Cancellation and Transfer Provisions. Section 3.9 of the Original Indenture shall not apply with respect to the Securities (but shall apply with respect to any other series of Securities (as defined in the Original Indenture)). Instead, this Section 3.10 shall apply with respect to the Securities. (a) The Company at any time may deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder that 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 and dispose of all Securities surrendered for registration of transfer, exchange, payment, purchase, conversion (pursuant to Article 6 hereof) or cancellation 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 Securities so acquired, while held by or on behalf of the Company or any of its Subsidiaries, shall not entitle the Holder thereof to convert the Securities. The Company may not issue new Securities to replace Securities it has paid in full or delivered to the Trustee for cancellation. (b) If Securities are issued upon the transfer, exchange or replacement of Restricted Securities bearing the Transfer Restriction Legend, or if a request is made to remove the Transfer Restriction Legend on a Security, the Security so issued shall bear the Transfer Restriction Legend, or the Transfer Restriction Legend shall not be removed, as the case may be, unless there is delivered to the Company and the Registrar such satisfactory evidence, which shall include an Opinion of Counsel if requested by the Company or such Registrar, as may be reasonably required by the Company and the Registrar, that neither the Transfer Restriction Legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A or Rule 144 or that such Securities are not “restricted” within the meaning of Rule 144; provided that no such evidence need be supplied in connection with the sale of such Security pursuant to a registration statement that is effective at the time of such sale. Upon (i) provision of such satisfactory evidence if requested, or (ii) notification by the Company to the Trustee and Registrar of the sale of such Security pursuant to a registration statement that is effective at the time of such sale, the Trustee, at the written direction of the Company, shall authenticate and deliver a Security that does not bear the Transfer Restriction Legend. If the Transfer Restriction Legend is removed from the face of a Security and the Security is subsequently held by an Affiliate of the Company, the Transfer Restriction Legend shall be reinstated. (c) No transfer of a Security to any Person shall be effective under this Indenture or the Security unless and until such Security has been registered in the name of such Person. Notwithstanding any other provisions of this Indenture or the Securities, transfers of a Global Security, in whole or in part, shall be made only in accordance with Sections 3.06 and 3.09 and this Section 3.10. (d) The transfer and exchange of beneficial interests in the Global Securities shall be effected through the Depositary, in accordance with the provisions of this Indenture and the applicable rules and procedures of the Depositary. (i) Beneficial interests in any Restricted Global Security may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Security in accordance with the transfer restrictions set forth in the Transfer Restriction Legend. Beneficial interests in any Unrestricted Global Security may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same or any other Unrestricted Global Security. No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 3.10(d)(i). (ii) In connection with all transfers and exchanges of beneficial interests that are not subject to Section 3.10(d)(i), the transferor of such beneficial interest must deliver to the Registrar an order from a direct or indirect participant given to the Depositary directing the Depositary to credit or cause to be credited a beneficial interest in another Global Security in an amount equal to the beneficial interest to be transferred or exchanged and instructions containing information regarding the account to be credited with such increase. (iii) A beneficial interest in any Restricted Global Security may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Security if the transfer complies with the requirements of Section 3.10(d)(ii) and the Registrar receives a duly executed Assignment Form in the form of set forth on the reverse of the form of Security in Section 2.03. (iv) A beneficial interest in any Restricted Global Security may be exchanged for a beneficial interest in an Unrestricted Global Security or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Security if (1) the exchange or transfer complies with the requirements of Section 3.10(d)(ii) and (2) if the Registrar so requests or if the applicable rules and procedures of the Depositary so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Transfer Restriction Legend are no longer required in order to maintain compliance with the Securities Act. (e) The restrictions imposed by the Transfer Restriction Legend upon the transferability of any Restricted Security shall cease and terminate when such Security has been sold pursuant to an effective registration statement under the Securities Act or transferred pursuant to and in compliance with Rule 144 (or any successor provision thereto) or, if earlier, one year after the issue date of such Security. Any Security as to which such restrictions on transfer shall have expired in accordance with their terms or shall have terminated may, upon a surrender of such Security for exchange to the Registrar in accordance with the provisions of this Section 3.10 (accompanied, in the event that such restrictions on transfer have terminated by reason of a transfer in compliance with Rule 144 (or any successor provision), by, if requested, an Opinion of Counsel reasonably acceptable to the Company, addressed to the Company and in form acceptable to the Company, to the effect that the transfer of such Security has been made in compliance with Rule 144 (or such successor provision), be exchanged for a new Security, of like tenor and aggregate principal amount, which shall not bear the Transfer Restriction Legend. (f) As used in Section 3.10(d) and (e), the term “transfer” encompasses any sale, pledge, transfer, hypothecation or other disposition of any Security. The Security Registrar shall retain, in accordance with its customary procedures, copies of all letters, notices and other written communications received pursuant to this Section 3.10. The Company shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Security Registrar.
Appears in 3 contracts
Samples: First Supplemental Indenture (Evergreen Solar Inc), First Supplemental Indenture (Evergreen Solar Inc), First Supplemental Indenture (Evergreen Solar Inc)
Cancellation and Transfer Provisions. Section 3.9 of the Original Indenture shall not apply with respect to the Securities (but shall apply with respect to any other series of Securities (as defined in the Original Indenture)). Instead, this Section 3.10 shall apply with respect to the Securities.
(a) The Company at any time may deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder that 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 and dispose of all Securities surrendered for registration of transfer, exchange, payment, purchase, conversion (pursuant to Article 6 hereof) or cancellation 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 Securities so acquired, while held by or on behalf of the Company or any of its Subsidiaries, shall not entitle the Holder thereof to convert the Securities. The Company may not issue new Securities to replace Securities it has paid in full or delivered to the Trustee for cancellation.
(b) If Securities are issued upon the transfer, exchange or replacement of Restricted Securities bearing the Transfer Restriction Legend, or if a request is made to remove the Transfer Restriction Legend on a Security, the Security so issued shall bear the Transfer Restriction Legend, or the Transfer Restriction Legend shall not be removed, as the case may be, unless there is delivered to the Company and the Registrar such satisfactory evidence, which shall include an Opinion of Counsel if requested by the Company or such Registrar, as may be reasonably required by the Company and the Registrar, that neither the Transfer Restriction Legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A or Rule 144 or that such Securities are not “restricted” within the meaning of Rule 144; provided that no such evidence need be supplied in connection with the sale of such Security pursuant to a registration statement that is effective at the time of such sale. Upon (i) provision of such satisfactory evidence if requested, or (ii) notification by the Company to the Trustee and Registrar of the sale of such Security pursuant to a registration statement that is effective at the time of such sale, the Trustee, at the written direction of the Company, shall authenticate and deliver a Security that does not bear the Transfer Restriction Legend. If the Transfer Restriction Legend is removed from the face of a Security and the Security is subsequently held by an Affiliate of the Company, the Transfer Restriction Legend shall be reinstated.
(c) No transfer of a Security to any Person shall be effective under this Indenture or the Security unless and until such Security has been registered in the name of such Person. Notwithstanding any other provisions of this Indenture or the Securities, transfers of a Global Security, in whole or in part, shall be made only in accordance with Sections 3.06 and 3.09 and this Section 3.10.
(d) The transfer and exchange of beneficial interests in the Global Securities shall be effected through the Depositary, in accordance with the provisions of this Indenture and the applicable rules and procedures of the Depositary.
(i) Beneficial interests in any Restricted Global Security may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Security in accordance with the transfer restrictions set forth in the Transfer Restriction Legend. Beneficial interests in any Unrestricted Global Security may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same or any other Unrestricted Global Security. No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 3.10(d)(i).
(ii) In connection with all transfers and exchanges of beneficial interests that are not subject to Section 3.10(d)(i), the transferor of such beneficial interest must deliver to the Registrar an order from a direct or indirect participant given to the Depositary directing the Depositary to credit or cause to be credited a beneficial interest in another Global Security in an amount equal to the beneficial interest to be transferred or exchanged and instructions containing information regarding the account to be credited with such increase.
(iii) A beneficial interest in any Restricted Global Security may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Security if the transfer complies with the requirements of Section 3.10(d)(ii) and the Registrar receives a duly executed Assignment Form in the form of set forth on the reverse of the form of Security in Section 2.03.
(iv) A beneficial interest in any Restricted Global Security may be exchanged for a beneficial interest in an Unrestricted Global Security or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Security if (1) the exchange or transfer complies with the requirements of Section 3.10(d)(ii) and (2) if the Registrar so requests or if the applicable rules and procedures of the Depositary so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Transfer Restriction Legend are no longer required in order to maintain compliance with the Securities Act.
(e) The restrictions imposed by the Transfer Restriction Legend upon the transferability of any Restricted Security shall cease and terminate when such Security has been sold pursuant to an effective registration statement under the Securities Act or transferred pursuant to and in compliance with Rule 144 (or any successor provision thereto) or, if earlier, one year after the issue date of such Security. Any Security as to which such restrictions on transfer shall have expired in accordance with their terms or shall have terminated may, upon a surrender of such Security for exchange to the Registrar in accordance with the provisions of this Section 3.10 (accompanied, in the event that such restrictions on transfer have terminated by reason of a transfer in compliance with Rule 144 (or any successor provision), by, if requested, an Opinion of Counsel reasonably acceptable to the Company, addressed to the Company and in form acceptable to the Company, to the effect that the transfer of such Security has been made in compliance with Rule 144 (or such successor provision), be exchanged for a new Security, of like tenor and aggregate principal amount, which shall not bear the Transfer Restriction Legend.
(f) As used in Section 3.10(d) and (e), the term “transfer” encompasses any sale, pledge, transfer, hypothecation or other disposition of any Security. The Security Registrar shall retain, in accordance with its customary procedures, copies of all letters, notices and other written communications received pursuant to this Section 3.10. The Company shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Security Registrar.
Appears in 2 contracts
Samples: Indenture (Evergreen Solar Inc), Indenture (Evergreen Solar Inc)
Cancellation and Transfer Provisions. Section 3.9 of the Original Indenture shall not apply with respect to the Securities (but shall apply with respect to any other series of Securities (as defined in the Original Indenture)). Instead, this Section 3.10 shall apply with respect to the Securities.
(a) The Company at any time may deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder that 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 and dispose of all Securities surrendered for registration of transfer, exchange, payment, purchase, conversion (pursuant to Article 6 hereof) purchase or repurchase or cancellation 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 Securities so acquired, while held by or on behalf of the Company or any of its Subsidiaries, shall not entitle the Holder thereof to convert the Securities. The Company may not issue new Securities to replace Securities it has paid in full or delivered to the Trustee for cancellation.
(b) If Securities are issued upon the transfer, exchange or replacement of Restricted Securities bearing the Transfer Restriction Legend, or if a request is made to remove the Transfer Restriction Legend on a Security, the Security so issued shall bear the Transfer Restriction Legend, or the Transfer Restriction Legend shall not be removed, as the case may be, unless there is delivered to the Company and the Registrar such satisfactory evidence, which shall include an Opinion of Counsel if requested by the Company or such Registrar, as may be reasonably required by the Company and the Registrar, that neither the Transfer Restriction Legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A or Rule 144 or that such Securities are not “restricted” within the meaning of Rule 144; provided that no such evidence need be supplied in connection with the sale of such Security pursuant to a registration statement that is effective at the time of such sale. Upon (i) provision of such satisfactory evidence if requested, or (ii) notification by the Company to the Trustee and Registrar of the sale of such Security pursuant to a registration statement that is effective at the time of such sale, the Trustee, at the written direction of the Company, shall authenticate and deliver a Security that does not bear the Transfer Restriction Legend. If the Transfer Restriction Legend is removed from the face of a Security and the Security is subsequently held by an Affiliate of the Company, the Transfer Restriction Legend shall be reinstated.
(c) No transfer of a Security to any Person shall be effective under this Indenture or the Security unless and until such Security has been registered in the name of such Person. Notwithstanding any other provisions of this Indenture or the Securities, transfers of a Global Security, in whole or in part, shall be made only in accordance with Sections 3.06 and 3.09 and this Section 3.10.
(d) The transfer and exchange of beneficial interests in the Global Securities shall be effected through the Depositary, in accordance with the provisions of this Indenture and the applicable rules and procedures of the Depositary.
(i) Beneficial interests in any Restricted Global Security may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Security in accordance with the transfer restrictions set forth in the Transfer Restriction Legend. Beneficial interests in any Unrestricted Global Security may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same or any other Unrestricted Global Security. No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 3.10(d)(i).
(ii) In connection with all transfers and exchanges of beneficial interests that are not subject to Section 3.10(d)(i), the transferor of such beneficial interest must deliver to the Registrar an order from a direct or indirect participant given to the Depositary directing the Depositary to credit or cause to be credited a beneficial interest in another Global Security in an amount equal to the beneficial interest to be transferred or exchanged and instructions containing information regarding the account to be credited with such increase.
(iii) A beneficial interest in any Restricted Global Security may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Security if the transfer complies with the requirements of Section 3.10(d)(ii) and the Registrar receives a duly executed Assignment Form in the form of set forth on the reverse of the form of Security in Section 2.03.
(iv) A beneficial interest in any Restricted Global Security may be exchanged for a beneficial interest in an Unrestricted Global Security or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Security if (1) the exchange or transfer complies with the requirements of Section 3.10(d)(ii) and (2) if the Registrar so requests or if the applicable rules and procedures of the Depositary so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Transfer Restriction Legend are no longer required in order to maintain compliance with the Securities Act.
(e) The restrictions imposed by the Transfer Restriction Legend upon the transferability of any Restricted Security shall cease and terminate when such Security has been sold pursuant to an effective registration statement under the Securities Act or transferred pursuant to and in compliance with Rule 144 (or any successor provision thereto) or, if earlier, one year after the issue date of such Security. Any Security as to which such restrictions on transfer shall have expired in accordance with their terms or shall have terminated may, upon a surrender of such Security for exchange to the Registrar in accordance with the provisions of this Section 3.10 (accompanied, in the event that such restrictions on transfer have terminated by reason of a transfer in compliance with Rule 144 (or any successor provision), by, if requested, an Opinion of Counsel reasonably acceptable to the Company, addressed to the Company and in form acceptable to the Company, to the effect that the transfer of such Security has been made in compliance with Rule 144 (or such successor provision), be exchanged for a new Security, of like tenor and aggregate principal amount, which shall not bear the Transfer Restriction Legend.
(f) As used in Section 3.10(d) and (e), the term “transfer” encompasses any sale, pledge, transfer, hypothecation or other disposition of any Security. The Security Registrar shall retain, in accordance with its customary procedures, copies of all letters, notices and other written communications received pursuant to this Section 3.103.08. The Company shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Security Registrar.
(c) The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this First Supplemental Indenture or under applicable law in respect of any transfer of any interest in any Security other than to require delivery of such certificates and other documentation or evidence as are expressly required by the terms of this First Supplemental Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
(d) Notwithstanding anything herein to the contrary, the Security Registrar shall, on behalf of and acting solely for this purpose as the non-fiduciary agent of the Issuer, maintain a register on which it records the names and addresses of the Holders and the principal amount held by such Holders (the “Register”). The Register shall be available for inspection by the Issuer at any reasonable time and from time to time upon reasonable prior notice. Each Physical Security may be transferred in whole or in part only by registration of such transfer on the Register.
Appears in 1 contract
Samples: First Supplemental Indenture (Neurobiological Technologies Inc /Ca/)
Cancellation and Transfer Provisions. Section 3.9 of the Original Indenture shall not apply with respect to the Securities (but shall apply with respect to any other series of Securities (as defined in the Original Indenture)). Instead, this Section 3.10 shall apply with respect to the Securities.
(a) The Company at any time may deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder that 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 and dispose of all Securities surrendered for registration of transfer, exchange, payment, purchase, conversion (pursuant to Article 6 hereof) or cancellation 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 Securities so acquired, while held by or on behalf of the Company or any of its Subsidiaries, shall not entitle the Holder thereof to convert the Securities. The Company may not issue new Securities to replace Securities it has paid in full or delivered to the Trustee for cancellation.
(b) If Securities are issued upon the transfer, exchange or replacement of Restricted Securities bearing the Transfer Restriction Legend, or if a request is made to remove the Transfer Restriction Legend on a Security, the Security so issued shall bear the Transfer Restriction Legend, or the Transfer Restriction Legend shall not be removed, as the case may be, unless there is delivered to the Company and the Registrar such satisfactory evidence, which shall include an Opinion of Counsel if requested by the Company or such Registrar, as may be reasonably required by the Company and the Registrar, that neither the Transfer Restriction Legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A or Rule 144 or that such Securities are not “restricted” within the meaning of Rule 144; provided that no such evidence need be supplied in connection with the sale of such Security pursuant to a registration statement that is effective at the time of such sale. Upon (i) provision of such satisfactory evidence if requested, or (ii) notification by the Company to the Trustee and Registrar of the sale of such Security pursuant to a registration statement that is effective at the time of such sale, the Trustee, at the written direction of the Company, shall authenticate and deliver a Security that does not bear the Transfer Restriction Legend. If the Transfer Restriction Legend is removed from the face of a Security and the Security is subsequently held by an Affiliate of the Company, the Transfer Restriction Legend shall be reinstated.
(c) No transfer of a Security to any Person shall be effective under this Indenture or the Security unless and until such Security has been registered in the name of such Person. Notwithstanding any other provisions of this Indenture or the Securities, transfers of a Global Security, in whole or in part, shall be made only in accordance with Sections 3.06 and 3.09 and this Section 3.10.
(dc) The transfer and exchange of beneficial interests in the Global Securities shall be effected through the Depositary, in accordance with the provisions of this Indenture and the applicable rules and procedures of the Depositary.
(i) Beneficial interests in any Restricted Global Security may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Security in accordance with the transfer restrictions set forth in the Transfer Restriction Legend. Beneficial interests in any Unrestricted Global Security may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same or any other Unrestricted Global Security. No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 3.10(d)(i).
(ii) In connection with all transfers and exchanges of beneficial interests that are not subject to Section 3.10(d)(i)interests, the transferor of such beneficial interest must deliver to the Registrar an order from a direct or indirect participant given to the Depositary directing the Depositary to credit or cause to be credited a beneficial interest in another Global Security in an amount equal to the beneficial interest to be transferred or exchanged and instructions containing information regarding the account to be credited with such increase.
(iii) A beneficial interest in any Restricted Global Security may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Security if the transfer complies with the requirements of Section 3.10(d)(ii) and the Registrar receives a duly executed Assignment Form in the form of set forth on the reverse of the form of Security in Section 2.03.
(iv) A beneficial interest in any Restricted Global Security may be exchanged for a beneficial interest in an Unrestricted Global Security or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Security if (1) the exchange or transfer complies with the requirements of Section 3.10(d)(ii) and (2) if the Registrar so requests or if the applicable rules and procedures of the Depositary so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Transfer Restriction Legend are no longer required in order to maintain compliance with the Securities Act.
(e) The restrictions imposed by the Transfer Restriction Legend upon the transferability of any Restricted Security shall cease and terminate when such Security has been sold pursuant to an effective registration statement under the Securities Act or transferred pursuant to and in compliance with Rule 144 (or any successor provision thereto) or, if earlier, one year after the issue date of such Security. Any Security as to which such restrictions on transfer shall have expired in accordance with their terms or shall have terminated may, upon a surrender of such Security for exchange to the Registrar in accordance with the provisions of this Section 3.10 (accompanied, in the event that such restrictions on transfer have terminated by reason of a transfer in compliance with Rule 144 (or any successor provision), by, if requested, an Opinion of Counsel reasonably acceptable to the Company, addressed to the Company and in form acceptable to the Company, to the effect that the transfer of such Security has been made in compliance with Rule 144 (or such successor provision), be exchanged for a new Security, of like tenor and aggregate principal amount, which shall not bear the Transfer Restriction Legend.
(fd) As used in Section 3.10(d) and (e3.10(c), the term “transfer” encompasses any sale, pledge, transfer, hypothecation or other disposition of any Security. The Security Registrar shall retain, in accordance with its customary procedures, copies of all letters, notices and other written communications received pursuant to this Section 3.10. The Company shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Security Registrar.
Appears in 1 contract
Samples: Indenture (Evergreen Solar Inc)
Cancellation and Transfer Provisions. Section 3.9 of the Original Indenture shall not apply is hereby amended and restated with respect to the Securities (but shall apply not with respect to any other series of Securities (as defined in the Original Indenture)). Instead, this Section 3.10 shall apply with respect to the Securities.) as follows:
(a) “The Company at any time may deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder that 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 and dispose of all Securities surrendered for registration of transfer, exchange, payment, purchase, conversion (pursuant to Article 6 hereof) or cancellation 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 Securities so acquired, while held by or on behalf of the Company or any of its Subsidiaries, shall not entitle the Holder thereof to convert the Securities. The Company may not issue new Securities to replace Securities it has paid in full or delivered to the Trustee for cancellation.
(b) If Securities are issued upon the transfer, exchange or replacement of Restricted Securities bearing the Transfer Restriction Legend, or if a request is made to remove the Transfer Restriction Legend on a Security, the Security so issued shall bear the Transfer Restriction Legend, or the Transfer Restriction Legend shall not be removed, as the case may be, unless there is delivered to the Company and the Registrar such satisfactory evidence, which shall include an Opinion of Counsel if requested by the Company or such Registrar, as may be reasonably required by the Company and the Registrar, that neither the Transfer Restriction Legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A or Rule 144 or that such Securities are not “restricted” within the meaning of Rule 144; provided that no such evidence need be supplied in connection with the sale of such Security pursuant to a registration statement that is effective at the time of such sale. Upon (i) provision of such satisfactory evidence if requested, or (ii) notification by the Company to the Trustee and Registrar of the sale of such Security pursuant to a registration statement that is effective at the time of such sale, the Trustee, at the written direction of the Company, shall authenticate and deliver a Security that does not bear the Transfer Restriction Legend. If the Transfer Restriction Legend is removed from the face of a Security and the Security is subsequently held by an Affiliate of the Company, the Transfer Restriction Legend shall be reinstated.
(c) No transfer of a Security to any Person shall be effective under this Indenture or the Security unless and until such Security has been registered in the name of such Person. Notwithstanding any other provisions of this Indenture or the Securities, transfers of a Global Security, in whole or in part, shall be made only in accordance with Sections 3.06 and 3.09 and this Section 3.10.
(d) The transfer and exchange of beneficial interests in the Global Securities shall be effected through the Depositary, in accordance with the provisions of this Indenture and the applicable rules and procedures of the Depositary.
(i) Beneficial interests in any Restricted Global Security may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Security in accordance with the transfer restrictions set forth in the Transfer Restriction Legend. Beneficial interests in any Unrestricted Global Security may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same or any other Unrestricted Global Security. No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 3.10(d)(i).
(ii) In connection with all transfers and exchanges of beneficial interests that are not subject to Section 3.10(d)(i), the transferor of such beneficial interest must deliver to the Registrar an order from a direct or indirect participant given to the Depositary directing the Depositary to credit or cause to be credited a beneficial interest in another Global Security in an amount equal to the beneficial interest to be transferred or exchanged and instructions containing information regarding the account to be credited with such increase.
(iii) A beneficial interest in any Restricted Global Security may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Security if the transfer complies with the requirements of Section 3.10(d)(ii) and the Registrar receives a duly executed Assignment Form in the form of set forth on the reverse of the form of Security in Section 2.03.
(iv) A beneficial interest in any Restricted Global Security may be exchanged for a beneficial interest in an Unrestricted Global Security or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Security if (1) the exchange or transfer complies with the requirements of Section 3.10(d)(ii) and (2) if the Registrar so requests or if the applicable rules and procedures of the Depositary so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Transfer Restriction Legend are no longer required in order to maintain compliance with the Securities Act.
(e) The restrictions imposed by the Transfer Restriction Legend upon the transferability of any Restricted Security shall cease and terminate when such Security has been sold pursuant to an effective registration statement under the Securities Act or transferred pursuant to and in compliance with Rule 144 (or any successor provision thereto) or, if earlier, one year after the issue date of such Security. Any Security as to which such restrictions on transfer shall have expired in accordance with their terms or shall have terminated may, upon a surrender of such Security for exchange to the Registrar in accordance with the provisions of this Section 3.10 (accompanied, in the event that such restrictions on transfer have terminated by reason of a transfer in compliance with Rule 144 (or any successor provision), by, if requested, an Opinion of Counsel reasonably acceptable to the Company, addressed to the Company and in form acceptable to the Company, to the effect that the transfer of such Security has been made in compliance with Rule 144 (or such successor provision), be exchanged for a new Security, of like tenor and aggregate principal amount, which shall not bear the Transfer Restriction Legend.
(f) As used in Section 3.10(d) and (e), the term “transfer” encompasses any sale, pledge, transfer, hypothecation or other disposition of any Security. The Security Registrar shall retain, in accordance with its customary procedures, copies of all letters, notices and other written communications received pursuant to this Section 3.10. The Company shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Security Registrar.”
Appears in 1 contract
