to what would be its value if the stock
enjoyed greater liquidity.
WE ARE SUBJECT TO THE NEW JERSEY SHAREHOLDERS PROTECTION ACT. This
statute has the effect of prohibiting any "business combination" - a very
broadly defined term - with any "interested shareholder" unless the
transaction is approved by the Board of Directors at a time before the
interested shareholder had acquired a 10% ownership interest. This
prohibition of "business combinations" is for five years after the
shareholder became an "interested shareholder" and continues after that time
period subject to certain exceptions. A practical consequence of this
statute is that a hostile acquisition of our company is unlikely to occur
and hostile transactions which might be of benefit to our shareholders are
unlikely to occur.
USE OF PROCEEDS
Unless otherwise specified in the applicable prospectus supplement, we will
use the net proceeds from the sale of securities for one or more of the
following:
repayment of debt;
acquisitions;
capital expenditures;
redemption or repurchase of any debt outstanding; and
working capital and general corporate purposes.
Pending any specific application, we may initially invest funds in
marketable short-term, interest-bearing securities.
DILUTION OF EXISTING COMMON STOCK
Information (if any) regarding the securities offered will be included in
the relevant prospectus supplement.
DESCRIPTION OF COMMON STOCK
The following is a description of our common stock. It does not purport to
be complete and is subject to, and qualified in its entirety by, the
provisions of our Restated Certificate of Incorporation and By-Laws, forms
of which have previously been filed and are incorporated by reference into
this prospectus, and by the applicable provisions of New Jersey law. See
"Anti-takeover Effects of Provisions of Our Restated Certificate of
Incorporation and By-Laws" for more information regarding the provisions
of our Restated Certificate of Incorporation and By-Laws that could
effect an extraordinary corporate transaction.
General Matters
Our authorized capital stock consists of 54,000,000 shares of common stock,
$1.00 par value per share. As of March 28 2011, we had 8,928,309 shares of
common stock issued and outstanding. We do not have any authorized
preferred stock.
Holders of common stock are entitled to one vote per share on matters to be
voted upon by the shareholders of the Company. The holders of common stock
are entitled to receive ratably such dividends, if any, as may be declared
by the Board of Directors out of funds legally available therefore. In the
event of our liquidation, dissolution or winding up, the holders
of common stock are entitled to share ratably in all assets remaining after
payment of liabilities. The common stock has no preemptive, redemption,
conversion or other subscription rights. The outstanding shares of
common stock are, and the shares offered by us in any offering will be, when
issued and paid for, fully paid and nonassessable.
Transfer Agent and Registrar
The Transfer Agent and Registrar for our common stock is American Stock
Transfer and Trust Company, New York, New York.
Listing
Our shares of common stock are quoted on The Nasdaq Capital Market under the
symbol "DRAM".
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the debt securities sets
forth certain general terms and provisions of the debt securities to which
any prospectus supplement may relate. The particular terms of the debt
securities offered by any prospectus supplement and the extent, if any, to
which these general provisions may apply to those debt securities will be
described in the prospectus supplement relating to those debt securities.
Accordingly, for a description of the terms of a particular issue of debt
securities, reference must be made to both the prospectus supplement
relating thereto and to the following description.
General
We may issue debt securities from time to time in one or more series. The
debt securities will be general obligations of Dataram Corporation. The debt
securities may be issued on a secured or unsecured, senior or subordinated
basis. In the event that any series of debt securities will be subordinated
to other indebtedness that we have outstanding or may incur, the terms of
the subordination will be set forth in the prospectus supplement relating to
the subordinated debt securities. Debt securities may be issued under one or
more indentures between us and one or more trustees named in the relevant
prospectus supplement, which we refer to as the trustee. Any statements
made in this prospectus relating to the indenture and the debt securities to
be issued under the indenture are summaries of certain terms and provisions
of the form of indenture that has been filed as Exhibit 4.2 to the
registration statement of which this prospectus forms a part and are not
complete. You should read the indenture for provisions that may be
important to you. In addition, we will file as exhibits to an amendment to
the registration statement of which this prospectus is a part, or will
incorporate by reference from a current report on Form 8-K that we file with
the SEC, as applicable, any supplemental indentures or other agreements that
describe the terms of the series of debt we are offering before the issuance
of the related series debt. You should therefore consult those supplemental
agreements to obtain amended or updated information regarding the relevant
series of debt.
The prospectus supplement relating to a particular series of debt securities
will describe the terms of such debt securities being offered, including:
- the title;
- the maturity date;
- the interest rate, if any, and the method for calculating the
interest rate;
- the interest payment dates and the record dates for the interest
payments;
- any mandatory or optional redemption terms or prepayment,
conversion, and sinking fund terms;
- provisions regarding amendment of the terms of any indenture or
other agreement pursuant to which debt is issued;
- the place where we will pay principal and interest;
- if other than denominations of $1,000 or multiples of $1,000 in
excess thereof, the denominations the debt securities will be
issued in;
- whether the debt securities will be issued in the form of global
securities or certificates;
- additional provisions, if any, relating to defeasance;
- the currency or currencies, if other than the currency of the
United States, in which principal and interest will be paid;
- any United States federal income tax consequences;
- the dates on which premium, if any, will be paid;
- our right, if any, to defer payment of interest and the maximum
length of this deferral period;
- any listing on a securities exchange;
- limits on aggregate principal amount;
- terms of subordination of any subordinated debt securities;
- a description of the collateral securing the debt obligations,
if any:
- events of default, cure periods and remedies available;
- information regarding the trustee, if any;
- the initial public offering price; and
- other specific terms, including any additional events of default
or covenants.
We may, from time to time, without notice to or the consent of registered
holders of a particular series of debt securities, create and issue further
securities ranking pari passu with that series of debt securities in all
respects (or in all respects except for the payment of interest accruing
prior to the issue date of such further debt securities or except for the
first payment of interest following the issue date of such further debt
securities) and so that such further debt securities shall be consolidated
and form a single series with that particular series of debt securities and
shall have the same terms as to status, redemption or otherwise as that
series of debt securities.
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. The indenture does not limit our ability to
issue convertible or subordinated debt securities. Any conversion or
subordination provisions of a particular series of debt securities will be
set forth in the officer's certificate or supplemental indenture related to
that series of debt securities and will be described in the relevant
prospectus supplement. Such terms may include provisions for conversions,
either mandatory, at the option of the holder or at our option, in which
case the number of shares of common stock, preferred stock or other
securities to be received by the holders of debt securities would be
calculated as of a time and in the manner stated in the prospectus
supplement.
The debt securities will be issuable only in fully registered form without
coupons or in the form of one or more global securities, as described below
under "Global Securities". Unless the prospectus supplement specifies
otherwise, debt securities denominated in U.S. dollars will be issued only
in denominations of U.S.$1,000 and any integral multiple of U.S.$1,000 in
excess thereof. The prospectus supplement relating to debt securities
denominated in a foreign or composite currency will specify the authorized
denominations.
If the amount of payments of principal of and premium, if any, or any
interest on debt securities of any series is determined with reference to
any type of index or formula or changes in prices of particular securities
or commodities, the federal income tax consequences, specific terms and
other information with respect to these debt securities and this index or
formula, securities or commodities will be described in the relevant
prospectus supplement.
If the principal of and premium, if any, or any interest on debt securities
of any series are payable in a foreign or composite currency, the
restrictions, elections, federal income tax consequences, specific terms and
other information with respect to such debt securities and such currency
will be described in the relevant prospectus supplement.
Payment of principal of and premium, if any, on debt securities will be made
in the designated currency against surrender of any debt securities at the
Corporate Trust Office of the trustee in The City of New York. Unless
otherwise indicated in the prospectus supplement, payment of any installment
of interest on debt securities will be made to the person in whose name a
relevant debt security is registered at the close of business on the regular
record date for such interest. Unless otherwise indicated in the prospectus
supplement, payments of such interest will be made at the Corporate Trust
Office of the trustee in The City of New York or by a check in the
designated currency mailed to the holder at such holder's registered address.
Debt securities may be issued as original issue discount securities to be
offered and sold at a substantial discount below their stated principal
amount. Federal income tax consequences and other special considerations
applicable to any original issue discount securities will be described in
the relevant prospectus supplement. "Original issue discount security" means
any debt security that provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration of the
maturity thereof upon the occurrence of an event of default and the
continuation thereof.
Covenants
Consolidation, Merger and Sale of Assets
Unless otherwise provided in a prospectus supplement, we will agree under
the indenture that we will not consolidate with or merge into, or convey,
transfer or lease all or substantially all of our properties and assets to,
any Person (a "Successor Person"), and will not permit any Person to merge
into us in a transaction in which we are not the surviving entity, unless:
(i) the Successor Person (if not Dataram) is a corporation, limited
liability company, partnership or trust organized and validly existing under
the laws of any domestic jurisdiction and assumes our obligations on any
outstanding debt securities and under the indenture;
(ii) immediately after giving effect to the transaction, and treating any
Indebtedness which becomes our obligation as a result of the transaction as
having been incurred by us at the time of the transaction, no event of
default and no event which, after notice or lapse of time or both, would
become an event of default, shall have occurred and be continuing; and
(iii) the trustee receives an officers' certificate and an opinion of
counsel stating that such action complies with this covenant.
Events of Default
The indenture specifies that each of the following will constitute an event
of default with respect to the debt securities of a particular series:
(a) failure to pay principal of any debt security of that series at its
maturity;
(b) failure to pay any interest on any debt security of that series when
due, continued for 30 days;
(c) failure to deposit any sinking fund payment, when and as due by the
terms of that series;
(d) failure to perform any covenant of ours applicable to that series in the
indenture, continued for 60 days after written notice of such failure is
given by the trustee or the holders of at least 25% in principal amount of
the outstanding debt securities of that series, as provided in the
indenture; and
(e) certain events in bankruptcy, insolvency or reorganization.
If an event of default (other than an event of default described in clause
(e) above) shall occur and be continuing, either the trustee or the holders
of at least 25% in aggregate principal amount of the outstanding debt
securities of that series by notice as provided in the indenture may declare
the principal amount of such series of the debt securities to be due and
payable immediately. If an event of default described in clause (e) above
shall occur, the principal amount of all the outstanding debt securities of
that series will automatically, and without any action by the trustee or any
holder, become immediately due and payable. After any such acceleration, but
before a judgment or decree for payment of the money due, the holders of a
majority in aggregate principal amount of the outstanding debt securities of
a particular series may, under certain circumstances, rescind and annul such
acceleration if all events of default, other than the non-payment of
accelerated principal, have been cured or waived as provided in the
indenture. For information as to waiver of defaults, see "Modification and
Waiver."
Subject to the provisions of the indenture relating to the duties of the
trustee in case an event of default shall occur and be continuing, the
trustee will be under no obligation to exercise any of its rights or powers
under the indenture at the request or direction of any of the holders,
unless such holders shall have offered to the trustee reasonable indemnity.
Subject to such provisions for the indemnification of the trustee, the
holders of a majority in aggregate principal amount of the outstanding debt
securities of that 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
such series of the debt securities.
No holder of a debt security will have any right to institute any proceeding
with respect to the indenture, or for the appointment of a receiver or a
trustee, or for any other remedy thereunder, unless:
(i) such holder has previously given to the trustee written notice of a
continuing event of default with respect to such series of the debt
securities;
(ii) the holders of at least 25% in aggregate principal amount of the
outstanding debt securities of that series have made written request, and
such holder or holders have offered reasonable indemnity, to the trustee to
institute such proceeding as trustee; and
(iii) the trustee has failed to institute such proceeding, and has not
received from the holders of a majority in aggregate principal amount of the
outstanding debt securities of that series a direction inconsistent with
such request, within 60 days after such notice, request and offer. However,
such limitations do not apply to a suit instituted by a holder of a debt
security for the enforcement of payment of the principal of or interest on
such debt security on or after the applicable due date specified in such
debt security.
Modification and Waiver
Together with the trustee, we may modify the indenture without the consent
of any holder for certain purposes, including evidencing the succession of
another person to us and such person's assumption of our obligations under
the indenture, adding to our covenants or events of default, establishing
forms or terms of debt securities, curing ambiguities and other purposes
which do not adversely affect the holders in any material respect.
Other modifications and amendments of the indenture may be made by us and
the trustee with the consent of the holders of at least a majority in
aggregate principal amount of each series of the outstanding debt securities
that is affected by such modification or amendment, all holders of all such
affected series voting together as one class.
No such modification or amendment may, without the consent of the holder of
each outstanding debt security affected thereby:
(a) change the stated maturity of the principal of, or any installment of
interest on, or the redemption price of, any such debt security;
(b) reduce the principal amount of or interest on, any such debt security;
(c) change currency of payment of principal of or interest on, any such debt
security;
(d) impair the right to institute suit for the enforcement of any payment on
any such debt security;
(e) reduce the percentage in principal amount of outstanding debt securities
of a particular series, the consent of whose holders is required for
modification or amendment of the indenture, or for waiver of compliance with
certain provisions of the indenture or waiver of certain defaults; or
(f) modify such provisions with respect to modification and waiver.
The holders of at least a majority in principal amount of each series of the
outstanding debt securities that is affected by such waiver, all holders of
all such affected series voting together as one class, may waive our
compliance with certain restrictive provisions of the indenture, and may
waive any past default under the indenture, except a default in the payment
of principal or interest and certain covenants and provisions of the
indenture which cannot be amended without the consent of the holder of each
outstanding debt security affected by such default.
Defeasance and Discharge; Covenant Defeasance
Unless the terms of a particular series provide otherwise, we may elect, at
our option at any time, to have the indenture provisions relating to
defeasance and discharge of indebtedness, or relating to defeasance of
certain restrictive covenants in the indenture, applied to any series of the
outstanding debt securities.
Defeasance and Discharge
The indenture provides that upon our exercise of our option to have the
provisions relating to defeasance and discharge applied to a particular
series of the debt securities, we will be discharged from all our
obligations with respect to such series of the debt securities (except for
certain obligations to exchange or register the transfer of debt securities,
to replace stolen, lost or mutilated debt securities, to maintain paying
agencies and to hold moneys for payment in trust) upon the deposit in trust
for the benefit of the holders of the debt securities of such series of
money or U.S. government obligations, or both, which, through the payment of
principal and interest in respect thereof in accordance with their terms,
will provide money in an amount sufficient to pay the principal of and
interest on the debt securities of such series at maturity in accordance
with the terms of the indenture and such debt securities. Such defeasance
or discharge may occur only if, among other things, we have delivered
to the trustee an opinion of counsel to the effect that we have received
from, or there has been published by, the United States Internal Revenue
Service a ruling, or there has been a change in tax law, in either case to
the effect that holders of the debt securities of such series will not
recognize 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, in the same manner and at the same times as would have
been the case if such deposit, defeasance and discharge were not to occur.
Defeasance of Certain Covenants
The indenture provides that, upon our exercise of our option to have the
provisions relating to defeasance of certain restrictive covenants applied
to a particular series of the debt securities, we may, with respect to such
series, omit to comply with certain restrictive covenants, including those
described under "-Consolidation, Merger and Sale of Assets," and the
occurrence of certain events of default, which are described above in clause
(d) under "Events of Default," will be deemed not to be or result in an
event of default, in each case with respect to such series.
We, in order to exercise such option, will be required, among other things:
(1) to deposit, in trust for the benefit of the holders of such series of
the debt securities, money or U.S. government obligations, or both, which,
through the payment of principal and interest in respect thereof in
accordance with their terms, will provide money in an amount sufficient to
pay the principal of and interest on such series of the debt securities at
maturity in accordance with the terms of the indenture and such debt
securities, and
(2) to deliver to the trustee an opinion of counsel to the effect that
holders of such series of the debt securities will not recognize gain or
loss for federal income tax purposes as a result of such deposit and
defeasance of certain obligations and will be subject to federal income tax
on the same amount, in the same manner and at the same times as would have
been the case if such deposit and defeasance were not to occur.
In the event we exercise this option and the debt securities are declared
due and payable because of the occurrence of any event of default, the
amount of money and U.S. government obligations so deposited in trust would
be sufficient to pay amounts due on that series of the debt securities at
maturity but may not be sufficient to pay amounts due on that series of the
debt securities upon any acceleration resulting from such event of default.
In such case, we would remain liable for such payments.
Regarding the Trustee
The indenture provides that, except during the continuance of an event of
default, the trustee will perform only such duties as are specifically set
forth in the indenture. During the existence of an event of default, the
trustee will exercise such rights and powers vested in it under the
indenture and use the same degree of care and skill in its exercise as a
prudent person would exercise under the circumstances in the conduct of such
person's own affairs.
The indenture and provisions of the Trust Indenture Act incorporated by
reference therein contain limitations on the rights of the trustee, should
it become a creditor of us, to obtain payment of claims in certain cases or
to realize on certain property received by it in respect of any such claim
as security or otherwise. The trustee is permitted to engage in other
transactions with us or any affiliate of us; provided, however, that if it
acquires any conflicting interest (as defined in the indenture or in the
Trust Indenture Act), it must eliminate such conflict or resign.
The trustee for any debt securities will be set forth in the applicable
prospectus supplement.
Form of Debt Securities
Each debt security will be represented either by a certificate issued in
definitive form to a particular investor or by one or more global securities
representing the entire issuance of securities. Certificated securities in
definitive form and global securities will be issued in registered form.
Definitive securities name you or your nominee as the owner of the security,
and in order to transfer or exchange these securities or to receive payments
other than interest or other interim payments, you or your nominee must
physically deliver the securities to the trustee, registrar, paying agent or
other agent, as applicable.
Global securities name a depositary or its nominee as the owner of the debt
securities represented by these global securities. The depositary maintains
a computerized system that will reflect each investor's beneficial ownership
of the securities through an account maintained by the investor with its
broker/dealer, bank, trust company or other representative, as we explain
more fully below.
Global Securities
We may issue the debt securities in whole or in part in the form of one or
more fully registered global securities that will be deposited with a
depositary or its nominee identified in the prospectus supplement relating
to that series and registered in the name of that depositary or nominee. In
those cases, one or more registered global securities will be issued in a
denomination or aggregate denominations equal to the portion of the
aggregate principal or face amount of the securities to be represented by
registered global securities. Unless and until it is exchanged in whole for
securities in definitive registered form, a registered global security may
not be transferred except as a whole by and among the depositary for the
registered global security, the nominees of the depositary or any successors
of the depositary or those nominees.
If not described below, any specific terms of the depositary arrangement
with respect to any securities to be represented by a registered global
security will be described in the prospectus supplement relating to those
securities. We anticipate that the following provisions will apply to all
depositary arrangements.
Ownership of beneficial interests in a registered global security will be
limited to persons, called participants, that have accounts with the
depositary or persons that may hold interests through participants. Upon the
issuance of a registered global security, the depositary will credit, on its
book-entry registration and transfer system, the participants' accounts with
the respective principal or face amounts of the securities beneficially
owned by the participants. Any dealers, underwriters or agents participating
in the distribution of the securities will designate the accounts to be
credited. Ownership of beneficial interests in a registered global security
will be shown on, and the transfer of ownership interests will be effected
only through, records maintained by the depositary, with respect to
interests of participants, and on the records of participants, with respect
to interests of persons holding through participants. The laws of some
states may require that some purchasers of securities take physical delivery
of these securities in definitive form. These laws may impair your ability
to own, transfer or pledge beneficial interests in registered global
securities.
So long as the depositary, or its nominee, is the registered owner of a
registered global security, that depositary or its nominee, as the case may
be, will be considered the sole owner or holder of the securities
represented by the registered global security for all purposes under the
indenture. Except as described below, owners of beneficial interests in a
registered global security will not be entitled to have the securities
represented by the registered global security registered in their names,
will not receive or be entitled to receive physical delivery of the
securities in definitive form and will not be considered the owners or
holders of the securities under the indenture. Accordingly, each person
owning a beneficial interest in a registered global security must rely on
the procedures of the depositary for that registered global security and, if
that person is not a participant, on the procedures of the participant
through which the person owns its interest, to exercise any rights of a
holder under the indenture. We understand that under existing industry
practices, if we request any action of holders or if an owner of a
beneficial interest in a registered global security desires to give or take
any action that a holder is entitled to give or take under the indenture,
the depositary for the registered global security would authorize the
participants holding the relevant beneficial interests to give or take that
action, and the participants would authorize beneficial owners owning
through them to give or take that action or would otherwise act upon the
instructions of beneficial owners holding through them.
Principal, premium, if any, and interest payments on debt securities
represented by a registered global security registered in the name of a
depositary or its nominee will be made to the depositary or its nominee, as
the case may be, as the registered owner of the registered global security.
None of Dataram, the trustee or any agent of Dataram or agent of the trustee
will have any responsibility or liability for any aspect of the records
relating to payments made on account of beneficial ownership interests in
the registered global security or for maintaining, supervising or reviewing
any records relating to those beneficial ownership interests.
We expect that the depositary for any of the securities represented by a
registered global security, upon receipt of any payment of principal,
premium or interest to holders on that registered global security, will
immediately credit participants' accounts in amounts proportionate to their
respective beneficial interests in that registered global security as shown
on the records of the depositary. We also expect that payments by
participants to owners of beneficial interests in a registered global
security held through participants will be governed by standing customer
instructions and customary practices, as is now the case with the securities
held for the accounts of customers in bearer form or registered in "street
name," and will be the responsibility of those participants.
If the depositary for any of these securities represented by a registered
global security is at any time unwilling or unable to continue as depositary
or ceases to be a clearing agency registered under the Exchange Act and a
successor depositary registered as a clearing agency under the Exchange Act
is not appointed by us within 90 days, we will issue securities in
definitive form in exchange for the registered global security that had been
held by the depositary. In addition, we may at any time and in our sole
discretion decide not to have any of the securities represented by one or
more registered global securities. If we make that decision, we will issue
securities in definitive form in exchange for all of the registered global
security or securities representing those securities. Any securities issued
in definitive form in exchange for a registered global security will be
registered in the name or names that the depositary gives to the trustee or
other relevant agent of ours or theirs. It is expected that the depositary's
instructions will be based upon directions received by the depositary from
participants with respect to ownership of beneficial interests in the
registered global security that had been held by the depositary.
DESCRIPTION OF WARRANTS
We may issue warrants to purchase shares of our common stock and/or
debt securities in one or more series together with other securities or
separately, as described in the applicable prospectus supplement.
Below is a description of certain general terms and provisions of the
warrants that we may offer. Particular terms of the warrants will be
described in the warrant agreements and the prospectus supplement to the
warrants.
The applicable prospectus supplement will contain, where applicable,
the following terms of and other information relating to the warrants:
- the title of the warrants;
- the offering price of the warrants;
- the aggregate number of the warrants;
- the currency or currency units in which the offering price, if
any, and the exercise price are payable;
- the designation, amount and terms of the securities purchasable
upon exercise of the warrants;
- if applicable, the exercise price for shares of our common stock
and the number of shares of common stock to be received upon
exercise of the warrants;
- if applicable, the exercise price for our debt securities, the
amount of debt securities to be received upon exercise, and a
description of that series of debt securities;
- the date on which the right to exercise the warrants will begin
and the date on which that right will expire or, if you may not
continuously exercise the warrants throughout that period, the
specific date or dates on which you may exercise the warrants;
- whether the warrants will be issued in fully registered form or
bearer form, in definitive or global form or in any combination
of these forms, although, in any case, the form of a warrant
included in a unit will correspond to the form of the unit and of
any security included in that unit;
- any applicable material U.S. federal income tax consequences;
- the identity of the warrant agent for the warrants and of any
other depositaries, execution or paying agents, transfer agents,
registrars or other agents;
- the proposed listing, if any, of the warrants or any securities
purchasable upon exercise of the warrants on any securities
exchange;
- if applicable, the date from and after which the warrants and the
common stock and/or debt securities will be separately
transferable;
- if applicable, the minimum or maximum amount of the warrants that
may be exercised at any one time;
- information with respect to book-entry procedures, if any;
- the anti-dilution provisions of the warrants, if any;
- any redemption or call provisions;
- whether the warrants are to be sold separately or with other
securities as parts of units; and
- any additional terms of the warrants, including terms, procedures
and limitations relating to the exchange and exercise of the
warrants.
Transfer Agent and Registrar
The transfer agent and registrar for any warrants will be set forth in
the applicable prospectus supplement.
DESCRIPTION OF UNITS
We may issue units consisting of common stock, debt securities and/or
warrants for the purchase of common stock and/or debt securities in one or
more series. In this prospectus, we have summarized certain general features
of the units. We urge you, however, to read the prospectus supplements
related to the series of units being offered, as well as the unit agreements
that contain the terms of the units. In addition, the prospectus supplement
relating to units will describe the terms of any units we issue, including
as applicable:
- the designation and terms of the units and the securities
included in the units;
- the description of the terms of any unit agreement governing the
units;
- any provision for the issuance, payment, settlement, transfer or
exchange of the units;
- the date, if any, on and after which the units may be
transferable separately;
- whether we will apply to have the units traded on a securities
exchange or securities quotation system;
- any material United States federal income tax consequences; and
- how, for United States federal income tax purposes, the purchase
price paid for the units is to be allocated among the component
securities.
We will file as exhibits to an amendment to the registration statement of
which this prospectus is a part, or will incorporate by reference from a
current report on Form 8-K that we file with the SEC, as applicable, the
form of unit agreement, if any, and any supplemental agreements that
describe the terms of the series of units we are offering before the
issuance of the related series of units.
PLAN OF DISTRIBUTION
Any of the securities being offered hereby and in any accompanying
prospectus supplement may be sold in any one or more of the following ways
from time to time:
- directly to purchasers;
- through agents;
- to or through underwriters;
- through dealers;
- directly to our stockholders; or
- through a combination of any such methods of sale.
The distribution of the securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
We may solicit offers to purchase directly. Offers to purchase securities
also may be solicited by agents designated by us from time to time. Any such
agent involved in the offer or sale of the securities in respect of which
this prospectus is delivered will be named, and any commissions payable by
us to such agent will be set forth, in the applicable prospectus
supplement. Unless otherwise indicated in such prospectus supplement, any
such agent will be acting on a reasonable best efforts basis for the period
of its appointment. Any such agent may be deemed to be an underwriter, as
that term is defined in the Securities Act, of the securities so offered and
sold.
If securities are sold by means of an underwritten offering, we will execute
an underwriting agreement with an underwriter or underwriters at the time an
agreement for such sale is reached, and the names of the specific managing
underwriter or underwriters, as well as any other underwriters, the
respective amounts underwritten and the terms of the transaction, including
commissions, discounts and any other compensation of the underwriters and
dealers, if any, will be set forth in the applicable prospectus supplement
which will be used by the underwriters to make resales of the securities in
respect of which this prospectus is being delivered to the public. If
underwriters are utilized in the sale of any securities in respect of which
this prospectus is being delivered, such securities will be acquired by the
underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at fixed public
offering prices, at market prices prevailing at the time of sale or at
varying prices determined by the underwriters at the time of sale.
Securities may be offered to the public either through underwriting
syndicates represented by managing underwriters or directly by one or more
underwriters. If any underwriter or underwriters are utilized in the sale of
securities, unless otherwise indicated in the applicable prospectus
supplement, the underwriting agreement will provide that the obligations of
the underwriters are subject to certain conditions precedent and that the
underwriters with respect to a sale of such securities will be obligated to
purchase all such securities if any are purchased.
We may grant to the underwriters options to purchase additional securities,
to cover over-allotments, if any, at the initial public offering price (with
additional underwriting commissions or discounts), as may be set forth in
the prospectus supplement relating thereto. If we grant any over-allotment
option, the terms of such over-allotment option will be set forth in the
prospectus supplement for such securities.
If a dealer is used in the sale of the securities in respect of which this
prospectus is delivered, we will sell such securities to the dealer, as
principal. The dealer may then resell such securities to the public at
varying prices to be determined by such dealer at the time of resale. Any
such dealer may be deemed to be an underwriter, as such term is defined in
the Securities Act, of the securities so offered and sold. The name of the
dealer and the terms of the transaction will be set forth in the prospectus
supplement relating thereto.
Offers to purchase securities may be solicited directly by us and the sale
thereof may be made by us directly to institutional investors or others, who
may be deemed to be underwriters within the meaning of the Securities Act
with respect to any resale thereof. The terms of any such sales will be
described in the prospectus supplement relating thereto.
We may offer our equity securities into an existing trading market on the
terms described in the applicable prospectus supplement. Underwriters and
dealers who may participate in any at-the-market offerings will be described
in the prospectus supplement relating thereto.
Agents, underwriters and dealers may be entitled under relevant agreements
with us to indemnification by us against certain liabilities, including
liabilities under the Securities Act, or to contribution with respect to
payments which such agents, underwriters and dealers may be required to make
in respect thereof.
Any underwriter may engage in stabilizing and syndicate covering
transactions in accordance with Rule 104 under Regulation M. Rule 104
permits stabilizing bids to purchase the underlying security so long as the
stabilizing bids do not exceed a specified maximum. The underwriters may
over-allot shares of the securities in connection with an offering of
securities, thereby creating a short position in the underwriters' account.
Syndicate covering transactions involve purchases of the securities in the
open market after the distribution has been completed in order to cover
syndicate short positions. Stabilizing and syndicate covering transactions
may cause the price of the securities to be higher than it would otherwise
be in the absence of such transactions. These transactions, if commenced,
may be discontinued at any time.
We may elect to list any series of securities on an exchange but, unless
otherwise specified in the applicable prospectus supplement, we shall not be
obligated to do so. No assurance can be given as to the liquidity of the
trading market for any of the securities.
Agents, underwriters and dealers may be customers of, engage in transactions
with, or perform services for, us and our subsidiaries in the ordinary
course of business.
We may lend or pledge securities to a financial institution or other third
party that in turn may sell the securities using this prospectus. Such
financial institution or third party may transfer its short position to
investors in our securities or in connection with a simultaneous offering of
other securities offered by this prospectus.
To comply with applicable state securities laws, the securities offered by
this prospectus will be sold, if necessary, in such jurisdictions only
through registered or licensed brokers or dealers. In addition, securities
may not be sold in some states unless they have been registered or qualified
for sale in the applicable state or an exemption from the registration or
qualification requirement is available and is complied with.
The anticipated date of delivery of securities will be set forth in the
applicable prospectus supplement relating to each offer.
ANTITAKEOVER EFFECTS OF PROVISIONS OF OUR RESTATED CERTIFICATE OF
INCORPORATION AND BY-LAWS
Our by-laws provide that the Board of Directors shall consist of not less
than three or more than fifteen members, with the exact number to be
determined by the vote of not less than a majority of the Board of Directors
from time to time. Unless otherwise required by law, vacancies on the Board
of Directors, including vacancies resulting from an increase in the number
of directors or the removal of directors, may be filled by an affirmative
vote of a majority of the directors then in office. Although shareholders
holding a majority of shares may both appoint directors and remove directors
with or without cause, the ability of the Board of Directors to increase the
number of directors and to appoint directors may make it more difficult to
change the Board of Directors, and should promote the continuity of existing
management. These and other provisions also may have the effect of
deterring, preventing or delaying changes in control or management.
NEW JERSEY SHAREHOLDERS PROTECTION ACT
The New Jersey Shareholders Protection Act, NJSA 14A:10A?1 et seq., which we
refer to as New Jersey Act, prohibits certain New Jersey corporations, such
as Dataram, from entering into certain "business combinations" with an
"interested shareholder" (any person who is the beneficial owner of 10% or
more of such corporation's outstanding voting securities) for five years
after such person became an interested shareholder, unless the business
combination or the interested shareholder's acquisition of stock was
approved by the corporation's Board of Directors prior to such interested
shareholder's stock acquisition date. After the five-year waiting period
has elapsed, a business combination between such corporation and an
interested shareholder will be prohibited unless the business combination is
approved by the holders of at least two-thirds of the voting stock not
beneficially owned by the interested shareholder, or unless the business
combination satisfies the New Jersey Act's fair price provision intended to
provide that all shareholders (other than the interested shareholders)
receive a fair price for their shares.
The New Jersey Act defines "business combination" to include the following
transactions between a corporation or a subsidiary and an interested
shareholder or such interested shareholder's affiliates: (1) the merger or
consolidation of the corporation with the interested shareholder or any
corporation that after the merger or consolidation would be an affiliate or
associate of the interested shareholder; (2) any sale, lease, exchange,
mortgage, pledge, transfer or other disposition to or with the interested
shareholder, which has an aggregate market value equal to 10% or more of the
aggregate market value of all of the assets or of the outstanding stock, or
10% or more of the income of the corporation or its subsidiaries; (3) the
issuance or transfer to the interested shareholder of any stock of the
corporation having an aggregate market value equal to or greater than 5% of
the corporation's outstanding stock; (4) the adoption of a plan or proposal
for the liquidation or dissolution of the corporation proposed by the
interested shareholder; (5) any reclassification of securities proposed by
the interested shareholder that has the effect, directly or indirectly, of
increasing any class or series of stock that is owned by the interested
shareholder; and (6) the receipt by the interested shareholder of any loans
or other financial assistance from the corporation.
The New Jersey Act does not apply to certain business combinations,
including those with persons who acquired 10% or more of the voting power of
the corporation prior to the time the corporation was required to file
periodic reports pursuant to the Exchange Act or prior to the time the
corporation's securities began to trade on a national securities exchange.
LEGAL MATTERS
The validity of the shares of common stock and matters governed by New
Jersey law will be passed upon by Dillon, Bitar & Luther, L.L.C.
EXPERTS
The consolidated financial statements incorporated in this Prospectus by
reference from the Company's Annual Report on Form 10-K have been audited
by J.H. Cohn LLP, an independent registered public accounting firm, as
stated in their report which is incorporated herein by reference, which
report expresses an unqualified opinion on the consolidated financial
statements. Such financial statements have been so incorporated in
reliance upon the report of such firm given upon their authority as
experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly, and current reports, proxy statements and other
information with the Securities and Exchange Commission. You may read and
copy any document that we file at the Public Reference Room of the SEC
located at 100 F Street, N.E., Washington, D.C. 20549. You may obtain
information on the operation of the Public Reference Room by calling the SEC
at 1-800-SEC-0330. In addition, the SEC maintains an Internet site at
www.sec.gov that contains reports, proxy and information statements and
other information regarding registrants that file electronically, including
Dataram. Except as expressly set forth under "Information Incorporated by
Reference," we are not incorporating the contents of the SEC website into
this prospectus.
We have filed with the SEC a registration statement on Form S-3 (together
with all amendments and exhibits, the "registration statement") under the
Securities Act of 1933, as amended with respect to the offering of common
stock. This prospectus, which constitutes part of the registration
statement, does not contain all of the information set forth in the
registration statement. Certain parts of the registration statement are
omitted from the prospectus in accordance with the rules and regulations of
the SEC.
Our common stock is listed on The NASDAQ Capital Market and similar
information can be inspected and copied at the offices of the Financial
Industry Regulatory Authority, 1735 K Street, N.W., Washington, D.C. 20006.
INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to incorporate by reference in this prospectus the
information in documents we file with the SEC, which means that we can
disclose important information to you by referring you to those documents.
The information in this prospectus updates (and, to the extent of any
conflict, supersedes) information incorporated by reference that we have
filed with the SEC prior to the date of this prospectus. You should read
all of the information incorporated by reference because it is an important
part of this prospectus.
We incorporate by reference the documents listed below and any future
filings made with the SEC by us under Sections 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934 until we sell all of the securities to
which this prospectus and any supplemental prospectuses relate (other than
filings or portions of filings that are furnished under applicable SEC rules
rather than filed):
- Annual report on Form 10-K for the fiscal year ended April 30,
2010, filed with the SEC on July 29, 2010.
- Definitive Proxy Statement pursuant to Section 14(a) of the
Exchange Act, filed with the SEC on August 17, 2010.
- Quarterly Reports on Form 10-Q for the quarters ended July 31,
2010, October 31, 2010 and January 31, 2011, filed with the SEC
on September 13, 2010, December 13, 2010 and March 16, 2011,
respectively.
- Current Reports on Form 8-K filed with the SEC on September 28,
2010, December 22, 2010 and February 17, 2011.
- The description of our common stock contained in our Registration
Statement on Form 8-A filed with the SEC on January 27, 2000.
You may also find additional information about us, including the documents
mentioned above, on our website at www.dataram.com. The information
included or linked to this website is not a part of this prospectus.
We hereby undertake to provide without charge to each person, including any
beneficial owner, to whom a copy of this prospectus is delivered, upon
written or oral request of any such person, a copy of any and all of the
reports or documents that have been incorporated by reference in this
prospectus, other than exhibits to such documents unless such exhibits have
been specifically incorporated by reference thereto. Requests for such
copies should be directed to our Investor Relations department, at the
following address:
Dataram Corporation
P.O. Box 7528
Princeton, NJ 08543
(609) 799-0071
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the estimated costs and expenses of the sale
and distribution of the securities being registered, all of which are being
borne by the Registrant.
SEC registration fee $2,322.00
Printing and engraving fees $2,500.00
Legal fees and expenses $75,000.00
Accounting fees and expenses $5,000.00
Total $84,822.00
Item 15. Indemnification of Directors and Officers
The Company's Restated Certificate of Incorporation and By-Laws include
provisions (i) to reduce the personal liability of the Company's directors
for monetary damage resulting from breaches of their fiduciary duty and (ii)
to permit the Company to indemnify its directors and officers to the fullest
extent permitted by New Jersey law, including in circumstances in which
indemnification is otherwise discretionary under New Jersey law. The
Company has obtained directors' and officers' liability insurance that
insures such persons against the costs of defense, settlement, or payment of
a judgment under certain circumstances.
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits.
3(a) Restated Certificate of Incorporation. Incorporated by reference
from Exhibits to an Annual Report on Form 10-K for the year ended
April 30, 2008, filed with the Securities and Exchange Commission, SEC
file number 001-08266, on July 25, 2008.
3(b) By-Laws. Incorporated by reference from Exhibits to an Annual Report
on Form 10-K for the year ended April 30, 2008, filed with the
Securities and Exchange Commission, SEC file number 001-08266, on July
25, 2008.
4(a) Specimen certificate for shares of common stock.*
4(b) Form of Indenture.*
4(c) Form of Debt Security (included in Exhibit 4(b)).*
4(d) Form of Warrant Agreement.**
4(e) Form of Warrant.**
5.1 Opinion of Dillon, Bitar & Luther, L.L.C.*
23(a) Consent of J.H. Cohn LLP.*
23(b) Consent of Dillon, Bitar & Luther, L.L.C. (contained in Exhibit
5.1).*
24 Powers of Attorney (included on the signature pages to this Registration
Statement).*
25 Statement of Eligibility of Trustee for the Debt Securities.***
__________
* Filed herewith.
** To be filed, if necessary, on an exhibit to a post-effective amendment to
this registration statement or as on exhibit to a Current Report on Form 8-K
to be filed by the registrant in connection with a specific offering, and
incorporated herein by reference.
*** To be filed pursuant to Section 305(b)(2) of the Trust Indenture Act.
(b) Financial Statement Schedules.
Not applicable.
Item 17. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post?effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this 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 this
registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities
offered (if the total dollar value of securities
offered would not exceed that which was registered) and
any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement.
(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 the 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 purposes of determining liability under the
Securities Act to any purchaser:
(i) Each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed
prospectus was deemed part of and included in the
registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule
424(b)(2), (b)(5), or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii), or
(x) for the purpose of providing the information
required by section 10(a) of the Securities Act of 1933
shall be deemed to be part of and included in the
registration statement as of the earlier of the date
such form of prospectus is first used after
effectiveness or the date of the first contract of sale
of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that
date an underwriter, such date shall be deemed to be a
new effective date of the registration statement
relating to the securities in the registration
statement to which that prospectus relates, and the
offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Provided, however, that no statement made in a
registration statement or prospectus that is part of
the registration statement or made in a document
incorporated or deemed incorporated by reference into
the registration statement or prospectus that is part
of the registration statement will, as to a purchaser
with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made
in the registration statement or prospectus that was
part of the registration statement or made in any such
document immediately prior to such effective date.
(5) If the Registrant is subject to Rule 430C, each prospectus
filed pursuant to Rule 424(b) as part of a registration
statements relying on Rule 430B or other than prospectuses
filed in reliance on Rule 430A, shall be deemed to be a part of
and included in the registration statement as of the date it is
first used after effectiveness. Provided, however, that no
statement made in a registration statement or prospectus that
is part of the registration statement or made in a document or
prospectus that is part of the registration statement will, as
to a purchaser with a time of contract of sale prior to such
first use, supersede or modify any statement that was made in
the registration statement or made in any such document
immediately prior to such date of first use.
(6) That, for the purpose of determining liability of the
registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities: The undersigned
registrant undertakes that in a primary offering of securities
of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered
or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such
securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned registrant relating to the offering
required to be filed pursuant to Rule 424 under the
Securities Act of 1933;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant
or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material
information about the undersigned registrant or its
securities provided by or on behalf of the undersigned
registrant; and
(iv) Any other communication that is an offer in the
offering made by the undersigned registrant to the
purchaser.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to section 13(a)
or section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to section 15(d) of the Securities Exchange Act of 1934),
that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(c) With respect to any applicable warrant offering, the undersigned
registrant hereby undertakes to supplement the prospectus, after the
expiration of the subscription period, to set forth the results of
the subscription offer, the transactions by the underwriters during
the subscription period, the amount of unsubscribed securities to be
purchased by the underwriters, and the terms of any subsequent
reoffering thereof. If any public offering by the underwriters is to
be made on terms differing from those set forth on the cover page of
the prospectus, a post-effective amendment will be filed to set
forth the terms of such offering.
(d) With respect to any indenture, the undersigned registrant hereby
undertakes to file an application for the purpose of determining the
eligibility of the trustee to act under subsection (a) of section
310 of the Trust Indenture Act ("Act") in accordance with the rules
and regulations prescribed by the Commission under section 305(b)(2)
of the Act.
(e) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions
described under Item 15 above, or otherwise, the registrant has been
advised that in the opinion of Securities and Exchange Commission
such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and
will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant,
Dataram Corporation, 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 West Windsor, State
of New Jersey, on the 31st day of March, 2011.
DATARAM CORPORATION
By: /s/ MARK E. MADDOCKS
______________________
Mark E. Maddocks
Vice President, Finance
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints and
hereby authorizes John H. Freeman and Mark E. Maddocks, severally, such
person's true and lawful attorneys-in-fact, with full power of substitution
or resubstitution, for such person and in his name, place and stead, in any
and all capacities, to sign on such person's behalf, individually and in
each capacity stated below, any and all amendments, including post-effective
amendments to this Form S-3, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Commission
granting unto said attorneys-in-fact, full power and authority to do and
perform each and every act and thing requisite or necessary to be done in
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, or their substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of
the registrant in the capacities indicated, on March 31, 2011.
Date: March 31, 2011 By: /s/ ROGER C. CADY
------------------------------
Roger C. Cady, Chairman of the
Board of Directors
Date: March 31, 2011 By: /s/ JOHN H. FREEMAN
------------------------------
John H. Freeman, President,
Chief Executive Officer and
Director
Date: March 31, 2011 By: /s/ THOMAS A. MAJEWSKI
-------------------------------
Thomas A. Majewski, Director
Date: March 31, 2011 By: /s/ ROSE ANN GIORDANO
-----------------------------
Rose Ann Giordano, Director
Date: March 31, 2011 By: /s/ MARK E. MADDOCKS
------------------------------
Mark E. Maddocks
Vice President, Finance
(Principal Financial & Accounting Officer)
EX-4
2
stkcert.txt
EXHIBIT 4(A) SPECIMEN CERTIFICATE FOR SHARES OF COMMON STOCK
EXHIBIT 4(A) Specimen certificate for shares of common stock
Number Shares
____ Dataram Corporation _____
Incorporated Under the Laws of the State of New Jersey
Common Stock Common Stock
CUSIP 238108 20 3
THIS IS TO CERTIFY THAT XXXXX_____XXXXXXX
XXXXXX_____XXXXXX
XXXXXXX_____XXXXX
[name] XXXXXXXX_____XXXX
[address] XXXXXXXXX_____XXX
XXXXXXXXXX_____XX
Is the owner of __________
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK,
$1.00 PAR VALUE PER SHARE, OF
Dataram Corporation
transferable on the books of the Corporation by the registered holder hereof
in person or by duly authorized attorney, upon surrender of this certificate
properly endorsed.
This certificate and the shares represented hereby are issued and shall
be held subject to all of the provisions of the Certificate of Incorporation,
as amended, of the Corporation (a copy of which is on file with the Transfer
Agent) to all of which the holder of this certificate, by acceptance hereof,
assents.
This certificate is not valid until countersigned and registered by the
Transfer Agent and Registrar.
Witness the facsimile signatures of its duly authorized officers.
Dated: [date]
/s/ John H. Freeman /s/ Thomas J. Bitar
Chairman & Chief Executive Officer Secretary
EX-4
3
indt2011.txt
EXHIBIT 4(B) FORM OF INDENTURE
EXHIBIT 4.2
DATARAM CORPORATION
as Issuer
AND
______________________
as Trustee
Indenture
Dated as of , 2011
Certain Sections of this Indenture relating to Sections 310 through 318 of
the Trust Indenture Act of 1939:
Trust Indenture Indenture
Act Section Section
? 310 (a) (1) 6.09
(a) (2) 6.09
(a) (3) Not Applicable
(a) (4) Not Applicable
(b) 6.08
6.10
? 311 (a) 6.13
(b) 6.13
? 312 (a) 3.13
7.01
7.02 (a)
(b) 7.02(b)
(c) Not Applicable
? 313 (a) 7.03(a)
(b) (1) 7.03(a)
(b) (2) 7.03(a)
(c) (1) 7.03(a)
(d) 7.03(b)
? 314 (a) 10.05
(b) Not Applicable
(c) (1) 1.02
(c) (2) 1.02
(c) (3) Not Applicable
(d) Not Applicable
(e) 1.02
(f) Not Applicable
? 315 (a) 6.01
(b) 6.02
(c) 6.01
(d) 6.01
(e) 5.14
? 316 (a) (1) (A) 5.12
(a) (1) (B) 5.13
(a) (2) Not Applicable
(b) 5.08
(c) 1.04(c)
? 317 (a) (1) 5.03
(a) (2) 5.04
(b) 10.03
? 318 (a) 1.07
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1. DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION
SECTION 1.01 Definitions
SECTION 1.02 Compliance Certificates and Opinions
SECTION 1.03 Form of Documents Delivered to Trustee
SECTION 1.04 Acts of Holders; Record Dates
SECTION 1.05 Notices, Etc., to Trustee and Company
SECTION 1.06 Notice to Holders; Waiver
SECTION 1.07 Conflict with Trust Indenture Act
SECTION 1.08 Effect of Headings and Table of Contents
SECTION 1.09 Successors and Assigns
SECTION 1.10 No Recourse Against Others
SECTION 1.11 Separability Clause
SECTION 1.12 Benefits of Indenture
SECTION 1.13 Governing Laws
SECTION 1.14 Legal Holidays
SECTION 1.15 Patriot Act
ARTICLE 2. SECURITY FORMS
SECTION 2.01 Forms Generally
SECTION 2.02 Form of Face of Security
SECTION 2.03 Form of Reverse of Security
SECTION 2.04 Form of Trustee's Certificate of Authentication
ARTICLE 3. THE SECURITIES
SECTION 3.01 Amount Unlimited; Issuable in Series
SECTION 3.02 Denominations
SECTION 3.03 Execution, Authentication, Delivery and Dating
SECTION 3.04 Temporary Securities
SECTION 3.05 Registration; Registration of Transfer and Exchange
SECTION 3.06 Mutilated, Destroyed, Lost and Stolen Securities
SECTION 3.07 Payment of Interest; Interest Rights Preserved
SECTION 3.08 Persons Deemed Owners
SECTION 3.09 Book-entry Provisions for Global Securities
SECTION 3.10 Cancellation
SECTION 3.11 Treasury Securities
SECTION 3.12 CUSIP Numbers
SECTION 3.13 Holder Lists
SECTION 3.14 Computation of Interest
ARTICLE 4. SATISFACTION AND DISCHARGE
SECTION 4.01 Satisfaction and Discharge of Indenture
SECTION 4.02 Application of Trust Money
ARTICLE 5. REMEDIES
SECTION 5.01 Events of Default
SECTION 5.02 Acceleration of Maturity; Rescission and Annulment
SECTION 5.03 Collection of Indebtedness and Suits for Enforcement by
Trustee
SECTION 5.04 Trustee May File Proofs of Claim
SECTION 5.05 Trustee May Enforce Claims Without Possession of
Securities
SECTION 5.06 Application of Money Collected
SECTION 5.07 Limitation on Suits
SECTION 5.08 Unconditional Right of Holders to Receive Principal and
Interest
SECTION 5.09 Restoration of Rights and Remedies
SECTION 5.10 Rights and Remedies Cumulative
SECTION 5.11 Delay or Omission Not Waiver
SECTION 5.12 Control by Holders
SECTION 5.13 Waiver of Past Defaults
SECTION 5.14 Undertaking for Costs
SECTION 5.15 Waiver of Stay or Extension Laws
ARTICLE 6. THE TRUSTEE
SECTION 6.01 Certain Duties and Responsibilities
SECTION 6.02 Notice of Defaults
SECTION 6.03 Certain Rights of Trustee
SECTION 6.04 Trustee's Disclaimer
SECTION 6.05 May Hold Securities
SECTION 6.06 Money Held in Trust
SECTION 6.07 Compensation and Reimbursement
SECTION 6.08 Disqualification; Conflicting Interests
SECTION 6.09 Corporate Trustee Required; Eligibility
SECTION 6.10 Resignation and Removal; Appointment of Successor
SECTION 6.11 Acceptance of Appointment by Successor
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business
SECTION 6.13 Preferential Collection of Claims Against
ARTICLE 7. HOLDERS' LISTS AND REPORTS BY TRUSTEE
SECTION 7.01 Company to Furnish Trustee Names and Addresses of Holders
SECTION 7.02 Preservation of Information; Communications to Holders
SECTION 7.03 Reports by Trustee
ARTICLE 8. CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01 Company May Consolidate, Etc., Only on Certain Terms
SECTION 8.02 Successor Substituted
ARTICLE 9. SUPPLEMENTAL INDENTURES
SECTION 9.01 Supplemental Indentures Without Consent of Holders
SECTION 9.02 Supplemental Indentures with Consent of Holders
SECTION 9.03 Limitations
SECTION 9.04 Execution of Supplemental Indentures
SECTION 9.05 Effect of Supplemental Indentures
SECTION 9.06 Conformity with Trust Indenture Act
SECTION 9.07 Reference in Securities to Supplemental Indentures
SECTION 9.08 Trustee Protected
ARTICLE 10. COVENANTS SECTION
SECTION 10.01 Payment of Principal and Interest
SECTION 10.02 Maintenance of Office or Agency
SECTION 10.03 Money for Security Payments to Be Held in Trust
SECTION 10.04 Existence
SECTION 10.05 Reports and Delivery of Certain Information
SECTION 10.06 Resale of Certain Securities
SECTION 10.07 Book-Entry System
ARTICLE 11. OPTIONAL REDEMPTION OF SECURITIES
SECTION 11.01 Applicability of Article
SECTION 11.02 Election to Redeem; Notice to Trustee
SECTION 11.03 Selection by Trustee of Securities to Be Redeemed
SECTION 11.04 Notice of Redemption
SECTION 11.05 Deposit of Redemption Price
SECTION 11.06 Securities Payable on Redemption Date
SECTION 11.07 Securities Redeemed in Part
ARTICLE 12. DEFEASANCE AND COVENANT DEFEASANCE
SECTION 12.01 Company's Option to Effect Defeasance or Covenant
Defeasance
SECTION 12.02 Defeasance and Discharge
SECTION 12.03 Covenant Defeasance
SECTION 12.04 Conditions to Defeasance or Covenant Defeasance
SECTION 12.05 Deposited Money and U.S. Government Obligations to be
Held in Trust; Miscellaneous Provisions
SECTION 12.06 Reinstatement
ARTICLE 13. SINKING FUNDS
SECTION 13.01 Applicability of Article
SECTION 13.02 Satisfaction of Sinking Fund Payments with Securities
SECTION 13.03 Redemption of Securities for Sinking Fund
INDENTURE, dated as of , 2011, between Dataram
Corporation, a corporation duly organized and existing under the laws of the
State of New Jersey, as Issuer (herein called the "Company"), having its
principal office at 186 Princeton-Hightstown Road, West Winsor, New Jersey
08550, and ______________, a __________ duly organized under the laws of the
State of _________, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture
to provide for the issuance from time to time of its debentures, notes or
other evidences of indebtedness (herein called the "Securities"), to be
issued in one or more series as provided in this Indenture.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchases of the Securities
by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof,
as follows:
ARTICLE 1.
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01 Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(i)the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
(ii) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(iii) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
(iv) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Act," when used with respect to any Holder, has the meaning specified in
Section 1.04.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Board of Directors" means, with respect to any Person, either the board of
directors of such Person or any duly authorized committee of that board.
"Board Resolution" means, with respect to any Person, a copy of a resolution
certified by the Secretary or an Assistant Secretary of such Person to have
been duly adopted by the Board of Directors, or alternatively, in the case
of the Company, by any committee of the Board of Directors or a committee of
other officers or representatives of the Company pursuant to authority duly
delegated to it by the Board of Directors of the Company, and to be in full
force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day", when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment or the Corporate Trust Office
are authorized or obligated by law to close.
"Capital Stock" means any and all shares, interests, participations, rights
or other equivalents (however designated) of corporate stock, including,
without limitation, with respect to partnerships, partnership interests
(whether general or limited) and any other interest or participation that
confers on a Person the right to receive a share of the profits and losses
of, or distributions of assets of, such partnership.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall
mean such successor Person.
"Company Request" or "Company Order" means a written request or order signed
in the name of the Company by both (i) any of its Chairman of the Board, its
Chief Executive Officer, its Chief Financial Officer, its Chief Legal
Officer or any Vice President, and (ii) any of its Treasurer, its Secretary,
any Assistant Secretary or any Vice President (other than a Vice President
signing pursuant to clause (i) above), and delivered to the Trustee.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable
to the remaining term of the Securities that would be utilized, at the time
of selection and in accordance with customary financial practice, in pricing
new issues of corporate debt securities of comparable maturity to the
remaining term of the Securities. "Independent Investment Banker" means one
of the Reference Treasury Dealers appointed by the Company.
"Comparable Treasury Price" means, with respect to any Redemption Date, as
determined by the Company (i) the average of the Reference Treasury Dealer
Quotations for such Redemption Date, after excluding the highest and lowest
such Reference Treasury Dealer Quotations, or (ii) if the Company obtains
fewer than four such Reference Treasury Dealer Quotations, the average of
all such quotations.
"Consolidated Net Tangible Assets" means the total assets which under United
States Generally Accepted Accounting Principles ("GAAP") would be included
on the most recent audited annual consolidated balance sheet of the Company,
after deducting therefrom, without duplication, the sum of (i) all current
liabilities and (ii) all goodwill, trade names, trademarks, patents,
unamortized debt discount and related expense and other like intangibles,
which in each case under GAAP would be included on such consolidated balance
sheet.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at ________________.
"Corporation" means a corporation, association, company, joint-stock company
or business trust.
"Default" means any event that is or with the passage of time or the giving
of notice or both would become an Event of Default.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Defeasance" has the meaning specified in Section 12.02.
"Depositary" means The Depository Trust Company until a successor Depositary
shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Depositary" shall mean such successor Depositary.
"Dollars" and "$" means the currency of The United States of America.
"ECU" means the European Currency Unit as determined by the Commission of
the European Union.
"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" means the U.S. 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.
"GAAP" means generally accepted accounting principles 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, in each case, as in effect in the
United States on the date hereof.
"Global Security" means a Security in global form registered in the Security
Register in the name of a Depositary or a nominee thereof.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" means, with respect to any Person, any indebtedness of such
Person, whether or not contingent, in respect of (i) borrowed money
evidenced by bonds, notes, debentures or similar instruments, (ii)
indebtedness secured by a mortgage, pledge, lien, charge, encumbrance of any
security interest existing on property owned by such Person, (iii) the
reimbursement obligations, contingent or otherwise, in connection with any
letters of credit actually issued or amounts representing the balance that
constitutes an accrued expense or trade payable or (iv) any lease of
property by such Person as lessee which is reflected in such Person's
consolidated balance sheet as a capitalized lease in accordance with GAAP,
in the case of items of Indebtedness under (i) through (iii) above to the
extent that any such items (other than letters of credit) would appear as a
liability on such Person's consolidated balance sheet in accordance with
GAAP, and also includes, to the extent not otherwise included, any
obligation by such Person to be liable for, or to pay, as obligor,
guarantor or otherwise (other than for purposes of collection in the
ordinary course of business), Indebtedness of another Person.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof, including, the terms of a particular series of Securities
established pursuant to the applicable provisions hereof, and for all
purposes of this instrument and any such supplemental indenture or terms
of a particular series, the provisions of the Trust Indenture Act that
are deemed to be a part of and govern this instrument and any such
supplemental indenture, respectively.
"Interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only upon Maturity, means interest payable
after Maturity.
"Interest Payment Date" means, with respect to any Security, the Stated
Maturity of an installment of interest on such Security.
"Investments" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the forms of loans,
advances or capital contributions, purchases or other acquisitions for
consideration of Indebtedness, Equity Interests or other securities and all
other items that are or would be classified as investments on a balance
sheet prepared in accordance with GAAP.
"Investment Company Act" means the Investment Company Act of 1940 and any
statute successor thereto, in each case as amended from time to time.
"Issue Date" means, with respect to any series of Securities, the date such
series of Securities is originally issued under this Indenture.
"Lien" means, with respect to any asset, any mortgage, lien, pledge, charge,
security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any
lease in the nature thereof, any option or other agreement to sell or give
a security interest in and any filing of or agreement to give any financing
statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction).
"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, on a Redemption Date or by
declaration of acceleration or otherwise.
"Officers' Certificate" means a certificate signed by both (i) any of the
Chairman of the Board, the Chief Executive Officer, the Chief Financial
Officer, the Chief Legal Officer or any Vice President, and (ii) any of the
Treasurer, the Secretary, any Assistant Secretary, or any Vice President
(other than a Vice President signing pursuant to clause (i) above), of the
Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be external
or in-house counsel for the Company, and who shall be acceptable to the
Trustee.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
"Outstanding," when used with respect to any Securities, means, as of the
date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company shall act
as its own Paying Agent) for the Holders of such Securities; provided
that if such Securities are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given to the Holders
as herein provided, or provision satisfactory to a Responsible Officer
of the Trustee shall have been made for giving such notice; and
(iii) Securities which have been paid or in exchange for or in lieu of
which other Securities have been authenticated and delivered pursuant
to this Indenture, other than any such Securities in respect of which
there shall have been presented to the Trustee proof satisfactory to it
that such Securities are held by a protected purchaser in whose hands
such Securities are valid obligations of the Company;
provided, however, that, in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, (i) the principal amount of an Original Issue Discount
Security which shall be deemed to be Outstanding shall be the amount of
the principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section
5.02, (ii) the principal amount of a Security denominated in one or more
foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such
date in the manner provided as contemplated by Section 3.01, of the
principal amount of such Security and (iii) Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor shall be disregarded and deemed
not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities
which a Responsible Officer of the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect
to such Securities and that the pledgee is not the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, interest on or Redemption Price of any Securities on behalf of
the Company. The Trustee shall initially be the Paying Agent.
"Permitted Liens" means any of the following: (a) Liens on any Principal
Property acquired by the Company or a Subsidiary after the date of this
Indenture to secure or provide for the payment or financing of all or any
part of the purchase price thereof or construction of fixed improvements
thereon (prior to, at the time of or within 180 days after the latest of
the acquisition, completion of construction or commencement of commercial
operation thereof); (b) Liens on any shares of stock or Principal Property
acquired by the Company or a Subsidiary after the date of this Indenture
existing at the time of such acquisition; (c) Liens on any shares of stock
or Principal Property of a corporation which is merged into or consolidated
with the Company or a Subsidiary or substantially all of the assets of which
are acquired by the Company or a Subsidiary; (d) Liens securing Indebtedness
of a Subsidiary owing to the Company or another Subsidiary; (e) Liens
existing at the date of the Indenture; (f) Liens on any Principal Property
being constructed or improved securing loans to finance such construction or
improvements; (g) Liens in favor of governmental bodies of the United
States or any State thereof or any other country or political subdivision
thereof to secure partial, progress or advance payments pursuant to any
contract or statute, or to secure any Indebtedness incurred or guaranteed
for the purpose of financing all or any part of the cost of acquiring,
constructing or improving the property subject to such Liens; (h) Liens
securing taxes, assessments or governmental charges or levies not yet
delinquent, or already delinquent but the validity of which is being
contested in good faith; (i) Liens arising by reason of deposits necessary
to qualify the Company or any Subsidiary to conduct business, maintain
self-insurance, or obtain the benefit of, or comply with, any law; (j) Liens
arising out of judgments or awards against the Company or any Subsidiary
with respect to which the Company or such Subsidiary shall in good faith be
prosecuting an appeal or proceedings for review; provided that the Company
or such Subsidiary shall have secured, within 60 days after the creation
thereof, an effective stay of execution pending such appeal or review; and
(k) extensions, renewals or replacement of Liens referred to in the
foregoing clauses provided that the Indebtedness secured is not increased
nor the Lien extended to any additional assets.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, trust, unincorporated organization or government or
any agency or political subdivision thereof.
"Physical Securities" has the meaning specified in Section 2.01.
"Place of Payment", when used with respect to the Securities of any series,
means the place or places where the principal of and any premium or interest
on the Securities of that series are payable specified as required by
Section 3.01.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.06 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed
to evidence the same debt as the mutilated, destroyed, lost or stolen
Security.
"Principal Property" means any manufacturing plant, testing or research
and development facility, distribution facility, processing plant or
warehouse (including, without limitation, land, fixtures and equipment),
owned or leased by the Company or any domestic Subsidiary (including any
of the foregoing acquired or leased after the date of this Indenture) and
located within the United States of America, its territories and
possessions, unless the Board of Directors of the Company determines in
good faith that such plant or facility is not of material importance to
the total business conducted by the Company and its consolidated
Subsidiaries.
"Redemption Date" when used with respect to any Security to be redeemed,
means any date which is a Business Day fixed for such redemption by the
Company pursuant to Section 11.04 of this Indenture.
"Redemption Price" when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Reference Treasury Dealer Quotations" means, with respect to each Reference
Treasury Dealer and any Redemption Date, the average, as determined by the
Company, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Company by such Reference Treasury Dealer, at 5:00 p.m.,
New York City time, on the third Business Day preceding such Redemption
Date.
"Reference Treasury Dealers" means any four nationally recognized investment
banking firms, and their successors, selected by the Company that are each
also a primary U.S. Government securities dealer (a "Primary Treasury Dealer");
provided, however, that if any Reference Treasury Dealer shall cease to be a
primary U.S. Government securities dealer, the Company shall substitute
another nationally recognized investment banking firm that is a Primary
Treasury Dealer.
"Remaining Scheduled Payments" means, with respect to each Security to be
redeemed, the remaining scheduled payments of principal thereof and interest
thereon that would be due after the related Redemption Date but for that
redemption; provided, however, that if such Redemption Date is not an
Interest Payment Date with respect to such Security, the amount of the next
succeeding scheduled interest payment thereon shall be reduced by the amount
of interest accrued thereon to such Redemption Date.
"Regular Record Date" for the interest payable on any Interest Payment Date
with respect to any Security, means such date or dates specified in the
Security (whether or not a Business Day), as the case may be, immediately
preceding the relevant Interest Payment Date relating to such Security.
"Responsible Officer" means any officer of the Trustee within the
Corporate Trust Office of the Trustee with direct responsibility for the
administration of this Indenture and also, with respect to a particular
matter, any other officer of the Trustee to whom such matter is referred
because of such officer's knowledge and familiarity with the particular
subject.
"Securities" has the meaning specified in the first paragraph of the
Recitals of the Company.
"Securities Act" means the U.S. Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 3.05.
"Significant Subsidiary" means any direct or indirect Subsidiary of the
Company that generates 5% (five percent) or more of the Company's revenue
or income or that holds 5% (five percent) or more of the Company's assets.
"Special Record Date" for the payment of Defaulted Interest means a date
fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity," when used with respect to the Securities or any
installment of interest thereon, means the date specified in the Securities
as the fixed date on which the principal thereof or such installment of
interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means
stock which ordinarily has voting power for the election of directors,
whether at all times or only so long as no senior class of stock has such
voting power by reason of any contingency.
"Treasury Rate" means, with respect to any Redemption Date, the rate per
annum equal to the semiannual equivalent yield to maturity (computed as
of the second Business Day immediately preceding that Redemption Date) of
the Comparable Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for that Redemption Date.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that
in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 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 such successor Trustee; provided, however, that if at any time there
is more than one such Person, "Trustee" as used with respect to the
Securities of any series shall mean only the Trustee with respect to
Securities of that series.
"U.S. Government Obligation" has the meaning specified in Section 12.04.
"Vice President," when used with respect to the Company, means any vice
president, whether or not designated by a number or a word or words added
before or after the title "vice president".
SECTION 1.02 Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the
Trust Indenture Act. Each such certificate or opinion shall be given in
the form of an Officers' Certificate, if to be given by an officer of the
Company, or an Opinion of Counsel, if to be given by counsel, stating that
in the opinion of the signers or such counsel, as the case may be, all
conditions precedent, if any, provided for in this Indenture and the
requirements of the Trust Indenture Act relating to the proposed action
have been complied with.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include
(i) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(ii) 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;
(iii) a statement that, in the opinion of each such individual, such
individual has made such examination or investigation as is necessary
to enable such individual to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 1.03 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one
such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some
matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which his certificate
or opinion is based are erroneous. Any such certificate or Opinion of
Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of
the Company stating that the information with respect to such factual
matters is in the possession of the Company, unless such counsel knows, or
in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 1.04 Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent
duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. If any Securities are denominated in a currency
other than that of the United States, then for the purposes of determining
whether the Holders of the requisite principal amount of Securities have
taken any action with respect to the Securities of more than one series as
herein described, the principal amount of such Securities shall be deemed
to be that amount of United States dollars that could be obtained for such
principal amount on the basis of the spot rate of exchange into United
States dollars for the currency in which such Securities are denominated
(as evidenced to the Trustee by an Officers' Certificate) as of the date
the taking of such action by the Holders of such requisite principal amount
is evidenced to the Trustee as provided in the immediately preceding
sentence. Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 6.01)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by a signer acting in a capacity other
than his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The Company may fix any day as the record date for the purpose of
determining the Holders entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action, or to
vote on any action, authorized or permitted to be given or taken by
Holders. If not set by the Company prior to the first solicitation of a
Holder made by any Person in respect of any such action, or, in the case
of any such vote, prior to such vote, the record date for any such action
or vote shall be the 30th day (or, if later, the date of the most recent
list of Holders required to be provided pursuant to Section 7.01) prior to
such first solicitation or vote, as the case may be. With regard to any
record date, only the Holders on such date (or their duly designated
proxies) shall be entitled to give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefore or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee
or the Company in reliance thereon, whether or not notation of such action
is made upon such Security.
SECTION 1.05 Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(i) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at _____________________, with a copy to
__________________, or
(ii) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the
Company addressed to it at the address of its principal office
specified in the first paragraph of this instrument or at any other
address previously furnished in writing to the Trustee by the Company,
Attention: Office of the Chief Legal Officer.
SECTION 1.06 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at his address as it appears in the
Security Register not later than the latest date (if any), and not earlier
than the earliest date (if any), prescribed for the giving of such notice.
In any case where notice to Holders is given by mail, neither the failure
to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect
to other Holders. If a notice or communication is mailed or published in
the manner provided for above, within the time prescribed, it is duly
given, whether or not the Holder receives it.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 1.07 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act that is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision
of this Indenture modifies or excludes any provision of the Trust Indenture
Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the
case may be.
SECTION 1.08 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.09 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 1.10 No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company shall
not have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Securityholder by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the Securities.
SECTION 1.11 Separability Clause.
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 1.12 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their respective
successors hereunder and the Holders of Securities, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
SECTION 1.13 Governing Laws.
THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE, THE SECURITIES AND ANY GUARANTEES OF THE SECURITIES
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
SECTION 1.14 Legal Holidays.
In any case where any Interest Payment Date or Stated Maturity of any
Security shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal need not be made at such Place of Payment
on such date, but may be made on the next succeeding Business Day at such
Place of Payment with the same force and effect as if made on the Interest
Payment Date or at the Stated Maturity, provided that no interest shall
accrue with respect to such payment for the period from and after such
Interest Payment Date or Stated Maturity or, as the case may be.
SECTION 1.15 Patriot Act.
The parties hereto acknowledge that in accordance with Section 326 of the
USA Patriot Act, _______________, like all financial institutions and in
order to help fight the funding of terrorism and money-laundering, are
required to obtain, verify, and record information that identifies each
person or legal entity that establishes a relationship or opens an account.
The parties to this Agreement agree that they will provide ______________
with such information as it may request in order for _______________ to
satisfy the requirements of the USA Patriot Act.
ARTICLE 2.
SECURITY FORMS
SECTION 2.01 Forms Generally.
The Securities of each series and the Trustee's certificates of
authentication shall be in substantially the forms set forth in this Article,
or in such other form as shall be established by or pursuant to (i) a Board
Resolution of the Company, or (ii) in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of
dentification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or Depositary
therefor, the Internal Revenue Code of 1986, as amended, and regulations
thereunder, or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution thereof.
Unless it is determined pursuant to a Company Order or as otherwise provided
in this Indenture that non-Global Securities ("Physical Securities") are to
be issued, the Securities of each series shall be issued in the form of
Global Securities.
SECTION 2.02 Form of Face of Security.
[THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR
A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART
MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A
NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE].
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC"), A NEW YORK CORPORATION, TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF (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 THEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
Dataram Corporation
[Title of Security]
CUSIP No. $
Dataram Corporation, a corporation duly organized and existing under the
laws of New Jersey (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to __________, or registered assigns,
the principal sum of Dollars [ INCLUDE IF SECURITY IS A GLOBAL SECURITY -
(which amount may from time to time be increased or decreased by adjustments
made on the records of the Trustee, as custodian for the Depositary, in
accordance with the rules and procedures of the Depositary)] on , and to pay
interest thereon from or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, [semiannually] on and
in each year, commencing at the rate of % per annum, until the principal
hereof is paid or made available for payment.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular Record Date for such
interest, which shall be the or (whether or not a Business Day), as the
case may be, immediately preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to
be payable to the Holder on such Regular Record Date and may either be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest to be fixed by the Trustee,
notice whereof shall be given to Holders of Securities not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said
Indenture. Payment of the principal of and interest on this Security will
be made at the office or agency of the Company maintained for that purpose
in The City of New York (which may be an office of the Trustee or an
affiliate of the Trustee), in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public
and private debts; provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security
Register. If this Security is a Global Security, then notwithstanding the
foregoing, each such payment will be made in accordance with the procedures
of the Depositary as then in effect.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
Dataram Corporation
By
______________________________________
Name:
Title:
Attest:
_____________________________________
Name:
Title:
SECTION 2.03 Form of Reverse of Security.
This Security is one of a duly authorized issue of Securities of the
Company (herein called the "Securities"), issued and to be issued in one
or more series under an Indenture, dated as of [ ], 2011 (herein called
the "Indenture"), between the Company and _____________, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered.
[The Securities are redeemable in whole or in part, at the option of the
Company at any time and from time to time, on not less than 30 or more than
60 days' prior notice mailed to the Holders of the Securities, at a
Redemption Price equal to the greater of (i) 100% of the principal amount
of the Securities to be redeemed and (ii) the sum of the present values
of the Remaining Scheduled Payments thereon discounted to the Redemption
Date on a [semiannual] basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate plus basis points, together
in either case with accrued interest on the principal amount being
redeemed to the Redemption Date.
Subject to payment by the Company of a sum sufficient to pay the amount
due on redemption, interest on this Security (or portion hereof if this
Security is redeemed in part) shall cease to accrue upon the Redemption
Date of this Security (or portion hereof if this Security is redeemed in
part).]
[The Securities do not have the benefit of a sinking fund.]
[INCLUDE IF SECURITY IS A GLOBAL SECURITY - In the event of a deposit
or withdrawal of an interest in this Security, including an exchange,
transfer, repurchase or conversion of this Security in part only, the
Trustee, as custodian for the Depositary, shall make an adjustment on its
records to reflect such deposit or withdrawal in accordance with the rules
and procedures of the Depositary.]
[INCLUDE IF THE SECURITY IS NOT AN ORIGINAL ISSUE DISCOUNT SECURITY - If
an Event of Default with respect to Securities of this series shall occur
and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.]
[INCLUDE IF THE SECURITY IS AN ORIGINAL ISSUE DISCOUNT SECURITY - If an
Event of Default with respect to Securities of this series shall occur and
be continuing, an amount of principal of the Securities of this series may
be declared due and payable in the manner and with the effect provided in
the Indenture. Such amount shall be equal to [- insert formula for
determining the amount]. Upon payment (i) of the amount of principal so
declared due and payable and (ii) of interest on any overdue principal,
premium and interest (in each case to the extent that the payment of such
interest shall be legally enforceable), all of the Company's obligations in
respect of the payment of the principal of and premium and interest, if any,
on the Securities of this series shall terminate.]
[INCLUDE IF THE SECURITY IS AN ORIGINAL ISSUE DISCOUNT SECURITY - This
Security was issued with Original Issue Discount under Section 1272, 1273
and 1275 of the Internal Revenue Code of 1986, as amended. You may contact
the Chief Financial Officer of the Company, at Dataram Corporation, ___, who
will provide you with any required information regarding the Original Issue
Discount.]
The Indenture contains provisions for defeasance at any time, upon
compliance with certain conditions set forth therein, of (i) the entire
Indebtedness evidenced by this Security or (ii) certain restrictive
covenants and Events of Default with respect to this Security.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of each series to be
affected. The Indenture also contains provisions permitting the Holders
of specified percentages in aggregate principal amount of the Outstanding
Securities of each series, on behalf of the Holders of all the Securities
of such series, to waive compliance by the Company with certain provisions
of the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders
of this Security and of any Security issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously
given the Trustee written notice of a continuing Event of Default with
respect to the Securities of this series, the Holders of not less than 25%
in principal amount of the Outstanding Securities of this series shall have
made written request to the Trustee to institute proceedings in respect of
such Event of Default as Trustee and offered the Trustee indemnity
satisfactory to the Trustee, and the Trustee shall not have received from
the Holders of a majority in principal amount of Outstanding Securities of
this series a direction inconsistent with such request, and shall have
failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any
payment of principal hereof or interest hereon on or after the respective
due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this
Security at the times, rate, and in the currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at
the office or agency of the Company in The City of New York, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory
to the Company and the Security Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series, of authorized denominations and for
the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple of $1,000 in excess
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
ASSIGNMENT FORM
If you want to assign this Security, fill in the form below and have your
signature guaranteed:
I or we assign and transfer this Security to:
Print or type name, address and zip code and social security or tax ID
number of assignee)
and irrevocably appoint __________________________________________________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Date: Signed:
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee:
NOTICE: To be executed by an executive officer.
SECTION 2.04 Form of Trustee's Certificate of Authentication.
This is one of the Securities referred to in the within-mentioned Indenture.
____________________,
as Trustee
By
Authorized Officer
ARTICLE 3.
THE SECURITIES
SECTION 3.01 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. Securities may differ
between series in respect of any matters, provided that all series of
Securities shall be equally and ratably entitled to the benefits of this
Indenture. There shall be (i) established in or pursuant to a Board
Resolution and (subject to Section 3.03) set forth, or determined in the
manner provided, in an Officers' Certificate, or (ii) established in one or
more indentures supplemental hereto, at or prior to the issuance of
Securities of any series:
(a) the title of the Securities of the series (which shall distinguish
the Securities of that particular series from the Securities of any other
series);
(b) the price or prices (expressed as a percentage of the principal
amount thereof) at which the Securities of the series will be issued;
(c) 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 3.04, 3.05, 3.06, 9.07 or 11.07 and except for
any Securities which, pursuant to Section 3.03 of the Indenture, shall
have not been issued and sold by the Company and are therefore deemed
never to have been authenticated and delivered hereunder);
(d) the date or dates on which the principal and premium, if any, of
the Securities of the series is payable;
(e) the Person to whom any interest, if any, on any Security of the
series shall be payable if other than as set forth in Section 3.07; 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 Interest Payment
Dates on which any such interest shall be payable and the Regular Record
Date, for the interest payable on any Interest Payment Date;
(f) the place or places where the principal of and any premium or
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
served, and the method of such payment, if by wire transfer, mail or other
means;
(g) if applicable, the period or periods within which, the price or p
rices at which and the terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option of the Company
and, if other than by a Board Resolution, the manner in which any election
by the Company to redeem the Securities shall be evidenced;
(h) the obligation, if any, of the Company to permit the Securities of
such Series to be converted into or exchanged for common stock of the
Company or other Securities or property of the Company and the terms and
conditions upon which such conversion or exchange shall be effected
(including, without limitation, the initial conversion or exchange price or
rate, the conversion or exchange period, any adjustment of the applicable
conversion or exchange price or rate and any requirements relative to the
reservation of such shares for purposes of conversion or exchange);
(i) if convertible or exchangeable, any applicable limitations on the
ownership or transferability of the Securities or property into which such
Securities are convertible or exchangeable;
(j) the obligation, if any, of the Company to redeem or purchase
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;
(k) the dates, if any, on which 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;
(l) if other than denominations of $1,000 and any integral multiple of
$1,000 in excess thereof, the denominations in which Securities of the
series shall be issuable;
(m) the forms of the Securities of the series in fully registered form
(and whether the Securities will be issuable as Global Securities);
(n) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 3.10;
(o) if applicable, that the Securities of the series, in whole or any
specified part, shall be defeasible pursuant to Article 12 and if other
than a Board Resolution, the manner in which any election by the Company
to defease those Securities shall be evidenced;
(p) whether the Securities of the series are to be issuable in whole or
in part in permanent global form, without coupons, and, if so, (i) the form
of any legend or legends which shall be borne by any such permanent Global
Security in addition to or in lieu of that set forth in Section 2.02, (ii)
any circumstances in addition to or in lieu of those set forth in Clause
(2) of the last paragraph of Section 3.05 in which such permanent Global
Security may be exchanged in whole or in part for Securities registered,
and in which any transfer of such permanent Global Security in whole or in
part may be registered, in the name of Persons other than the Depositary
for such permanent Global Security or a nominee thereof and (iii) the
Depositary with respect to any such permanent Global Security or
Securities;
(q) the currency of denomination of the Securities of the series, which
may be Dollars or any Foreign Currency, including, but not limited to, the
ECU, and if such currency of denomination is a composite currency other
than the ECU, the agency or organization, if any, responsible for overseeing
such composite currency;
(r) if the principal of, or any premium or interest on, any Securities
of the series is to be payable, at the election of the Company or the Holder
thereof, in one or more currencies or currency units other than that or
those in which such Securities are stated to be payable, the currency,
currencies or currency units in which the principal of or any premium or
interest on such Securities as to which such election is made shall be
payable, the periods within which and the terms and conditions upon which
such election is to be made and the amount so payable (or the manner in
which such amount shall be determined);
(s) 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;
(t) the provisions, if any, relating to any security or guarantee
provided for the Securities of the series, and any subordination in right of
payment, if any, of the Securities of the series;
(u) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to be
the principal amount of such Securities as of any such date for any
purpose thereunder or hereunder, including the principal amount thereof
which shall be due and payable upon any Maturity other than the Stated
Maturity or which shall be deemed to be Outstanding as of any date prior
to the Stated Maturity (or, in any such case, the manner in which such
amount deemed to be the principal amount shall be determined);
(v) any addition to 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 5.01;
(w) any addition to or change in the covenants set forth in Article Ten
which applies to any Securities of the series;
(x) any depositories, interest rate calculation agents, exchange rate
calculation agents or other agents with respect to Securities of such
series if other than those appointed herein;
(y) the terms, if any, on which Holders of Securities may convert or
exchange any Securities of the series into any securities of any Person;
and
(z) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 9.01(e)).
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to
the Board Resolution referred to above and (subject to Section 3.03) set
forth in the Officers' Certificate referred to above or in any such
indenture supplemental hereto. All Securities of any one series need not
be issued at the same time and may be issued from time to time, consistent
with the terms of this Indenture, if so provided by or pursuant to the
Board Resolution, supplemental indenture hereto or Officers' Certificate
referred to above, and the authorized principal amount of any series may
not be increased to provide for issuance of additional Securities of such
series, unless otherwise provided in such Board Resolution, supplemental
indenture or Officers' Certificate.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall
be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 3.02 Denominations.
The Securities shall be issuable only in registered form and, unless
otherwise provided as contemplated by Section 3.01 with respect to any
series of Securities, without coupons and in denominations of $1,000 and
any integral multiple of $1,000 in excess thereof.
SECTION 3.03 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its Vice Chairman of the Board, its Chief Executive Officer,
its Chief Financial Officer, its Chief Legal Officer or one of its Vice
Presidents, attested by its Secretary or one of its Assistant Secretaries.
The signature of any of these officers on the Securities may be manual or
facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold
such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been
established by or pursuant to one or more Board Resolutions as permitted by
Sections 2.01 and 3.01, in authenticating such Securities, and accepting
the additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to
Section 6.01) shall be fully protected in relying upon, an Opinion of
Counsel stating:
(a) if the form of such Securities has been established by or pursuant
to Board Resolution as permitted by Section 2.01, that such form has been
established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 3.01, that such terms
have been established in conformity with the provisions of this Indenture; and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles.
Notwithstanding the provisions of Section 3.01 and of the preceding
paragraph, if all Securities of a series are not to be originally issued
at one time, it shall not be necessary to deliver the Officers' Certificate
otherwise required pursuant to Section 3.01 or the Company Order and
Opinion of Counsel otherwise required pursuant to such preceding paragraph
at or prior to the time of authentication of each Security of such series
if such documents are delivered at or prior to the time of authentication
upon original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid
or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture.
Notwithstanding the foregoing and subject, in the case of a Security in
permanent global form, to Section 2.02, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 3.10 together with a written statement
(which need not comply with Section 1.02 and need not be accompanied by an
Opinion of Counsel) directing such cancellation and stating that such
Security has never been issued and sold by the Company, for all purposes
of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 3.04 Temporary Securities.
Pending the preparation of definitive Securities, the Company may execute,
and upon Company Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and
with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of
such series at the office or agency of the Company in a Place of Payment
for that series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any series the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefore a like principal amount of definitive Securities of the
same series and of like tenor of authorized denominations. Until so
exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities
of such series.
SECTION 3.05 Registration; Registration of Transfer and Exchange.
(a) The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency in a Place of Payment being herein sometimes collectively
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
hereby appointed "Security Registrar" (the "Security Registrar") for the
purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security of any series
at an office or agency of the Company in a Place of Payment for that series,
the Company shall execute, and the Trustee shall authenticate and deliver,
in the name of the designated transferee or transferees, one or more new
Securities of the same series of any authorized denominations and of a like
aggregate principal amount and tenor.
At the option of the Holder, Securities may be exchanged for other
Securities of the same series, of any authorized denominations and of a
like aggregate principal amount and tenor, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute,
and the Trustee shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing. As a condition to
the registration of transfer of any Restricted Securities, the Company or
the Trustee may require evidence satisfactory to them as to the compliance
with the restrictions set forth in the legend on such securities.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.04, 9.06 or 11.07
not involving any transfer.
The Company shall not be required to exchange or register a transfer of
any Security of a series (i) during the 15-day period immediately
preceding the mailing of any notice of redemption of any Security of
that series, or (ii) after any notice of redemption has been given to
Holders of Securities of that series, except, where such notice provides
that such Security is to be redeemed only in part, the Company shall be
required to exchange or register a transfer of the portion thereof not to
be redeemed.
(b) Neither the Trustee nor any of its agents shall (i) have any duty to
monitor compliance with or with respect to any federal or state or other
securities or tax laws or (ii) have any duty to obtain documentation on
any transfers or exchanges other than as specifically required hereunder.
SECTION 3.06 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 as may be required by them to save
each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has
been acquired by a protected purchaser, the Company shall execute and
the Trustee shall authenticate and deliver, 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 an identification
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, or has been called for redemption
in full, 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 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 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 3.07 Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 3.01 with respect to
any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record
Date for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the Trustee
in writing of the amount of Defaulted Interest proposed to be paid on
each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount
of money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Clause provided. Thereupon
the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less than
10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record
Date therefore to be mailed, first-class postage prepaid, to each Holder
of Securities of such series at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date. Notice
of the proposed payment of such Defaulted Interest and the Special Record
Date therefore having been so mailed, such Defaulted Interest shall be paid
to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on such Special Record Date and shall no longer be payable pursuant to the
following Clause (b).
(b) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this Clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security delivered
under this Indenture upon registration of transfer of or in exchange for or
in lieu of any other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
SECTION 3.08 Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and (subject
to Section 3.07) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 3.09 Book-entry Provisions for Global Securities.
(a) The Global Securities initially shall (i) be registered in the name
of the Depositary or the nominee of such Depositary, (ii) be delivered to
the Trustee as custodian for the Depositary and (iii) bear legends as set
forth on the face of the form of Security in Section 2.02.
Members of, or participants in, the Depositary ("Agent Members") shall have
no rights under this Indenture with respect to any Global Security held on
their behalf by the Depositary, or the Trustee as its custodian, or under
the Global Security, and the Depositary may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner
of the Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any
agent of the Company or the Trustee 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 governing the exercise of the rights of any Holder.
(b) Transfers of the Global Securities shall be limited to transfers in
whole, but not in part, to the Depositary, its successors or their
respective nominees. Interests of beneficial owners in a Global Security
may be transferred or exchanged, in whole or in part, for Physical
Securities in accordance with the rules and procedures of the Depositary.
In addition, Physical Securities shall be transferred to all beneficial
owners in exchange for their beneficial interests in the Global
Securities if (A) such Depositary has notified the Company (or the Company
becomes aware) that the Depositary (i) is unwilling or unable to continue
as Depositary for such Global Security or (ii) has ceased to be a clearing
agency registered under the Exchange Act when the Depositary is required
to be so registered to act as such Depositary and, in both such cases, no
successor Depositary shall have been appointed within 90 days of such
notification or of the Company becoming aware of such event, (B) there
shall have occurred and be continuing an Event of Default with respect to
such Global Security and the Outstanding Securities of such series shall
have become due and payable pursuant to Section 5.02 and the Trustee has
requested that Physical Securities be issued or (C) the Company has
decided to discontinue use of book-entry transfers through the Depositary
(or a successor Depositary).
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in the Global Security to beneficial owners pursuant to
paragraph (b), the Security Registrar shall (if one or more Physical
Securities are to be issued) reflect on its books and records the date and
a decrease in the principal amount of the Global Security in an amount equal
to the principal amount of the beneficial interest in the Global Security to
be transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Physical Securities of like tenor
and amount.
(d) In connection with the transfer of the entire Global Security to
beneficial owners pursuant to paragraph (b), the Global Security shall be
deemed to be surrendered to the Trustee for cancellation, and the Company
shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depositary in exchange for its beneficial
interest in the Global Security, an equal aggregate principal amount of
Physical Securities of authorized denominations and the same tenor.
(e) 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 a Depositary or a
nominee thereof. This Security may not be exchanged in whole or in part for
a security registered, and no transfer of this security in whole or in part
may be registered, in the name of any person other than such Depositary or a
nominee thereof, except in the limited circumstances described in the
Indenture."
(f) The Holder of the Global Securities may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
(g) Notwithstanding the other provisions of this Indenture, unless otherwise
specified as contemplated by Section 3.01, payment of the principal of and
interest, if any, on any Global Security shall be made to the Holder thereof.
(h) Except as provided in Section 3.09(g), the Company, the Trustee and any
Agent shall treat a person as the Holder of such principal amount of
Outstanding Securities of such series represented by a Global Security as
shall be specified in a written statement of the Depositary with respect to
such Global Security, for purposes of obtaining any consents, declarations,
waivers or directions required to be given by the Holders pursuant to this
Indenture.
SECTION 3.10 Cancellation.
The Company at any time may deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and may deliver to the
Trustee for cancellation any Securities previously authenticated hereunder
which the Company has not issued and sold. The Trustee shall cancel all
Securities surrendered for registration of transfer, exchange, payment,
redemption or cancellation and shall dispose of such cancelled Securities,
all in accordance with its customary practices. If the Company shall acquire
any of the Securities, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and
until the same are delivered to the Trustee for cancellation. The Company
may not issue new Securities to replace Securities it has paid in full or
delivered to the Trustee for cancellation.
SECTION 3.11 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 an 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 the Trustee knows are
so owned shall be so disregarded.
SECTION 3.12 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.
SECTION 3.13 Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses
of Holders of each series of Securities and shall otherwise comply with
Trust Indenture Act. 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.
SECTION 3.14 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.01 for Securities
of any series, interest on the Securities of each series shall be computed
on the basis of a 360-day year of twelve 30-day months.
ARTICLE 4.
SATISFACTION AND DISCHARGE
SECTION 4.01 Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities
herein expressly provided for), and the Trustee, on demand of and at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) either
(i) all Securities theretofore authenticated and delivered (other
than (A) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 3.06 and
(B) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company
and thereafter repaid to the Company or discharged from such
trust, as provided in Section 10.03) have been delivered to the
Trustee for cancellation; or
(ii) all such Securities not theretofore delivered to the Trustee
for cancellation
(A) have become due and payable, or
(B) will become due and payable at their Stated Maturity
within one year, or
(C) will 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,
and the Company, in the case of (A), (B) or (C) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount sufficient to pay
and discharge the entire indebtedness evidenced by such
Securities not theretofore delivered to the Trustee for
cancellation, for principal and interest to the date of such
deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(b) no Default or Event of Default has occurred and is continuing on
the date of such deposit (other than a Default or Event of Default resulting
from the borrowing of funds to be applied to such deposit) and the deposit
will not result in a breach or violation of, or constitute a default under,
any other instrument to which the Company or any guarantor, as applicable,
of such Securities is a party or by which the Company or any such guarantor,
as applicable, is bound;
(c) the Company or any guarantor of such Securities has paid or caused
to be paid all other sums payable hereunder by the Company;
(d) the Company has delivered irrevocable instructions to the Trustee
for such Securities under this Indenture to apply the deposited money
toward the payment of such Securities at maturity or on the redemption date,
as the case may be; and
(e) Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07 and, if money
shall have been deposited with the Trustee pursuant to subclause (ii) of
Clause (a) of this Section, the obligations of the Trustee under Section
4.02 and the last paragraph of Section 10.03 shall survive.
SECTION 4.02 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.03, all money
deposited with the Trustee pursuant to Section 4.01 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 the Trustee; but such
money need not be segregated from other funds except to the extent required
by law.
If such Trustee or Paying Agent is unable to apply any proceeds in
accordance with Section 4.01 hereof 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
Company's and any applicable guarantor's obligations under this Indenture
and the applicable Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 4,01 hereof; provided that if the
Company has made any payment of principal of, premium, if any, 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 funds held by the Trustee or Paying Agent.
ARTICLE 5.
REMEDIES
SECTION 5.01 Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body):
(a) default in the payment of the principal of any Security of that
series at its Maturity; or
(b) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 30 days; or
(c) default in the deposit of any sinking fund payment, when and as due
by the terms of a Security of that series; or
(d) default in the performance of any covenant, agreement or condition
of the Company in this Indenture or the Securities of that series (other
than a covenant, agreement or condition a default in whose performance or
whose breach is specifically dealt with elsewhere in this section or which
has been expressly included in this Indenture solely for the benefit of
series of Securities other than that series), and continuance of such
default 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 and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(e) the entry by a court having jurisdiction in the premises of (i) a
decree or order for relief in respect of the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (ii) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 60
consecutive days; or
(f) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law or of any other case or proceeding to be adjudicated
a bankrupt or insolvent, or the consent by it to the entry of a decree or
order for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy
or insolvency case or proceeding against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian,
eceiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(g) the occurrence of any other event of default with respect to the
Securities of that series as provided in a supplemental indenture applicable
to such series of Securities or a Board Resolution pursuant to which such
series of Securities is established.
SECTION 5.02 Acceleration of Maturity; Rescission and Annulment.
(a) If an Event of Default (other than those specified in Sections 5.01(f)
and 5.01(g)) occurs with respect to any series of Outstanding Securities and
is continuing, then and in every such case the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Securities of such
series may declare the principal amount (or, if the Securities of any such
series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) of all the
Securities 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 shall become immediately due and payable.
Notwithstanding the foregoing, in the case of an Event of Default specified
in Sections 5.01(f) or 5.01(g), the principal amount (or, if the Securities
of any such series are Original Issue Discount Securities, such portion of
the principal amount as may be specified in the terms of that series) of
all Outstanding Securities will ipso facto become due and payable without
any declaration or other Act on the part of the Trustee or any Holder.
(b) At any time after such a declaration of acceleration with respect
to the Securities of 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
(i) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of the series,
(B) the principal of any Securities of that series which have
become due otherwise than by such declaration of acceleration
and interest thereon at the rate borne by such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by such
Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, and any other amounts
due the Trustee under Section 6.07; and
(ii) all Events of Default, other than the non-payment of the
principal of Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived as provided
in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.03 Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(i) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a
period of 30 days, or
(ii) default is made in the payment of the principal of any Security at
the Maturity thereof,
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 on any overdue interest, at the rate borne by the Securities,
and, in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.
If an Event of Default with respect to the Securities of any series occurs
and is continuing, the Trustee may in its discretion, subject to applicable
law, 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 5.04 Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any other
obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture
Act in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized 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 reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 6.07.
No provision of this Indenture 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 5.05 Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 6.07, be for the ratable benefit
of the Holders of the Securities in respect of which such judgment has been
recovered.
SECTION 5.06 Application of Money Collected.
Any money 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 on account of principal or interest,
upon presentation of the Securities and the notation thereon of the payment
if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
6.07; 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.
SECTION 5.07 Limitation on Suits.
No Holder of any Security 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
(i) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that
series;
(ii) the Holders of not less than 25% in aggregate 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;
(iii) such Holder or Holders have offered to the Trustee reasonable
indemnity satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(iv) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(v) 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 aggregate principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more 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
Holders, or to obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all the
Holders.
SECTION 5.08 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 (subject to Section 3.07) interest
on such Security on the respective Stated Maturities expressed in such
Security 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 5.09 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 5.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 3.06, 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 prevent the concurrent assertion or employment of any
other appropriate right or remedy.
SECTION 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security 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 5.12 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
(i) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(ii) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 5.13 Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities affected by any past default hereunder (all voting
together as one class) may, on behalf of the Holders of all the Securities
affected by such past default, waive such past default and its consequences,
subject to the payment of the amounts required under Section 5.02(b) (i)
(D), except a default
(i) in the payment of the principal of or interest on any Security, or
(ii) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
SECTION 5.14 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture
or in any suit against the Trustee for any action taken or omitted by it as
Trustee, in either case in respect to the Securities, a court may require
any party litigant in such suit to file an undertaking to pay the costs of
the suit, and the court may assess reasonable costs, including reasonable
attorney's fees, against any party litigant in the suit having due regard to
the merits and good faith of the claims or defenses made by the party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Company, to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the
aggregate more than 25% 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.
SECTION 5.15 Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect
the covenants or the performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not 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
had been enacted.
ARTICLE 6.
THE TRUSTEE
SECTION 6.01 Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to it. Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 6.02 Notice of Defaults.
The Trustee shall give the Holders notice of any default hereunder as and
to the extent provided by the Trust Indenture Act; provided, however, that
in the case of any default of the character specified in Section 5.01(d),
no such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would
become, an Event of Default.
SECTION 6.03 Certain Rights of Trustee.
Subject to the provisions of Section 6.01:
(a) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties, and the
Trustee need not investigate any fact or matter stated in the document;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors of the Company or of any committee
acting pursuant to authority duly delegated to it by the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence
of bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
written 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;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, 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;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due
care by it hereunder;
(h) the Trustee shall not be charged with knowledge of any Default or
Event of Default (except as provided in Section 5.01(e)) with respect
to the Securities unless either (i) a Responsible Officer shall have
actual knowledge of such Default or Event of Default or (ii) written
notice of such Default or Event of Default shall have been given to
the Trustee by the Company or any other obligor on such Securities or
by any Holder of such Securities and such notice references the
Securities generally or the Securities of a particular series and this
Indenture;
(i) the Trustee may act through agents, attorneys, custodians, or
nominees and shall not be responsible for the misconduct or negligence
of any agent, attorney, custodian, or nominee appointed with due care.
No Depositary shall be deemed an agent, attorney, custodian, or nominee
of the Trustee and the Trustee shall not be responsible for any act or
omission by any Depositary;
(j) in no event shall the Trustee be liable for the selection of
investments or for investment losses incurred thereon. The Trustee
shall have no liability in respect of losses incurred as a result of
the liquidation of any investment prior to its stated maturity or
failure to provide timely written direction; and
(k) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture; provided that the Trustee's conduct does not constitute
negligence or bad faith.
SECTION 6.04 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the
Company's use of the proceeds from the Securities, and it shall not be
responsible for any statement in the Securities other than its
authentication.
SECTION 6.05 May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar or any other agent
of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 6.08 and 6.13, may
otherwise deal with the Company with the same rights it would have if it
were not Trustee, Paying Agent, Security Registrar or such other agent.
SECTION 6.06 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder
except as otherwise agreed in writing with the Company.
SECTION 6.07 Compensation and Reimbursement.
The Company agrees:
(i) to pay to the Trustee from time to time such compensation as the
Company and the Trustee shall from time to time agree in writing for
all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(ii) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(iii) to indemnify the Trustee (including its directors and officers)
for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of this trust,
including the reasonable costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder.
The obligations of the Company under this Section 6.07 shall survive the
satisfaction and discharge of this Indenture and the resignation or removal
of the Trustee. To secure the Company's payment obligations in this Section
6.07, the Trustee shall have a Lien prior to the Securities on all money or
property held or collected by the Trustee, except that held in trust to pay
principal and interest on the Securities. Such Lien shall survive the
satisfaction and discharge of this Indenture. When the Trustee incurs
expenses or renders services after a Default or an Event of Default
specified in Sections 5.01(f) or 5.01(g) hereof occurs, the expenses and
the compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute expenses of administration
under U.S. Code, Title 11 or any other similar foreign, federal or state
law for the relief of debtors.
In no event shall the Trustee be liable for any indirect, special or
consequential loss or damage of any kind whatsoever, including, but not
limited to, lost profits.
In no event shall the Trustee be liable for any failure or delay in the
performance of its obligations hereunder because of circumstances beyond its
control, including, but not limited to, acts of God, flood, natural
catastrophes, riot, loss or malfunctions of utilities, or government action,
which delay, restrict or prohibit the providing of the services contemplated
by this Agreement.
SECTION 6.08 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject
to the provisions of, the Trust Indenture Act and this Indenture.
SECTION 6.09 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a Person that
is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000. If such Person
publishes reports of condition at least annually, pursuant to law or to
the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 6.10 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been
delivered to the Trustee within 30 days after the giving of such notice
of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 6.08 after written
request therefor by the Company or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
(ii) the Trustee shall cease to be eligible under Section 6.09 and
shall fail to resign after written request therefor by the Company or
by any such Holder, or
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or
(iv) a receiver of the Trustee or of its property shall be appointed or
any public officer shall take charge or control of the Trustee or of
its property or affairs for the purpose of rehabilitation, conservation
or liquidation,
then, in any such case, (A) the Company by a Company Order may remove
the Trustee, or (B) subject to Section 5.14, any Holder who has been a
bona fide Holder of a Security of any series for at least six months
may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee with
respect to such series of Securities and the appointment of a successor
Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a
Company Order, shall promptly appoint a successor Trustee with respect to
the Securities of such series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or
all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) . If, within one
year after such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee with respect to the Securities of any
series shall be appointed by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed
shall, forthwith upon its acceptance of such appointment, become the
successor Trustee with respect to Securities of such series and supersede
the successor Trustee appointed by the Company. If no successor Trustee
with respect to the Securities of any series shall have been so appointed
by the Company or the Holders and accepted appointment in the manner
hereinafter provided, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to Securities of such
series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to Securities of any series and each appointment
of a successor Trustee with respect to Securities of such series to all
Holders of Securities of such series in the manner provided in Section
1.06. Each notice shall include the name of the successor Trustee and the
address of its Corporate Trust Office.
SECTION 6.11 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with respect
to all Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Trustee but,
on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers
and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with respect
to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities
of one or more series shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such appointment and
which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or
those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall 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, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees to be co-trustees of the same
trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered
by any other such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates; but, on request
of the Company or any successor Trustee, such retiring Trustee shall duly
assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Securities
of that or those series to which the appointment of such successor Trustee
relates.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No such successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto. In case any Securities shall
have been authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 6.13 Preferential Collection of Claims Against.
If and when the Trustee shall be or become a creditor of the Company (or any
other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
ARTICLE 7.
HOLDERS' LISTS AND REPORTS BY TRUSTEE
SECTION 7.01 Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) with respect to the Securities of any series, not more than 15 days
after each Regular Record Date, if any, for such series, a list, in
such form as the Trustee may reasonably require, of the names and
addresses of the Holders of the Securities of such series as of such
Regular Record Date, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to
the time such list is furnished; excluding from any such list names and
addresses received by the Trustee in its capacity as Security
Registrar; provided, however, that no such list need be furnished so
long as the Trustee is acting as Security Registrar.
SECTION 7.02 Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.01 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect
to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason
of any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
SECTION 7.03 Reports by Trustee.
(a) Within 60 days after May 15 in each year, 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 May 15, in accordance
with, and to the extent required under the Trust Indenture Act.
(b) The Trustee shall transmit to Holders such other reports concerning
the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto.
(c) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which the
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when the Securities are listed on any stock
exchange.
ARTICLE 8.
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01 Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease all or substantially all of its properties and
assets to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company, in a transaction in which the
Company is not the surviving entity, unless:
(i) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease all or substantially all of its
properties and assets to any Person, the Person formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and
assets of the Company shall be a corporation, limited liability
company, partnership or trust, shall be organized and validly existing
under the laws of the United States of America, any State thereof or
the District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the
principal of and interest, if any, on all the outstanding Securities
and the performance or observance of every covenant of this Indenture
on the part of the Company to be performed or observed;
(ii) immediately after giving effect to such transaction and treating
any Indebtedness which becomes an obligation of the Company as a result
of such transaction as having been incurred by the Company at the time
of such transaction, no Event of Default, and no event which, after
notice or lapse of time or both, would become an Event of Default,
shall have happened and be continuing; and
(iii) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and, if a supplemental indenture
is required in connection with such transaction, such supplemental
indenture comply with this Article.
SECTION 8.02 Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company into,
any other Person or any conveyance, transfer or lease of all or
substantially all of the properties and assets of the Company in accordance
with Section 8.01, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease
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 had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE 9.
SUPPLEMENTAL INDENTURES
SECTION 9.01 Supplemental Indentures Without Consent of Holders.
Notwithstanding Section 9.02 of this Indenture, 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 for certain purposes, including:
(a) evidencing the succession of another Person to the Company and such
Person's assumption of the Company's obligations under the Indenture;
(b) adding to the Company's covenants or Events of Default;
(c) establishing forms or terms of the Securities of a particular
series; and
(d) curing ambiguities and other purposes which do not adversely affect
the Holders of the Outstanding Securities of a particular series in any
material respect.
Upon the request of the Company authorizing the execution of any such
amended or supplemental indenture, and upon receipt by the Trustee of the
documents described in Section 6.03 hereof, the Trustee will join with the
Company in the execution of any amended or supplemental indenture authorized
or permitted by the terms of this Indenture and to make any further
appropriate agreements and stipulations that may be therein contained, but
the Trustee will not be obligated to enter into such amended or supplemental
indenture that affects its own rights, duties or immunities under this
Indenture or otherwise.
SECTION 9.02 Supplemental Indentures with Consent of Holders.
The Company and the Trustee may enter into a supplemental indenture with
the written consent of the Holders of at least a majority in aggregate
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 5.13, the Holders of at least a majority in
principal amount of the Outstanding Securities of each 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 9.02 to approve the particular form of any proposed
supplemental indenture or waiver, but it shall be sufficient if such consent
approves the substance thereof. Upon the request of the Company authorizing
the execution of any such amended or supplemental indenture, and upon the
filing with the Trustee of evidence satisfactory to the Trustee of the
consent of the Holders of Securities as aforesaid, and upon receipt by the
Trustee of the documents described in Section 6.03 hereof, the Trustee will
join with the Company in the execution of such amended or supplemental
indenture unless such amended or supplemental indenture directly affects
the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but will not
be obligated to, enter into such amended or supplemental Indenture.
After a supplemental indenture or waiver under this section becomes
effective, the Company shall mail to the Holders of Securities affected
thereby, a notice briefly describing the supplemental indenture or waiver.
Any failure by the Company to mail or publish 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 9.03 Limitations.
Without the consent of each Holder affected, an amendment or waiver may not
(with respect to any Securities held by a non-consenting Holder):
(a) change the Stated Maturity of the principal of, or any installment
of interest on, or the redemption price of, any such Security;
(b) reduce the principal amount of or interest on, any such Security;
(c) change currency of payment of principal of or interest on, any such
Security;
(d) impair the right to institute suit for the enforcement of any
payment on any such Security;
(e) reduce the percentage in principal amount of Outstanding Securities
of a particular series, the consent of whose Holders is required for
modification or amendment of the Indenture, or for waiver of compliance
with certain provisions of the Indenture or waiver of certain defaults;
or
(f) modify such provisions with respect to modification and waiver.
SECTION 9.04 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 6.01) shall be fully protected
in relying upon, in addition to the documents required by Section 1.02, an
Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture.
SECTION 9.05 Effect of Supplemental Indentures.
Until an amendment or 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 the amendment
or 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 (f) of Section 9.03. 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.
SECTION 9.06 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform
to the requirements of the Trust Indenture Act.
SECTION 9.07 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Securities of any series so modified as to conform,
in the opinion of the Trustee and the Company, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such
series.
SECTION 9.08 Trustee Protected.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 6.01) shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Trustee shall sign all supplemental indentures, except that the Trustee need
not sign any supplemental indenture that adversely affects its rights.
ARTICLE 10.
COVENANTS SECTION
SECTION 10.01 Payment of Principal and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any
premium or interest on the Securities of that series in accordance with the
terms of the Securities of that series and this Indenture.
SECTION 10.02 Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for any series of
Securities an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee) where Securities of that series may be presented
or surrendered for payment, where Securities of that 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 that series
and this Indenture may be served. The Company shall give prompt written
notice to the Trustee of the location, and any change in the location, of
such office or agency. If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with
the 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.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind
such designation; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an
office or agency in each Place of Payment for Securities of any series for
such purposes. The Company will give prompt written notice to the Trustee
and the Holders of any such designation or rescission and of any change in
the location of any such other office or agency.
SECTION 10.03 Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect to
any series of Securities, it shall, on or before each due date of the
principal of or interest on any of the Securities of that series, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided
and shall promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, prior to 10:00 a.m., New York City time, on each due
date of the principal of or interest on any Securities of that series,
deposit with a Paying Agent a sum sufficient to pay such amount, such sum to
be held as provided by the Trust Indenture Act, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
The Company shall cause each Paying Agent for any series of Securities other
than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent will (i) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent and
(ii) during the continuance of any default by the Company (or any other
obligor upon the Securities of that series) in the making of any payment in
respect of the Securities of that series, upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent as such.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust
by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company
or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of or interest on any
Security of any series and remaining unclaimed for two years after such
principal or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published
in the English language, customarily published on each New York City
Business Day and of general circulation in The City of New York, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining shall be repaid to the
Company.
SECTION 10.04 Existence.
Subject to Article Eight, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or
franchise if the Board of Directors of the Company shall determine that
the preservation thereof is no longer desirable in the conduct of the
business of the Company and that the loss thereof is not disadvantageous in
any material respect to the Holders.
SECTION 10.05 Reports and Delivery of Certain Information.
The Company shall file with to the Trustee all quarterly and annual reports
on Forms 10-Q and 10-K and all current reports on Form 8-K and all proxy
statements which the Company is then required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act; provided, that any such
information or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee
within 15 days after the same is required to be filed with the Commission,
and provided further that if the Company files the reports required by this
Section 10.05 with the Commission and such reports are publicly available,
it shall be deemed to have satisfied its obligation to furnish such reports
pursuant to this Section 10.05.
SECTION 10.06 Resale of Certain Securities.
During the period beginning on the Issue Date and ending on the date that is
two years from the Issue Date, the Company shall not, and shall not permit
any of its "affiliates" (as defined under Rule 144 under the Securities Act
or any successor provision thereto) to, resell any Securities which
constitute "restricted securities" under Rule 144 that have been reacquired
by any of them. The Trustee shall have no responsibility in respect of the
Company's performance of its agreement in the preceding sentence.
SECTION 10.07 Book-Entry System.
If the Securities cease to trade in the Depositary's book-entry settlement
system, the Company covenants and agrees that it shall use reasonable
efforts to make such other book-entry arrangements that it determines are
reasonable for the Securities.
ARTICLE 11.
OPTIONAL REDEMPTION OF SECURITIES
SECTION 11.01 Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 3.01 for Securities of any series) in
accordance with this Article.
SECTION 11.02 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution. In case of any redemption at the election of the Company
of less than all the Securities of any series, the Company shall, at least
60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date, of the tenor, if applicable, of the Securities to
be redeemed, and of the principal amount of Securities of such series to
be redeemed. In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish
the Trustee with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 11.03 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60
days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such
method as the Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of portions (equal to the minimum
authorized denomination for Securities of that series or any integral
multiple thereof) of the principal amount of Securities of such series of
a denomination larger than the minimum authorized denomination for
Securities of that series.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for
partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to
be redeemed.
SECTION 11.04 Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date
to each Holder of Securities to be redeemed, at the address appearing in the
Security Register.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed,
(d) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date,
(e) the place or places where such Securities are to be surrendered for
payment of the Redemption Price,
(f) the CUSIP numbers, if any, of such Security,
(g) for any Securities that by their terms may be converted, the terms
of conversion, the date on which the right to convert the Security to
be redeemed will terminate and the place or places where such
Securities may be surrendered for conversion, and
(h) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company, and shall be
irrevocable. The notice of redemption mailed in the manner herein provided
shall be conclusively presumed to have been duly given whether or not the
Holder receives such notice. In any case, failure to give such notice by
mail or any defect in the notice to the Holder of any Security shall not
affect the validity of the proceeding for the redemption of any other
Security.
SECTION 11.05 Deposit of Redemption Price.
Prior to 10:00 a.m. New York City time on any Redemption Date, the Company
shall deposit with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 10.03) an amount of money sufficient to pay the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that
date, other than any Securities called for redemption on that date which
have been converted prior to the date of such deposit.
If any Security called for redemption is converted, any money deposited with
the Trustee or with any Paying Agent or so segregated and held in trust for
the redemption of such Security shall (subject to any right of the Holder of
such Security or any Predecessor Security to receive interest as provided in
the last paragraph of Section 3.07 or in the terms of such Security) be paid
to the Company upon Company Request or, if then held by the Company, shall
be discharged from such trust.
SECTION 11.06 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest), such Securities shall cease to bear interest. Upon surrender of
any such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price, together
with accrued interest to the Redemption Date; provided, however, that
installments of interest whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such at the close of business
on the relevant Record Dates according to their terms and the provisions of
Section 3.07.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefore in
the Security.
SECTION 11.07 Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a
Place of Payment therefore (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory
to the Company and the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security
without service charge to the Holder, a new Security or Securities of the
same series and of like tenor, of any authorized denomination as requested
by such Holder, in aggregate principal amount equal to and in exchange for
the unredeemed portion of the principal of the Security so surrendered.
ARTICLE 12.
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 12.01 Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 12.02 or
Section 12.03 applied to any series of the Outstanding Securities upon
compliance with the conditions set forth below in this Article. Any such
election shall be evidenced by a Board Resolution.
SECTION 12.02 Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have this Section
applied to the Outstanding Securities of any series, the Company shall be
deemed to have been discharged from its obligations with respect to such
series of Securities as provided in this Section on and after the date the
conditions set forth in Section 12.04 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that the Company
shall be deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities of such series and to have
satisfied all its other obligations under such series of Securities and
this Indenture insofar as such series of Securities are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), subject to the following which shall survive until
otherwise terminated or discharged hereunder: (a) the rights of Holders of
such series of Securities to receive, solely from the trust fund described
in Section 12.04 and as more fully set forth in such Section, payments in
respect of the principal of and interest on such Securities when payments
are due, (b) the Company's obligations with respect to such series of
Securities under Sections 3.04, 3.05, 3.06, 10.02 and 10.03, (c) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and (d) this
Article. Subject to compliance with this Article, the Company may exercise
its option (if any) to have this Section applied to the Outstanding
Securities of any series notwithstanding the prior exercise of its option
(if any) to have Section 12.03 applied to such series of Securities.
SECTION 12.03 Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have this Section
applied to any series of the Securities, (a) the Company shall, with respect
to such series of Securities, be released from its obligations under
Article 8 and (b) the occurrence of any event specified in Sections 5.01(d)
(with respect to Article 8) or 5.01(e) shall be deemed not to be or result
in an Event of Default, in each case with respect to such series of
Securities as provided in this Section on and after the date the conditions
set forth in Section 12.04 are satisfied (hereinafter called "Covenant
Defeasance") . For this purpose, such Covenant Defeasance means that, with
respect to such series of Securities, the Company may omit to comply with
and shall have no liability in respect of any term, condition or limitation
set forth in any such specified Section (to the extent so specified in the
case of Section 5.01(d)), whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or by reason of any reference
in any such Section to any other provision herein or in any other document,
but the remainder of this Indenture and such series of Securities shall be
unaffected thereby.
SECTION 12.04 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 12.02
or Section 12.03 to the then Outstanding Securities of any series:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 6.09 and agrees to comply with the
provisions of this Article applicable to it) as trust funds in trust
for the purpose of making the following payments, specifically pledged
as security for, and dedicated solely to, the benefits of the Holders
of such series of Securities, (i) money in an amount, or (ii) U.S.
Government Obligations which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment,
money in an amount, or (iii) a combination thereof, in each case
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or any such other qualifying trustee) to pay
and discharge, the principal of and interest, if any, on such series
of Securities on the respective Stated Maturities, in accordance with
the terms of this Indenture and such series of Securities. As used
herein, "U.S. Government Obligation" means (x) any security which is
(1) a direct obligation of the United States of America for the payment
of which the full faith and credit of the United States of America is
pledged or (2) an obligation of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in
either case (1) or (2), is not callable or redeemable at the option of
the issuer thereof, and (y) any depositary receipt issued by a bank (as
defined in Section 3(a) (2) of the Securities Act) as custodian with
respect to any U.S. Government Obligation which is specified in Clause
(x) above and held by such bank for the account of the holder of such
depositary receipt, or with respect to any specific payment of
principal of or interest on any U.S. Government Obligation which is so
specified and held, 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
or the specific payment of principal or interest evidenced by such
depositary receipt.
(b) In the event of an election to have Section 12.02 apply to such
series of Securities, the Company shall have delivered to the Trustee
an Opinion of Counsel stating that (i) the Company has received from,
or there has been published by, the Internal Revenue Service a ruling
or (ii) since the date of this instrument, there has been a change in
the applicable Federal income tax law, in either case (i) or (ii) to
the effect that, and based thereon such opinion shall confirm that, the
Holders of such series of Securities will not recognize gain or loss
for Federal income tax purposes as a result of the deposit, Defeasance
and discharge to be effected with respect to such series of Securities
and will be subject to Federal income tax on the same amount, in the
same manner and at the same times as would be the case if such deposit,
Defeasance and discharge were not to occur.
(c) In the event of an election to have Section 12.03 apply to such
series of Securities, the Company shall have delivered to the Trustee
an Opinion of Counsel to the effect that the Holders of such series of
Securities will not recognize gain or loss for Federal income tax
purposes as a result of the deposit and Covenant Defeasance to be
effected with respect to such series of Securities and will be subject
to Federal income tax on the same amount, in the same manner and at the
same times as would be the case if such deposit and Covenant Defeasance
were not to occur.
(d) The Company shall have delivered to the Trustee an Officers'
Certificate to the effect that such series of Securities, if then
listed on any securities exchange, will not be delisted as a result of
such deposit.
(e) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such series of Securities
shall have occurred and be continuing at the time of such deposit or,
with regard to any such event specified in Sections 5.01(f) and
5.01(g), at any time on or prior to the 90th day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until after such 90th day).
(f) Such Defeasance or Covenant Defeasance shall not cause the Trustee
to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the
meaning of such Act).
(g) Such Defeasance or Covenant Defeasance shall not result in a breach
or violation of, or constitute a default under, any other agreement or
instrument to which the Company is a party or by which the Company is
bound.
(h) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company
within the meaning of the Investment Company Act unless such trust
shall be registered under such Act or exempt from registration
thereunder.
(i) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have
been complied with.
SECTION 12.05 Deposited Money and U.S. Government Obligations to be Held in
Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 10.03, all money
and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee or other qualifying trustee (solely for purposes of this
Section and Section 12.06, the Trustee and any such other trustee are
referred to collectively as the "Trustee") pursuant to Section 12.04 in
respect of the Outstanding Securities of such series shall be held in trust
and applied by the Trustee, in accordance with the provisions of such series
of Securities and this Indenture, to the payment, either directly or through
any such Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such series of Securities,
of all sums due and to become due thereon in respect of principal and
interest, but money so held in trust need not be segregated from other
funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 12.04 or the principal and interest received
in respect thereof other than any such tax, fee or other charge which by law
is for the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any
money or U.S. Government Obligations held by it as provided in Section 12.04
with respect to the Outstanding Securities of any series which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are
in excess of the amount thereof which would then be required to be deposited
to effect the Defeasance or Covenant Defeasance, as the case may be, with
respect to such series of Securities.
SECTION 12.06 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to the Outstanding Securities of
any series by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application,
then the obligations under this Indenture and such series of Securities from
which the Company has been discharged or released pursuant to Section 12.02
or 12.03 shall be revived and reinstated as though no deposit had occurred
pursuant to this Article with respect to such series of Securities, until
such time as the Trustee or Paying Agent is permitted to apply all money
held in trust pursuant to Section 12.05 with respect to such series of
Securities in accordance with this Article; provided, however, that if the
Company makes any payment of principal of or interest on any such Security
of that series following such reinstatement of its obligations, the Company
shall be subrogated to the rights (if any) of the Holders of such series of
Securities to receive such payment from the money so held in trust.
ARTICLE 13.
SINKING FUNDS
SECTION 13.01 Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of any series if so specified as contemplated
by Section 3.01 for Securities of such series.
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 payment in excess of such minimum amount provided for
by the terms of the Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of the
Securities of any series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 13.02. Each sinking fund payment
shall be applied to the redemption of the Securities of any series as
provided for by the terms of the Securities of such series.
SECTION 13.02 Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been converted in accordance with their
terms or which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series required to be
made pursuant to the terms of the Securities of such series as provided for
by the terms of such series; provided that the Securities to be so credited
have not been previously so credited. The Securities to be so credited shall
be received, together with an Officers' 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 Redemption Price, as specified in the
Securities to be so redeemed (or at such other prices as may be specified
for such Securities as contemplated in Section 3.01), 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 13.02, 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 13.03 Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any series
of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment
for that series pursuant to the terms of such Securities, the portion
hereof, 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
Securities of that series pursuant to Section 13.02 stating that such
Securities have not been previously used as a credit against any sinking
fund payment and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days before each such sinking fund payment date
the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 11.03 and cause notice
of the redemption thereof to be given in the name of and at the expense of
the Company in the manner provided in Section 11.04. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Section 11.05, 11.06 and 11.07.
This instrument may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
Dataram Corporation
By: ________________________________
________________________________,
as Trustee,
By: _______________________________
By: _______________________________
EX-5
4
ex5328.txt
EXHIBIT 5.1 OPINION OF DILLON, BITAR & LUTHER, L.L.C.
OPINION OF COUNSEL
March 31, 2011
Dataram Corporation
186 Princeton-Hightstown Road
West Winsor, New Jersey 08550
Re: Dataram Corporation
Registration Statement on Form S-3
Ladies and Gentlemen:
We are providing this opinion letter in our capacity as counsel to
Dataram Corporation, a New Jersey corporation (the "Company"), in
connection with the filing by the Company of a registration statement on
Form S-3 (the "Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act"), with the United States Securities and
Exchange Commission (the "Commission"). The Registration Statement relates
to the sale by the Company of (a) Common Stock, one dollar par value per
share, (b) Debt Securities, (c) Warrants, (d) Units, and (e) any combination
of the foregoing (collectively, the "Securities") to be issued by the
Company in the future upon the filing of an appropriate amendment to the
Registration Statement and/or Supplement to the Prospectus contained
therein. The Debt Securities will be issued pursuant to an indenture by and
among the Company, as issuer, and a trustee to be selected by the Company
(the "Trustee"), in the form included as Exhibit 4.2 to the Registration
Statement, as such indenture may be amended or supplemented from time to
time (the "Indenture").
You have requested that we render the opinion set forth in this letter
and we are furnishing this opinion in accordance with the requirements of
Part II, Item 16 of Form S-3 and Item 601(b)(5)(i) of Regulation S-K
promulgated by the Commission under the Securities Act.
In connection with the foregoing registration, we have examined
originals, or copies certified or otherwise identified to our satisfaction,
of (i) the form of Registration Statement and the form of Indenture, each as
provided to us by the Company, (ii) the Company's Restated Certificate of
Incorporation, as amended and restated to date (the "Certificate of
Incorporation"), (iii) the Company's By-Laws, as amended and/or restated to
date (the "By-Laws"), (iv) certain resolutions of the Board of Directors of
the Company relating to the Registration Statement, and (v) such other
documents as we have deemed necessary or appropriate for purposes of
rendering the opinion set forth herein.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. With your consent,
we have also assumed (a) that each of the Debt Securities and the Indenture,
and any other documents executed by parties other than the Company with
respect to the Securities (collectively, the "Documents") have been duly
authorized, executed and delivered by the parties thereto other than the
Company, (b) that the Documents 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 (c) that
the status of the Documents as legally valid and binding obligations of the
parties is not 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. As to
any facts material to the opinion expressed herein that were not
independently established or verified, we have relied upon statements and
representations of officers and other representatives of the Company and
others.
Based upon and subject to the foregoing, we are of the opinion that:
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 and in an amount not less than the par value thereof, in an
amount less than or equal to the number of shares of Common Stock authorized
by the Company's Certificate of Incorporation remaining available for
issuance and in the manner contemplated by the Registration Statement and
Prospectus Documents and by such corporate action, such shares of Common
Stock will be validly issued, fully paid and nonassessable.
2. When an appropriately qualified trustee has been selected and agrees to
act as Trustee under the Indenture, the Indenture has been duly authorized,
executed and delivered by the Company, and the specific terms of any
particular series of Debt Securities have been duly established in
accordance with the Indenture and applicable law and authorized by all
necessary corporate action of the Company (including, without limitation, by
the adoption by the Board of Directors of the Company of resolutions duly
authorizing the issuance and delivery of such Debt Securities), and when any
such Debt Securities have been duly executed and issued by the Company, duly
authenticated by the Trustee and duly delivered by or on behalf of the
Company against payment therefore in accordance with the Indenture and in
the manner contemplated by the Registration Statement and Prospectus
Documents 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.
3. When a Warrant Agreement has been duly authorized, executed and
delivered by the Company in accordance with applicable law, the specific
terms of a particular issuance of Warrants have been duly established in
accordance with the Warrant Agreement and authorized by all necessary
corporate action of the Company, and the Warrants have been duly executed,
authenticated, issued and delivered against payment therefore in accordance
with the Warrant Agreement and in the manner contemplated by the
Registration Statement and Prospectus Documents and by such corporate action
(assuming the securities issuable upon exercise of the Warrants have been
duly authorized and reserved for issuance by all necessary corporate action
and in accordance with applicable law), the Warrants will be legally valid
and binding obligations of the Company, enforceable against the Company in
accordance with their terms.
4. When Units have been duly authorized, executed and delivered by the
Company in accordance with applicable law, the specific terms of a
particular issuance of Units have been duly established and authorized by
all necessary corporate action of the Company, and the Units have been duly
executed, authenticated, issued and delivered against payment therefore in
accordance with the Warrant Agreement and in the manner contemplated by the
Registration Statement and Prospectus Documents and by such corporate action
(assuming the securities issuable upon exercise of the Units have been duly
authorized and reserved for issuance by all necessary corporate action and
in accordance with applicable law), the Units will be legally valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms.
Our opinions are limited to the laws of the State of New Jersey. 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) 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), concepts of materiality, reasonableness,
good faith and fair dealing, and the discretion of the court before which a
proceeding is brought; (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; and (iv) 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) any waiver of rights or
defenses under usury laws; (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 the Debt Securities,
collection of that portion of the stated principal amount thereof which might
be determined to constitute unearned interest thereon; and (f) the
severability, if invalid, of provisions to the foregoing effect.
We hereby consent to the filing of this opinion with the Commission as
Exhibit 5. In giving this consent, we do not hereby admit that we are in
the category of persons whose consent is required under Section 7 of the
Securities Act or the rules and regulations of the Commission promulgated
thereunder.
This opinion is limited to the specific issues addressed herein, and no
opinion may be inferred or implied beyond that expressly stated herein. We
assume no obligation to revise or supplement this opinion should the present
laws of the State of New Jersey be changed by legislative action, judicial
decision or otherwise.
Very truly yours,
/s/ Dillon, Bitar & Luther, L.L.C.
DILLON, BITAR & LUTHER, L.L.C.
EX-23
5
consent.txt
EXHIBIT 23(A) CONSENT OF J.H. COHN LLP
Exhibit 23(a)
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement
on Form S-3 of Dataram Corporation of our report dated July 29, 2010,
relating to the consolidated balance sheets of Dataram Corporation and
Subsidiaries as of April 30, 2010 and 2009, and the related consolidated
statements of operations, stockholders' equity and cash flows for each of
the years in the three year period ended April 30, 2010 which report appears
on the April 30, 2010 Annual Report on Form 10-K of Dataram Corporation. We
also consent to the references to our firm under the heading "Experts."
/s/ J.H. Cohn LLP
Roseland, New Jersey
March 31, 2011
CORRESP
6
filename6.txt
DILLON, BITAR & LUTHER, L.L.C.
200 Park Avenue, Suite 301
Florham Park, New Jersey 07932
March 31, 2011
VIA EDGAR
Securities and Exchange Commission
Washington, D.C.
Re: Dataram Corporation - Registration on Form S-3 No. ______
Ladies and Gentlemen:
Enclosed please find the above Registration Statement which is being
filed by EDGAR. This Registration Statement registers up to $20,000,000.00
in common stock, debt, warrants and/or units of the issuer, to be issued in
one or more offerings in the future.
We hereby certify on behalf of the issuer, Dataram Corporation, that
the issuer has instructed its bank to commence a wire transfer of $2,322.00
to the Commission's US Bank lockbox in payment of the filing fee for this
Registration Statement, that the issuer will not countermand that
instruction and that the issuer has adequate funds in its account to pay
this amount.
Very truly yours,
/s/ CHARLES V. QUINN
Charles V. Quinn