As filed with the Securities and Exchange Commission
on December 23, 2024
Registration No.
333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
BLUE BIRD CORPORATION
(Exact name of registrant as specified in its charter)
| Delaware |
|
46-3891989 |
| (State or other jurisdiction of incorporation or organization) |
|
(I.R.S. Employer Identification Number) |
3920 Arkwright Road, 2nd Floor
Macon, Georgia 31210
(478) 822-2801
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
Razvan Radulescu
Chief Financial Officer
Blue Bird Corporation
3920 Arkwright Road, 2nd Floor
Macon, Georgia 31210
(478) 822-2801
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
| Copies to: |
| |
|
|
Ted M. Scartz
Senior Vice President and General Counsel
Blue Bird Corporation
3920 Arkwright Road, 2nd Floor
Macon, Georgia 31210
(478) 822-2801 |
Terry F. Schwartz, Esq.
Lori A. Gelchion, Esq.
Smith, Gambrell & Russell, LLP
1105 W. Peachtree St. NE
Suite 1000
Atlanta, Georgia 30309
(404) 815-3552 |
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box: ¨
If any of the securities being registered on this
Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment plans, check the following box: x
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act registration statement number of the earlier effective registration statement
for the same offering. ¨
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box
and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a registration statement
pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box: x
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following
box: ¨
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company.
See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,”
and “emerging growth company” in Rule 12b-2 of the Exchange Act:
| Large accelerated filer |
⌧ |
Accelerated filer |
o |
| Non-accelerated filer |
o |
Smaller reporting company |
o |
| |
|
Emerging growth company |
o |
If an emerging growth company, indicate
by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
PROSPECTUS
Debt Securities
Common Stock
Preferred Stock
Warrants
Depositary Shares
Subscription Rights
Stock Purchase Contracts
Stock Purchase Units
The securities of each class may be offered and
sold from time to time by us and/or by one or more selling securityholders to be identified in the future. This prospectus describes some
of the general terms that may apply to these securities. We will provide the specific terms of these securities in supplements to this
prospectus. You should read this prospectus and the applicable prospectus supplement carefully before you invest in the securities described
in the applicable prospectus supplement. The prospectus supplement may also add, update or change information contained in this prospectus.
Our common stock is quoted on The NASDAQ Global
Market under the symbol “BLBD.” Each prospectus supplement will indicate if the securities offered thereby will be listed
on any securities exchange.
Investing in our securities involves a high
degree of risk. You should carefully read and consider the risk factors included in our periodic reports and other information that we
file with the Securities and Exchange Commission before you invest in our securities. See “Risk Factors” on page 6 of
this prospectus.
Neither the Securities and Exchange Commission
nor any state securities commission has approved or disapproved of these securities or determined if this prospectus or the accompanying
prospectus supplement is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is December 23,
2024.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of an automatic shelf registration
statement that we filed with the Securities and Exchange Commission (the “SEC”), as a “well-known seasoned issuer”
as defined in Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”). Under the automatic shelf
process, we and/or any selling securityholders to be named in a prospectus supplement may offer and sell, from time to time, any combination
of the securities described in this prospectus in one or more offerings. We will also be required to provide a prospectus supplement containing
specific information about any selling securityholders and the terms on which our securities are being offered and sold. We may also add,
update, or change in a prospectus supplement information contained in this prospectus. If there is any inconsistency between the information
in this prospectus and the applicable supplement, then you should rely on the information in the applicable supplement.
You should rely only on the information contained
in this prospectus and the accompanying prospectus supplement, including the information incorporated by reference herein as described
under “Where You Can Find More Information,” and any free writing prospectus that we prepare and distribute. Neither we nor
any selling securityholders have authorized anyone to provide you with information different from that contained in or incorporated by
reference into this prospectus, the accompanying prospectus supplement or any such free writing prospectus.
We and/or any selling securityholders may only
offer to sell, and seek offers to buy, our securities in jurisdictions where offers and sales are permitted.
This prospectus and any accompanying prospectus
supplement or other offering materials do not contain all of the information included in the registration statement as permitted by the
rules and regulations of the SEC. For further information, we refer you to the registration statement on Form S-3, including
its exhibits. We are subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and, therefore, file reports and other information with the SEC. Statements contained in this prospectus and any accompanying
prospectus supplement or other offering materials about the provisions or contents of any agreement or other document are only summaries.
If SEC rules require that any agreement or document be filed as an exhibit to the registration statement, then you should refer to
that agreement or document for its complete contents.
You should assume that the information in this
prospectus, any prospectus supplement or any other offering materials is accurate as of the date of the applicable document or other date
referred to in that document. Our business, financial condition, results of operations and prospects may have changed since that date.
Unless we state otherwise or the context otherwise
requires, references in this prospectus to “we,” “our,” “us,” “Blue Bird,” or the “Company”
refer to Blue Bird Corporation, a Delaware corporation, and its consolidated subsidiaries.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports,
proxy statements, prospectuses and other information with the SEC. The SEC maintains a website that contains our reports, proxy statements
and other information filed with the SEC at http://www.sec.gov. Our SEC filings are also available free of charge at our website at http://www.blue-bird.com.
The information on, or accessible through, our website is not incorporated by reference into this prospectus.
INCORPORATION BY REFERENCE
The SEC allows “incorporation by reference”
into this prospectus of information that we file with the SEC. This permits us to disclose important information to you by referencing
these filed documents. Any information referenced this way is considered to be a part of this prospectus and any information filed by
us with the SEC subsequent to the date of this prospectus automatically will be deemed to update and supersede this information. We incorporate
by reference the following documents that we have filed with the SEC (excluding any portions of such documents that have been “furnished”
but not “filed” for purposes of the Exchange Act):
We incorporate by reference any filings made with
the SEC in accordance with Section 13(a), 13(c), 14, or 15(d) of the Exchange Act on or after the date of this prospectus and
the date all of the securities offered hereby are sold or the offering is otherwise terminated, with the exception of any information
furnished under Item 2.02 and Item 7.01 of Form 8-K, which is not deemed filed and which is not incorporated by reference herein.
Any such filings shall be deemed to be incorporated by reference and to be a part of this prospectus from the respective dates of filing
of those documents.
We will provide to each person, including any beneficial
owner, to whom a prospectus is delivered, without charge, upon written or oral request, a copy of any or all of the documents that are
incorporated by reference into this prospectus but not delivered with this prospectus, excluding any exhibits to those documents unless
the exhibit is specifically incorporated by reference as an exhibit in this prospectus. You should direct requests for documents to:
Blue Bird Corporation
3920 Arkwright Road, 2nd Floor
Macon, Georgia 31210
Tel: (478) 822-2801
Email: investors@blue-bird.com
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, including the information incorporated
herein by reference, contains forward-looking statements. All statements in this prospectus and the information incorporated herein by
reference, including those made by the management of the Company, other than statements of historical fact, are forward-looking statements.
These forward-looking statements are based on management’s estimates, projections and assumptions as of the date hereof or, in the
case of statements included in documents incorporated by reference, as of the date of the applicable filed document, and include the assumptions
that underlie such statements. Forward-looking statements may contain words such as “may,” “will,” “should,”
“could,” “would,” “expect,” “plan,” “estimate,” “project,” “forecast,”
“seek,” “target,” “anticipate,” “believe,” “predict,” “potential,”
and “continue,” the negative of these terms, or other comparable terminology. Examples of forward-looking statements include
statements regarding our future financial results, research and trial results, regulatory approvals, operating results, business strategies,
projected costs, products, competitive positions, management’s plans and objectives for future operations, and industry trends.
These forward-looking statements relate to expectations for future financial performance, business strategies, or expectations for our
business. Specifically, forward-looking statements may include statements relating to:
| · | the future financial performance of the Company; |
| · | negative changes in the market for Blue Bird products; |
| · | expansion plans and opportunities; |
| · | challenges or unexpected costs related to manufacturing; |
| · | future impacts from pandemics, epidemics or similar widespread disease or illness outbreaks (collectively, “public health crises”)
on capital markets, manufacturing and supply chain abilities, consumer and customer demand, school system operations, workplace conditions,
and any other unexpected impacts, which could include, among other effects: |
| o | disruption in global financial and credit markets; |
| o | supply shortages and supplier financial risk, especially from our single-source suppliers impacted by public health crises; |
| o | negative impacts to manufacturing operations or the supply chain from shutdowns or other disruptions in operations; |
| o | negative impacts on capacity and/or production in response to changes in demand due to public health crises, including possible cost
containment actions; |
| o | financial difficulties of our customers impacted by public health crises; |
| o | reductions in market demand for our products due to public health crises; and |
| o | potential negative impacts of various actions taken by foreign and United States of America (“U.S.”) federal, state, and/or
local governments in response to public health crises; |
| · | future impacts resulting from military conflicts, which include or could include, among other effects: |
| o | disruption in global commodity and other markets; |
| o | supply shortages and supplier financial risk, especially from suppliers providing inventory that is dependent on resources originating
from countries involved in military conflicts; and |
| o | negative impacts to manufacturing operations resulting from inventory cost volatility or the supply chain due to shutdowns or other
disruptions in operations; |
| · | other risks described in “Risk Factors” in Part I – Item 1A of our Annual Report on Form 10-K for the
year ended September 28, 2024, and from time to time in our other SEC filings. |
These forward-looking statements are based on information
available as of the date of this prospectus (or, in the case of forward-looking statements incorporated herein by reference, as of the
date of the applicable filed document), and current expectations, forecasts, and assumptions, and involve a number of judgments, risks,
and uncertainties. Accordingly, forward-looking statements should not be relied upon as representing our views as of any subsequent date,
and we do not undertake any obligation to update forward-looking statements to reflect events or circumstances after the date they were
made, whether as a result of new information, future events, or otherwise, except as may be required under applicable securities laws.
As a result of a number of known and unknown risks and uncertainties, our actual results or performance may be materially different than
those expressed or implied by these forward-looking statements. Any expectations based on these forward-looking statements are subject
to risks and uncertainties and other important factors, including those discussed in this prospectus. Other risks and uncertainties are
and will be disclosed in our prior and future SEC filings.
PROSPECTUS SUMMARY
Background
We (formerly Hennessy Capital Acquisition Corp.)
were incorporated in Delaware on September 24, 2013 as a special purpose acquisition company, or SPAC. On February 24, 2015,
we consummated a business combination (the “Business Combination”), pursuant to which we acquired all of the outstanding capital
stock of School Bus Holdings Inc. (“School Bus Holdings”) from The Traxis Group, B.V. (“Traxis”), in accordance
with a purchase agreement, dated as of September 21, 2014, by and among us, Traxis and Hennessy Capital Partners I LLC, as amended
on February 10, 2015 and February 18, 2015 (the “Purchase Agreement”). Pursuant to the Purchase Agreement, the total
purchase price was paid in a combination of cash in the amount of $100.0 million and 12,000,000 shares of our common stock.
In connection with the closing of the Business
Combination, we changed our name from Hennessy Capital Acquisition Corp. to Blue Bird Corporation.
Pursuant to a Purchase and Sale Agreement, dated
as of May 26, 2016, by and among Traxis, ASP BB Holdings LLC and us, Traxis sold to ASP BB Holdings LLC all of the 12,000,000 shares
of our common stock owned by Traxis. We did not receive any proceeds from that transaction.
Pursuant to a Subscription Agreement, dated as
of December 15, 2021 (the “Subscription Agreement”) by and among Coliseum Capital Partners, L.P., Blackwell Partners
LLC – Series A (and together with Coliseum Capital Partners L.P., the “Subscribers”) and us, we sold to the Subscribers
an aggregate of 4,687,500 shares of our common stock, for aggregate gross proceeds of $75 million.
In fiscal 2023 and 2024, American Securities LLC
(through its affiliate ASP BB Holdings LLC) and the Subscribers sold all of their shares of our common stock through several registered
offerings pursuant to an effective Registration Statement on Form S-3 previously filed by us in satisfaction of registration rights
held by these stockholders.
Any description of our business herein or in the
documents incorporated herein by reference describes the business historically operated by School Bus Holdings and its subsidiaries under
the “Blue Bird” name as an independent enterprise prior to the Business Combination and as subsidiaries of Blue Bird Corporation
after the Business Combination.
Our Company
We are the leading independent
designer and manufacturer of school buses, with more than 610,000 buses sold since our formation in 1927. Our longevity and reputation
in the school bus industry have made Blue Bird an iconic American brand. We distinguish ourselves from our principal competitors by dedicating
our focus to the design, engineering, manufacture and sale of school buses, and related parts. As the only principal manufacturer of chassis
and body production specifically designed for school bus applications, Blue Bird is recognized as an industry leader for school bus innovation,
safety, product quality/reliability/durability, efficiency, and lower operating costs. In addition, Blue Bird is the market leader in
alternatives to diesel-powered applications with its propane-powered, gasoline-powered, and all-electric-powered school buses. We manage
our business in two operating segments, which are also our reportable segments: (i) the Bus segment, which involves the design, engineering,
manufacture, and sales of school buses and extended warranties; and (ii) the Parts segment, which includes the sale of replacement
bus parts.
Our principal executive offices are located at
3920 Arkwright Road, 2nd Floor, Macon, Georgia and our telephone number is (478) 822-2801. Our website is https://www.blue-bird.com.
Information on, or accessible through, our website is not part of this prospectus.
RISK FACTORS
Investment in any securities offered pursuant to
this prospectus involves risks. You should carefully consider the risks and uncertainties incorporated by reference herein from our most
recent Annual Report on Form 10-K, any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K and in
our reports we file with the SEC under Section 13(a), 13(c), 14, or 15(d) of the Exchange Act, as well as the risk factors set
forth in the applicable prospectus supplement, before investing in our securities.
USE OF PROCEEDS
Unless otherwise specified in connection with a
particular offering of securities, the net proceeds from the sale of the securities offered by this prospectus will be used for general
corporate purposes. Unless otherwise set forth in a prospectus supplement, we will not receive any proceeds in the event that the securities
are sold by any selling securityholder.
DESCRIPTION OF DEBT SECURITIES
The following description, together with the additional
information we include in any applicable prospectus supplement, summarizes certain general terms and provisions of the debt securities
that we may offer under this prospectus. When we offer to sell a particular series of debt securities, we will describe the specific terms
of the series in a supplement to this prospectus. We will also indicate in the supplement the extent to which the general terms and provisions
described in this prospectus apply to a particular series of debt securities.
We may issue debt securities either separately,
or together with, or upon the conversion or exercise of or in exchange for, other securities described in this prospectus. Debt securities
may be our senior, senior subordinated, or subordinated obligations and, unless otherwise specified in a supplement to this prospectus,
the debt securities will be our direct, unsecured obligations and may be issued in one or more series.
The debt securities will be issued under an indenture
between us and a trustee to be named in the applicable indenture. We have summarized select portions of the indenture below. The summary
is not complete. The form of the indenture has been filed as an exhibit to the registration statement and you should read the indenture
for provisions that may be important to you. In the summary below, we have included references to the article or section numbers of the
indenture so that you can easily locate these provisions. Capitalized terms used in the summary and not defined herein have the meanings
specified in the indenture.
As used in this section only, “Blue Bird,”
“we,” “our,” or “us” refer to Blue Bird Corporation, excluding our subsidiaries, unless expressly
stated or the context otherwise requires.
The terms of each series of debt securities will
be established by or pursuant to a resolution of our board of directors and set forth or determined in the manner provided in a resolution
of our board of directors, in an officer’s certificate or by a supplemental indenture. The particular terms of each series of debt
securities will be described in a prospectus supplement relating to such series (including any pricing supplement or term sheet).
We can issue an unlimited amount of debt securities
under the indenture that may be in one or more series with the same or various maturities, at par, at a premium, or at a discount. We
will set forth in a prospectus supplement (including any pricing supplement or term sheet) relating to any series of debt securities being
offered, the aggregate principal amount and the following terms of the debt securities, if applicable:
| · | the title and ranking of the debt securities (including the terms of any subordination provisions); |
| · | the price or prices (expressed as a percentage of the principal amount) at which we will sell the debt securities; |
| · | any limit on the aggregate principal amount of the debt securities; |
| · | the date or dates on which the principal of the securities of the series is payable; |
| · | the rate or rates (which may be fixed or variable) per annum or the method used to determine the rate or rates (including any commodity,
commodity index, stock exchange index or financial index) at which the debt securities will bear interest, the date or dates from which
interest will accrue, the date or dates on which interest will commence and be payable, and any regular record date for the interest payable
on any interest payment date; |
| · | the place or places where principal of, and interest, if any, on the debt securities will be payable (and the method of such payment),
where the securities of such series may be surrendered for registration of transfer or exchange, and where notices and demands to us in
respect of the debt securities may be delivered; |
| · | the period or periods within which, the price or prices at which and the terms and conditions upon which we may redeem the debt securities; |
| · | any obligation we have to redeem or purchase the debt securities pursuant to any sinking fund or analogous provisions or at the option
of a holder of debt securities and the period or periods within which, the price or prices at which and the terms and conditions upon
which securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation; |
| · | the dates on which and the price or prices at which we will repurchase debt securities at the option of the holders of debt securities
and other detailed terms and provisions of these repurchase obligations; |
| · | the denominations in which the debt securities will be issued, if other than denominations of $1,000 and any integral multiple thereof; |
| · | whether the debt securities will be issued in the form of certificated debt securities or global debt securities; |
| · | the portion of principal amount of the debt securities payable upon declaration of acceleration of the maturity date, if other than
the principal amount; |
| · | the currency of denomination of the debt securities, which may be U.S. Dollars or any foreign currency, and if such currency of denomination
is a composite currency, the agency or organization, if any, responsible for overseeing such composite currency; |
| · | the designation of the currency, currencies or currency units in which payment of principal of, premium and interest on the debt securities
will be made; |
| · | if payments of principal of, premium or interest on the debt securities will be made in one or more currencies or currency units other
than that or those in which the debt securities are denominated, the manner in which the exchange rate with respect to these payments
will be determined; |
| · | the manner in which the amounts of payment of principal of, premium, if any, or interest on the debt securities will be determined,
if these amounts may be determined by reference to an index based on a currency or currencies or by reference to a commodity, commodity
index, stock exchange index or financial index; |
| · | any provisions relating to any security provided for the debt securities; |
| · | any addition to, deletion of, or change in the Events of Default described in this prospectus or in the indenture with respect to
the debt securities and any change in the acceleration provisions described in this prospectus or in the indenture with respect to the
debt securities; |
| · | any addition to, deletion of, or change in the covenants described in this prospectus or in the indenture with respect to the debt
securities; |
| · | any depositaries, interest rate calculation agents, exchange rate calculation agents, or other agents with respect to the debt securities; |
| · | the provisions, if any, relating to conversion or exchange of any debt securities of such series, including if applicable, the conversion
or exchange price and period, provisions as to whether conversion or exchange will be mandatory, at the option of the holder of the debt
securities or at our option, the events requiring an adjustment of the conversion or exchange price and provisions affecting conversion
or exchange; |
| · | any other terms of the debt securities, which may supplement, modify, or delete any provision of the indenture as it applies to that
series, including any terms that may be required under applicable law or regulations or advisable in connection with the marketing of
the securities; and |
| · | whether any of our direct or indirect subsidiaries will guarantee the debt securities of that series, including the terms of subordination,
if any, of such guarantees. |
We may issue debt securities that provide for an
amount less than their stated principal amount to be due and payable upon declaration of acceleration of their maturity pursuant to the
terms of the indenture. We will provide you with information on the federal income tax considerations and other special considerations
applicable to any of these debt securities in the applicable prospectus supplement.
If we denominate the purchase price of any of the
debt securities in a foreign currency or currencies or a foreign currency unit or units, or if the principal of and any premium and interest
on any series of debt securities is payable in a foreign currency or currencies or a foreign currency unit or units, we will provide you
with information on the restrictions, elections, general tax considerations, specific terms and other information with respect to that
issue of debt securities and such foreign currency or currencies or foreign currency unit or units in the applicable prospectus supplement.
Transfer and Exchange
Each debt security will be represented by either
one or more global securities registered in the name of The Depository Trust Company (the “Depositary”), or a nominee of the
Depositary (we will refer to any debt security represented by a global debt security as a “book-entry debt security”), or
a certificate issued in definitive registered form (we will refer to any debt security represented by a certificated security as a “certificated
debt security”) as set forth in the applicable prospectus supplement. Except as set forth in the applicable prospectus supplement,
book-entry debt securities will not be issuable in certificated form.
Certificated Debt Securities
You may transfer or exchange certificated debt
securities at any office we maintain for this purpose in accordance with the terms of the indenture. No service charge will be made for
any transfer or exchange of certificated debt securities, but we may require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection with a transfer or exchange.
You may effect the transfer of certificated debt
securities and the right to receive the principal of, premium, and interest on certificated debt securities only by surrendering the certificate
representing those certificated debt securities and either reissuance by us or the trustee of the certificate to the new holder or the
issuance by us or the trustee of a new certificate to the new holder.
Global Debt Securities and Book-Entry System
Each global debt security representing book-entry
debt securities will be deposited with, or on behalf of, the Depositary, and registered in the name of the Depositary or a nominee of
the Depositary. The applicable terms of the book-entry securities will be set forth in the applicable prospectus supplement.
Covenants
We will set forth in the applicable prospectus
supplement any restrictive covenants applicable to any issue of debt securities.
Consolidation, Merger and Sale of Assets
We may not consolidate with or merge with or into,
or convey, transfer, or lease all or substantially all of our properties and assets to any person (a “successor person”) unless:
| · | we are the surviving corporation or the successor person (if other than Blue Bird) is a corporation organized and validly existing
under the laws of Delaware and expressly assumes our obligations on the debt securities and under the indenture; and |
| · | immediately after giving effect to the transaction, no Default or Event of Default (as defined below), shall have occurred and be
continuing. |
Notwithstanding the above, any of our subsidiaries
may consolidate with, merge into, or transfer all or part of their properties to us.
Events of Default
“Event of Default” with respect to
any series of debt securities means, any of the following:
| · | default in the payment of any interest on any debt security of that series when it becomes due and payable, and continuance of such
default for a period of 30 days (unless the entire amount of the payment is deposited by us with the trustee or with a paying agent prior
to the expiration of the 30-day period); |
| · | default in the payment of principal of any security of that series at its maturity; |
| · | default in the performance or breach of any other covenant or warranty by us in the indenture (other than a covenant or warranty that
has been included in the indenture solely for the benefit of a series of debt securities other than that series), which default continues
uncured for a period of 60 days after we receive written notice from the trustee or Blue Bird and the trustee receive written notice from
the holders of not less than 25% in principal amount of the outstanding debt securities of that series as provided in the indenture; |
| · | certain voluntary or involuntary events of bankruptcy, insolvency, or reorganization of Blue Bird; or |
| · | any other Event of Default provided with respect to debt securities of that series that is described in the applicable prospectus
supplement. |
No Event of Default with respect to a particular
series of debt securities (except as to certain events of bankruptcy, insolvency, or reorganization) necessarily constitutes an Event
of Default with respect to any other series of debt securities. The occurrence of certain Events of Default or an acceleration under the
indenture may constitute an event of default under certain indebtedness of ours or our subsidiaries outstanding from time to time.
We will provide the trustee written notice of any
Default or Event of Default within 30 days of becoming aware of the occurrence of such Default or Event of Default, which notice will
describe in reasonable detail the status of such Default or Event of Default and what action we are taking or propose to take in respect
thereof.
If an Event of Default with respect to debt securities
of any series at the time outstanding occurs and is continuing, then the trustee or the holders of not less than 25% in principal amount
of the outstanding debt securities of that series may, by a notice in writing to us (and to the trustee if given by the holders), declare
to be due and payable immediately the principal of (or, if the debt securities of that series are discount securities, that portion of
the principal amount as may be specified in the terms of that series) and accrued and unpaid interest, if any, on all debt securities
of that series. In the case of an Event of Default resulting from certain events of bankruptcy, insolvency or reorganization, the principal
(or such specified amount) of and accrued and unpaid interest, if any, on all outstanding debt securities will become and be immediately
due and payable without any declaration or other act on the part of the trustee or any holder of outstanding debt securities. At any time
after a declaration of acceleration with respect to debt securities of any series has been made, but before a judgment or decree for payment
of the money due has been obtained by the trustee, the holders of a majority in principal amount of the outstanding debt securities of
that series may rescind and annul the acceleration if all Events of Default, other than the non-payment of accelerated principal and interest,
if any, with respect to debt securities of that series, have been cured or waived as provided in the indenture. We refer you to the prospectus
supplement relating to any series of debt securities that are discount securities for the particular provisions relating to acceleration
of a portion of the principal amount of such discount securities upon the occurrence of an Event of Default.
The indenture provides that the trustee may refuse
to perform any duty or exercise any of its rights or powers under the indenture unless the trustee receives indemnity satisfactory to
it against any cost, liability, or expense which might be incurred by it in performing such duty or exercising such right or power. Subject
to certain rights of the trustee, the holders of a majority in principal amount of the outstanding debt securities of any series will
have the right to direct the time, method, and place of conducting any proceeding for any remedy available to the trustee or exercising
any trust or power conferred on the trustee with respect to the debt securities of that series.
No holder of any debt security of any series will
have any right to institute any proceeding, judicial or otherwise, with respect to the indenture or for the appointment of a receiver
or trustee, or for any remedy under the indenture, unless:
| · | that holder has previously given to the trustee written notice of a continuing Event of Default with respect to debt securities of
that series; and |
| · | the holders of not less than 25% in principal amount of the outstanding debt securities of that series have made written request,
and offered indemnity or security satisfactory to the trustee, to the trustee to institute the proceeding as trustee, and the trustee
has not received from the holders of not less than a majority in principal amount of the outstanding debt securities of that series a
direction inconsistent with that request and has failed to institute the proceeding within 60 days. |
Notwithstanding any other provision in the indenture,
the holder of any debt security will have an absolute and unconditional right to receive payment of the principal of, premium and any
interest on that debt security on or after the due dates expressed in that debt security and to initiate a lawsuit for the enforcement
of payment.
The indenture requires us, within 120 days after
the end of our fiscal year, to furnish to the trustee a statement as to compliance with the indenture. If a Default or Event of Default
occurs and is continuing with respect to the securities of any series and if it is known to a responsible officer of the trustee, the
trustee shall mail to each securityholder of the securities of that series notice of a Default or Event of Default within 90 days after
it occurs or, if later, after a responsible officer of the trustee has knowledge of such Default or Event of Default. The indenture provides
that the trustee may withhold notice to the holders of debt securities of any series of any Default or Event of Default (except in payment
on any debt securities of that series) with respect to debt securities of that series if the trustee determines in good faith that withholding
notice is in the interest of the holders of those debt securities.
Modification and Waiver
We and the trustee may modify, amend, or supplement
the indenture or the debt securities of any series without the consent of any holder of any debt security:
| · | to cure any ambiguity, defect, or inconsistency; |
| · | to comply with covenants in the indenture described above under the heading “Consolidation, Merger, and Sale of Assets”; |
| · | to provide for uncertificated securities in addition to or in place of certificated securities; |
| · | to add guarantees with respect to debt securities of any series or secure debt securities of any series; |
| · | to surrender any of our rights or powers under the indenture; |
| · | to add covenants or events of default for the benefit of the holders of debt securities of any series; |
| · | to comply with the applicable procedures of the applicable depositary; |
| · | to make any change that does not adversely affect the rights of any holder of debt securities; |
| · | to provide for the issuance of and establish the form and terms and conditions of debt securities of any series as permitted by the
indenture; |
| · | to effect the appointment of a successor trustee with respect to the debt securities of any series and to add to or change any of
the provisions of the indenture to provide for or facilitate administration by more than one trustee; or |
| · | to comply with requirements of the SEC in order to effect or maintain the qualification of the indenture under the Trust Indenture
Act of 1939, as amended. |
We may also modify and amend the indenture with
the consent of the holders of at least a majority in principal amount of the outstanding debt securities of each series affected by the
modifications or amendments. We may not make any modification or amendment without the consent of the holders of each affected debt security
then outstanding if that amendment will:
| · | reduce the amount of debt securities whose holders must consent to an amendment, supplement or waiver; |
| · | reduce the rate of or extend the time for payment of interest (including default interest) on any debt security; |
| · | reduce the principal of or premium on or change the fixed maturity of any debt security or reduce the amount of, or postpone the date
fixed for, the payment of any sinking fund or analogous obligation with respect to any series of debt securities; |
| · | reduce the principal amount of discount securities payable upon acceleration of maturity; |
| · | waive a default in the payment of the principal of, premium or interest on any debt security (except a rescission of acceleration
of the debt securities of any series by the holders of at least a majority in aggregate principal amount of the then outstanding debt
securities of that series and a waiver of the payment default that resulted from such acceleration); |
| · | make the principal of or premium or interest on any debt security payable in currency other than that stated in the debt security; |
| · | make any change to certain provisions of the indenture relating to, among other things, the right of holders of debt securities to
receive payment of the principal of, premium and interest on those debt securities and to institute suit for the enforcement of any such
payment or to make changes to waivers or amendments; or |
| · | waive a redemption payment with respect to any debt security. |
Except for certain specified provisions, the holders
of at least a majority in principal amount of the outstanding debt securities of any series may on behalf of the holders of all debt securities
of that series waive our compliance with provisions of the indenture. The holders of a majority in principal amount of the outstanding
debt securities of any series may on behalf of the holders of all the debt securities of such series waive any past default under the
indenture with respect to that series and its consequences, except a default in the payment of the principal of, premium or any interest
on any debt security of that series; provided, however, that the holders of a majority in principal amount of the outstanding debt securities
of any series may rescind an acceleration and its consequences, including any related payment default that resulted from the acceleration.
Defeasance of Debt Securities and Certain Covenants in Certain Circumstances
Legal
Defeasance. The indenture provides that, unless otherwise provided by the terms of the applicable series of debt securities,
we may be discharged from any and all obligations in respect of the debt securities of any series (subject to certain exceptions). We
will be so discharged upon the irrevocable deposit with the trustee, in trust, of money and/or U.S. government obligations or, in the
case of debt securities denominated in a single currency other than U.S. Dollars, government obligations of the government that issued
or caused to be issued such currency, that, through the payment of interest and principal in accordance with their terms, will provide
an amount in cash sufficient in the opinion of a nationally recognized firm of independent public accountants or investment bank to pay
and discharge each installment of principal, premium and interest on and any mandatory sinking fund payments in respect of the debt securities
of that series on the stated maturity of those payments in accordance with the terms of the indenture and those debt securities.
This discharge may occur only if, among other things,
we have delivered to the trustee an opinion of counsel stating that we have received from, or there has been published by, the U.S. Internal
Revenue Service a ruling or, since the date of execution of the indenture, there has been a change in the applicable U.S. federal income
tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the holders of the debt securities of that
series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the deposit, defeasance and discharge
and will be subject to U.S. federal income tax on the same amounts and in the same manner and at the same times as would have been the
case if the deposit, defeasance and discharge had not occurred.
Defeasance
of Certain Covenants. The indenture provides that, unless otherwise provided by the terms of the applicable series of debt
securities, upon compliance with certain conditions:
| · | we may omit to comply with the covenant described under the heading “Consolidation, Merger and Sale of Assets” and certain
other covenants set forth in the indenture, as well as any additional covenants which may be set forth in the applicable prospectus supplement;
and |
| · | any omission to comply with those covenants will not constitute a Default or an Event of Default with respect to the debt securities
of that series (“covenant defeasance”). |
The conditions include:
| · | we shall have deposited with the trustee money and/or U.S. government obligations or, in the case of debt securities denominated in
a single currency other than U.S. Dollars, government obligations of the government that issued or caused to be issued such currency,
that, through the payment of interest and principal in accordance with their terms, will provide an amount in cash sufficient in the opinion
of a nationally recognized firm of independent public accountants or investment bank to pay and discharge each installment of principal
of, premium and interest on and any mandatory sinking fund payments in respect of the debt securities of that series on the stated maturity
of those payments in accordance with the terms of the indenture and those debt securities; |
| · | such deposit shall not result in any breach or violation, or constitute a default under, the indenture for the debt securities or
any other agreement or instrument; |
| · | no default with respect to the debt securities shall have occurred and be continuing; and |
| · | we shall have delivered to the trustee an opinion of counsel to the effect that the holders of the debt securities of that series
will not recognize income, gain, or loss for U.S. federal income tax purposes as a result of the deposit and related covenant defeasance
and will be subject to U.S. federal income tax on the same amounts and in the same manner and at the same times as would have been the
case if the deposit and related covenant defeasance had not occurred. |
No Personal Liability of Directors, Officers, Employees or Securityholders
None of our past, present or future directors,
officers, employees, or securityholders, as such, will have any liability for any of our obligations under the debt securities or the
indenture or for any claim based on, or in respect or by reason of, such obligations or their creation. By accepting a debt security,
each holder waives and releases all such liability. This waiver and release is part of the consideration for the issue of the debt securities.
However, this waiver and release may not be effective to waive liabilities under U.S. federal securities laws, and it is the view of the
SEC that such a waiver is against public policy.
Governing Law
The indenture and the debt securities, including
any claim or controversy arising out of or relating to the indenture or the securities, will be governed by the laws of the State of New
York.
The indenture will provide that we, the trustee
and the holders of the debt securities (by their acceptance of the debt securities) irrevocably waive, to the fullest extent permitted
by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to the indenture, the debt securities
or the transactions contemplated thereby.
The indenture will provide that any legal suit,
action or proceeding arising out of or based upon the indenture or the transactions contemplated thereby may be instituted in the federal
courts of the U.S. located in the City of New York or the courts of the State of New York in each case located in the City of New York,
and we, the trustee and the holder of the debt securities (by their acceptance of the debt securities) irrevocably submit to the non-exclusive
jurisdiction of such courts in any such suit, action or proceeding. The indenture will further provide that service of any process, summons,
notice or document by mail (to the extent allowed under any applicable statute or rule of court) to such party’s address set
forth in the indenture will be effective service of process for any suit, action or other proceeding brought in any such court. The indenture
will further provide that we, the trustee and the holders of the debt securities (by their acceptance of the debt securities) irrevocably
and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the courts specified above and
irrevocably and unconditionally waive and agree not to plead or claim any such suit, action or other proceeding has been brought in an
inconvenient forum.
DESCRIPTION OF CAPITAL STOCK
The following description of our capital stock
is not complete and may not contain all the information you should consider before investing in our capital stock. This description is
summarized from, and qualified in its entirety by reference to, our second amended and restated certificate of incorporation (our “certificate
of incorporation”) and amended bylaws (our “bylaws”), which have been publicly filed with the SEC. See “Where
You Can Find More Information” and “Incorporation by Reference.” The summary below is also qualified by reference to
the provisions of the General Corporation Law of the State of Delaware (the “DGCL”).
Authorized and Outstanding Stock
Our charter authorizes the issuance of 110.0 million
shares, consisting of 100.0 million shares of common stock, $0.0001 par value per share, and 10.0 million shares of preferred stock, $0.0001
par value. The outstanding shares of our common stock are duly authorized, validly issued, fully paid and non-assessable.
At December 20, 2024, there were 32,111,078
shares of our common stock outstanding.
Common Stock
Our charter provides that our common stock will
have identical rights, powers, preferences and privileges.
Voting
Power. Except as otherwise required by law or as otherwise provided in any certificate of designation for any series of preferred
stock, the holders of common stock possess all voting power for the election of our directors and all other matters requiring stockholder
action. Holders of common stock are entitled to one vote per share on matters to be voted on by stockholders.
Dividends.
Holders of common stock will be entitled to receive such dividends, if any, as may be declared from time to time by our board of directors
in its discretion out of funds legally available therefor. In no event will any stock dividends or stock splits or combinations of stock
be declared or made on common stock unless the shares of common stock at the time outstanding are treated equally and identically.
Liquidation,
Dissolution and Winding Up. In the event of our voluntary or involuntary liquidation, dissolution, distribution of assets or
winding-up, the holders of our common stock will be entitled to receive an equal amount per share of all of our assets of whatever kind
available for distribution to stockholders, after the rights of the holders of our preferred stock have been satisfied.
Preemptive
or Other Rights. There are no sinking fund provisions applicable to our common stock.
Election
of Directors. Our board of directors is divided into three separate classes with each class serving a three-year term. There
is no cumulative voting with respect to the election of directors, with the result that the holders of more than 50% of the shares voted
for the election of directors can elect all of the directors.
Preferred Stock
Our charter provides that shares of preferred stock
may be issued from time to time in one or more series. Our board of directors will be authorized to fix the voting rights, if any, designations,
powers, preferences, the relative, participating, optional or other special rights and any qualifications, limitations and restrictions
thereof, applicable to the shares of each series. Our board of directors will be able to, without stockholder approval, issue preferred
stock with voting and other rights that could adversely affect the voting power and other rights of the holders of our common stock and
could have anti-takeover effects. The ability of our board of directors to issue preferred stock without stockholder approval could have
the effect of delaying, deferring or preventing a change of control of our company or the removal of existing management.
As of December 23, 2024, there were no shares
of preferred stock outstanding. Shares of Series A Convertible Cumulative Preferred Stock issued in connection with our Business
Combination were either purchased by us or converted by us into common stock.
Dividends
We have not paid any cash dividends on our common
stock to date and do not intend to pay cash dividends. In addition, certain of our loan agreements restrict the payment of dividends.
The payment of cash dividends in the future will be dependent upon our revenues and earnings, if any, capital requirements, debt covenants
and general financial condition. The payment of any cash dividends will be within the discretion of our board of directors at such time.
Certain Anti-Takeover Provisions Under our Charter and Pursuant
to Delaware Law
Our certificate of incorporation and bylaws contain
provisions that could have the effect of delaying or preventing changes in control or changes in our management without the consent of
our board of directors. These provisions include:
| · | no cumulative voting in the election of directors, which limits the ability of minority stockholders to elect director candidates; |
| · | the exclusive right of our board of directors to elect a director to fill a vacancy created by the expansion of the board of directors
or the resignation, death, or removal of a director with or without cause by stockholders, which prevents stockholders from being able
to fill vacancies on our board of directors; |
| · | subject to any rights of holders of existing preferred shares, the ability of our board of directors to determine whether to issue
shares of our preferred stock and to determine the price and other terms of those shares, including preferences and voting rights, without
stockholder approval, which could be used to significantly dilute the ownership of a hostile acquirer; |
| · | a prohibition on stockholder action by written consent, which forces stockholder action to be taken at an annual or special meeting
of our stockholders; |
| · | the requirement that a special meeting of stockholders may be called only by the chairman of the board of directors, the chief executive
officer, or the board of directors, which may delay the ability of our stockholders to force consideration of a proposal or to take action,
including the removal of directors; |
| · | limiting the liability of, and providing indemnification to, our directors and officers; |
| · | controlling the procedures for the conduct and scheduling of stockholder meetings; |
| · | providing for a staggered board, in which the members of the board of directors are divided into three classes to serve for a period
of three years from the date of their respective appointment or election; |
| · | permitting the removal of directors with or without cause by stockholders voting a majority of the votes cast if, at any time and
for so long as, American Securities LLC (through its affiliate ASP BB Holdings LLC) beneficially owns, in the aggregate, capital stock
representing at least 40% of the outstanding shares of our common stock; |
| · | advance notice procedures that stockholders must comply with in order to nominate candidates to our board of directors or to propose
matters to be acted upon at a stockholders’ meeting, which may discourage or deter a potential acquirer from conducting a solicitation
of proxies to elect the acquirer’s own slate of directors or otherwise attempting to obtain control of our company; |
| · | requiring an affirmative vote of at least two-thirds of our entire board of directors and by the holders of at least 66.67% of the
voting power of our outstanding voting stock in order to adopt an amendment to our certificate of incorporation if, at any time and for
so long as, American Securities LLC (through its affiliate ASP BB Holdings LLC) beneficially owns, in the aggregate, capital stock representing
at least 50% of the outstanding shares of our common stock; and |
| · | requiring an affirmative vote of at least two-thirds of our entire board of directors or by the holders of at least 66.67% of the
voting power of our outstanding voting stock to amend our bylaws if, at any time and for so long as, American Securities LLC (through
its affiliate ASP BB Holdings LLC) beneficially owns, in the aggregate, capital stock representing at least 50% of the outstanding shares
of our common stock. |
These provisions, alone or together, could delay
hostile takeovers and changes in control of our Company or changes in our board of directors and management.
As a Delaware corporation, we are also subject
to provisions of Delaware law, including Section 203 of the DGCL, which prevents some stockholders holding more than 15% of our outstanding
common stock from engaging in certain business combinations without approval of the holders of substantially all of our outstanding common
stock, as described in more detail below. Any provision of our certificate of incorporation or bylaws or Delaware law that has the effect
of delaying or deterring a change in control could limit the opportunity for our stockholders to receive a premium for their shares of
our common stock and could also affect the price that some investors are willing to pay for our common stock.
For additional information regarding certain provisions
that may operate to preclude a takeover of the Company, see “Risk Factors” in Part I – Item 1A of our Annual Report
on Form 10-K for the year ended September 28, 2024.
Listing
Our common stock is quoted on The NASDAQ Global
Market under the symbol “BLBD.”
Our Transfer Agent
The transfer agent for our common stock is Continental
Stock Transfer & Trust Company. We have agreed to indemnify Continental Stock Transfer & Trust Company in its roles
as transfer agent, its agents and each of its stockholders, directors, officers and employees against all claims and losses that may arise
out of acts performed or omitted in that capacity, except for any liability due to any gross negligence or intentional misconduct of the
indemnified person or entity.
DESCRIPTION OF WARRANTS
We may issue warrants to purchase debt securities,
preferred stock, common stock or other securities. We may issue warrants independently or together with other securities. Warrants sold
with other securities may be attached to or separate from the other securities. Any warrants we issue will be under one or more warrant
agreements between us and a warrant agent named in the applicable prospectus supplement.
The prospectus supplement relating to any warrants
we offer will include specific terms relating to the offering. These terms may include:
| · | the title of the warrants; |
| · | the aggregate number of warrants offered; |
| · | the designation, number and terms of the debt securities, preferred stock, common stock or other securities purchasable upon exercise
of the warrants and procedures by which those numbers may be adjusted; |
| · | the exercise price of the warrants; |
| · | the dates or periods during which the warrants are exercisable; |
| · | the designation and terms of any securities with which the warrants are issued; |
| · | if the warrants are issued as a unit with another security, the date on and after which the warrants and the other security will be
separately transferable; |
| · | if the exercise price is not payable in U.S. dollars, the foreign currency, currency unit or composite currency in which the exercise
price is denominated; |
| · | any minimum or maximum amount of warrants that may be exercised at any one time; |
| · | any terms relating to the modification of the warrants; |
| · | any terms, procedures and limitations relating to the transferability, exchange or exercise of the warrants; and |
| · | any other specific terms of the warrants. |
The description in the applicable prospectus supplement
of any warrants that we may offer will not necessarily be complete and will be qualified in its entirety by reference to the applicable
warrant agreement, which will be filed with the SEC.
DESCRIPTION OF DEPOSITARY SHARES
We may, at our option, elect to offer fractional
shares of preferred stock, rather than full shares of preferred stock. In such event, we will issue receipts for depositary shares, each
of which will represent a fraction of a particular series of preferred stock. If we issue depositary shares, the applicable prospectus
supplement will describe the specific terms of the depositary shares offered by that prospectus supplement, which may supersede any general
terms outlined in this section.
We will deposit shares of any series of preferred
stock represented by depositary shares under a deposit agreement between us and a bank or trust company, having its principal office in
the U.S. and having a combined capital and surplus of at least $50 million, that we will select as preferred stock depositary. Each owner
of a depositary share will be entitled to all the rights and preferences of the underlying preferred stock, including dividend, voting,
redemption, conversion, and liquidation rights, in proportion to the applicable fraction of a share of preferred stock represented by
such depositary share.
The depositary shares will be evidenced by depositary
receipts issued pursuant to the deposit agreement. Depositary receipts will be distributed to those persons purchasing the fractional
shares of preferred stock in accordance with the terms of the applicable prospectus supplement.
Dividends and Other Distributions
The preferred stock depositary will distribute
all cash dividends or other cash distributions received in respect of the deposited preferred stock to the record holders of depositary
shares relating to such preferred stock in proportion to the number of such depositary shares owned by such holders.
The preferred stock depositary will distribute
any property received by it other than cash to the record holders of depositary shares entitled thereto. If the preferred stock depositary
determines that it is not feasible to make such distribution, it may, with our approval, sell such property and distribute the net proceeds
from such sale to such holders.
Redemption of Preferred Stock
If a series of preferred stock represented by depositary
shares is to be redeemed, the depositary shares will be redeemed from the proceeds received by the preferred stock depositary resulting
from the redemption, in whole or in part, of such series of preferred stock. The depositary shares will be redeemed by the preferred stock
depositary at a price per depositary share equal to the applicable fraction of the redemption price per share payable in respect of the
shares of preferred stock so redeemed.
Whenever we redeem shares of preferred stock held
by the preferred stock depositary, the preferred stock depositary will redeem as of the same date the number of depositary shares representing
the shares of preferred stock so redeemed. If fewer than all the depositary shares are to be redeemed, the depositary shares to be redeemed
will be selected by the preferred stock depositary by lot or ratably or by any other equitable method as the preferred stock depositary
may decide.
Withdrawal of Preferred Stock
Unless the related depositary shares have previously
been called for redemption, any holder of depositary shares may receive the number of whole shares of the related series of preferred
stock and any money or other property represented by such depositary receipts after surrendering the depositary receipts at the corporate
trust office of the preferred stock depositary. Holders of depositary shares making such withdrawals will be entitled to receive whole
shares of preferred stock on the basis set forth in the related prospectus supplement for such series of preferred stock.
Holders of such whole shares of preferred stock,
however, will not be entitled to deposit such preferred stock under the deposit agreement or to receive depositary receipts for such preferred
stock after such withdrawal. If the depositary shares surrendered by the holder in connection with such withdrawal exceed the number of
depositary shares that represent the number of whole shares of preferred stock to be withdrawn, the preferred stock depositary will deliver
to such holder at the same time a new depositary receipt evidencing such excess number of depositary shares.
Voting Deposited Preferred Stock
Upon receipt of notice of any meeting at which
the holders of any series of deposited preferred stock are entitled to vote, the preferred stock depositary will mail the information
contained in such notice of meeting to the record holders of the depositary shares relating to such series of preferred stock. Each record
holder of such depositary shares on the record date will be entitled to instruct the preferred stock depositary to vote the amount of
our preferred stock represented by such holder’s depositary shares. The preferred stock depositary will try to vote the amount of
such series of preferred stock represented by such depositary shares in accordance with such instructions.
We will agree to take all reasonable action requested
by the preferred stock depositary to enable the preferred stock depositary to vote as instructed. The preferred stock depositary will
vote all shares of any series of preferred stock held by it proportionately with instructions received if it does not receive specific
instructions from the holders of depositary shares representing such series of preferred stock.
Amendment and Termination of the Deposit Agreement
The form of depositary receipt evidencing the depositary
shares and any provision of the deposit agreement may at any time be amended by agreement between us and the preferred stock depositary.
However, any amendment that imposes additional charges or materially and adversely alters any substantial existing right of the holders
of depositary shares will not be effective unless such amendment has been approved by the holders of at least a majority of the affected
depositary shares then outstanding. Every holder of an outstanding depositary receipt at the time any such amendment becomes effective,
or any transferee of such holder, shall be deemed, by continuing to hold such depositary receipt, or by reason of the acquisition thereof,
to consent and agree to such amendment and to be bound by the deposit agreement, which has been amended thereby. The deposit agreement
automatically terminates if:
| · | all outstanding depositary shares have been redeemed; |
| · | each share of preferred stock has been converted into or exchanged for common stock; or |
| · | a final distribution in respect of the preferred stock has been made to the holders of depositary shares in connection with our liquidation,
dissolution or winding up. |
The deposit agreement may be terminated by us at
any time and the preferred stock depositary will give notice of such termination to the record holders of all outstanding depositary receipts
not less than 30 days prior to the termination date. In such event, the preferred stock depositary will deliver or make available for
delivery to holders of depositary shares, upon surrender of such depositary shares, the number of whole or fractional shares of the related
series of preferred stock as are represented by such depositary shares.
Charges of Preferred Stock Depositary; Taxes and Other Governmental
Charges
No fees, charges and expenses of the preferred
stock depositary or any agent of the preferred stock depositary or of any registrar shall be payable by any person other than us, except
for any taxes and other governmental charges and except as provided in the deposit agreement. If the preferred stock depositary incurs
fees, charges or expenses for which it is not otherwise liable hereunder at the election of a holder of a depositary receipt or other
person, such holder or other person will be liable for such fees, charges and expenses.
Resignation and Removal of Depositary
The preferred stock depositary may resign at any
time by delivering to us notice of its intent to do so, and we may at any time remove the preferred stock depositary, any such resignation
or removal to take effect upon the appointment of a successor preferred stock depositary and its acceptance of such appointment. Such
successor preferred stock depositary must be appointed within 60 days after delivery of the notice of resignation or removal and must
be a bank or trust company having its principal office in the U.S. and having a combined capital and surplus of at least $50 million.
Miscellaneous
The preferred stock depositary will forward all
reports and communications from us that are delivered to the preferred stock depositary and that we are required to furnish to the holders
of the deposited preferred stock.
Neither we nor the preferred stock depositary will
be liable if the preferred stock depositary is prevented or delayed by law or any circumstances beyond its control in performing its obligations
under the deposit agreement. Our obligations and the obligations of the preferred stock depositary under the deposit agreement will be
limited to performance with honest intentions of their duties thereunder. Neither we nor the preferred stock depositary will be obligated
to prosecute or defend any legal proceeding in respect of any depositary shares, depositary receipts, or shares of preferred stock unless
satisfactory indemnity is furnished. We and the preferred stock depositary may rely upon written advice of counsel or accountants, or
upon information provided by holders of depositary receipts or other persons believed to be competent and on documents believed to be
genuine.
The description in the applicable prospectus supplement
of any depositary shares that we may offer will not necessarily be complete and will be qualified in its entirety by reference to the
applicable deposit agreement, which will be filed with the SEC.
DESCRIPTION OF SUBSCRIPTION RIGHTS
We may issue rights to purchase debt securities,
preferred stock, common stock or other securities. These rights may be issued independently or together with any other security offered
hereby and may or may not be transferable by the stockholder receiving the rights in such offering. In connection with any offering of
such rights, we may enter into a standby arrangement with one or more underwriters or other purchasers pursuant to which the underwriters
or other purchasers may be required to purchase any securities remaining unsubscribed for after such offering.
The applicable prospectus supplement will describe
the specific terms of any offering of rights for which this prospectus is being delivered, which may include:
| · | the price, if any, per right; |
| · | the exercise price payable for debt securities, preferred stock, common stock, or other securities upon the exercise of the rights; |
| · | the number of rights issued or to be issued to each stockholder; |
| · | the number and terms of debt securities, preferred stock, common stock, or other securities which may be purchased per right; |
| · | the extent to which the rights are transferable; |
| · | any other terms of the rights, including the terms, procedures, and limitations relating to the exchange and exercise of the rights; |
| · | the date on which the holder’s ability to exercise the rights shall commence, and the date on which the rights shall expire; |
| · | the extent to which the rights may include an over-subscription privilege with respect to unsubscribed securities; and |
| · | if applicable, the material terms of any standby underwriting or purchase arrangement entered into by us in connection with the offering
of such rights. |
The description in the applicable prospectus supplement
of any rights that we may offer will not necessarily be complete and will be qualified in its entirety by reference to the applicable
rights certificate, which will be filed with the SEC.
DESCRIPTION OF STOCK PURCHASE CONTRACTS
AND STOCK PURCHASE UNITS
We may issue stock purchase contracts, including
contracts obligating holders to purchase from or sell to us, and obligating us to sell to or purchase from the holders, a specified number
of shares of common stock, preferred stock or other securities at a future date or dates. The price per share of the securities and the
number of shares of the securities may be fixed at the time the stock purchase contracts are issued or may be determined by reference
to a specific formula set forth in the stock purchase contracts, and may be subject to adjustment under anti-dilution formulas. The stock
purchase contracts may be issued separately or as part of stock purchase units consisting of a stock purchase contract and any combination
of debt securities, shares of our common stock or preferred stock or depositary shares. The stock purchase units may require holders to
secure their obligations under the stock purchase contracts in a specified manner. The stock purchase units also may require us to make
periodic payments to the holders of the stock purchase contracts or the stock purchase units or vice versa, and those payments may be
unsecured or pre-funded on some basis.
The applicable prospectus supplement will describe
the terms of the stock purchase contracts or stock purchase units including, if applicable, collateral or depositary arrangements. The
description in the applicable prospectus supplement will not necessarily be complete and will be qualified in its entirety by reference
to the stock purchase contracts, and, if applicable, collateral or depositary arrangements relating to the stock purchase contracts or
stock purchase units, which will be filed with the SEC.
SELLING SECURITYHOLDERS
Information regarding the beneficial ownership
of our securities by any selling securityholders, the number of securities being offered by such selling securityholders and the number
of securities beneficially owned by such selling securityholders after the applicable offering, where applicable, will be set forth in
a prospectus supplement, in a post-effective amendment, or in filings we make with the SEC under the Exchange Act which are incorporated
by reference herein.
PLAN OF DISTRIBUTION
We may sell the offered securities:
| · | to or through underwriters; or |
| · | directly to other purchasers. |
Any underwriters or agents will be identified and
their discounts, commissions and other items constituting underwriters’ compensation and any securities exchanges on which the securities
are listed will be described in the applicable prospectus supplement or term sheet.
We (directly or through agents) may sell, and the
underwriters may resell, the offered securities in one or more transactions, including negotiated transactions, at a fixed public offering
price or prices, which may be changed, or at market prices prevailing at the time of sale, at prices related to prevailing market prices
or at negotiated prices.
In connection with the sale of offered securities,
the underwriters or agents may receive compensation from us or from purchasers of the offered securities for whom they may act as agents.
The underwriters may sell offered securities to or through dealers, who may also receive compensation from purchasers of the offered securities
for whom they may act as agents. Compensation may be in the form of discounts, concessions or commissions. Underwriters, dealers and agents
that participate in the distribution of the offered securities may be underwriters as defined in the Securities Act and any discounts
or commissions received by them from us and any profit on the resale of the offered securities by them may be treated as underwriting
discounts and commissions under the Securities Act.
We may indemnify the underwriters and agents against
certain civil liabilities, including liabilities under the Securities Act, or contribute to payments they may be required to make in respect
of such liabilities.
Underwriters, dealers and agents may engage in
transactions with, or perform services for, us or our affiliates in the ordinary course of their businesses.
LEGAL MATTERS
Unless otherwise indicated in the applicable prospectus
supplement, Smith, Gambrell & Russell, LLP, Atlanta, Georgia, will provide opinions regarding the authorization and, if applicable,
validity of the securities. Smith, Gambrell & Russell, LLP may also provide opinions regarding certain other matters. Any underwriters
will also be advised about legal matters by their own counsel, which will be named in the prospectus supplement.
EXPERTS
The consolidated financial statements and schedule
of Blue Bird Corporation as of September 28, 2024 and September 30, 2023 and for each of the three years in the period ended
September 28, 2024, and management’s assessment of the effectiveness of internal control over financial reporting as of September 28,
2024 incorporated by reference in this prospectus and in the registration statement have been so incorporated in reliance on the reports
of BDO USA, P.C., an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
PROSPECTUS
Debt
Securities
COMMON
STOCK
Preferred
Stock
Warrants
Depositary
Shares
Subscription
Rights
Stock
Purchase Contracts
Stock
Purchase Units
December 23, 2024
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 payable by the registrant in connection with the registration of the securities being registered under this registration
statement. All amounts shown are estimates except the SEC registration fee:
| SEC registration fee | |
(1 | ) |
| FINRA filing fee | |
(2 | ) |
| Exchange listing fees | |
(2 | ) |
| Printing expenses | |
(2 | ) |
| Accounting fees and expenses | |
(2 | ) |
| Legal fees and expenses | |
(2 | ) |
| Rating agency fees and expense | |
(2 | ) |
| Transfer agent, registrar and trustee fees and expenses | |
(2 | ) |
| Blue Sky, qualification fees and expenses | |
(2 | ) |
| Miscellaneous | |
(2 | ) |
| Total | |
(2 | ) |
| |
(1) |
Deferred in accordance with Rule 456(b) and Rule 457(r) of the Securities Act. |
| |
|
|
| |
(2) |
Since an indeterminate amount of securities is covered by this registration statement, the expenses in connection with the issuance and distribution of the securities are not currently determinable. |
| Item 15. | Indemnification of Directors and Officers. |
Section 145 of the DGCL permits a corporation,
under specified circumstances, to indemnify its directors, officers, employees and agents against expenses (including attorneys’
fees) and other liabilities actually and reasonably incurred by them as a result of any suit (other than a suit brought by or in the right
of the corporation) brought against them in their capacity as such, if they acted in good faith and in a manner they reasonably believed
to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, if they had
no reasonable cause to believe their conduct was unlawful. Section 145 of the DGCL also provides that directors, officers, employees
and agents may also be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by them in connection
with a suit brought by or in the right of the corporation if they acted in good faith and in a manner they reasonably believed to be in
or not opposed to the best interests of the corporation, except that no indemnification may be made, unless otherwise determined by the
court, if such person was adjudged liable to the corporation. The DGCL provides that the indemnification described above shall not be
deemed exclusive of other indemnification that may be granted by a corporation pursuant to its bylaws, disinterested directors’
vote, stockholders’ vote, agreement, or otherwise.
The DGCL also provides corporations with the power
to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee, or agent of the corporation, or
is or was serving at the request of the corporation in a similar capacity for another corporation, partnership, joint venture, trust,
or other enterprise, against any liability asserted against such person and incurred by such person in any such capacity, or arising out
of his or her status, whether or not the corporation would have the power to indemnify him or her against such liability as described
above.
Our certificate of incorporation and bylaws provide
for indemnification of our directors and officers to the maximum extent permitted by the DGCL. In addition, the registrant has entered
into indemnification agreements with each of its current directors and executive officers. Each indemnification agreement provides that
we will indemnify the director or executive officer to the fullest extent permitted by law if the director or officer was, is made, or
is threatened to be made a party to any proceeding, other than a proceeding by or in the right of the registrant, for all expenses, judgments,
liabilities, fines, penalties, and amounts paid in settlement actually and reasonably incurred by the director or officer in connection
with such proceeding, or, for all expenses actually and reasonably incurred by the director or officer in connection with any proceeding
by or in the right of the registrant, in both cases, so long as the director or officer acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the registrant, and, in the case of a criminal proceeding, in addition,
had no reason to believe his or her conduct was unlawful. The indemnification agreement also provides for, among other things, (i) partial
indemnification of all expenses actually and reasonably incurred by the director or officer in the event that he or she was successful
as to less than all of the claims in connection with any proceeding; (ii) that, in respect of any proceeding in which the registrant
is jointly liable with the director or officer, to the fullest extent permitted by law, the registrant waives and relinquishes any right
of contribution it may have against the director of officer; (iii) proportionate contribution by the registrant of all expenses actually
incurred and paid or payable in the event the director or officer shall elect or be required to pay all or any portion of a judgment or
settlement in any proceeding in which the registrant is jointly liable; and (iv) to the fullest extent permitted by law, that the
registrant will advance the expenses incurred by or on behalf of the director or officer in connection with any eligible proceeding, provided
that the director or officer undertakes to repay the amounts advanced to the extent it is ultimately determined that the director or officer
is not entitled to indemnification by the registrant. The registrant also intends to enter into indemnification agreements with its future
directors and executive officers.
The registrant has purchased directors’ and
officers’ liability insurance. The registrant believes that this insurance is necessary to attract and retain qualified directors
and officers.
| Exhibit No. |
|
Description |
| |
|
|
| 1.1 |
|
Form of Underwriting Agreement** |
| |
|
|
| 3.1 |
|
The registrant’s Second Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the registrant’s Current Report on Form 8-K, filed by the registrant with the SEC on February 26, 2015). |
| |
|
|
| 3.2 |
|
The registrant’s Bylaws, as amended, effective February 2, 2023 (incorporated by reference to Exhibit 3.2 to the registrant’s Current Report on Form 8-K, filed by the registrant with the SEC on February 3, 2023). |
| |
|
|
| 4.1 |
|
Credit Agreement, dated as of November 17, 2023, by and among the Company, School Bus Holdings, Inc. and certain of its subsidiaries, including Blue Bird Body Company as the borrower, Bank of Montreal, as Administrative Agent and certain other financial institutions party thereto (incorporated by reference to Exhibit 10.1 to the registrant’s Current Report on Form 8-K, filed by the registrant with the SEC on November 20, 2023). |
| |
|
|
| 4.2 |
|
Form of Warrant to Purchase Common Stock of Blue Bird Corporation, dated November 14, 2024, issued by Blue Bird Corporation with an Expiration Date of December 7, 2028.* |
| |
|
|
| 4.3 |
|
Form of Warrant to Purchase Common Stock of Blue Bird Corporation, dated as of November 14, 2024, issued by Blue Bird Corporation with an Expiration Date of August 8, 2029.* |
| |
|
|
| 4.4 |
|
Specimen stock certificate for the registrant’s common stock (incorporated by reference to Exhibit 4.1 to the registrant’s Current Report on Form 8-K, filed by the registrant with the SEC on March 2, 2015). |
| |
|
|
| 4.5 |
|
Form of Certificate of Designations Establishing a Series of Preferred Stock** |
| |
|
|
| 4.6 |
|
Form of Specimen of Preferred Stock Certificate** |
| |
|
|
| 4.7 |
|
Form of Indenture* |
| |
|
|
| 4.8 |
|
Form of Debt Security** |
| |
|
|
| 4.9 |
|
Form of Deposit Agreement (including form of Depositary Receipt for Depositary Shares)** |
| |
|
|
| 4.10 |
|
Form of Warrant Agreement (including form of Warrant Certificate)** |
| |
|
|
| 4.11 |
|
Form of Subscription Rights Agreement (including for of Subscription Rights Certificate)** |
| |
|
|
| 4.12 |
|
Form of Stock Purchase Contract (including form of Stock Purchase Contract Certificate)** |
| ** | To be filed by amendment to this registration statement or as an exhibit to a Current Report on Form 8-K and incorporated herein
by reference. |
| *** | To be incorporated herein by reference from a subsequent filing in accordance with Section 305(b)(2) of the Trust Indenture
Act of 1939, as amended. |
(A) The
undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To
include any prospectus required by section 10(a)(3) of the Securities Act;
(ii) To
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20% change in the maximum aggregate offering price set forth in the Filing Fee Table attached as an exhibit
to the effective registration statement;
(iii) To
include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided,
however, that paragraphs (A)(1)(i), (A)(1)(ii) and (A)(1)(iii) above do not apply if the information required to
be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement,
or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination
of the offering.
(4) That,
for the purpose of determining liability under the Securities Act to any purchaser:
A.
Each prospectus filed by
the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration statement; and
B.
Each prospectus required
to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required
by section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier
of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering
described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an
underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide
offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date; or
(5) That,
for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the
securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered
or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser
and will be considered to offer or sell such securities to such purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the
undersigned registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(B) The
undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the
registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated
by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(C) Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that, in the opinion of the SEC, such
indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3
and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Macon, State of Georgia, on December 23, 2024.
| |
BLUE BIRD CORPORATION |
| |
|
| |
By: |
/s/ Razvan Radulescu |
| |
Name: |
Razvan Radulescu |
| |
Title: |
Chief Financial Officer |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the
persons whose signature appears below appoints and constitutes Philip Horlock and Ted M. Scartz, and each of them, his or her true and
lawful attorney-in-fact and agent, each acting alone, with full power of substitution and resubstitution, for him or her and in his or
her name, place and stead, in any and all capacities, to execute any and all amendments (including post-effective amendments) to the within
registration statement (as well as any registration statement for the same offering covered by this registration statement that is to
be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933), and to file the same, together with all
exhibits thereto and all other documents in connection therewith, with the Securities and Exchange Commission and such other agencies,
offices and persons as may be required by applicable law, granting unto each said attorney-in-fact and agent, each acting alone, 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 he might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and
agent, each acting alone 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 in the
capacities and on the dates indicated.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/ Philip Horlock |
|
President, Chief Executive Officer and |
|
December 23, 2024 |
| Philip Horlock |
|
Director (Principal Executive Officer) |
|
|
| |
|
|
|
|
| /s/ Razvan Radulescu |
|
Chief Financial Officer (Principal Financial |
|
December 23, 2024 |
| Razvan Radulescu |
|
Officer and Principal Accounting Officer) |
|
|
| |
|
|
|
|
| /s/ Mark Blaufuss |
|
Director |
|
December 23, 2024 |
| Mark Blaufuss |
|
|
|
|
| |
|
|
|
|
| /s/ Julie A. Fream |
|
Director |
|
December 23, 2024 |
| Julie A. Fream |
|
|
|
|
| |
|
|
|
|
| /s/ Douglas Grimm |
|
Director |
|
December 23, 2024 |
| Douglas Grimm |
|
|
|
|
| |
|
|
|
|
| /s/ Edward T. Hightower |
|
Director |
|
December 23, 2024 |
| Edward T. Hightower |
|
|
|
|
| |
|
|
|
|
| /s/ Simon J. Newman |
|
Director |
|
December 23, 2024 |
| Simon J. Newman |
|
|
|
|
| |
|
|
|
|
| /s/ Kevin Penn |
|
Director |
|
December 23, 2024 |
| Kevin Penn |
|
|
|
|
| |
|
|
|
|
| /s/ Dan Thau |
|
Director |
|
December 23, 2024 |
| Dan Thau |
|
|
|
|
EXHIBIT 4.2
In accordance with Instruction 2 to Item 601
of Regulation S-K, below is a schedule setting forth details in which the omitted executed warrants differ from the form of warrant that
follows:
| Warrantholder |
Number
of Warrant Shares |
|
| ASIG
International Limited |
24,797 |
|
| Aristeia
Master, L.P. |
438,674 |
|
| DS
Liquid Div RVA ARST LLC |
21,415 |
|
| Windermere
Cayman Fund Limited |
12,767 |
|
| Blue
Peak Limited |
169,014 |
|
THIS WARRANT AND THE SECURITIES ISSUABLE
UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR THE
SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF MAY NOT BE
OFFERED, SOLD, PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED UNLESS (1) SUCH TRANSACTION IS MADE PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT FILED UNDER THE SECURITIES ACT AND THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION OR
(2) THE COMPANY IS PROVIDED WITH AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY, STATING THAT SUCH TRANSACTION IS IN
COMPLIANCE WITH EXEMPTIONS FROM REGISTRATION UNDER THE SECURITIES ACT AND SUCH OTHER APPLICABLE LAWS. NO TRANSFER OF ANY INTEREST IN
THIS WARRANT OR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF MAY BE EFFECTED WITHOUT FIRST SURRENDERING THIS WARRANT OR SUCH
SECURITIES, AS THE CASE MAY BE, TO THE COMPANY OR ITS TRANSFER AGENT, IF ANY.
WARRANT TO PURCHASE COMMON
STOCK OF BLUE BIRD CORPORATION
November 14, 2024
FOR VALUE RECEIVED, Blue
Bird Corporation, a Delaware corporation (the “Company”), hereby certifies that ________________, a ______________
company, or its registered assigns (the “Holder”) is entitled to purchase up to ____ duly authorized, validly
issued, fully paid, and nonassessable shares of Common Stock (the “Warrant Shares”), $0.0001 par value per
share, at a purchase price per share of $25.00 (subject to adjustment as provided herein, the “Exercise Price”).
This Warrant is also subject to the following terms conditions.
| 1. | Exercise and Payment; Exchange. |
(a) This
Warrant may be exercised in whole or in part at any time from and after the date hereof through 5:00 p.m., Eastern time, on December 7,
2028 (the “Expiration Date”), at which time this Warrant shall expire and become void, but if such date is
a day on which federal or state chartered banking institutions located in the State of New York are authorized to close, then on the
next succeeding day which shall not be such a day. Exercise shall be by presentation and surrender to the Company, or at the office of
any transfer agent designated by the Company (the “Transfer Agent”), of (i) this Warrant, (ii) a
properly executed exercise agreement in the form attached hereto as Exhibit A (the “Exercise Agreement”),
and (iii) a certified or official bank check for the Exercise Price for the number of Warrant Shares specified in the Exercise Agreement.
If this Warrant is exercised in part only, the Company or the Transfer Agent shall, upon surrender of the Warrant, execute and deliver
a new Warrant evidencing the rights of the Holder to purchase the remaining number of Warrant Shares purchasable hereunder. Upon receipt
by the Company of this Warrant, the properly executed Exercise Agreement, and payment as aforesaid, the Holder shall be deemed to be
the holder of record of the Common Stock issuable upon such exercise, notwithstanding that the stock transfer books of the Company shall
then be closed or that certificates representing such Warrant Shares shall not then be actually delivered to the Holder. Under no circumstance
shall the Company be required to make any cash payments or net cash settlement to the Holder in lieu of delivery of the Warrant Shares.
(b) The
restrictions in Section 7 shall apply, to the extent applicable by their terms, to any exercise or exchange of this Warrant permitted
by this Section 1.
2. Reservation
of Shares. The Company shall, at all times until the expiration of this Warrant, reserve for issuance and delivery upon exercise
of this Warrant the number of Warrant Shares which shall be required for issuance and delivery upon exercise of this Warrant.
3. Fractional
Interests. The Company shall not issue any fractional shares or scrip representing fractional shares upon the exercise or exchange
of this Warrant. With respect to any fraction of a share resulting from the exercise or exchange hereof, the Company shall pay to the
Holder an amount in cash equal to such fraction multiplied by the current fair market value per share of Common Stock, determined as
follows:
(a) If
the Common Stock is listed on a national securities exchange or admitted to unlisted trading privileges on such an exchange, the current
fair market value shall be the last reported sale price of the Common Stock on such exchange on the last business day prior to the date
of exercise of this Warrant or if no such sale is made on such day, the mean of the closing bid and asked prices for such day on such
exchange;
(b) If
the Common Stock is not so listed or admitted to unlisted trading privileges on a national securities exchange, the current fair market
value shall be the mean of the last bid and asked prices reported on the last business day prior to the date of the exercise of this
Warrant by the OTC Markets Group, Inc.; or
(c) If
the Common Stock is not so listed or admitted to unlisted trading privileges on a national securities exchange and bid and asked prices
are not so reported, the current fair market value shall be an amount, not less than book value, determined in such reasonable manner
as may be prescribed by the Company in good faith.
4. No
Rights as Shareholder. This Warrant shall not entitle the Holder to any rights as a shareholder of the Company, either at law or
in equity. The rights of the Holder are limited to those expressed in this Warrant and are not enforceable against the Company except
to the extent set forth herein.
| 5. | Adjustments
in Number and Exercise Price of Warrant Shares. |
(a) The
number of shares of Common Stock for which this Warrant may be exercised and the Exercise Price therefor shall be subject to adjustment
as follows:
(i) If
the Company is recapitalized through the subdivision or combination of its outstanding shares of Common Stock into a larger or smaller
number of shares, the number of Warrant Shares shall be increased or reduced, as of the record date for such recapitalization, in the
same proportion as the increase or decrease in the outstanding shares of Common Stock, and the Exercise Price shall be adjusted so that
the aggregate amount payable for the purchase of all of the Warrant Shares issuable hereunder immediately after the record date for such
recapitalization shall equal the aggregate amount so payable immediately before such record date.
(ii) If
the Company declares a dividend on Common Stock payable in Common Stock or securities convertible into Common Stock, the number of
shares of Common Stock for which this Warrant may be exercised shall be increased as of the record date for determining which
holders of Common Stock shall be entitled to receive such dividend, in proportion to the increase in the number of outstanding
shares (and shares of Common Stock issuable upon conversion of all such securities convertible into Common Stock) of Common Stock as
a result of such dividend, and the Exercise Price shall be adjusted so that the aggregate amount payable for the purchase of all the
Warrant Shares issuable hereunder immediately after the record date for such dividend shall equal the aggregate amount so payable
immediately before such record date.
(iii) If
the Company distributes to holders of its Common Stock, other than as part of its dissolution or liquidation or the winding up of its
affairs, any evidence of indebtedness or any of its assets (other than cash, Common Stock or securities convertible into Common Stock),
the Company shall give written notice to the Holder of any such distribution at least fifteen (15) days prior to the proposed record
date in order to permit the Holder to exercise this Warrant on or before the record date. There shall be no adjustment in the number
of shares of Common Stock for which this Warrant may be exercised, or in the Exercise Price, by virtue of any such distribution.
(iv) If
the Company offers rights or warrants to the holders of Common Stock which entitle them to subscribe to or purchase additional Common
Stock or securities convertible into Common Stock, the Company shall give written notice of any such proposed offering to the Holder
at least fifteen (15) days prior to the proposed record date in order to permit the Holder to exercise this Warrant on or before such
record date. There shall be no adjustment in the number of shares of Common Stock for which this Warrant may be exercised, or in the
Exercise Price, by virtue of any such distribution.
(v) If
the event, as a result of which an adjustment is made under sub- paragraph (i) or (ii) above, does not occur, then any
adjustments in the Exercise Price or number of shares issuable that were made in accordance with such sub-paragraph (i) or
(ii) shall be adjusted to the Exercise Price and number of shares as were in effect immediately prior to the record date for
such event.
(b) In
the event of any reorganization or reclassification of the outstanding shares of Common Stock (other than a change in par value or from
no par value to par value, or from par value to no par value, or as a result of a subdivision or combination) or in the event of any
consolidation or merger of the Company with another entity after which the Company is not the surviving entity, at any time prior to
the expiration of this Warrant, upon subsequent exercise of this Warrant the Holder shall have the right to receive the same kind and
number of shares of common stock and other securities, cash or other property as would have been distributed to the Holder upon such
reorganization, reclassification, consolidation or merger had the Holder exercised this Warrant immediately prior to such reorganization,
reclassification, consolidation or merger, appropriately adjusted for any subsequent event described in this Section 5. The Holder
shall pay upon such exercise the Exercise Price that otherwise would have been payable pursuant to the terms of this Warrant. If any
such reorganization, reclassification, consolidation or merger results in a cash distribution in excess of the then applicable Exercise
Price, the Holder may, at the Holder’s option, exercise this Warrant without making payment of the Exercise Price, and in such
case the Company shall, upon distribution to the Holder, consider the Exercise Price to have been paid in full, and in making settlement
to the Holder, shall deduct an amount equal to the Exercise Price from the amount payable to the Holder. In the event of any such reorganization,
merger or consolidation, the corporation formed by such consolidation or merger or the corporation which shall have acquired the assets
of the Company shall execute and deliver a supplement hereto to the foregoing effect, which supplement shall also provide for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments provided in this Warrant.
(c) If
the Company shall, at any time before the expiration of this Warrant, dissolve, liquidate or wind up its affairs, the Holder shall
have the right to receive upon exercise of this Warrant, in lieu of the shares of Common Stock of the Company that the Holder
otherwise would have been entitled to receive, the same kind and amount of assets as would have been issued, distributed or paid to
the Holder upon any such dissolution, liquidation or winding up with respect to such Common Stock receivable upon exercise of this
Warrant on the date for determining those entitled to receive any such distribution. If any such dissolution, liquidation or winding
up results in any cash distribution in excess of the Exercise Price provided by this Warrant, the Holder may, at the Holder’s
option, exercise this Warrant without making payment of the Exercise Price and, in such case, the Company shall, upon distribution
to the Holder, consider the Exercise Price to have been paid in full and, in making settlement to the Holder, shall deduct an amount
equal to the Exercise Price from the amount payable to the Holder.
6. Notices
to Holder. So long as this Warrant shall be outstanding, if (a) the Company shall pay any dividends or make any
distribution upon the Common Stock otherwise than in cash; (b) the Company shall offer generally to the holders of Common Stock
the right to subscribe to or purchase any shares of any class of Common Stock or securities convertible into Common Stock or any
similar rights; or (c) there shall be any capital reorganization of the Company in which the Company is not the surviving
entity, recapitalization of the capital stock of the Company, consolidation or merger of the Company with or into another
corporation, sale, lease or other transfer of all or substantially all of the property and assets of the Company, or voluntary or
involuntary dissolution, liquidation or winding up of the Company, then in such event, the Company shall cause to be mailed to the
Holder, at least thirty (30) days prior to the relevant date described below (or such shorter period as is reasonably possible if
thirty (30) days is not reasonably possible), a notice containing a description of the proposed action and stating the date or
expected date on which a record of the Company’s shareholders is to be taken for the purpose of any such dividend,
distribution of rights, or such reclassification, reorganization, consolidation, merger, conveyance, lease or transfer, dissolution,
liquidation or winding up is to take place and the date or expected date, if any is to be fixed, as of which the holders of Common
Stock of record shall be entitled to exchange their shares of Common Stock for securities or other property deliverable upon such
event.
7. Transfer,
Exercise, Exchange, Assignment or Loss of Warrant, Warrant Shares or Other Securities.
(a) This
Warrant may be transferred, exercised, exchanged or assigned (“transferred”), in whole or in part, subject
to the following restrictions. This Warrant and the Warrant Shares or any other securities (“Other Securities”)
received upon exercise of this Warrant shall be subject to restrictions on transferability until registered under the Securities Act
of 1933, as amended (the “Securities Act”), unless an exemption from registration is available. Until this
Warrant and the Warrant Shares or Other Securities are so registered, this Warrant and any certificate for Warrant Shares or Other Securities
issued or issuable upon exercise of this Warrant shall contain a legend on the face thereof, in form and substance satisfactory to counsel
for the Company, stating that this Warrant the Warrant Shares or Other Securities may not be sold, transferred or otherwise disposed
of unless, in the opinion of counsel satisfactory to the Company, which may be counsel to the Company, that this Warrant, the Warrant
Shares or Other Securities may be transferred without such registration. This Warrant and the Warrant Shares or Other Securities may
also be subject to restrictions on transferability under applicable state securities or blue sky laws. Until this Warrant and the Warrant
Shares or Other Securities are registered under the Securities Act, the Holder shall reimburse the Company for its expenses, including
attorneys’ fees, incurred in connection with any transfer or assignment, in whole or in part, of this Warrant or any Warrant Shares
or Other Securities.
(b) Until
this Warrant, the Warrant Shares or other Securities are registered under the Securities Act, the Company may require, as a
condition of transfer of this Warrant, the Warrant Shares, or Other Securities, that the transferee (who may be the Holder in the
case of an exercise or exchange) represent that such transferee is an “accredited investor” within the meaning of
Rule 501 of Regulation D under the Securities Act and that the securities being transferred are being acquired for investment
purposes and for the transferee’s own account and not with a view to or for sale in connection with any distribution of the
security.
(c) Any
transfer permitted hereunder shall be made by surrender of this Warrant to the Company or to the Transfer Agent at its offices with a
duly executed request to transfer the Warrant, which shall provide adequate information to effect such transfer and shall be accompanied
by funds sufficient to pay any transfer taxes applicable. Upon satisfaction of all transfer conditions, the Company or Transfer Agent
shall, without charge, execute and deliver a new Warrant in the name of the transferee named in such transfer request, and this Warrant
promptly shall be cancelled.
(d) Upon
receipt by the Company of evidence satisfactory to it of loss, theft, destruction or mutilation of this Warrant and, in the case of loss,
theft or destruction, of reasonable satisfactory indemnification, or, in the case of mutilation, upon surrender of this Warrant, the
Company will execute and deliver, or instruct the Transfer Agent to execute and deliver, a new Warrant of like tenor and date, any such
lost, stolen or destroyed Warrant thereupon shall become void.
8. Representations
and Warranties of the Holder. The Holder hereby represents and warrants to the Company with respect to the issuance of the Warrant
as follows:
(a) Experience.
The Holder has substantial experience in evaluating and investing in securities in companies similar to the Company so that such Holder
is capable of evaluating the merits and risks of such Holder’s investment in the Company and has the capacity to protect such Holder’s
own interests.
(b) Investment.
The Holder is acquiring this Warrant (and the Warrant Shares issuable upon exercise of this Warrant) for investment for such Holder’s
own account, not as a nominee or agent, and not with the view to, or for resale in connection with, any distribution thereof. The Holder
understands that this Warrant (and the Warrant Shares issuable upon exercise of the Warrant) have not been, and will not be, registered
under the Securities Act by reason of a specific exemption from the registration provisions of the Securities Act which depends upon,
among other things, the bona fide nature of the investment intent and the accuracy of such Holder’s representations as expressed
herein.
(c) Held
Indefinitely. The Holder acknowledges that this Warrant (and the Warrant Shares issuable upon exercise of this Warrant) must be held
indefinitely unless subsequently registered under the Securities Act or an exemption from such registration is available.
(d) Accredited
Holder. The Holder is an “accredited investor” within the meaning of Rule 501 of Regulation D under the Securities
Act.
(e) Legends.
The Holder understands and acknowledges that the certificate(s) evidencing the securities issued by the Company will be imprinted
with a restrictive legend as referenced in Section 7.1 above.
(f) Access
to Data. The Holder has had an opportunity to discuss the Company’s business, management, and financial affairs with the Company’s
management and the opportunity to review the Company’s facilities and business plans. The Holder has also had an opportunity to
ask questions of officers of the Company, which questions were answered to its satisfaction.
9. Notices.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing, and must in all cases
be sent by e-mail in addition to any other means sent, and shall be deemed to have been given: (a) when delivered by hand (with
written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt
requested); (c) on the date sent by e-mail (with confirmation of transmission) if sent during normal business hours of the recipient,
and on the next Business Day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed,
by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties
at the addresses indicated below (or at such other address for a party as shall be specified in a notice given in accordance with this
Section 9).
| If to the Company: |
Blue Bird Corporation |
| |
3920 Arkwright Road, 2nd Floor
Macon, Georgia 31210 |
| |
|
| |
Email: Ted.Scartz@blue-bird.com
Attention: Ted Scartz, General Counsel |
| |
|
| with a copy to: |
Kilpatrick Townsend & Stockton LLP
1100 Peachtree Street NE, Suite 2800 |
| |
Atlanta, Georgia 30309-4528 |
| |
|
| |
Email: bbarkley@ktslaw.com
Attention: Ben Barkley |
| |
|
| If to the Holder: |
|
|
| |
|
|
| |
|
|
| with a copy to: |
|
|
| |
|
|
| |
|
|
| with a copy to: |
|
|
| |
|
|
10. Amendment.
Any provision of this Warrant may be amended or the observance thereof may be waived (either generally or in a particular instance and
either retroactively or prospectively), only with the mutual written consent of the Company and the Holder.
11. Governing
Law. This Warrant shall be governed by and construed in accordance with the laws of the State of Delaware.
[Signature page follows.]
IN WITNESS WHEREOF, the Company has caused this
Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
| |
BLUE BIRD CORPORATION |
| |
|
| |
By: |
|
| |
Name: |
|
| |
Title: |
|
[Signature
Page to Warrant Agreement]
| Accepted and
Agreed, |
|
| |
|
| By: |
|
|
| Name: |
|
|
| Title: |
|
|
[Signature
Page to
Warrant Agreement]
Exhibit A
Form Exercise Agreement
[insert date]
To Whom It May Concern:
(1) The undersigned hereby elects
to purchase shares of Common Stock of Blue Bird Corporation (the “Company”)
pursuant to the terms of the attached Warrant, and tenders herewith payment of the exercise price in full, together with all applicable
transfer taxes, if any.
(2) Please
issue a certificate or certificates representing said shares of Common Stock in the name of the undersigned:
(3) The
undersigned represents that: (i) the aforesaid shares of Common Stock are being acquired for the account of the undersigned for
investment and not with a view to, or for resale in connection with, the distribution thereof and that the undersigned has no present
intention of distributing or reselling such shares; (ii) the undersigned is aware of the Company’s business affairs and financial
condition and has acquired sufficient information about the Company to reach an informed and knowledgeable decision regarding its investment
in the Company; The undersigned is an “accredited investor,” as that term is defined under the Securities Act of 1933, as
amended (the “Securities Act”) and Rule 501 of Regulation D thereunder; (iv) the undersigned is experienced
in making investments of this type and has such knowledge and background in financial and business matters that the undersigned is capable
of evaluating the merits and risks of this investment and protecting the undersigned’s own interests; (v) the undersigned
understands that the shares of Common Stock issuable upon exercise of this Warrant have not been registered under the Securities Act,
by reason of a specific exemption from the registration provisions of the Securities Act, which exemption depends upon, among other things,
the bona fide nature of the investment intent as expressed herein, and, because such securities have not been registered under the Securities
Act, they must be held indefinitely unless subsequently registered under the Securities Act or an exemption from such registration is
available; (vi) the undersigned is aware that the aforesaid shares of Common Stock may not be sold pursuant to Rule 144 adopted
under the Securities Act unless certain conditions are met and until the undersigned has held the shares for the number of years prescribed
by Rule 144, that among the conditions for use of the Rule is the availability of current information to the public about the
Company and the Company has not made such information available and has no present plans to do so; and (vii) the undersigned agrees
not to make any disposition of all or any part of the aforesaid shares of Common Stock unless and until there is then in effect a registration
statement under the Securities Act covering such proposed disposition and such disposition is made in accordance with said registration
statement, or the undersigned has provided the Company with an opinion of counsel satisfactory to the Company, stating that such registration
is not required.
| [Signature Block] |
|
| |
|
| By: |
|
|
| Name: |
|
| Title: |
|
EXHIBIT 4.3
In accordance with Instruction 2 to Item 601 of Regulation S-K, below
is a schedule setting forth details in which the omitted executed warrants differ from the form of warrant that follows:
| Warrantholder |
Number of Warrant Shares |
|
| ASIG International Limited |
12,399 |
|
| Aristeia Master, L.P. |
219,336 |
|
| DS Liquid Div RVA ARST LLC |
10,708 |
|
| Windermere Cayman Fund Limited |
6,383 |
|
| Blue Peak Limited |
84,507 |
|
THIS WARRANT AND THE SECURITIES ISSUABLE
UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR THE
SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF MAY NOT BE
OFFERED, SOLD, PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED UNLESS (1) SUCH TRANSACTION IS MADE PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT FILED UNDER THE SECURITIES ACT AND THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION OR
(2) THE COMPANY IS PROVIDED WITH AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY, STATING THAT SUCH TRANSACTION IS IN
COMPLIANCE WITH EXEMPTIONS FROM REGISTRATION UNDER THE SECURITIES ACT AND SUCH OTHER APPLICABLE LAWS. NO TRANSFER OF ANY INTEREST IN
THIS WARRANT OR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF MAY BE EFFECTED WITHOUT FIRST SURRENDERING THIS WARRANT OR SUCH
SECURITIES, AS THE CASE MAY BE, TO THE COMPANY OR ITS TRANSFER AGENT, IF ANY.
WARRANT TO PURCHASE COMMON STOCK OF BLUE BIRD
CORPORATION
November 14, 2024
FOR VALUE RECEIVED, Blue Bird
Corporation, a Delaware corporation (the “Company”), hereby certifies that _____________________, a __________
company, or its registered assigns (the “Holder”) is entitled to purchase up to 10,708 duly authorized, validly
issued, fully paid, and nonassessable shares of Common Stock (the “Warrant Shares”), $0.0001 par value per share,
at a purchase price per share of $25.00 (subject to adjustment as provided herein, the “Exercise Price”). This
Warrant is also subject to the following terms conditions.
Reference is made to the Limited
Liability Company Agreement of Clean Bus Solutions, LLC (the “JV”), dated on or about the date hereof, by and
among the JV, Blue Bird Body Company and the Holder (the “JV LLCA”). Capitalized terms used but not defined
herein have the meanings given to such terms in the JV LLCA.
| 1. | Exercise and Payment; Exchange. |
(a) This
Warrant may be exercised in whole or in part at any time from and after the date hereof through 5:00 p.m., Eastern time, on August 8,
2029 (the “Expiration Date”), at which time this Warrant shall expire and become void, but if such date is a
day on which federal or state chartered banking institutions located in the State of New York are authorized to close, then on the next
succeeding day which shall not be such a day. Exercise shall be by presentation and surrender to the Company, or at the office of any
transfer agent designated by the Company (the “Transfer Agent”), of (i) this Warrant, (ii) a properly
executed exercise agreement in the form attached hereto as Exhibit A (the “Exercise Agreement”), and (iii) a
certified or official bank check for the Exercise Price for the number of Warrant Shares specified in the Exercise Agreement. If this
Warrant is exercised in part only, the Company or the Transfer Agent shall, upon surrender of the Warrant, execute and deliver a new Warrant
evidencing the rights of the Holder to purchase the remaining number of Warrant Shares purchasable hereunder. Upon receipt by the Company
of this Warrant, the properly executed Exercise Agreement, and payment as aforesaid, the Holder shall be deemed to be the holder of record
of the Common Stock issuable upon such exercise, notwithstanding that the stock transfer books of the Company shall then be closed or
that certificates representing such Warrant Shares shall not then be actually delivered to the Holder. Under no circumstance shall the
Company be required to make any cash payments or net cash settlement to the Holder in lieu of delivery of the Warrant Shares.
(b) The
restrictions in Section 7 shall apply, to the extent applicable by their terms, to any exercise or exchange of this Warrant permitted
by this Section 1.
2. Reservation
of Shares. The Company shall, at all times until the expiration of this Warrant, reserve for issuance and delivery upon exercise of
this Warrant the number of Warrant Shares which shall be required for issuance and delivery upon exercise of this Warrant.
3. Fractional
Interests. The Company shall not issue any fractional shares or scrip representing fractional shares upon the exercise or exchange
of this Warrant. With respect to any fraction of a share resulting from the exercise or exchange hereof, the Company shall pay to the
Holder an amount in cash equal to such fraction multiplied by the current fair market value per share of Common Stock, determined as follows:
(a) If
the Common Stock is listed on a national securities exchange or admitted to unlisted trading privileges on such an exchange, the current
fair market value shall be the last reported sale price of the Common Stock on such exchange on the last business day prior to the date
of exercise of this Warrant or if no such sale is made on such day, the mean of the closing bid and asked prices for such day on such
exchange;
(b) If
the Common Stock is not so listed or admitted to unlisted trading privileges on a national securities exchange, the current fair market
value shall be the mean of the last bid and asked prices reported on the last business day prior to the date of the exercise of this Warrant
by the OTC Markets Group, Inc.; or
(c) If
the Common Stock is not so listed or admitted to unlisted trading privileges on a national securities exchange and bid and asked prices
are not so reported, the current fair market value shall be an amount, not less than book value, determined in such reasonable manner
as may be prescribed by the Company in good faith.
4. No
Rights as Shareholder. This Warrant shall not entitle the Holder to any rights as a shareholder of the Company, either at law or in
equity. The rights of the Holder are limited to those expressed in this Warrant and are not enforceable against the Company except to
the extent set forth herein.
| 5. | Adjustments in Number and Exercise Price of Warrant Shares. |
(a) The
number of shares of Common Stock for which this Warrant may be exercised and the Exercise Price therefor shall be subject to adjustment
as follows:
(i) If
the Company is recapitalized through the subdivision or combination of its outstanding shares of Common Stock into a larger or smaller
number of shares, the number of Warrant Shares shall be increased or reduced, as of the record date for such recapitalization, in the
same proportion as the increase or decrease in the outstanding shares of Common Stock, and the Exercise Price shall be adjusted so that
the aggregate amount payable for the purchase of all of the Warrant Shares issuable hereunder immediately after the record date for such
recapitalization shall equal the aggregate amount so payable immediately before such record date.
(ii) If
the Company declares a dividend on Common Stock payable in Common Stock or securities convertible into Common Stock, the number of shares
of Common Stock for which this Warrant may be exercised shall be increased as of the record date for determining which holders of Common
Stock shall be entitled to receive such dividend, in proportion to the increase in the number of outstanding shares (and shares of Common
Stock issuable upon conversion of all such securities convertible into Common Stock) of Common Stock as a result of such dividend, and
the Exercise Price shall be adjusted so that the aggregate amount payable for the purchase of all the Warrant Shares issuable hereunder
immediately after the record date for such dividend shall equal the aggregate amount so payable immediately before such record date.
(iii) If
the Company distributes to holders of its Common Stock, other than as part of its dissolution or liquidation or the winding up of its
affairs, any evidence of indebtedness or any of its assets (other than cash, Common Stock or securities convertible into Common Stock),
the Company shall give written notice to the Holder of any such distribution at least fifteen (15) days prior to the proposed record date
in order to permit the Holder to exercise this Warrant on or before the record date. There shall be no adjustment in the number of shares
of Common Stock for which this Warrant may be exercised, or in the Exercise Price, by virtue of any such distribution.
(iv) If
the Company offers rights or warrants to the holders of Common Stock which entitle them to subscribe to or purchase additional Common
Stock or securities convertible into Common Stock, the Company shall give written notice of any such proposed offering to the Holder at
least fifteen (15) days prior to the proposed record date in order to permit the Holder to exercise this Warrant on or before such record
date. There shall be no adjustment in the number of shares of Common Stock for which this Warrant may be exercised, or in the Exercise
Price, by virtue of any such distribution.
(v) If
the event, as a result of which an adjustment is made under sub- paragraph (i) or (ii) above, does not occur, then any
adjustments in the Exercise Price or number of shares issuable that were made in accordance with such sub-paragraph (i) or
(ii) shall be adjusted to the Exercise Price and number of shares as were in effect immediately prior to the record date for
such event.
(b) In
the event of any reorganization or reclassification of the outstanding shares of Common Stock (other than a change in par value or from
no par value to par value, or from par value to no par value, or as a result of a subdivision or combination) or in the event of any consolidation
or merger of the Company with another entity after which the Company is not the surviving entity, at any time prior to the expiration
of this Warrant, upon subsequent exercise of this Warrant the Holder shall have the right to receive the same kind and number of shares
of common stock and other securities, cash or other property as would have been distributed to the Holder upon such reorganization, reclassification,
consolidation or merger had the Holder exercised this Warrant immediately prior to such reorganization, reclassification, consolidation
or merger, appropriately adjusted for any subsequent event described in this Section 5. The Holder shall pay upon such exercise the
Exercise Price that otherwise would have been payable pursuant to the terms of this Warrant. If any such reorganization, reclassification,
consolidation or merger results in a cash distribution in excess of the then applicable Exercise Price, the Holder may, at the Holder’s
option, exercise this Warrant without making payment of the Exercise Price, and in such case the Company shall, upon distribution to the
Holder, consider the Exercise Price to have been paid in full, and in making settlement to the Holder, shall deduct an amount equal to
the Exercise Price from the amount payable to the Holder. In the event of any such reorganization, merger or consolidation, the corporation
formed by such consolidation or merger or the corporation which shall have acquired the assets of the Company shall execute and deliver
a supplement hereto to the foregoing effect, which supplement shall also provide for adjustments which shall be as nearly equivalent as
may be practicable to the adjustments provided in this Warrant.
(c) If
the Company shall, at any time before the expiration of this Warrant, dissolve, liquidate or wind up its affairs, the Holder shall have
the right to receive upon exercise of this Warrant, in lieu of the shares of Common Stock of the Company that the Holder otherwise would
have been entitled to receive, the same kind and amount of assets as would have been issued, distributed or paid to the Holder upon any
such dissolution, liquidation or winding up with respect to such Common Stock receivable upon exercise of this Warrant on the date for
determining those entitled to receive any such distribution. If any such dissolution, liquidation or winding up results in any cash distribution
in excess of the Exercise Price provided by this Warrant, the Holder may, at the Holder’s option, exercise this Warrant without
making payment of the Exercise Price and, in such case, the Company shall, upon distribution to the Holder, consider the Exercise Price
to have been paid in full and, in making settlement to the Holder, shall deduct an amount equal to the Exercise Price from the amount
payable to the Holder.
6. Notices
to Holder. So long as this Warrant shall be outstanding, if (a) the Company shall pay any dividends or make any
distribution upon the Common Stock otherwise than in cash; (b) the Company shall offer generally to the holders of Common Stock
the right to subscribe to or purchase any shares of any class of Common Stock or securities convertible into Common Stock or any
similar rights; or (c) there shall be any capital reorganization of the Company in which the Company is not the surviving
entity, recapitalization of the capital stock of the Company, consolidation or merger of the Company with or into another
corporation, sale, lease or other transfer of all or substantially all of the property and assets of the Company, or voluntary or
involuntary dissolution, liquidation or winding up of the Company, then in such event, the Company shall cause to be mailed to the
Holder, at least thirty (30) days prior to the relevant date described below (or such shorter period as is reasonably possible if
thirty (30) days is not reasonably possible), a notice containing a description of the proposed action and stating the date or
expected date on which a record of the Company’s shareholders is to be taken for the purpose of any such dividend,
distribution of rights, or such reclassification, reorganization, consolidation, merger, conveyance, lease or transfer, dissolution,
liquidation or winding up is to take place and the date or expected date, if any is to be fixed, as of which the holders of Common
Stock of record shall be entitled to exchange their shares of Common Stock for securities or other property deliverable upon such
event.
7. Transfer,
Exercise, Exchange, Assignment or Loss of Warrant, Warrant Shares or Other Securities.
(a) This
Warrant may be transferred, exercised, exchanged or assigned (“transferred”), in whole or in part, subject to
the following restrictions. This Warrant and the Warrant Shares or any other securities (“Other Securities”)
received upon exercise of this Warrant shall be subject to restrictions on transferability until registered under the Securities Act of
1933, as amended (the “Securities Act”), unless an exemption from registration is available. Until this Warrant
and the Warrant Shares or Other Securities are so registered, this Warrant and any certificate for Warrant Shares or Other Securities
issued or issuable upon exercise of this Warrant shall contain a legend on the face thereof, in form and substance satisfactory to counsel
for the Company, stating that this Warrant the Warrant Shares or Other Securities may not be sold, transferred or otherwise disposed of
unless, in the opinion of counsel satisfactory to the Company, which may be counsel to the Company, that this Warrant, the Warrant Shares
or Other Securities may be transferred without such registration. This Warrant and the Warrant Shares or Other Securities may also be
subject to restrictions on transferability under applicable state securities or blue sky laws. Until this Warrant and the Warrant Shares
or Other Securities are registered under the Securities Act, the Holder shall reimburse the Company for its expenses, including attorneys’
fees, incurred in connection with any transfer or assignment, in whole or in part, of this Warrant or any Warrant Shares or Other Securities.
(b) Until
this Warrant, the Warrant Shares or other Securities are registered under the Securities Act, the Company may require, as a condition
of transfer of this Warrant, the Warrant Shares, or Other Securities, that the transferee (who may be the Holder in the case of an exercise
or exchange) represent that such transferee is an “accredited investor” within the meaning of Rule 501 of Regulation
D under the Securities Act and that the securities being transferred are being acquired for investment purposes and for the transferee’s
own account and not with a view to or for sale in connection with any distribution of the security.
(c) Any
transfer permitted hereunder shall be made by surrender of this Warrant to the Company or to the Transfer Agent at its offices with a
duly executed request to transfer the Warrant, which shall provide adequate information to effect such transfer and shall be accompanied
by funds sufficient to pay any transfer taxes applicable. Upon satisfaction of all transfer conditions, the Company or Transfer Agent
shall, without charge, execute and deliver a new Warrant in the name of the transferee named in such transfer request, and this Warrant
promptly shall be cancelled.
(d) Upon
receipt by the Company of evidence satisfactory to it of loss, theft, destruction or mutilation of this Warrant and, in the case of loss,
theft or destruction, of reasonable satisfactory indemnification, or, in the case of mutilation, upon surrender of this Warrant, the Company
will execute and deliver, or instruct the Transfer Agent to execute and deliver, a new Warrant of like tenor and date, any such lost,
stolen or destroyed Warrant thereupon shall become void.
8. Representations
and Warranties of the Holder. The Holder hereby represents and warrants to the Company with respect to the issuance of the Warrant
as follows:
(a) Experience.
The Holder has substantial experience in evaluating and investing in securities in companies similar to the Company so that such Holder
is capable of evaluating the merits and risks of such Holder’s investment in the Company and has the capacity to protect such Holder’s
own interests.
(b) Investment.
The Holder is acquiring this Warrant (and the Warrant Shares issuable upon exercise of this Warrant) for investment for such Holder’s
own account, not as a nominee or agent, and not with the view to, or for resale in connection with, any distribution thereof. The Holder
understands that this Warrant (and the Warrant Shares issuable upon exercise of the Warrant) have not been, and will not be, registered
under the Securities Act by reason of a specific exemption from the registration provisions of the Securities Act which depends upon,
among other things, the bona fide nature of the investment intent and the accuracy of such Holder’s representations as expressed
herein.
(c) Held
Indefinitely. The Holder acknowledges that this Warrant (and the Warrant Shares issuable upon exercise of this Warrant) must be held
indefinitely unless subsequently registered under the Securities Act or an exemption from such registration is available.
(d) Accredited
Holder. The Holder is an “accredited investor” within the meaning of Rule 501 of Regulation D under the Securities
Act.
(e) Legends.
The Holder understands and acknowledges that the certificate(s) evidencing the securities issued by the Company will be imprinted
with a restrictive legend as referenced in Section 7.1 above.
(f) Access
to Data. The Holder has had an opportunity to discuss the Company’s business, management, and financial affairs with the Company’s
management and the opportunity to review the Company’s facilities and business plans. The Holder has also had an opportunity to
ask questions of officers of the Company, which questions were answered to its satisfaction.
9. Notices.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing, and must in all cases
be sent by e-mail in addition to any other means sent, and shall be deemed to have been given: (a) when delivered by hand (with written
confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested);
(c) on the date sent by e-mail (with confirmation of transmission) if sent during normal business hours of the recipient, and on
the next Business Day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified
or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses
indicated below (or at such other address for a party as shall be specified in a notice given in accordance with this Section 9).
| If to the Company: |
Blue Bird Corporation |
| |
3920 Arkwright Road, 2nd Floor
Macon, Georgia 31210 |
| |
|
| |
Email: Ted.Scartz@blue-bird.com
Attention: Ted Scartz, General Counsel |
| |
|
| with a copy to: |
Kilpatrick Townsend & Stockton LLP
1100 Peachtree Street NE, Suite 2800 |
| |
Atlanta, Georgia 30309-4528 |
| |
|
| |
Email: bbarkley@ktslaw.com
Attention: Ben Barkley |
| |
|
| If to the Holder: |
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| with a copy to: |
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| with a copy to: |
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10. Amendment.
Any provision of this Warrant may be amended or the observance thereof may be waived (either generally or in a particular instance and
either retroactively or prospectively), only with the mutual written consent of the Company and the Holder.
11. Governing
Law. This Warrant shall be governed by and construed in accordance with the laws of the State of Delaware.
[Signature page follows.]
IN WITNESS WHEREOF, the Company has caused this
Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
| |
BLUE BIRD CORPORATION |
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By: |
|
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Name: |
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| |
Title: |
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| Accepted and
Agreed, |
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| By: |
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| Name: |
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| Title: |
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[Signature
Page to
Warrant Agreement]
Exhibit A
Form Exercise Agreement
[insert date]
To Whom It May Concern:
(1) The undersigned hereby elects
to purchase shares of Common Stock of Blue Bird Corporation (the “Company”)
pursuant to the terms of the attached Warrant, and tenders herewith payment of the exercise price in full, together with all applicable
transfer taxes, if any.
(2) Please
issue a certificate or certificates representing said shares of Common Stock in the name of the undersigned:
(3) The
undersigned represents that: (i) the aforesaid shares of Common Stock are being acquired for the account of the undersigned for
investment and not with a view to, or for resale in connection with, the distribution thereof and that the undersigned has no present
intention of distributing or reselling such shares; (ii) the undersigned is aware of the Company’s business affairs and financial
condition and has acquired sufficient information about the Company to reach an informed and knowledgeable decision regarding its investment
in the Company; The undersigned is an “accredited investor,” as that term is defined under the Securities Act of 1933, as
amended (the “Securities Act”) and Rule 501 of Regulation D thereunder; (iv) the undersigned is experienced
in making investments of this type and has such knowledge and background in financial and business matters that the undersigned is capable
of evaluating the merits and risks of this investment and protecting the undersigned’s own interests; (v) the undersigned
understands that the shares of Common Stock issuable upon exercise of this Warrant have not been registered under the Securities Act,
by reason of a specific exemption from the registration provisions of the Securities Act, which exemption depends upon, among other things,
the bona fide nature of the investment intent as expressed herein, and, because such securities have not been registered under the Securities
Act, they must be held indefinitely unless subsequently registered under the Securities Act or an exemption from such registration is
available; (vi) the undersigned is aware that the aforesaid shares of Common Stock may not be sold pursuant to Rule 144 adopted
under the Securities Act unless certain conditions are met and until the undersigned has held the shares for the number of years prescribed
by Rule 144, that among the conditions for use of the Rule is the availability of current information to the public about the
Company and the Company has not made such information available and has no present plans to do so; and (vii) the undersigned agrees
not to make any disposition of all or any part of the aforesaid shares of Common Stock unless and until there is then in effect a registration
statement under the Securities Act covering such proposed disposition and such disposition is made in accordance with said registration
statement, or the undersigned has provided the Company with an opinion of counsel satisfactory to the Company, stating that such registration
is not required.
| [Signature Block] |
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| |
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| By: |
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|
| Name: |
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| Title: |
|
EXHIBIT 4.7
BLUE BIRD CORPORATION
INDENTURE
Dated as of [●], 20[●]
Trustee
TABLE OF CONTENTS
Page
| ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE |
2 |
| Section 1.1 |
Definitions |
2 |
| Section 1.2 |
Other Definitions |
5 |
| Section 1.3 |
Incorporation by Reference of Trust Indenture Act |
6 |
| Section 1.4 |
Rules of Construction |
6 |
| Unless the context otherwise requires: |
6 |
| ARTICLE II THE SECURITIES |
7 |
| Section 2.1 |
Issuable in Series |
7 |
| Section 2.2 |
Establishment of Terms of Series of Securities |
7 |
| Section 2.3 |
Execution and Authentication |
9 |
| Section 2.4 |
Registrar and Paying Agent |
10 |
| Section 2.5 |
Paying Agent to Hold Money in Trust |
11 |
| Section 2.6 |
Securityholder Lists |
11 |
| Section 2.7 |
Transfer and Exchange |
11 |
| Section 2.8 |
Mutilated, Destroyed, Lost and Stolen Securities |
12 |
| Section 2.9 |
Outstanding Securities |
13 |
| Section 2.10 |
Treasury Securities |
13 |
| Section 2.11 |
Temporary Securities |
13 |
| Section 2.12 |
Cancellation |
14 |
| Section 2.13 |
Defaulted Interest |
14 |
| Section 2.14 |
Global Securities |
14 |
| Section 2.15 |
CUSIP Numbers |
16 |
| Section 2.16 |
Trustee Not Responsible for Securities Laws |
16 |
| ARTICLE III REDEMPTION |
16 |
| Section 3.1 |
Notice to Trustee |
16 |
| Section 3.2 |
Selection of Securities to be Redeemed |
17 |
| Section 3.3 |
Notice of Redemption |
17 |
| Section 3.4 |
Effect of Notice of Redemption |
18 |
| Section 3.5 |
Deposit of Redemption Price |
18 |
| Section 3.6 |
Securities Redeemed in Part |
18 |
| ARTICLE IV COVENANTS |
18 |
| Section 4.1 |
Payment of Principal and Interest |
18 |
| Section 4.2 |
SEC Reports |
19 |
| Section 4.3 |
Compliance Certificate |
19 |
| Section 4.4 |
Stay, Extension and Usury Laws |
19 |
| ARTICLE V SUCCESSORS |
20 |
| Section 5.1 |
When Company May Merge, Etc. |
20 |
| Section 5.2 |
Successor Corporation Substituted |
20 |
| ARTICLE VI DEFAULTS AND REMEDIES |
20 |
| Section 6.1 |
Events of Default |
20 |
| Section 6.2 |
Acceleration of Maturity; Rescission and Annulment |
22 |
| Section 6.3 |
Trustee May File Proofs of Claim |
23 |
| Section 6.4 |
Trustee May Enforce Claims Without Possession of Securities |
24 |
| Section 6.5 |
Application of Money Collected |
24 |
| Section 6.6 |
Limitation on Suits |
24 |
| Section 6.7 |
Unconditional Right of Holders to Receive Principal and Interest |
25 |
| Section 6.8 |
Restoration of Rights and Remedies |
25 |
| Section 6.9 |
Rights and Remedies Cumulative |
25 |
| Section 6.10 |
Delay or Omission Not Waiver |
26 |
| Section 6.11 |
Control by Holders |
26 |
| Section 6.12 |
Waiver of Past Defaults |
26 |
| Section 6.13 |
Undertaking for Costs |
26 |
| ARTICLE VII TRUSTEE |
27 |
| Section 7.1 |
Duties of Trustee |
27 |
| Section 7.2 |
Rights of Trustee |
28 |
| Section 7.3 |
Individual Rights of Trustee |
30 |
| Section 7.4 |
Trustee’s Disclaimer |
30 |
| Section 7.5 |
Notice of Defaults |
30 |
| Section 7.6 |
Reports by Trustee to Holders |
30 |
| Section 7.7 |
Compensation and Indemnity |
30 |
| Section 7.8 |
Replacement of Trustee |
31 |
| Section 7.9 |
Successor Trustee by Merger, Etc. |
32 |
| Section 7.10 |
Eligibility; Disqualification |
32 |
| Section 7.11 |
Preferential Collection of Claims Against Company |
33 |
| ARTICLE VIII SATISFACTION AND DISCHARGE; DEFEASANCE |
33 |
| Section 8.1 |
Satisfaction and Discharge of Indenture |
33 |
| Section 8.2 |
Application of Trust Funds; Indemnification |
34 |
| Section 8.3 |
Legal Defeasance of Securities of any Series |
34 |
| Section 8.4 |
Covenant Defeasance |
36 |
| Section 8.5 |
Repayment to Company |
37 |
| Section 8.6 |
Reinstatement |
37 |
| ARTICLE IX AMENDMENTS AND WAIVERS |
37 |
| Section 9.1 |
Without Consent of Holders |
37 |
| Section 9.2 |
With Consent of Holders |
38 |
| Section 9.3 |
Limitations |
39 |
| Section 9.4 |
Compliance with Trust Indenture Act |
39 |
| Section 9.5 |
Revocation and Effect of Consents |
39 |
| Section 9.6 |
Notation on or Exchange of Securities |
40 |
| Section 9.7 |
Trustee Protected |
40 |
| ARTICLE X MISCELLANEOUS |
40 |
| Section 10.1 |
Trust Indenture Act Controls |
40 |
| Section 10.2 |
Notices |
41 |
| Section 10.3 |
Communication by Holders with Other Holders |
42 |
| Section 10.4 |
Certificate and Opinion as to Conditions Precedent |
42 |
| Section 10.5 |
Statements Required in Certificate or Opinion |
42 |
| Section 10.6 |
Rules by Trustee and Agents |
42 |
| Section 10.7 |
Legal Holidays |
43 |
| Section 10.8 |
No Recourse Against Others |
43 |
| Section 10.9 |
Counterparts |
43 |
| Section 10.10 |
Governing Law; Waiver of Jury Trial; Consent to Jurisdiction |
43 |
| Section 10.11 |
No Adverse Interpretation of Other Agreements |
44 |
| Section 10.12 |
Successors |
44 |
| Section 10.13 |
Severability |
44 |
| Section 10.14 |
Table of Contents, Headings, Etc. |
44 |
| Section 10.15 |
Securities in a Foreign Currency |
44 |
| Section 10.16 |
Judgment Currency |
45 |
| Section 10.17 |
Force Majeure |
45 |
| Section 10.18 |
USA Patriot Act |
46 |
| Section 10.19 |
Separability Clause; Entire Agreement |
46 |
| ARTICLE XI SINKING FUNDS |
46 |
| Section 11.1 |
Applicability of Article |
46 |
| Section 11.2 |
Satisfaction of Sinking Fund Payments with Securities |
47 |
| Section 11.3 |
Redemption of Securities for Sinking Fund |
47 |
Blue Bird Corporation
Reconciliation and tie between
Trust Indenture Act of 1939 and Indenture, dated as of [●], 20[●]. *
| Trust Indenture Act Section | |
Indenture Section |
| §310(a)(1) | |
7.1 |
| (a)(2) | |
7.1 |
| (a)(3) | |
Not Applicable |
| (a)(4) | |
Not Applicable |
| (a)(5) | |
7.1 |
| (b) | |
7.1 |
| §311(a) | |
7.11 |
| (b) | |
7.11 |
| (c) | |
Not Applicable |
| §312(a) | |
2.6 |
| (b) | |
10.3 |
| (c) | |
10.3 |
| §313(a) | |
7.6 |
| (b)(1) | |
7.6 |
| (b)(2) | |
7.6 |
| (c)(1) | |
7.6 |
| (d) | |
7.6 |
| §314(a) | |
4.2, 10.5 |
| (b) | |
Not Applicable |
| (c)(1) | |
10.4 |
| (c)(2) | |
10.4 |
| (c)(3) | |
Not Applicable |
| (d) | |
Not Applicable |
| (e) | |
10.5 |
| (f) | |
Not Applicable |
| §315(a) | |
7.1 |
| (b) | |
7.5 |
| (c) | |
7.1 |
| (d) | |
7.1 |
| (e) | |
6.14 |
| §316(a) | |
2.1 |
| (a)(1)(A) | |
6.12 |
| (a)(1)(B) | |
6.13 |
| (b) | |
6.8 |
| §317(a)(1) | |
6.3 |
| (a)(2) | |
6.4 |
| (b) | |
2.5 |
| §318(a) | |
10.1 |
*This reconciliation and tie shall not, for any
purpose, be deemed to be a part of the Indenture.
Indenture, dated as of [●],
20[●], between Blue Bird Corporation, a company incorporated under the laws of Delaware (the “Company”),
and, not in its individual capacity, but solely as trustee (the “Trustee”).
Each party agrees as follows
for the benefit of the other party and for the equal and ratable benefit of the Holders of the Securities issued under this Indenture.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
“Affiliate”
of any specified person means any other person, directly or indirectly, controlling or controlled by, or under common control with, such
specified person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlled
by” and “under common control with”), as used with respect to any person, shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of such person, whether through the ownership of voting securities
or by agreement or otherwise.
“Agent”
means any Registrar, Paying Agent or Notice Agent.
“Board of Directors”
means the board of directors of the Company or any duly authorized committee thereof.
“Board Resolution”
means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been adopted by the Board of
Directors or pursuant to authorization by the Board of Directors and to be in full force and effect on the date of the certificate and
delivered to the Trustee.
“Business Day”
means any day except a Saturday, Sunday, a legal holiday or any other day in the City of New York, New York (or, in connection with any
payment, the Place of Payment or the city in which the Corporate Trust Office is located) on which banking institutions are authorized
or required by law, regulation or executive order to close.
“Capital Stock”
means any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock.
“Company”
means the party named as such above until a successor replaces it and, thereafter, means the successor.
“Company Order”
means a written order signed in the name of the Company by an Officer.
“Corporate Trust
Office” means the office of the Trustee at which at any particular time its corporate trust business shall be principally
administered, which office, at the date hereof, is located at [●], or such other address as the Trustee may designate from time
to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address
as such successor Trustee may designate from time to time by notice to the Holders and the Company).
“Default”
means any event which is, or after notice or passage of time or both would be, an Event of Default.
“Depositary”
means, with respect to the Securities of any Series issuable or issued in whole or in part in the form of one or more Global Securities,
the person designated as Depositary for such Series by the Company, which Depositary shall be a clearing agency registered under
the Exchange Act; and, if at any time there is more than one such person, then “Depositary,” as used with respect to the Securities
of any Series, shall mean the Depositary with respect to the Securities of such Series.
“Discount Security”
means any Security that provides for an amount less than the stated principal amount thereof to be due and payable upon declaration of
acceleration of the maturity thereof pursuant to Section 6.2.
“Dollars”
and “$” means the currency of the United States of America.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended.
“Foreign Currency”
means any currency or currency unit issued by a government other than the government of the United States of America.
“Foreign Government
Obligations” means, with respect to Securities of any Series that are denominated in a Foreign Currency, direct obligations
of, or obligations guaranteed by, the government that issued or caused to be issued such currency for the payment of which obligations
its full faith and credit is pledged and which are not callable or redeemable at the option of the issuer thereof.
“GAAP”
means accounting principles generally accepted in the United States of America set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or, in such other statements by such other entity, as have been approved by a significant segment of the accounting profession,
which are in effect as of the date of determination.
“Global Security”
or “Global Securities” means a Security or Securities, as the case may be, in the form established pursuant
to Section 2.2 evidencing all or part of a Series of Securities, issued to the Depositary for such Series or its
nominee, and registered in the name of such Depositary or nominee.
“Holder”
or “Securityholder” means a person in whose name a Security is registered.
“Indenture”
means this Indenture, as amended or supplemented from time to time, and shall include the form and terms of particular Series of
Securities established as contemplated hereunder.
“interest”
with respect to any Discount Security, which, by its terms, bears interest only after Maturity, means interest payable after Maturity.
“Maturity,”
when used with respect to any Security, means the date on which the principal of such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“Officer”
means the Chief Executive Officer, President, the Chief Financial Officer, the Treasurer or any Assistant Treasurer, the Secretary or
any Assistant Secretary, and any Vice President of the Company.
“Officer’s
Certificate” means a certificate signed by any Officer.
“Opinion of Counsel”
means a written opinion of legal counsel who is acceptable to the Trustee. The counsel may be an employee of, or counsel to, the Company.
The opinion may contain customary limitations, conditions and exceptions.
“person”
means any individual, corporation, partnership, joint venture, association, limited liability company, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
“Place of Payment,”
when used with respect to the Securities of or within any Series, means the place or places where the principal of (and premium, if any)
and interest, if any, on such Securities are payable as specified and as contemplated by Section 2.1.
“principal”
of a Security means the principal of the Security plus, when appropriate, the premium, if any, on, the Security.
“Responsible Officer”
means any officer of the Trustee in its Corporate Trust Office having direct responsibility for administration of this Indenture and also
means, with respect to a particular corporate trust matter, any other officer to whom any corporate trust matter is referred because of
his or her knowledge of, and familiarity with, a particular subject.
“SEC”
means the Securities and Exchange Commission.
“Securities”
means the debentures, notes or other debt instruments of the Company of any Series authenticated and delivered under this Indenture.
“Series”
or “Series of Securities” means each series of debentures, notes or other debt instruments of the Company
created pursuant to Sections 2.1 and 2.2 hereof.
“Stated Maturity”
when used with respect to any Security, means the date specified in such Security as the fixed date on which the principal of such Security
or interest is due and payable.
“Subsidiary”
of any specified person means any corporation, association or other business entity of which more than fifty percent (50%) of the total
voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such person or one or more of the other Subsidiaries
of that person or a combination thereof.
“TIA”
means the Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) as in effect on the date of this Indenture; provided,
however, that, in the event the Trust Indenture Act of 1939 is amended after such date, “TIA” means, to the extent
required by any such amendment, the Trust Indenture Act, as so amended.
“Trustee”
means the person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and, thereafter, “Trustee” shall mean or include each person
who is then a Trustee hereunder, and if, at any time, there is more than one such person, then “Trustee,” as used with respect
to the Securities of any Series, shall mean the Trustee with respect to Securities of that Series.
“U.S. Government
Obligations” means securities which are direct obligations of, or guaranteed by, the United States of America for the payment
of which its full faith and credit is pledged and which are not callable or redeemable at the option of the issuer thereof, and shall
also include a depositary receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or
a specific payment of interest on, or principal of, any such U.S. Government Obligation held by such custodian for the account of the
holder of a depositary receipt, provided that (except as required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government
Obligation evidenced by such depositary receipt.
Section 1.2 Other
Definitions.
| TERM |
DEFINED
IN
SECTION |
| “Bankruptcy Law” |
6.1 |
| “Custodian” |
6.1 |
| “Event of Default” |
6.1 |
| “Judgment Currency” |
10.16 |
| “Legal Holiday” |
10.7 |
| “mandatory sinking fund payment” |
11.1 |
| “New York Banking Day” |
10.16 |
| “Notice Agent” |
2.4 |
| TERM |
DEFINED
IN
SECTION |
| “optional sinking fund payment” |
11.1 |
| “Paying Agent” |
2.4 |
| “Registrar” |
2.4 |
| “Required Currency” |
10.16 |
| “Specified Courts” |
10.10 |
| “successor person” |
5.1 |
Section 1.3 Incorporation
by Reference of Trust Indenture Act.
Whenever this Indenture refers
to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
“Commission”
means the SEC.
“indenture securities”
means the Securities.
“indenture security
holder” means a Securityholder.
“indenture to
be qualified” means this Indenture.
“indenture trustee”
or “institutional trustee” means the Trustee.
“obligor”
on the indenture securities means the Company and any successor obligor upon the Securities.
All other terms used in this
Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA and not otherwise
defined herein are used herein as so defined.
Section 1.4 Rules of
Construction.
Unless the context otherwise requires:
(a) a
term has the meaning assigned to it;
(b) an
accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(c) “or”
is not exclusive;
(d) words
in the singular include the plural, and in the plural include the singular; and
(e) provisions
apply to successive events and transactions.
ARTICLE II
THE SECURITIES
Section 2.1 Issuable
in Series.
The aggregate principal amount
of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more Series.
All Securities of a Series shall be identical except as may be set forth or determined in the manner provided in a Board Resolution,
a supplemental indenture or an Officer’s Certificate detailing the adoption of the terms thereof pursuant to authority granted under
a Board Resolution. In the case of Securities of a Series to be issued from time to time, the Board Resolution, Officer’s Certificate
or supplemental indenture detailing the adoption of the terms thereof pursuant to authority granted under a Board Resolution may provide
for the method by which specified terms (such as interest rate, maturity date, record date or date from which interest shall accrue) are
to be determined. Securities may differ between Series in respect of any matters, provided that all Series of Securities
shall be equally and ratably entitled to the benefits of this Indenture.
Section 2.2 Establishment
of Terms of Series of Securities.
At or prior to the issuance
of any Securities within a Series, the following shall be established (as to the Series generally, in the case of Subsection 2.2.1
and either as to such Securities within the Series or as to the Series generally in the case of Subsections 2.2.2 through
2.2.23) by or pursuant to a Board Resolution, and set forth or determined in the manner provided in a Board Resolution, supplemental
indenture hereto or Officer’s Certificate:
2.2.1 the
title (which shall distinguish the Securities of that particular Series from the Securities of any other Series) and ranking (including
the terms of any subordination provisions) of the Series;
2.2.2 the
price or prices (expressed as a percentage of the principal amount thereof) at which the Securities of the Series will be
issued;
2.2.3 any
limit upon the aggregate principal amount of the Securities of the Series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other
Securities of the Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or 9.6);
2.2.4 the
date or dates on which the principal of the Securities of the Series is payable;
2.2.5 the
rate or rates (which may be fixed or variable) per annum or, if applicable, the method used to determine such rate or rates (including,
but not limited to, any commodity, commodity index, stock exchange index or financial index) at which the Securities of the Series shall
bear interest, if any, the date or dates from which such interest, if any, shall accrue, the date or dates on which such interest, if
any, shall commence and be payable and any regular record date for the interest payable on any interest payment date;
2.2.6 the
place or places where the principal of and interest, if any, on the Securities of the Series shall be payable, where the Securities
of such Series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of such Series and this Indenture may be delivered, and the method of such payment, if by wire transfer,
mail or other means;
2.2.7 if
applicable, then the period or periods within which, the price or prices at which and the terms and conditions upon which, the
Securities of the Series may be redeemed, in whole or in part, at the option of the Company;
2.2.8 the
obligation, if any, of the Company to redeem or purchase the Securities of the Series pursuant to any sinking fund or analogous provisions
or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions
upon which, Securities of the Series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
2.2.9 the
dates, if any, on which and the price or prices at which the Securities of the Series will be repurchased by the Company at
the option of the Holders thereof and other detailed terms and provisions of such repurchase obligations;
2.2.10 if
other than minimum denominations of $1,000 and any integral multiple thereof, then the denominations in which the Securities of
the Series shall be issuable;
2.2.11 the
forms of the Securities of the Series and whether the Securities will be issuable as Global Securities;
2.2.12 if
other than the principal amount thereof, then the portion of the principal amount of the Securities of the Series that shall be payable
upon declaration of acceleration of the maturity thereof pursuant to Section 6.2;
2.2.13 the
currency of denomination of the Securities of the Series, which may be Dollars or any Foreign Currency, and, if such currency of
denomination is a composite currency, then the agency or organization, if any, responsible for overseeing such composite currency;
2.2.14 the
designation of the currency, currencies or currency units in which payment of the principal of and interest, if any, on the Securities
of the Series will be made;
2.2.15 if
payments of principal of or interest, if any, on the Securities of the Series are to be made in one or more currencies or currency
units other than that or those in which such Securities are denominated, then the manner in which the exchange rate with respect to such
payments will be determined;
2.2.16 the
manner in which the amounts of payment of principal of or interest, if any, on the Securities of the Series will be determined,
if such amounts may be determined by reference to an index based on a currency or currencies or by reference to a commodity, commodity
index, stock exchange index or financial index;
2.2.17 the
provisions, if any, relating to any security provided for the Securities of the Series;
2.2.18 any
addition to, deletion of or change in, the Events of Default which applies to any Securities of the Series and any change
in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant
to Section 6.2;
2.2.19 any
addition to, deletion of or change in, the covenants set forth in Articles IV or V which applies to Securities of
the Series;
2.2.20 any
Depositaries, interest rate calculation agents, exchange rate calculation agents or other agents with respect to Securities of
such Series if other than those appointed herein;
2.2.21 the
provisions, if any, relating to conversion or exchange of any Securities of such Series, including, if applicable, the conversion or exchange
price, the conversion or exchange period, provisions as to whether conversion or exchange will be mandatory, at the option of the Holders
thereof or at the option of the Company, the events requiring an adjustment of the conversion price or exchange price and provisions affecting
conversion or exchange if such Series of Securities are redeemed;
2.2.22 any
other terms of the Series (which may supplement, modify or delete any provision of this Indenture insofar as it applies to such Series),
including any terms that may be required under applicable law or regulations or advisable in connection with the marketing of Securities
of that Series; and
2.2.23 whether
any of the Company’s direct or indirect Subsidiaries will guarantee the Securities of that Series, including the terms of subordination,
if any, of such guarantees.
All Securities of any one
Series need not be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so
provided by or pursuant to the Board Resolution, supplemental indenture hereto or Officer’s Certificate referred to above.
Section 2.3 Execution
and Authentication.
An Officer shall sign the
Securities for the Company by manual, facsimile or electronic signature.
If an Officer whose signature
is on a Security no longer holds that office at the time the Security is authenticated, then the Security shall nevertheless be valid.
A Security shall not be valid
until authenticated by the manual signature of the Trustee or an authenticating agent. The signature shall be conclusive evidence that
the Security has been authenticated under this Indenture.
The Trustee shall, at any
time, and from time to time, authenticate Securities for original issue in the principal amount provided in the Board Resolution, supplemental
indenture hereto or Officer’s Certificate, upon receipt by the Trustee of a Company Order. Each Security shall be dated the date
of its authentication.
The aggregate principal amount
of Securities of any Series outstanding at any time may not exceed any limit upon the maximum principal amount for such Series set
forth in the Board Resolution, supplemental indenture hereto or Officer’s Certificate delivered pursuant to Section 2.2,
except as provided in Section 2.8.
Prior to the issuance of Securities
of any Series, the Trustee shall have received and (subject to Section 7.2) shall be fully protected in relying on: (a) the
Board Resolution, supplemental indenture hereto or Officer’s Certificate establishing the form of the Securities of that Series or
of Securities within that Series and the terms of the Securities of that Series or of Securities within that Series; (b) an
Officer’s Certificate complying with Section 10.4; and (c) an Opinion of Counsel complying with Section 10.4.
The Trustee shall have the
right to decline to authenticate and deliver any Securities of such Series: (a) if the Trustee, being advised by counsel, determines
that such action may not be taken lawfully; or (b) if the Trustee, in good faith, shall determine that such action would expose the
Trustee to personal liability to Holders of any then outstanding Series of Securities.
The Trustee may appoint an
authenticating agent acceptable to the Company to authenticate Securities. An authenticating agent may authenticate Securities whenever
the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating
agent has the same rights as an Agent to deal with the Company or an Affiliate of the Company.
Section 2.4 Registrar
and Paying Agent.
The Company shall maintain,
with respect to each Series of Securities, at the place or places specified with respect to such Series pursuant to Section 2.2,
an office or agency where Securities of such Series may be presented or surrendered for payment (the “Paying Agent”),
where Securities of such Series may be surrendered for registration of transfer or exchange (the “Registrar”)
and where notices and demands to or upon the Company in respect of the Securities of such Series and this Indenture may be delivered
(the “Notice Agent”). The Registrar shall keep a register with respect to each Series of Securities and
to their transfer and exchange. The Company will give prompt written notice to the Trustee of the name and address, and any change in
the name or address, of each Registrar, Paying Agent or Notice Agent. If, at any time the Company shall fail to maintain any such required
Registrar, Paying Agent or Notice Agent or shall fail to furnish the Trustee with the name and address thereof, then such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and demands; provided, however, that any appointment
of the Trustee as the Notice Agent shall exclude the appointment of the Trustee or any office of the Trustee as an agent to receive the
service of legal process on the Company.
The Company may also from
time to time designate one or more co-registrars, additional paying agents or additional notice agents and may from time to time rescind
such designations; provided, however, that no such designation or rescission shall, in any manner, relieve the Company of
its obligations to maintain a Registrar, Paying Agent and Notice Agent in each place so specified pursuant to Section 2.2
for Securities of any Series for such purposes. The Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the name or address of any such co-registrar, additional paying agent or additional notice agent. The
term “Registrar” includes any co-registrar; the term “Paying Agent” includes any additional paying agent; and
the term “Notice Agent” includes any additional notice agent. The Company or any of its Affiliates may serve as Registrar
or Paying Agent.
The Company hereby appoints
the Trustee the initial Registrar, Paying Agent and Notice Agent for each Series unless another Registrar, Paying Agent or Notice
Agent, as the case may be, is appointed prior to the time Securities of that Series are first issued.
Section 2.5 Paying
Agent to Hold Money in Trust.
The Company shall require
each Paying Agent, other than the Trustee, to agree in writing that the Paying Agent will hold in trust, for the benefit of Securityholders
of any Series of Securities, or the Trustee, all money held by the Paying Agent for the payment of principal of or interest on the
Series of Securities, and will notify the Trustee in writing of any default by the Company in making any such payment. While any
such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company, at any time, may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the
Company or a Subsidiary of the Company) shall have no further liability for the money. If the Company or a Subsidiary of the Company acts
as Paying Agent, then it shall segregate and hold in a separate trust fund for the benefit of Securityholders of any Series of Securities
all money held by it as Paying Agent. Upon any bankruptcy, reorganization or similar proceeding with respect to the Company, the Trustee
shall serve as Paying Agent for the Securities.
Section 2.6 Securityholder
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 Securityholders of
each Series of Securities and shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, then the Company
shall furnish to the Trustee at least ten (10) 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 Securityholders
of each Series of Securities.
Section 2.7 Transfer
and Exchange.
Where Securities of a Series are
presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal principal amount of
Securities of the same Series, the Registrar shall register the transfer or make the exchange if its requirements for such transactions
are met. To permit registrations of transfers and exchanges, the Trustee shall authenticate Securities at the Registrar’s request.
No service charge shall be made for any registration of transfer or exchange (except as otherwise expressly permitted herein), but the
Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer tax or similar governmental charge payable upon exchanges pursuant to Sections 2.11, 3.6 or
9.6).
Neither the Company nor the
Registrar shall be required: (a) to issue, register the transfer of, or exchange Securities of any Series for the period beginning
at the opening of business fifteen (15) days immediately preceding the sending of a notice of redemption of Securities of that Series selected
for redemption and ending at the close of business on the day such notice is sent; or (b) to register the transfer of or exchange
Securities of any Series selected, called or being called for redemption as a whole or the portion being redeemed of any such Securities
selected, called or being called for redemption in part.
Section 2.8 Mutilated,
Destroyed, Lost and Stolen Securities.
If any mutilated Security
is surrendered to the Trustee, then 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: (a) evidence to their satisfaction of the destruction, loss or theft of any Security; and (b) such
security or indemnity bond as may be required by each of them to hold itself and any of its agents harmless, then, in the absence of notice
to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon receipt
of a Company Order the Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen Security,
a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and payable, the Company, in its discretion, may, instead of issuing
a new Security, pay such Security.
Upon the issuance of any new
Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any
Series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be, at any time, enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that Series duly
issued hereunder.
The provisions of this Section are
exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
Section 2.9 Outstanding
Securities.
The Securities outstanding
at any time are all the Securities authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation,
those reductions in the interest on a Global Security effected by the Trustee in accordance with the provisions hereof and those described
in this Section as not outstanding.
If a Security is replaced
pursuant to Section 2.8, then it ceases to be outstanding until the Trustee receives proof satisfactory to it that the replaced
Security is held by a bona fide purchaser.
If the Paying Agent (other
than the Company, a Subsidiary of the Company or an Affiliate of the Company) holds on the Maturity of Securities of a Series money
sufficient to pay such Securities payable on that date, then, on and after that date, such Securities of the Series cease to be outstanding
and interest on them ceases to accrue.
The Company may purchase or
otherwise acquire the Securities, whether by open market purchases, negotiated transactions or otherwise. A Security does not cease to
be outstanding because the Company or an Affiliate of the Company holds the Security (but see Section 2.10 below).
In determining whether the
Holders of the requisite principal amount of outstanding Securities have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, the principal amount of a Discount Security that shall be deemed to be outstanding for such purposes shall
be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 6.2.
Section 2.10 Treasury
Securities.
In determining whether the
Holders of the required principal amount of Securities of a Series have concurred in any request, demand, authorization, direction,
notice, consent or waiver, Securities of a Series owned by the Company or any Affiliate of the Company shall be disregarded, except
that for the purposes of determining whether the Trustee shall be protected in relying on any such request, demand, authorization, direction,
notice, consent or waiver only Securities of a Series that a Responsible Officer of the Trustee actually knows are so owned shall
be so disregarded.
Section 2.11 Temporary
Securities.
Until definitive Securities
are ready for delivery, the Company may prepare, and the Trustee shall authenticate, temporary Securities upon a Company Order. Temporary
Securities shall be substantially in the form of definitive Securities but may have variations that the Company considers appropriate
for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee, upon receipt of a Company Order, shall
authenticate definitive Securities of the same Series and date of maturity in exchange for temporary Securities. Until so exchanged,
temporary securities shall have the same rights under this Indenture as the definitive Securities.
Section 2.12 Cancellation.
The Company may, at any time,
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 (or to any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered shall be promptly cancelled
by the Trustee. If the Company shall so acquire any of the Securities, however, such acquisition shall not operate as a redemption
or satisfaction of the indebtedness represented by such Securities unless and until the same are surrendered to the Trustee for cancellation.
The Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered to them for registration of transfer, exchange
or payment. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except
as expressly permitted by this Indenture. The Trustee shall cancel all Securities surrendered for transfer, exchange, payment, replacement
or cancellation in accordance with its customary procedures and deliver a certificate of such cancellation to the Company upon written
request by a Company Order from the Company. The Company may not issue new Securities to replace Securities that it has paid or delivered
to the Trustee for cancellation.
Section 2.13 Defaulted
Interest.
If the Company defaults in
a payment of interest on a Series of Securities, then it shall pay the defaulted interest, plus, to the extent permitted by law,
any interest payable on the defaulted interest, to the persons who are Securityholders of the Series on a subsequent special record
date. The Company shall fix the record date and payment date. At least ten (10) days before the special record date, the Company
shall send to the Trustee and to each Securityholder of the Series a notice that states the special record date, the payment date
and the amount of interest to be paid. The Company may pay defaulted interest in any other lawful manner.
Section 2.14 Global
Securities.
2.14.1 Terms
of Securities. A Board Resolution, a supplemental indenture hereto or an Officer’s Certificate shall establish whether the Securities
of a Series shall be issued in whole or in part in the form of one or more Global Securities and the Depositary for such Global Security
or Securities.
2.14.2 Transfer
and Exchange. Notwithstanding any provisions to the contrary contained in Section 2.7 of this Indenture and in addition
thereto, any Global Security shall be exchangeable pursuant to Section 2.7 of this Indenture for Securities registered in
the names of Holders other than the Depositary for such Security or its nominee only if: (a) such Depositary notifies the Company
that it is unwilling or unable to continue as Depositary for such Global Security or if, at any time, such Depositary ceases to be a clearing
agency registered under the Exchange Act, and, in either case, the Company fails to appoint a successor Depositary registered as a clearing
agency under the Exchange Act within ninety (90) days of such event; or (b) the Company executes and delivers to the Trustee an Officer’s
Certificate to the effect that such Global Security shall be so exchangeable. Any Global Security that is exchangeable pursuant to the
preceding sentence shall be exchangeable for Securities registered in such names as the Depositary shall direct in writing in an aggregate
principal amount equal to the principal amount of the Global Security with like tenor and terms.
Except
as provided in this Section 2.14.2, a Global Security may not be transferred except as a whole by the Depositary with respect
to such Global Security to a nominee of such Depositary, by a nominee of such Depositary to such Depositary or another nominee of such
Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such a successor Depositary.
2.14.3 Legends.
Any Global Security issued hereunder shall bear a legend in substantially the following form:
“THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY
OR A NOMINEE OF THE DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY
OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY
THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY.”
In
addition, so long as the Depository Trust Company (“DTC”) is the Depositary, each Global Note registered in
the name of DTC or its nominee shall bear a legend in substantially the following form:
“UNLESS
THIS GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY GLOBAL NOTE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”
2.14.4 Acts
of Holders. The Depositary, as a Holder, may appoint agents and otherwise authorize participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a Holder is entitled to give or take under this Indenture.
2.14.5 Payments.
Notwithstanding the other provisions of this Indenture, unless otherwise specified as contemplated by Section 2.2, payment
of the principal of and interest, if any, on any Global Security shall be made to the Holder thereof.
2.14.6 Consents,
Declaration and Directions. 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
or by the applicable procedures of such Depositary with respect to such Global Security, for purposes of obtaining any consents, declarations,
waivers or directions required to be given by the Holders pursuant to this Indenture.
Section 2.15 CUSIP
Numbers.
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 2.16 Trustee
Not Responsible for Securities Laws.
Notwithstanding anything herein
to the contrary, neither the Trustee nor the Registrar shall be responsible for ascertaining whether any transfer complies with the registration
provisions of or exemptions from the Securities Act of 1933, as amended, applicable state securities laws or other applicable laws.
ARTICLE III
REDEMPTION
Section 3.1 Notice
to Trustee.
The Company may, with respect
to any Series of Securities, reserve the right to redeem and pay the Series of Securities or may covenant to redeem and pay
the Series of Securities or any part thereof prior to the Stated Maturity thereof at such time and on such terms as provided for
in such Securities. If a Series of Securities is redeemable and the Company wants or is obligated to redeem prior to the Stated Maturity
thereof all or part of the Series of Securities pursuant to the terms of such Securities, then it shall notify the Trustee in writing
of the redemption date and the principal amount of Series of Securities to be redeemed. The Company shall give the notice at least
fifteen (15) days before the redemption date, unless a shorter period is satisfactory to the Trustee.
Section 3.2 Selection
of Securities to be Redeemed.
Unless otherwise indicated
for a particular Series by a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate, if less than all
the Securities of a Series are to be redeemed, the Securities of the Series to be redeemed will be selected as follows: (a) if
the Securities are in the form of Global Securities, in accordance with the procedures of the Depositary; (b) if the Securities are
listed on any national securities exchange, in compliance with the requirements of the principal national securities exchange, if any,
on which the Securities are listed; or (c) if not otherwise provided for under clause (a) or (b) in the manner that the
Trustee deems fair and appropriate, including by lot or other method, unless otherwise required by law or applicable stock exchange requirements,
subject, in the case of Global Securities, to the applicable rules and procedures of the Depositary. The Securities to be redeemed
shall be selected from Securities of the Series outstanding not previously called for redemption. Portions of the principal of Securities
of the Series that have denominations larger than $1,000 may be selected for redemption. Securities of the Series and portions
of them, if selected for redemption, shall be in amounts of $1,000 or whole multiples of $1,000 or, with respect to Securities of any
Series issuable in other denominations pursuant to Section 2.2.10, the minimum principal denomination for each Series and
the authorized integral multiples thereof. Provisions of this Indenture that apply to Securities of a Series called for redemption
also apply to portions of Securities of that Series called for redemption.
Section 3.3 Notice
of Redemption.
Unless otherwise indicated
for a particular Series by Board Resolution, a supplemental indenture hereto or an Officer’s Certificate, at least ten (10) days
but not more than sixty (60) days before a redemption date, the Company shall send or cause to be sent by first-class mail or electronically,
in accordance with the procedures of the Depositary, a notice of redemption to each Holder whose Securities are to be redeemed.
The notice shall identify
the Securities of the Series to be redeemed and shall state:
(a) the
redemption date;
(b) the
redemption price;
(c) the
name and address of the Paying Agent;
(d) if
any Securities are being redeemed in part, the portion of the principal amount of such Securities to be redeemed and that, after
the redemption date and upon surrender of such Security, a new Security or Securities in principal amount equal to the unredeemed portion
of the original Security shall be issued in the name of the Holder thereof upon cancellation of the original Security;
(e) that
Securities of the Series called for redemption must be surrendered to the Paying Agent to collect the redemption price;
(f) that
interest on Securities of the Series called for redemption ceases to accrue on and after the redemption date unless the Company
defaults in the deposit of the redemption price;
(g) the
CUSIP number, if any; and
(h) any
other information as may be required by the terms of the particular Series or the Securities of a Series being redeemed.
At the Company’s request,
the Trustee shall give the notice of redemption in the Company’s name and at its expense, provided, however, that
the Company has delivered to the Trustee, at least five (5) days (unless a shorter time shall be acceptable to the Trustee) prior
to the notice date, an Officer’s Certificate requesting that the Trustee give such notice and setting forth the information to be
stated in such notice.
Section 3.4 Effect
of Notice of Redemption.
Once notice of redemption
is sent as provided in Section 3.3, Securities of a Series called for redemption become due and payable on the redemption
date and at the redemption price. Except as otherwise provided in the supplemental indenture, Board Resolution or Officer’s Certificate
for a Series, a notice of redemption may not be conditional. Upon surrender to the Paying Agent, such Securities shall be paid at the
redemption price plus accrued interest to the redemption date.
Section 3.5 Deposit
of Redemption Price.
On or before 11:00 a.m., New
York City time, on the redemption date, the Company shall deposit with the Paying Agent money sufficient to pay the redemption price of
and accrued interest, if any, on all Securities to be redeemed on that date.
Section 3.6 Securities
Redeemed in Part.
Upon surrender of a Security
that is redeemed in part, the Trustee shall authenticate for the Holder a new Security of the same Series and the same maturity equal
in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE IV
COVENANTS
Section 4.1 Payment
of Principal and Interest.
The Company covenants and
agrees, for the benefit of the Holders of each Series of Securities, that it will duly and punctually pay the principal of and interest,
if any, on the Securities of that Series in accordance with the terms of such Securities and this Indenture. On or before 11:00 a.m.,
New York City time, on the applicable payment date, the Company shall deposit with the Paying Agent money sufficient to pay the principal
of and interest, if any, on the Securities of each Series in accordance with the terms of such Securities and this Indenture.
Section 4.2 SEC
Reports.
To the extent any Securities
of a Series are outstanding, the Company shall deliver to the Trustee within fifteen (15) days after it files them with the SEC copies
of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC
may by rules and regulations prescribe) which the Company is required to file with the SEC pursuant to Section 13 or 15(d) of
the Exchange Act. The Company also shall comply with the other provisions of TIA § 314(a). Reports, information and documents filed
with the SEC via the EDGAR system will be deemed to be delivered to the Trustee as of the time of such filing via EDGAR for purposes of
this Section 4.2.
Delivery of reports, information
and documents to the Trustee under this Section 4.2 are for informational purposes only and the Trustee’s receipt of
the foregoing shall not constitute constructive or actual notice of any information contained therein or determinable from information
contained therein, including the Company’s compliance with any of their covenants hereunder (as to which the Trustee is entitled
to rely exclusively on an Officer’s Certificate).
Section 4.3 Compliance
Certificate.
To the extent any Securities
of a Series are outstanding, the Company shall deliver to the Trustee, within one hundred twenty (120) days after the end of each
calendar year of the Company, an Officer’s Certificate stating that a review of the activities of the Company and its Subsidiaries
during the preceding calendar year has been made under the supervision of the signing Officers with a view to determining whether the
Company has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his/her knowledge the Company has kept, observed, performed and fulfilled each and every
covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions
hereof (or, if a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default of which the Officer
may have knowledge).
Section 4.4 Stay,
Extension and Usury Laws.
The Company covenants (to
the extent that it may lawfully do so) that it will not, at any time, insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture or the Securities; and the Company (to the extent it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law and covenants that it will not, by resort to any such law, hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law
has been enacted.
ARTICLE V
SUCCESSORS
Section 5.1 When
Company May Merge, Etc.
The Company shall not consolidate
with or merge with or into, or convey, transfer or lease all or substantially all of its properties and assets to, any person (a “successor
person”) unless:
(a) the
Company is the surviving corporation or the successor person (if other than the Company) is a corporation organized and validly existing
under the laws of any U.S. domestic jurisdiction and expressly assumes the Company’s obligations on the Securities and under
this Indenture; and
(b) immediately
after giving effect to the transaction, no Default or Event of Default, shall have occurred and be continuing.
The Company shall deliver
to the Trustee prior to the consummation of the proposed transaction an Officer’s Certificate to the foregoing effect and an Opinion
of Counsel stating that the proposed transaction and any supplemental indenture comply with this Indenture.
Notwithstanding the above,
any Subsidiary of the Company may consolidate with, merge into or transfer all or part of its properties to the Company. Neither an Officer’s
Certificate nor an Opinion of Counsel shall be required to be delivered in connection therewith.
Section 5.2 Successor
Corporation Substituted.
Upon any consolidation or
merger, or any sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company in accordance with
Section 5.1, the successor corporation formed by such consolidation or into or with which the Company is merged or to which
such sale, lease, conveyance or other disposition is made shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor person has been named as the Company herein; provided,
however, that the predecessor Company in the case of a sale, conveyance or other disposition (other than a lease) shall be released
from all obligations and covenants under this Indenture and the Securities.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1 Events
of Default.
“Event of Default,”
wherever used herein with respect to Securities of any Series, means any one of the following events, unless in the establishing Board
Resolution, supplemental indenture or Officer’s Certificate, it is provided that such Series shall not have the benefit of
said Event of Default:
(a) default
in the payment of any interest on any Security of that Series when it becomes due and payable, and continuance of such default for
a period of thirty (30) days (unless the entire amount of such payment is deposited by the Company with the Trustee or with a Paying Agent
prior to 11:00 a.m., New York City time, on the thirtieth (30th) day of such period); or
(b) default
in the payment of principal of any Security of that Series at its Maturity; or
(c) default
in the performance or breach of any covenant or warranty of the Company in this Indenture (other than defaults pursuant to paragraphs
(a) or (b) above or pursuant to a covenant or warranty that has been included in this Indenture solely for the benefit of Series of
Securities other than that Series), which default continues uncured for a period of sixty (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 twenty-five percent (25%)
in principal amount of the outstanding Securities of that Series a written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a “Notice of Default” hereunder; or
(d) the
Company, pursuant to or within the meaning of any Bankruptcy Law:
(i) commences
a voluntary case;
(ii) consents
to the entry of an order for relief against it in an involuntary case;
(iii) consents
to the appointment of a Custodian of it or for all or substantially all of its property;
(iv) makes
a general assignment for the benefit of its creditors; or
(v) generally
is unable to pay its debts as the same become due; or
(e) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is
for relief against the Company in an involuntary case;
(ii) appoints
a Custodian of the Company or for all or substantially all of its property; or
(iii) orders
the liquidation of the Company;
and the order or decree remains unstayed and in
effect for sixty (60) days; or
(f) any
other Event of Default provided with respect to Securities of that Series, which is specified in a Board Resolution, a supplemental
indenture hereto or an Officer’s Certificate, in accordance with Section 2.2.18.
The term “Bankruptcy
Law” means title 11, U.S. Code or any similar Federal or State law for the relief of debtors. The term “Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
The Company will provide the
Trustee written notice of any Default or Event of Default within thirty (30) days of becoming aware of the occurrence of such Default
or Event of Default, which notice will describe in reasonable detail the status of such Default or Event of Default and what action the
Company is taking or proposes to take in respect thereof.
Section 6.2 Acceleration
of Maturity; Rescission and Annulment.
If an Event of Default with
respect to Securities of any Series at the time outstanding occurs and is continuing (other than an Event of Default referred to
in Section 6.1(d) or (e)), then in every such case, the Trustee or the Holders of not less than twenty-five percent
(25%) in principal amount of the outstanding Securities of that Series may declare the principal amount (or, if any Securities of
that Series are Discount Securities, then such portion of the principal amount as may be specified in the terms of such Securities)
of and accrued and unpaid interest, if any, on all of the Securities of that Series to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified
amount) and accrued and unpaid interest, if any, shall become immediately due and payable. If an Event of Default specified in Section 6.1(d) or
(e) shall occur, then the principal amount (or specified amount) of and accrued and unpaid interest, if any, on all outstanding
Securities shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee
or any Holder.
At any time after such a declaration
of acceleration with respect to any Series has been made and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the outstanding Securities
of that Series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if all Events
of Default with respect to Securities of that Series, other than the non-payment of the principal and interest, if any, of Securities
of that Series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 6.13.
No such rescission shall affect
any subsequent Default or impair any right consequent thereon. Section 6.3. Collection of Indebtedness and Suits for Enforcement
by Trustee.
The Company covenants that
if:
(a) default
is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for
a period of thirty (30) days; or
(b) default
is made in the payment of principal of any Security at the Maturity thereof; or
(c) default
is made in the deposit of any sinking fund payment, if any, when and as due by the terms of a Security;
then, the Company will, upon demand of the Trustee,
pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and
interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and any overdue
interest at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the compensation, reasonable expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay
such amounts forthwith upon such demand, then the Trustee, in its own name and as trustee of an express trust, may institute a judicial
proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce
the same against the Company or any other obligor upon such Securities and collect the moneys adjudged or deemed to be payable in the
manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with
respect to any Securities of any Series occurs and is continuing, then the Trustee may, in its discretion, proceed to protect and
enforce its rights and the rights of the Holders of Securities of such Series by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in
this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 6.3 Trustee
May File Proofs of Claim.
In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding
relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors,
the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(a) to
file and prove a claim for the whole amount of principal and interest owing and unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the compensation,
reasonable expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding;
and
(b) to
collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due it for the compensation, reasonable expenses, disbursements and advances of the Trustee, its agents and counsel
and any other amounts due the Trustee under Section 7.7.
Nothing herein contained shall
be deemed to authorize the Trustee to authorize or consent to, or accept or adopt on behalf of, any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote
in respect of the claim of any Holder in any such proceeding.
Section 6.4 Trustee
May Enforce Claims Without Possession of Securities.
All rights of action and claims
under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or
the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the compensation, reasonable
expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities
in respect of which such judgment has been recovered.
Section 6.5 Application
of Money Collected.
Any money or property collected
by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in
case of the distribution of such money or property on account of principal or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if fully paid:
First:
To the payment of all amounts due the Trustee under Section 7.7; and
Second:
To the payment of the amounts then due and unpaid for principal of and interest on the Securities in respect of which or for the benefit
of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable
on such Securities for principal and interest, respectively; and
Third:
To the Company.
Section 6.6 Limitation
on Suits.
No Holder of any Security
of any Series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(a) such
Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that
Series;
(b) the
Holders of not less than twenty-five percent (25%) in principal amount of the outstanding Securities of that Series shall
have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(c) such
Holder or Holders have offered to the Trustee indemnity or security satisfactory to the Trustee against the costs, expenses and
liabilities which might be incurred by the Trustee in compliance with such request;
(d) the
Trustee for sixty (60) days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding;
and
(e) no
direction inconsistent with such written request has been given to the Trustee during such sixty (60)-day period by the Holders
of a majority in principal amount of the outstanding Securities of that Series;
it being understood, intended and expressly covenanted
by the Holder of every Security with every other Holder and the Trustee that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other
of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders of the applicable Series.
Section 6.7 Unconditional
Right of Holders to Receive Principal and Interest.
Notwithstanding any other
provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment
of the principal of and interest, if any, on such Security on the Maturity of such Security, including the Stated Maturity expressed in
such Security (or, in the case of redemption, on the redemption date) and to institute suit for the enforcement of any such payment, and
such rights shall not be impaired without the consent of such Holder.
Section 6.8 Restoration
of Rights and Remedies.
If the Trustee or any Holder
has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned
for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination
in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder
and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 6.9 Rights
and Remedies Cumulative.
Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in Section 2.8, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder
or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise,
shall not, to the extent permitted by law, prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 6.10 Delay
or Omission Not Waiver.
No delay or omission of the
Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or
by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or
by the Holders, as the case may be.
Section 6.11 Control
by Holders.
The Holders of a majority
in principal amount of the outstanding Securities of any Series shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the
Securities of such Series, provided that:
(a) such
direction shall not be in conflict with any rule of law or with this Indenture;
(b) the
Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction;
(c) subject
to the provisions of Section 7.1, the Trustee shall have the right to decline to follow any such direction if the Trustee
in good faith shall, by a Responsible Officer of the Trustee, determine that the proceeding so directed would involve the Trustee in personal
liability; and
(d) prior
to taking any action as directed under this Section 6.12, the Trustee shall be entitled to indemnity satisfactory to
it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
Section 6.12 Waiver
of Past Defaults.
The Holders of not less than
a majority in principal amount of the outstanding Securities of any Series may on behalf of the Holders of all the Securities of
such Series, by written notice to the Trustee and the Company, waive any past Default hereunder with respect to such Series and its
consequences, except a Default in the payment of the principal of or interest on any Security of such Series (provided, however,
that the Holders of a majority in principal amount of the outstanding Securities of any Series may rescind an acceleration and its
consequences, including any related payment default that resulted from such acceleration). Upon any such waiver, such Default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
Section 6.13 Undertaking
for Costs.
All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party
litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions
of this Section shall not apply to any suit instituted by the 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 ten percent (10%) in principal amount of the outstanding Securities
of any Series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of or interest on any Security
on or after the Maturity of such Security, including the Stated Maturity expressed in such Security (or, in the case of redemption, then
on the redemption date).
ARTICLE VII
TRUSTEE
Section 7.1 Duties
of Trustee.
(a) If
an Event of Default has occurred and is continuing, then the Trustee shall exercise the rights and powers vested in it by this Indenture
and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct
of such person’s own affairs.
(b) Except
during the continuance of an Event of Default:
(i) The
Trustee need perform only those duties that are specifically set forth in this Indenture and no others.
(ii) In
the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon Officer’s Certificates or Opinions of Counsel furnished to the Trustee and conforming to
the requirements of this Indenture; however, in the case of any such Officer’s Certificates or Opinions of Counsel which
by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such Officer’s Certificates
and Opinions of Counsel to determine whether or not they conform to the form requirements of this Indenture.
(c) The
Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct,
except that:
(i) This
paragraph does not limit the effect of paragraph (b) of this Section.
(ii) The
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
(iii) The
Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it with respect to Securities of any
Series in good faith in accordance with the direction of the Holders of a majority in principal amount of the outstanding Securities
of such Series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such Series in accordance with
Section 6.12.
(d) Every
provision of this Indenture that in any way relates to the Trustee is subject to this Section and Section 7.2.
(e) The
Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against the costs,
expenses and liabilities which might be incurred by it in performing such duty or exercising such right or power.
(f) The
Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money
held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
(g) No
provision of this Indenture shall require the Trustee to risk its own funds or otherwise incur any financial liability in the performance
of any of its duties, or in the exercise of any of its rights or powers, if adequate indemnity against such risk is not assured to the
Trustee in its satisfaction.
(h) The
Paying Agent, the Registrar and any authenticating agent shall be entitled to the protections and immunities as are set forth in paragraphs
(e), (f) and (g) of this Section and in Section 7.2, each with respect to the Trustee.
Section 7.2 Rights
of Trustee.
(a) The
Trustee may rely, and shall be protected in acting, on any resolution, certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, judgment, approval, bond, debenture, note, coupon, other evidence of indebtedness or other paper or
document (whether in its original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper person,
not only as to due execution, validity and effectiveness, but also as to the truth and accuracy of any information contained therein.
The Trustee need not investigate any fact or matter stated in the document.
(b) Before
the Trustee acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate and/or Opinion
of Counsel.
(c) The
Trustee may act through agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care.
No Depositary shall be deemed an agent of the Trustee and the Trustee shall not be responsible for any act or omission by any Depositary.
(d) The
Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights
or powers, provided that the Trustee’s conduct does not constitute willful misconduct or negligence.
(e) The
Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder without willful misconduct or negligence, and in
reliance thereon.
(f) The
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against
the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
(g) The
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit.
(h) The
Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office
of the Trustee, and such notice references the Securities generally or the Securities of a particular Series and this Indenture.
(i) In
no event, shall the Trustee be liable to any person for special, punitive, indirect, consequential or incidental loss or damage of any
kind whatsoever (including, but not limited to, lost profits), even if the Trustee has been advised of the likelihood of such loss or
damage and regardless of the form of action.
(j) The
permissive right of the Trustee to take the actions permitted by this Indenture shall not be construed as an obligation or duty
to do so.
(k) The
Trustee is not responsible for monitoring the performance of other persons or for the failure of others to perform their duties.
(l) Any
action taken, or omitted to be taken, by the Trustee in good faith pursuant to this Indenture upon the request or authority or
consent of any person who, at the time of making such request or giving such authority or consent, is the holder of any Note shall be
conclusive and binding upon future holders of Notes, and upon Notes executed and delivered in exchange therefor or in place thereof.
(m) The
Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any Person
authorized to sign an Officer’s Certificate, including any Person specified as so authorized in any certificate previously delivered
and not superseded.
(n) The
Trustee shall not be required to give any bond or surety in respect of the execution of the trusts and powers under this Indenture.
(o) Notwithstanding
anything to the contrary set forth herein, in no event, shall the Trustee or the Paying Agent be liable for interest on any money received
by it (including, but not limited to, any negative interest) except as the Trustee or the Paying Agent may otherwise agree in writing
with the Company. For the avoidance of doubt, the compensation, reimbursement and indemnification protections afforded to the Trustee
and the Paying Agent under Section 7.7 of this Indenture shall cover any interest-related expenses incurred by the Trustee
or the Paying Agent in the performance of their duties hereunder.
Section 7.3 Individual
Rights of Trustee.
The Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities and may otherwise deal with the Company or an Affiliate of the Company
with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. The Trustee is also subject to
Sections 7.10 and 7.11.
Section 7.4 Trustee’s
Disclaimer.
The Trustee makes no representation
as to the validity or adequacy of this Indenture or the Securities, 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 7.5 Notice
of Defaults.
If a Default or Event of Default
occurs and is continuing with respect to the Securities of any Series and if it is known to a Responsible Officer of the Trustee,
then the Trustee shall send to each Securityholder of the Securities of that Series notice of a Default or Event of Default within
ninety (90) days after it occurs or, if later, after a Responsible Officer of the Trustee has knowledge of such Default or Event of Default.
Except in the case of a Default or Event of Default in payment of principal of or interest on any Security of any Series, the Trustee
may withhold the notice if and so long as its corporate trust committee or a committee of its Responsible Officers in good faith determines
that withholding the notice is in the interests of Securityholders of that Series.
Section 7.6 Reports
by Trustee to Holders.
Within sixty (60) days after
each anniversary of the date of this Indenture and for so long as any Securities remain outstanding, the Trustee shall transmit to all
Securityholders, as their names and addresses appear on the register kept by the Registrar, a brief report dated as of such anniversary
date, in accordance with, and to the extent required under, TIA § 313.
A copy of each report at the
time of its mailing to Securityholders of any Series shall be filed with the SEC and each national securities exchange on which the
Securities of that Series are listed. The Company shall promptly notify the Trustee in writing when Securities of any Series are
listed on any national securities exchange.
Section 7.7 Compensation
and Indemnity.
The Company shall pay to the
Trustee from time to time compensation for its services as the Company and the Trustee shall from time to time agree upon in writing.
The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse
the Trustee upon request for all reasonable out-of-pocket expenses, disbursements and advances incurred by it in connection with the performance
of its duties under this Indenture. Such expenses shall include the reasonable compensation and expenses of the Trustee’s agents
and counsel.
The Company shall indemnify
and hold harmless each of the Trustee and any predecessor Trustee (including for the cost of defending itself against any claims by a
third party or enforcing this indemnity) against any cost, expense, liability, action, damage, claim, suit or expense (including attorneys’
fees and expenses, and including taxes (other than taxes based upon, measured by or determined by the income of the Trustee)), incurred
by it or arising out of, or in connection with, its duties under this Indenture as Trustee or Agent (including the performance of its
duties and the exercise of its powers and the enforcement of this Indenture), except as set forth in the next paragraph. The Trustee shall
notify the Company promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Company shall not relieve
the Company of its obligations hereunder, unless and to the extent that the Company is materially prejudiced thereby. The Company shall
defend the claim and the Trustee shall cooperate in the defense. The Trustee may have separate counsel and the Company shall pay the reasonable
fees and expenses of such counsel. The Company need not pay for any settlement made without its consent, which consent will not be unreasonably
withheld. This indemnification shall apply to officers, directors, employees, shareholders and agents of the Trustee.
The Company need not reimburse
any expense or indemnify against any loss or liability incurred by the Trustee or by any officer, director, employee, shareholder or agent
of the Trustee through willful misconduct or negligence.
To secure the Company’s
payment obligations in this Section, the Trustee shall have a lien prior to the Securities of any Series on all money or property
held or collected by the Trustee, except that held in trust to pay principal of and interest on particular Securities of that Series.
When the Trustee incurs expenses
or renders services after an Event of Default specified in Section 6.1(d) or (e) occurs, the expenses and
the compensation for the services are intended to constitute expenses of administration under any Bankruptcy Law.
The provisions of this Section shall
survive the termination of this Indenture and the resignation or removal of the Trustee or Agent.
Section 7.8 Replacement
of Trustee.
A resignation or removal of
the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment
as provided in this Section.
The Trustee may resign with
respect to the Securities of one or more Series by so notifying the Company at least thirty (30) days prior to the date of the proposed
resignation. The Holders of a majority in principal amount of the Securities of any Series may remove the Trustee with respect to
that Series by so notifying the Trustee and the Company in writing at least thirty (30) days prior to the date of the proposed removal.
The Company may remove the Trustee with respect to Securities of one or more Series if:
(a) the
Trustee fails to comply with Section 7.10;
(b) the
Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy
Law;
(c) a
Custodian or public officer takes charge of the Trustee or its property; or
(d) the
Trustee becomes incapable of acting.
If the Trustee resigns or
is removed or if a vacancy exists in the office of Trustee for any reason, then the Company shall promptly appoint a successor Trustee.
Within one (1) year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding
Securities may appoint a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee with
respect to the Securities of any one or more Series does not take office within sixty (60) days after the retiring Trustee resigns
or is removed, then the retiring Trustee, the Company or the Holders of at least a majority in principal amount of the Securities of the
applicable Series may petition any court of competent jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall
deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Immediately after that, the retiring Trustee
shall transfer all property held by it as Trustee to the successor Trustee subject to the lien provided for in Section 7.7,
the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers
and duties of the Trustee with respect to each Series of Securities for which it is acting as Trustee under this Indenture. A successor
Trustee shall mail a notice of its succession to each Securityholder of each such Series. Notwithstanding replacement of the Trustee pursuant
to this Section 7.8, the Company’s obligations under Section 7.7 hereof shall continue for the benefit of
the retiring Trustee with respect to expenses and liabilities incurred by it for actions taken or omitted to be taken in accordance with
its rights, powers and duties under this Indenture prior to such replacement.
Section 7.9 Successor
Trustee by Merger, Etc.
If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, then the
successor corporation without any further act shall be the successor Trustee, subject to Section 7.10.
Section 7.10 Eligibility;
Disqualification.
This Indenture shall always
have a Trustee who satisfies the requirements of TIA § 310(a)(1), (2) and (5). The Trustee shall always have a combined capital
and surplus of at least $25,000,000 as set forth in its most recent published annual report of condition. The Trustee shall comply with
TIA § 310(b).
Section 7.11 Preferential
Collection of Claims Against Company.
The Trustee is subject to
TIA § 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall be
subject to TIA § 311(a) to the extent indicated.
ARTICLE VIII
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 8.1 Satisfaction
and Discharge of Indenture.
This Indenture shall upon
Company Order be discharged with respect to the Securities of any Series and cease to be of further effect as to all Securities of
such Series (except as hereinafter provided in this Section 8.1), and the Trustee, at the expense of the Company, shall
execute instruments acknowledging satisfaction and discharge of this Indenture, when
(a) either:
(i) all
Securities of such Series theretofore authenticated and delivered (other than Securities that have been destroyed, lost or
stolen and that have been replaced or paid) have been delivered to the Trustee for cancellation; or
(ii) all
such Securities of such Series not theretofore delivered to the Trustee for cancellation:
(1) have
become due and payable by reason of sending a notice of redemption or otherwise, or
(2) will
become due and payable at their Stated Maturity within one (1) year, or
(3) have
been called for redemption or are to be called for redemption within one (1) year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, or
(4) are
deemed paid and discharged pursuant to Section 8.3, as applicable;
and
the Company, in the case of (1), (2) or (3) above, shall have irrevocably deposited or caused to be deposited with the Trustee
as trust funds in trust an amount of money or U.S. Government Obligations, which amount shall be sufficient for the purpose of paying
and discharging each installment of principal (including mandatory sinking fund or analogous payments) of and interest on all the Securities
of such Series on the dates such installments of principal or interest are due;
(b) the
Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(c) the
Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the satisfaction and discharge contemplated by this Section have been complied with.
Notwithstanding the satisfaction
and discharge of this Indenture, the obligations of the Company to the Trustee under Section 7.7, and, if money shall have been deposited
with the Trustee pursuant to clause (a) of this Section, the provisions of Sections 2.4, 2.7, 2.8, 8.2
and 8.5 shall survive.
Section 8.2 Application
of Trust Funds; Indemnification.
(a) Subject
to the provisions of Section 8.5, all money and U.S. Government Obligations or Foreign Government Obligations deposited with
the Trustee pursuant to Section 8.1, 8.3 or 8.4 and all money received by the Trustee in respect of U.S. Government
Obligations or Foreign Government Obligations deposited with the Trustee pursuant to Section 8.1, 8.3 or 8.4,
shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the persons
entitled thereto, of the principal and interest for whose payment such money has been deposited with or received by the Trustee or to
make mandatory sinking fund payments or analogous payments as contemplated by Sections 8.1, 8.3 or 8.4.
(b) The
Company shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against U.S. Government
Obligations or Foreign Government Obligations deposited pursuant to Sections 8.1, 8.3 or 8.4 or the interest and
principal received in respect of such obligations other than any payable by or on behalf of Holders.
(c) The
Trustee shall deliver or pay to the Company from time to time upon Company Order any U.S. Government Obligations or Foreign Government
Obligations or money held by it as provided in Sections 8.3 or 8.4 which, in the opinion of a nationally recognized firm
of independent certified public accountants or investment bank expressed in a written certification thereof delivered to the Trustee,
are then in excess of the amount thereof which then would have been required to be deposited for the purpose for which such U.S. Government
Obligations or Foreign Government Obligations or money were deposited or received. This provision shall not authorize the sale by the
Trustee of any U.S. Government Obligations or Foreign Government Obligations held under this Indenture.
Section 8.3 Legal
Defeasance of Securities of any Series.
Unless this Section 8.3
is otherwise specified, pursuant to Section 2.2, to be inapplicable to Securities of any Series, the Company shall be deemed
to have paid and discharged the entire indebtedness on all the outstanding Securities of any Series on the ninety-first (91st)
day after the date of the deposit referred to in subparagraph (d) hereof, and the provisions of this Indenture, as it relates to
such outstanding Securities of such Series, shall no longer be in effect (and the Trustee, at the expense of the Company, shall, upon
receipt of a Company Order, execute instruments acknowledging the same), except as to:
(a) the
rights of Holders of Securities of such Series to receive, from the trust funds described in subparagraph (d) hereof: (i) payment
of the principal of and each installment of principal of and interest on the outstanding Securities of such Series on the
Maturity of such principal or installment of principal or interest; and (ii) the benefit of any mandatory sinking fund payments applicable
to the Securities of such Series on the day on which such payments are due and payable in accordance with the terms of this Indenture
and the Securities of such Series;
(b) the
provisions of Sections 2.4, 2.5, 2.7, 2.8, 7.7, 8.2, 8.3, 8.5 and 8.6;
(c) the
rights, powers, trusts and immunities of the Trustee hereunder and the Company’s obligations in connection therewith; provided
that, the following conditions shall have been satisfied;
(d) the
Company shall have irrevocably deposited or caused to be deposited (except as provided in Section 8.2(c)) with the Trustee
as trust funds specifically pledged as security for and dedicated solely to the benefit of the Holders of such Securities: (i) in
the case of Securities of such Series denominated in Dollars, cash in Dollars and/or U.S. Government Obligations; or (ii) in
the case of Securities of such Series denominated in a Foreign Currency (other than a composite currency), money and/or Foreign Government
Obligations, which through the payment of interest and principal in respect thereof in accordance with their terms, will provide (and
without reinvestment and assuming no tax liability will be imposed on such Trustee), not later than one (1) day before the due date
of any payment of money, an amount in cash, sufficient, in the opinion of a nationally recognized firm of independent public accountants
or investment bank expressed in a written certification thereof delivered to the Trustee, to pay and discharge each installment of principal
of and interest, on and any mandatory sinking fund payments in respect of all the Securities of such Series on the dates such installments
of principal or interest and such sinking fund payments are due;
(e) such
deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound;
(f) no
Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such
deposit or during the period ending on the ninety-first (91st) day after such date;
(g) the
Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel to the effect that: (i) the
Company has received from, or there has been published by, the Internal Revenue Service a ruling; or (ii) since the date of execution
of this Indenture, there has been a change in the applicable Federal income tax law, in either case, to the effect that, and based thereon
such Opinion of Counsel shall confirm that, the Holders of the Securities of such Series will not recognize income, gain or loss
for Federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to Federal income tax on the
same amount and in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not
occurred;
(h) the
Company shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company
with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company; and
(i) the
Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this Section have been complied with.
Section 8.4 Covenant
Defeasance.
Unless this Section 8.4
is otherwise specified pursuant to Section 2.2 to be inapplicable to Securities of any Series, the Company may omit to comply
with respect to the Securities of any Series with any term, provision or condition set forth under Sections 4.2, 4.3,
4.4 and 5.1 and, unless otherwise specified therein, any additional covenants specified in a supplemental indenture for
such Series of Securities or a Board Resolution or an Officer’s Certificate delivered pursuant to Section 2.2 (and
the failure to comply with any such covenants shall not constitute a Default or Event of Default with respect to such Series under
Section 6.1) and the occurrence of any event specified in a supplemental indenture for such Series of Securities or a
Board Resolution or an Officer’s Certificate delivered pursuant to Section 2.2 and designated as an Event of Default
shall not constitute a Default or Event of Default hereunder, with respect to the Securities of such Series, but, except as specified
above, the remainder of this Indenture and such Securities will be unaffected thereby; provided that the following conditions shall
have been satisfied:
(a) with
reference to this Section 8.4, the Company has irrevocably deposited or caused to be irrevocably deposited (except
as provided in Section 8.2(c)) with the Trustee as trust funds in trust for the purpose of making the following payments specifically
pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities: (i) in the case of Securities of
such Series denominated in Dollars, cash in Dollars and/or U.S. Government Obligations; or (ii) in the case of Securities of
such Series denominated in a Foreign Currency (other than a composite currency), money and/or Foreign Government Obligations, which,
through the payment of interest and principal in respect thereof in accordance with their terms, will provide (and without reinvestment
and assuming no tax liability will be imposed on such Trustee), not later than one (1) day before the due date of any payment of
money, an amount in cash, sufficient, in the opinion of a nationally recognized firm of independent certified public accountants or investment
bank expressed in a written certification thereof delivered to the Trustee, to pay and discharge each installment of principal (including
mandatory sinking fund or analogous payments) of and interest on all the Securities of such Series on the dates such installments
of principal or interest are due;
(b) such
deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound;
(c) no
Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date
of such deposit;
(d) the
Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel to the effect that the Holders of
the Securities of such Series will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit
and covenant defeasance and will be subject to Federal income tax on the same amount and in the same manner and at the same times as would
have been the case if such deposit and covenant defeasance had not occurred;
(e) The
Company shall have delivered to the Trustee an Officer’s Certificate stating the deposit was not made by the Company with the intent
of defeating, hindering, delaying or defrauding any other creditors of the Company; and
(f) The
Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the covenant defeasance contemplated by this Section have been complied with.
Section 8.5 Repayment
to Company.
Subject to applicable abandoned
property law, the Trustee and the Paying Agent shall pay to the Company, upon request, any money held by them for the payment of principal
and interest that remains unclaimed for two (2) years. After that, Securityholders entitled to the money must look to the Company
for payment as general creditors unless an applicable abandoned property law designates another person.
Section 8.6 Reinstatement.
If the Trustee or the Paying
Agent is unable to apply any money deposited with respect to Securities of any Series in accordance with Section 8.1
by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations of the Company under this Indenture with respect to the Securities of
such Series and under the Securities of such Series shall be revived and reinstated as though no deposit had occurred pursuant
to Section 8.1 until such time as the Trustee or the Paying Agent is permitted to apply all such money in accordance with
Section 8.1; provided, however, that, if the Company has made any payment of principal of or interest on any
Securities because of the reinstatement of its obligations, then the Company shall be subrogated to the rights of the Holders of such
Securities to receive such payment from the money or U.S. Government Obligations held by the Trustee or Paying Agent after payment in
full to the Holders.
ARTICLE IX
AMENDMENTS AND WAIVERS
Section 9.1 Without
Consent of Holders.
The Company and the Trustee
may amend or supplement this Indenture or the Securities of one or more Series without the consent of any Securityholder:
(a) to
cure any ambiguity, defect or inconsistency;
(b) to
comply with Article V;
(c) to
provide for uncertificated Securities in addition to or in place of certificated Securities;
(d) to
add guarantees with respect to Securities of any Series or secure Securities of any Series;
(e) to
surrender any of the Company’s rights or powers under this Indenture;
(f) to
add covenants or events of default for the benefit of the holders of Securities of any Series;
(g) to
comply with the applicable procedures of the applicable depositary;
(h) to
make any change that does not adversely affect the rights of any Securityholder;
(i) to
provide for the issuance of and establish the form and terms and conditions of Securities of any Series as permitted by this
Indenture;
(j) to
evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or
more Series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee; or
(k) to
modify, eliminate or add to the provisions of this Indenture to such extent as shall be necessary to comply with requirements of
the SEC in order to effect or maintain the qualification of this Indenture under the TIA, or under any similar federal statute hereafter
enacted, and to add to this Indenture such other provisions as may be expressly permitted by the TIA, excluding however, the provisions
referred to in Section 316(a)(2) of the TIA or any corresponding provision in any similar federal statute hereafter enacted.
Section 9.2 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 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 Securityholders
of each such Series. Except as provided in Section 6.13, the Holders of at least a majority in principal amount of the outstanding
Securities of any Series by notice to the Trustee (including consents obtained in connection with a tender offer or exchange offer
for the Securities of such Series) may waive compliance by the Company with any provision of this Indenture or the Securities with respect
to such Series.
It shall not be necessary
for the consent of the Holders of Securities under this Section 9.2 to approve the particular form of any proposed supplemental
indenture or waiver, but it shall be sufficient if such consent approves the substance thereof. After a supplemental indenture or waiver
under this section becomes effective, the Company shall send to the Holders of Securities affected thereby, a notice briefly describing
the supplemental indenture or waiver. Any failure by the Company to send such notice, or any defect therein, shall not, however,
in any way impair or affect the validity of any such supplemental indenture or waiver.
Section 9.3 Limitations.
Without the consent of each
Securityholder affected, an amendment or waiver may not:
(a) reduce
the principal amount of Securities whose Holders must consent to an amendment, supplement or waiver;
(b) reduce
the rate of or extend the time for payment of interest (including default interest) on any Security;
(c) reduce
the principal or change the Stated Maturity of any Security or reduce the amount of, or postpone the date fixed for, the payment of any
sinking fund or analogous obligation;
(d) reduce
the principal amount of Discount Securities payable upon acceleration of the maturity thereof;
(e) waive
a Default or Event of Default in the payment of the principal of or interest, if any, on any Security (except a rescission of acceleration
of the Securities of any Series by the Holders of at least a majority in principal amount of the outstanding Securities of such Series and
a waiver of the payment default that resulted from such acceleration);
(f) make
the principal of or interest, if any, on any Security payable in any currency other than that stated in the Security;
(g) make
any change in Sections 6.8, 6.13 or 9.3 (this sentence); or
(h) waive
a redemption payment with respect to any Security, provided that such redemption is made at the Company’s option.
Section 9.4 Compliance
with Trust Indenture Act.
Every amendment to this Indenture
or the Securities of one or more Series shall be set forth in a supplemental indenture hereto that complies with the TIA as then
in effect.
Section 9.5 Revocation
and Effect of Consents.
Until an amendment is set
forth in a supplemental indenture or a waiver becomes effective, a consent to it by a Holder of a Security is a continuing consent by
the Holder and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s
Security, even if notation of the consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent
as to his Security or portion of a Security if the Trustee receives the notice of revocation before the date of the supplemental indenture
or the date the waiver becomes effective.
Any amendment or waiver once
effective shall bind every Securityholder of each Series affected by such amendment or waiver unless it is of the type described
in any of clauses (a) through (h) of Section 9.3. In that case, the amendment or waiver shall bind each Holder of
a Security who has consented to it and every subsequent Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder’s Security.
The Company may, but shall
not be obligated to, fix a record date for the purpose of determining the Holders entitled to give their consent or take any other action
described above or required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the second
immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those
persons, shall be entitled to give such consent or to revoke any consent previously given or take any such action, whether or not such
Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than one hundred twenty (120)
days after such record date.
Section 9.6 Notation
on or Exchange of Securities.
The Company or the Trustee
may place an appropriate notation about an amendment or waiver on any Security of any Series thereafter authenticated. The Company,
in exchange for Securities of that Series, may issue, and the Trustee shall authenticate, upon receipt of a Company Order in accordance
with Section 2.3 new Securities of that Series that reflect the amendment or waiver.
Section 9.7 Trustee
Protected.
In executing, or accepting
the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 7.1) shall be fully protected
in relying upon, an Officer’s Certificate or an Opinion of Counsel or both complying with Section 10.4. The Trustee
shall sign all supplemental indentures upon delivery of such an Officer’s Certificate or Opinion of Counsel or both, except that
the Trustee need not sign any supplemental indenture that adversely affects its rights, duties, liabilities or immunities under this Indenture.
ARTICLE X
MISCELLANEOUS
Section 10.1 Trust
Indenture Act Controls.
If any provision of this Indenture
limits, qualifies, or conflicts with another provision which is required or deemed to be included in this Indenture by the TIA, then such
required or deemed provision shall control.
Section 10.2 Notices.
Any notice or communication
by the Company or the Trustee to the other, or by a Holder to the Company or the Trustee, is duly given if in writing and delivered in
person or mailed by first class mail (registered or certified, return receipt requested), facsimile transmission, email or overnight air
courier guaranteeing next day delivery, to the others’ address:
if
to the Company:
Blue
Bird Corporation.
3920 Arkwright Road, Suite 200
Macon, Georgia 31210
(478) 822-2801
with
a copy to:
Smith,
Gambrell & Russell, LLP
1105 W. Peachtree St. NE, Suite 1000
Atlanta, Georgia 30309
Attention: Lori A. Gelchion
Telephone: (404) 815-3552
if
to the Trustee:
[●]
[●]
[●]
[●]
Attention: [●]
Telephone: [●]
The Company or the Trustee
by notice to the other may designate additional or different addresses for subsequent notices or communications.
Any notice or communication
to a Securityholder shall be sent electronically or by first-class mail to his, her or its address shown on the register kept by the Registrar,
in accordance with the procedures of the Depositary. Failure to send a notice or communication to a Securityholder of any Series or
any defect in it shall not affect its sufficiency with respect to other Securityholders of that or any other Series.
If a notice or communication
is sent or published in the manner provided above, within the time prescribed, then it is duly given, whether or not the Securityholder
receives it.
If the Company sends a notice
or communication to Securityholders, then it shall send a copy to the Trustee and each Agent at the same time.
Notwithstanding any other
provision of this Indenture or any Security, where this Indenture or any Security provides for notice of any event (including any notice
of redemption) to a Holder of a Global Security (whether by mail or otherwise), such notice shall be sufficiently given to the Depositary
for such Security (or its designee) pursuant to the customary procedures of such Depositary.
Section 10.3 Communication
by Holders with Other Holders.
Securityholders of any Series may
communicate pursuant to TIA § 312(b) with other Securityholders of that Series or any other Series with respect to
their rights under this Indenture or the Securities of that Series or all Series. The Company, the Trustee, the Registrar and anyone
else shall have the protection of TIA § 312(c).
Section 10.4 Certificate
and Opinion as to Conditions Precedent.
Upon any request or application
by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:
(a) an
Officer’s Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an
Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with.
Section 10.5 Statements
Required in Certificate or Opinion.
Each certificate or opinion
with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to
TIA § 314(a)(4)) shall comply with the provisions of TIA § 314(e) and shall include:
(a) a
statement that the person making such certificate or opinion has read such covenant or condition;
(b) a
brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(c) a
statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a
statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
Section 10.6 Rules by
Trustee and Agents.
The Trustee may make reasonable
rules for action by or a meeting of Securityholders of one or more Series. Any Agent may make reasonable rules and set reasonable
requirements for its functions.
Section 10.7 Legal
Holidays.
A “Legal Holiday”
is any day that is not a Business Day. If a payment date is a Legal Holiday at a place of payment, then payment may be made at that place
on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period.
Section 10.8 No
Recourse Against Others.
A director, officer, employee
or stockholder (past or present), as such, of the Company shall not have any liability for any obligations of the Company under the Securities
or this 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 10.9 Counterparts.
This Indenture may be executed
in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same agreement. The exchange of copies of this Indenture and
of signature pages by facsimile or electronic format (e.g., “.pdf” or “.tif”) transmission
shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture
for all purposes. Signatures of the parties hereto transmitted by facsimile or electronic format (e.g., “.pdf”
or “.tif”) shall be deemed to be their original signatures for all purposes.
Unless otherwise provided
herein or in any other Securities, the words “execute”, “execution,” “signed”
and “signature” and words of similar import used in or related to any document to be signed in connection with this
Indenture, any Securities or any of the transactions contemplated hereby (including amendments, waivers, consents and other modifications)
shall be deemed to include electronic signatures and the keeping of records in electronic form, each of which shall be of the same legal
effect, validity or enforceability as a manually executed signature in ink or the use of a paper-based recordkeeping system, as applicable,
to the fullest extent and as provided for in any Applicable Law, including the Federal Electronic Signatures in Global and National Commerce
Act, the New York State Electronic Signatures and Records Act, and any other similar state laws based on the Uniform Electronic Transactions
Act, provided that, notwithstanding anything herein to the contrary, the Trustee is not under any obligation to agree to accept
electronic signatures in any form or in any format unless expressly agreed to by such Trustee pursuant to procedures approved by such
Trustee.
Section 10.10 Governing
Law; Waiver of Jury Trial; Consent to Jurisdiction.
THIS INDENTURE AND THE SECURITIES, INCLUDING
ANY CLAIM OR CONTROVERSY ARISING OUT OF, OR RELATING TO, THIS INDENTURE OR THE SECURITIES, SHALL BE GOVERNED BY THE LAWS OF THE STATE
OF NEW YORK.
THE COMPANY, THE TRUSTEE AND
THE HOLDERS (BY THEIR ACCEPTANCE OF THE SECURITIES) EACH HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF, OR RELATING TO, THIS INDENTURE, THE NOTES OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
Any legal suit, action or
proceeding arising out of, or based upon, this Indenture or the transactions contemplated hereby may be instituted in the federal courts
of the United States of America located in the City of New York or the courts of the State of New York, in each case, located in the City
of New York (collectively, the “Specified Courts”), and each party irrevocably submits to the non-exclusive
jurisdiction of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail (to the
extent allowed under any applicable statute or rule of court) to such party’s address set forth above shall be effective service
of process for any suit, action or other proceeding brought in any such court. The Company, the Trustee and the Holders (by their acceptance
of the Securities) each hereby irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other
proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim any such suit, action or
other proceeding has been brought in an inconvenient forum.
Section 10.11 No
Adverse Interpretation of Other Agreements.
This Indenture may not be
used to interpret another indenture, loan or debt agreement of the Company or a Subsidiary of the Company. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
Section 10.12 Successors.
All agreements of the Company
in this Indenture and the Securities shall bind its successor. All agreements of the Trustee in this Indenture shall bind its successor.
Section 10.13 Severability.
In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, then the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 10.14 Table
of Contents, Headings, Etc.
The Table of Contents, Cross
Reference Table and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are
not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Section 10.15 Securities
in a Foreign Currency.
Unless otherwise specified
in a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate delivered pursuant to Section 2.2
of this Indenture with respect to a particular Series of Securities, whenever for purposes of this Indenture any action may be taken
by the Holders of a specified percentage in aggregate principal amount of Securities of all Series or all Series affected by
a particular action at the time outstanding and, at such time, there are outstanding Securities of any Series which are denominated
in more than one currency, then the principal amount of Securities of such Series which shall be deemed to be outstanding for the
purpose of taking such action shall be determined by converting any such other currency into a currency that is designated upon issuance
of any particular Series of Securities. Unless otherwise specified in a Board Resolution, a supplemental indenture hereto or an Officer’s
Certificate delivered pursuant to Section 2.2 of this Indenture with respect to a particular Series of Securities, such
conversion shall be at the spot rate for the purchase of the designated currency as published in The Financial Times in the “Currency
Rates” section (or, if The Financial Times is no longer published, or if such information is no longer available in The
Financial Times, then such source as may be selected in good faith by the Company) on any date of determination. The provisions of this
paragraph shall apply in determining the equivalent principal amount in respect of Securities of a Series denominated in currency
other than Dollars in connection with any action taken by Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations
provided for in the preceding paragraph shall, in the absence of manifest error, to the extent permitted by law, be conclusive for all
purposes and irrevocably binding upon the Trustee and all Holders.
Section 10.16 Judgment
Currency.
The Company agrees, to the
fullest extent that it may effectively do so under applicable law, that: (a) if, for the purpose of obtaining judgment in any court,
it is necessary to convert the sum due in respect of the principal of or interest or other amount on the Securities of any Series (the
“Required Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”),
then the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in the
City of New York the Required Currency with the Judgment Currency on the day on which final unappealable judgment is entered, unless such
day is not a New York Banking Day, then the rate of exchange used shall be the rate at which, in accordance with normal banking procedures,
the Trustee could purchase in the City of New York the Required Currency with the Judgment Currency on the New York Banking Day preceding
the day on which final unappealable judgment is entered; and (b) its obligations under this Indenture to make payments in the Required
Currency: (i) shall not be discharged or satisfied by any tender, any recovery pursuant to any judgment (whether or not entered in
accordance with subsection (a)), in any currency other than the Required Currency, except to the extent that such tender or recovery shall
result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments;
(ii) shall be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required Currency
the amount, if any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable;
and (iii) shall not be affected by judgment being obtained for any other sum due under this Indenture. For purposes of the foregoing,
“New York Banking Day” means any day except a Saturday, Sunday or a legal holiday in the City of New York on
which banking institutions are authorized or required by law, regulation or executive order to close.
Section 10.17 Force
Majeure.
In no event, shall the Trustee
be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of, or caused by, directly
or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism,
civil or military disturbances or governmental actions, nuclear or natural catastrophes or acts of God, earthquakes, fires, floods, sabotage,
riots, epidemics or pandemics, interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services,
and the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility, it being understood that the
Trustee shall use reasonable best efforts which are consistent with accepted practices in the banking industry to resume performance as
soon as practicable under the circumstances.
Section 10.18 USA
Patriot Act.
The parties hereto acknowledge
that, in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee is required to obtain, verify and record information
that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this
Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements
of the U.S.A. Patriot Act.
Section 10.19 Separability
Clause; Entire Agreement.
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. This Indenture, any applicable supplemental indenture and the exhibits
hereto set forth the entire agreement and understanding of the parties related to this transaction and supersedes all prior written agreements
and understandings, oral or written.
ARTICLE XI
SINKING FUNDS
Section 11.1 Applicability
of Article.
The provisions of this Article shall
be applicable to any sinking fund for the retirement of the Securities of a Series if so provided by the terms of such Securities
pursuant to Section 2.2 and except as otherwise permitted or required by any form of Security of such Series issued pursuant
to this Indenture.
The minimum amount of any
sinking fund payment provided for by the terms of the Securities of any Series is herein referred to as a “mandatory
sinking fund payment” and any other amount provided for by the terms of Securities of such Series is herein referred
to as an “optional sinking fund payment.” If provided for by the terms of Securities of any Series, then
the cash amount of any sinking fund payment may be subject to reduction as provided in Section 11.2. Each sinking fund payment
shall be applied to the redemption of Securities of any Series as provided for by the terms of the Securities of such Series.
Section 11.2 Satisfaction
of Sinking Fund Payments with Securities.
The Company may, in satisfaction
of all or any part of any sinking fund payment with respect to the Securities of any Series to be made pursuant to the terms of such
Securities: (a) deliver outstanding Securities of such Series to which such sinking fund payment is applicable (other than any
of such Securities previously called for mandatory sinking fund redemption); and (b) apply as credit Securities of such Series to
which such sinking fund payment is applicable and which have been repurchased by the Company or redeemed either at the election of the
Company pursuant to the terms of such Series of Securities (except pursuant to any mandatory sinking fund) or through the application
of permitted optional sinking fund payments or other optional redemptions pursuant to the terms of such Securities, provided that
such Securities have not been previously so credited. Such Securities shall be received by the Trustee, together with an Officer’s
Certificate with respect thereto, not later than fifteen (15) days prior to the date on which the Trustee begins the process of selecting
Securities for redemption, and shall be credited for such purpose by the Trustee at the price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly. If, as a result of the
delivery or credit of Securities in lieu of cash payments pursuant to this Section 11.2, the principal amount of Securities
of such Series to be redeemed in order to exhaust the aforesaid cash payment shall be less than $100,000, then the Trustee need not
call Securities of such Series for redemption, except upon receipt of a Company Order that such action be taken, and such cash payment
shall be held by the Trustee or a Paying Agent and applied to the next succeeding sinking fund payment, provided, however,
that the Trustee or such Paying Agent shall from time to time upon receipt of a Company Order pay over and deliver to the Company any
cash payment so being held by the Trustee or such Paying Agent upon delivery by the Company to the Trustee of Securities of that Series purchased
by the Company having an unpaid principal amount equal to the cash payment required to be released to the Company.
Section 11.3 Redemption
of Securities for Sinking Fund.
Not less than forty-five (45)
days (unless otherwise indicated in the Board Resolution, supplemental indenture hereto or Officer’s Certificate in respect of a
particular Series of Securities) prior to each sinking fund payment date for any Series of Securities, the Company will deliver
to the Trustee an Officer’s Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that Series pursuant
to the terms of that Series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting of Securities of that Series pursuant to Section 11.2, and the optional
amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and the Company shall thereupon be obligated to
pay the amount therein specified. Not less than thirty (30) days (unless otherwise indicated in the Board Resolution, Officer’s
Certificate or supplemental indenture in respect of a particular Series of Securities) before each such sinking fund payment date
the Securities to be redeemed upon such sinking fund payment date will be selected in the manner specified in Section 3.2
and the Company shall send or cause to be sent a notice of the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in and in accordance with Section 3.3. Such notice having been duly given, the redemption of
such Securities shall be made upon the terms and in the manner stated in Sections 3.4, 3.5 and 3.6.
IN WITNESS WHEREOF, the parties
hereto have caused this Indenture to be duly executed as of the day and year first above written.
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BLUE BIRD CORPORATION |
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By: |
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Name: |
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Its: |
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[●], as Trustee |
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By: |
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Name: |
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Its: |
Exhibit 5.1
| 1105 W. Peachtree St. N.E. |
 |
| Suite 1000 |
| Atlanta, Georgia 30309-9813 |
| Tel: 404-815-3500 |
| www.sgrlaw.com |
December 23, 2024
Blue Bird Corporation
3920 Arkwright Road, 2nd Floor
Macon, Georgia 31210
| Re: | Registration Statement on Form S-3 |
Dear Ladies and Gentlemen:
We have acted as counsel to
Blue Bird Corporation, a Delaware corporation (the “Company”), in connection with the automatic shelf registration
statement on Form S-3 (the “Registration Statement”) to be filed on the date hereof by the Company with the U.S. Securities
and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”).
The Registration Statement relates to, among other things, the offer and sale from time to time, pursuant to Rule 415 of the General Rules
and Regulations promulgated under the Securities Act (the “Rules and Regulations”), of the following securities of
the Company: (a) debt securities of the Company (the “Debt Securities”); (b) preferred stock, par value $0.0001 per
share, of the Company (the “Preferred Stock”); (c) common stock, par value $0.0001 per share, of the Company (the “Common
Stock”); (d) warrants to purchase Debt Securities, Preferred Stock, Common Stock or other securities of the Company (the “Warrants”);
(e) depositary shares each of which will represent a fraction of a particular series of Preferred Stock (the “Depositary Shares”);
(f) rights to purchase Debt Securities, Preferred Stock, Common Stock or other securities of the Company (the “Subscription Rights”);
(g) stock purchase contracts, including contracts obligating holders to purchase from or sell to the Company, and obligating the Company
to sell to or purchase from the holders, a specified number of shares of Preferred Stock, Common Stock or other securities of the Company
at a future date or dates (the “Stock Purchase Contracts”); and (h) stock purchase units consisting of a stock purchase
contract and any combination of Debt Securities, Preferred Stock, Common Stock or other securities (the “Stock Purchase Units”
and together with the Debt Securities, the Preferred Stock, the Common Stock, the Warrants, the Depositary Shares, the Subscription Rights
and the Stock Purchase Contracts, the “Securities”).
Blue Bird Corporation
December 23, 2024
Page
2
Any Debt Securities are
to be issued under an Indenture, between the Company and a trustee to be named therein, the form of which is being filed as Exhibit
4.7 to the Registration Statement (the “Indenture”). Any Stock Purchase Contracts are to be issued pursuant to
one or more purchase contract agreements (each, a “Purchase Contract Agreement”) between the Company and the
purchase contract agent to be named therein. Any Warrants are to be issued pursuant to one or more warrant agreements (each, a
“Warrant Agreement”), each to be entered into by the Company and an institution, as warrant agent, as identified
in the applicable Warrant Agreement. Any Depositary Shares are to be issued pursuant to one or more deposit agreements (each, a
“Deposit Agreement”), each to be entered into by the Company and an agent to be named therein. Any Subscription
Rights are to be issued under one or more subscription rights certificates and/or pursuant to one or more subscription rights
agreements (each, a “Subscription Rights Agreement”) between the Company and the agent to be named therein. The
Stock Purchase Units are to be issued pursuant to a unit certificate or other applicable agreement (the “Unit
Agreement”) between the Company and the agent to be named therein.
In rendering the opinions
stated herein, we have examined and relied upon the following: (a) the Registration Statement; (b) the Indenture; (c) the Second Amended
and Restated Certificate of Incorporation (the “Certificate of Incorporation”) of the Company, as in effect as of the
date hereof; and (d) the amended Bylaws (the “Bylaws”) of the Company, as in effect as of the date hereof.
We have examined and
relied on originals or copies certified or otherwise identified to our satisfaction of such agreements, documents, corporate
records, certificates of the Company or public officials and other instruments, and we have made such inquiries of such officers and
representatives of the Company, as we have deemed necessary or appropriate for the purposes of this opinion letter. In such
examination, we have assumed (a) the authenticity of original documents and the genuineness of all signatures; (b) the conformity to
the originals of all documents submitted to us as copies; (c) the truth, accuracy and completeness of the information,
representations and warranties contained in the agreements, records, documents, instruments and certificates we have reviewed; (d)
the Registration Statement has been filed, and any amendments thereto (including post-effective amendments) will have been filed,
with the Commission and are effective under the Securities Act; (e) a prospectus supplement will have been filed with the Commission
describing any Securities offered thereby; (f) all Securities will be issued and sold in compliance with applicable federal and
state securities laws and in the manner stated in the Registration Statement and the applicable prospectus supplement(s); (g) a
definitive purchase, underwriting, agency or similar agreement with respect to any Securities offered (each, a “purchase
agreement”) will have been duly authorized and validly executed and delivered by the parties thereto; (h) any Debt
Securities that may be issued will be issued in a form that complies with the Indenture and any supplemental indenture to be entered
into in connection with the issuance of such Debt Securities, and the Indenture and any supplemental indenture to be entered into in
connection with the issuance of such Debt Securities will be manually signed or countersigned, as the case may be, by duly
authorized officers of the Company and of the trustee named therein, and any Warrants, Depositary Shares, Subscription Rights, Stock
Purchase Contracts or Stock Purchase Units that may be issued will be in a form that complies with the applicable agreement or
certificate described above; (i) the trustee to be named in the Indenture, when appointed, will validly exist and have the requisite
corporate power to enter into and perform its obligations under the Indenture and any supplemental indenture to be entered into in
connection with the issuance of such Debt Securities; and (j) at the time of any issuance of Common Stock or the Securities
convertible into, exchangeable, redeemable or exercisable for Common Stock, there will be sufficient authorized but unissued shares
of Common Stock reserved for such issuance and any Securities issuable upon conversion, exchange, redemption or exercise of any
Securities being offered will be duly authorized and created. We have assumed that the terms of the Securities shall have been duly
authorized and created by the Company, and that the terms of the Securities shall have been established so as not to, and that the
execution and delivery by the parties thereto of the documents pursuant to which the Securities are governed and the performance of
such parties’ obligations thereunder, will not, breach, violate, conflict with or constitute a default under (1) the
organizational documents of any party or any agreement or instrument to which any party thereto is subject, (2) any law, rule or
regulation to which any party thereto is subject and the federal securities laws of the United States of America as such laws apply
to the Company and the transaction pursuant to which the Securities are offered, (3) any judicial or regulatory order or decree of
any governmental authority or (4) any consent, approval, license, authorization or validation of, or filing, recording or
registration with, any governmental authority. We also assume that at the time of issuance of the Securities the Company is and will
remain duly organized, validly existing and in good standing under the laws of the State of Delaware and that the Company will have
duly authorized the issuance of the Securities and related matters.
Blue Bird Corporation
December 23, 2024
Page
3
We have assumed that the Indenture,
in the form reviewed by us, any supplemental indenture to the Indenture, each Purchase Contract Agreement, each Warrant Agreement, each
Deposit Agreement, each Subscription Rights Agreement and each Unit Agreement has been or will be duly authorized, executed and delivered
by the applicable trustee or agent, as the case may be, and that any Debt Securities, Stock Purchase Contracts, Warrants, Depositary Shares,
Subscription Rights or Stock Purchase Units that may be issued will be manually authenticated, signed or countersigned, as the case may
be, by duly authorized officers of the applicable trustee or agent, as the case may be.
We have also assumed that
the choice of currency in which any Offered Debt Securities (as defined below) are denominated does not contravene any exchange control
or other laws of the nation issuing such currency. As to any facts relevant to the opinions expressed herein that we did not independently
establish or verify, we have relied upon statements and representations of officers and other representatives of the Company and others
and of public officials.
Our opinions set forth
herein are limited to: (i) the General Corporation Law of the State of Delaware (the “DGCL”); and (ii) the laws of the
State of New York that, in our experience, are normally applicable to transactions of the type contemplated by the Registration
Statement with respect to the offer and sale of the Securities and, to the extent that judicial or regulatory orders or decrees or
consents, approvals, licenses, authorizations, validations, filings, recordings or registrations with governmental authorities are
relevant, to those required under such laws (all of the foregoing being referred to as “Applicable Law”). We do not
express any opinion with respect to the law of any jurisdiction other than Applicable Law or as to the effect of the law of any
jurisdiction other than Applicable Law on the opinions herein stated. The Securities may be issued from time to time on a delayed or
continuous basis, and this opinion is limited to the laws, including the Rules and Regulations, as in effect on the date hereof,
which laws are subject to change with possible retroactive effect.
Blue Bird Corporation
December 23, 2024
Page
4
Based upon the foregoing and
subject to the limitations, qualifications, exceptions and assumptions stated herein, we are of the opinion that:
1.
With respect to any series of Debt Securities to be offered by the Company pursuant to the Registration Statement (the “Offered
Debt Securities”), when: (a) the Indenture, including any applicable supplemental indenture thereto, has been qualified under
the Trust Indenture Act of 1939, as amended; (b) the Indenture and any supplemental indenture in respect of such Offered Debt Securities
have been duly authorized, executed and delivered by each party thereto; (c) the terms of the Offered Debt Securities and of their issuance
and sale have been duly established in conformity with the Indenture and any supplemental indenture to be entered into in connection with
the issuance of such Offered Debt Securities; and (d) the Offered Debt Securities have been duly authorized, executed and delivered against
payment of the agreed-upon consideration therefor, the Offered Debt Securities (including any Debt Securities duly issued upon conversion,
exchange or exercise of any Securities) when issued and sold in accordance with the Indenture, any supplemental indenture to be entered
into in connection with the issuance of such Offered Debt Securities and the applicable purchase agreement, will be valid and binding
obligations of the Company, enforceable against the Company in accordance with their respective terms.
2. With
respect to the shares of any series of Preferred Stock offered by the Company pursuant to the Registration Statement (the
“Offered Preferred Stock”), when: (a) a Certificate of Designations (the “Certificate of
Designations”) for the Offered Preferred Stock in accordance with the applicable provisions of the DGCL has been filed
with, and accepted for record by, the Secretary of State of the State of Delaware, in the form to be filed as an exhibit to a
post-effective amendment to the Registration Statement or as an exhibit to a Current Report on Form 8-K or other applicable report
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), in the manner contemplated in the
Registration Statement or any prospectus supplement relating thereto; (b) the terms of the Offered Preferred Stock and of their
issuance and sale have been duly established and are then in conformity with the Certificate of Incorporation, including the
Certificate of Designations relating to the Offered Preferred Stock, and the Bylaws so as not to violate any applicable law, the
Certificate of Incorporation or the Bylaws or result in a default under or breach of any agreement or instrument binding upon the
Company and so as to comply with any requirement or restriction imposed by any court or other governmental authority having
jurisdiction over the Company; (c) if the Offered Preferred Stock is to be certificated, certificates in the form required under the
DGCL representing the shares of Offered Preferred Stock have been duly executed and countersigned; and (d) the shares of Offered
Preferred Stock are registered in the Company’s share registry and delivered upon payment of the agreed-upon consideration
therefor, the shares of Offered Preferred Stock, when issued and sold or otherwise distributed in accordance with the applicable
underwriting agreement, if any, or any other duly authorized, executed and delivered valid and binding agreement, will be duly
authorized, validly issued, fully paid and non-assessable, provided that the consideration therefor is not less than $0.0001 per
share of Preferred Stock.
Blue Bird Corporation
December 23, 2024
Page
5
3.
With respect to any shares of Common Stock offered by the Company pursuant to the Registration Statement (the “Offered
Common Stock”), when: (a) the terms of the issuance and sale of the Offered Common Stock have been duly established and are
then in conformity with the Certificate of Incorporation and the Bylaws so as not to violate any applicable law, the Certificate of Incorporation
or the Bylaws or result in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with
any requirement or restriction imposed by any court or other governmental authority having jurisdiction over the Company; (b) if the Offered
Common Stock is to be certificated, certificates in the form required under the DGCL representing the shares of Offered Common Stock have
been duly executed and countersigned; and (c) the shares of Common Stock are registered in the Company’s share registry and delivered
upon payment of the agreed-upon consideration therefor, the shares of Offered Common Stock, when issued and sold or otherwise distributed
in accordance with the applicable underwriting agreement, if any, or any other duly authorized, executed and delivered valid and binding
agreement, will be duly authorized and validly issued, and the shares of Offered Common Stock, when issued and sold or otherwise distributed
in accordance with the applicable underwriting agreement, if any, or any other duly authorized, executed and delivered valid and binding
agreement, will be fully paid and non-assessable, in each case provided that the consideration therefor is not less than $0.0001 per share
of Common Stock.
4.
With respect to any Warrants to be offered by the Company pursuant to the Registration Statement (the “Offered Warrants”),
when: (a) the applicable Warrant Agreement has been duly authorized, executed and delivered by the parties thereto; (b) the terms of the
issuance and sale of the Offered Warrants have been duly established in conformity with the applicable Warrant Agreement; and (c) the
Offered Warrants have been duly authorized, executed and delivered against payment therefor, the Offered Warrants, when issued and sold
in accordance with the applicable purchase agreement, will be valid and binding obligations of the Company, enforceable against the Company
in accordance with their respective terms.
Blue Bird Corporation
December 23, 2024
Page
6
5. With
respect to any Depositary Shares offered by the Company pursuant to the Registration Statement (the “Offered Depositary
Shares”), when: (a) the applicable Deposit Agreement relating to the Offered Depositary Shares has been duly authorized,
executed and delivered by the parties thereto; (b) the terms of the issuance and sale of the Offered Depositary Shares have been
duly established and are then in conformity with the applicable Deposit Agreement; (c) the depositary receipts evidencing the
Offered Depositary Shares have been duly executed, delivered, countersigned, issued and sold in accordance with the provisions of
the applicable Deposit Agreement; (d) a Certificate of Designations for the Preferred Stock represented by the Offered Depositary
Shares in accordance with the applicable provisions of the DGCL has been filed with, and accepted for record by, the Secretary of
State of the State of Delaware, in the form to be filed as an exhibit to a post-effective amendment to the Registration Statement or
as an exhibit to a Current Report on Form 8-K or other applicable report under the Exchange Act, in the manner contemplated in the
Registration Statement or any prospectus supplement relating thereto; (e) the terms of the Preferred Stock represented by the
Offered Depositary Shares and of their issuance and sale have been duly established and are then in conformity with the Certificate
of Incorporation, including the Certificate of Designations relating to the Preferred Stock represented by the Offered Depositary
Shares, and the Bylaws so as not to violate any applicable law, the Certificate of Incorporation or the Bylaws or result in a
default under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or
restriction imposed by any court or other governmental authority having jurisdiction over the Company; (f) the Preferred Stock
represented by the Offered Depositary Shares has been duly authorized and validly issued by the Company and is fully paid and
non-assessable; and (g) the Offered Depositary Shares and the Preferred Stock represented by the Offered Depositary Shares have been
duly delivered to the depositary for deposit in accordance with the Deposit Agreement, the depositary receipts evidencing the
Offered Depositary Shares, when issued in accordance with the applicable purchase agreement, will be valid and binding obligations
of the Company, enforceable against the Company in accordance with their respective terms.
6.
With respect to any Subscription Rights to be offered by the Company pursuant to the Registration Statement (the “Offered
Subscription Rights”), when: (a) the terms of the issuance and sale of the Offered Subscription Rights have been duly established
in conformity with the Subscription Rights Agreement; and (b) the Offered Subscription Rights have been duly executed and delivered against
payment therefor, the Offered Subscription Rights, when issued and sold in accordance with the applicable purchase agreement, will be
valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms.
7.
With respect to any Stock Purchase Contracts to be offered by the Company pursuant to the Registration Statement (the “Offered
Stock Purchase Contracts”), when: (a) the terms of the issuance and sale of the Offered Stock Purchase Contracts have been duly
established in conformity with the Purchase Contract Agreement; and (b) the Offered Stock Purchase Contracts have been duly executed and
delivered against payment therefor, the Offered Stock Purchase Contracts, when issued and sold in accordance with the applicable purchase
agreement, will be valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms.
Blue Bird Corporation
December 23, 2024
Page
7
8. With
respect to any Stock Purchase Units to be offered by the Company pursuant to the Registration Statement (the “Offered Stock
Purchase Units”), when: (a) the terms of the issuance and sale of the Offered Stock Purchase Units have been duly
established in conformity with the Unit Agreement; (b) any shares of Common Stock that are a component of any Offered Stock Purchase
Units are validly issued, fully paid and non-assessable and any other Securities that are components of any Offered Stock Purchase
Units are valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms;
and (c) the Offered Stock Purchase Units have been duly executed and delivered pursuant to the Unit Agreement, the Stock Purchase
Units, when issued and sold in accordance with the applicable purchase agreement, will be valid and binding obligations of the
Company, enforceable against the Company in accordance with their respective terms.
The opinions set forth above
are subject to the effects of (a) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating
to or affecting the enforcement of creditors’ rights generally; (b) general equitable principles (whether considered in a proceeding
in equity or at law); (c) an implied covenant of good faith and fair dealing; (d) provisions of law that require that a judgment for money
damages rendered by a court in the United States be expressed only in United States dollars; (e) limitations by any governmental authority
that limit, delay or prohibit the making of payments outside the United States; and (f) generally applicable laws that (1) provide for
the enforcement of oral waivers or modifications where a material change of position in reliance thereon has occurred or provide that
a course of performance may operate as a waiver, (2) limit the availability of a remedy under certain circumstances where another remedy
has been elected, (3) limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification
of a party for, liability for its own action or inaction, to the extent the action or inaction involves negligence, gross negligence,
recklessness, willful misconduct or unlawful conduct, (4) may, where less than all of a contract may be unenforceable, limit the enforceability
of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed-upon exchange,
(5) may limit the enforceability of provisions providing for compounded interest, imposing increased interest rates or late payment charges
upon delinquency in payment or default or providing for liquidated damages or for premiums or penalties upon acceleration, or (6) limit
the waiver of rights under usury laws. Furthermore, the manner in which any particular issue relating to the opinions would be treated
in any actual court case would depend in part on facts and circumstances particular to the case and would also depend on how the court
involved chose to exercise the wide discretionary authority generally available to it.
We express no opinion as to
whether, or the extent to which, the laws of any particular jurisdiction apply to the subject matter hereof, including, without limitation,
the enforceability of the governing law provision contained in any Securities and their governing documents.
Blue Bird Corporation
December 23, 2024
Page
8
This letter speaks only as
of its date and is delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act. We hereby
consent to the filing of a copy of this opinion letter as an exhibit to the Registration Statement and to the use of our name in the prospectus
forming a part of the Registration Statement under the caption “Legal Matters.” In giving this consent, we do not thereby
admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations.
| |
Sincerely, |
| |
|
| |
/s/ Smith, Gambrell & Russell, LLP |
Exhibit 23.2
Consent of Independent Registered Public Accounting
Firm
We hereby consent to the incorporation by reference
in the Prospectus constituting a part of this Registration Statement of our reports dated November 25, 2024, relating to the consolidated
financial statements and schedule and the effectiveness of internal control over financial reporting of Blue Bird Corporation (the “Company”)
appearing in the Company’s Annual Report on Form 10-K for the year ended September 28, 2024.
We also consent to the reference to us under the
caption “Experts” in the Prospectus.
/s/ BDO USA, P.C.
Atlanta, Georgia
December 23, 2024
S-3
S-3ASR
EX-FILING FEES
0001589526
Blue Bird Corp
0001589526
2024-12-23
2024-12-23
0001589526
1
2024-12-23
2024-12-23
0001589526
2
2024-12-23
2024-12-23
0001589526
3
2024-12-23
2024-12-23
0001589526
4
2024-12-23
2024-12-23
0001589526
5
2024-12-23
2024-12-23
0001589526
6
2024-12-23
2024-12-23
0001589526
7
2024-12-23
2024-12-23
0001589526
8
2024-12-23
2024-12-23
iso4217:USD
xbrli:pure
xbrli:shares
|
Calculation of Filing Fee Tables
|
|
S-3
|
|
Blue Bird Corp
|
|
Table 1: Newly Registered and Carry Forward Securities
|
|
|
|
Security Type
|
Security Class Title
|
Fee Calculation or Carry Forward Rule
|
Amount Registered
|
Proposed Maximum Offering Price Per Unit
|
Maximum Aggregate Offering Price
|
Fee Rate
|
Amount of Registration Fee
|
Carry Forward Form Type
|
Carry Forward File Number
|
Carry Forward Initial Effective Date
|
Filing Fee Previously Paid in Connection with Unsold Securities to be Carried Forward
|
|
Newly Registered Securities
|
|
Fees to be Paid
|
1
|
Equity
|
Common Stock, $0.0001 per share
|
457(r)
|
|
|
|
0.0001531
|
|
|
|
|
|
|
Fees to be Paid
|
2
|
Equity
|
Preferred Stock, par value $0.0001 per share
|
457(r)
|
|
|
|
0.0001531
|
|
|
|
|
|
|
Fees to be Paid
|
3
|
Equity
|
Depositary Shares
|
457(r)
|
|
|
|
0.0001531
|
|
|
|
|
|
|
Fees to be Paid
|
4
|
Debt
|
Debt Securities
|
457(r)
|
|
|
|
0.0001531
|
|
|
|
|
|
|
Fees to be Paid
|
5
|
Other
|
Warrants
|
457(r)
|
|
|
|
0.0001531
|
|
|
|
|
|
|
Fees to be Paid
|
6
|
Other
|
Subscription Rights
|
457(r)
|
|
|
|
0.0001531
|
|
|
|
|
|
|
Fees to be Paid
|
7
|
Other
|
Stock Purchase Contracts
|
457(r)
|
|
|
|
0.0001531
|
|
|
|
|
|
|
Fees to be Paid
|
8
|
Other
|
Stock Purchase Units
|
457(r)
|
|
|
|
0.0001531
|
|
|
|
|
|
|
Fees Previously Paid
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Carry Forward Securities
|
|
Carry Forward Securities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Offering Amounts:
|
|
$
0.00
|
|
$
0.00
|
|
|
|
|
|
|
|
|
Total Fees Previously Paid:
|
|
|
|
$
0.00
|
|
|
|
|
|
|
|
|
Total Fee Offsets:
|
|
|
|
$
0.00
|
|
|
|
|
|
|
|
|
Net Fee Due:
|
|
|
|
$
0.00
|
|
|
|
|
|
1
|
This registration covers an indeterminate number of securities of each identified class of the Registrant as may from time to time be issued at indeterminate prices. Any registered securities may be sold separately or as units with other securities registered under this registration statement. In addition, the securities may be sold in either primary or secondary offerings. In accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended, the Registrant is deferring payment of the registration fee and will pay the registration fee on a pay-as-you-go basis. The Registrant will calculate the registration fee applicable to an offer of securities pursuant to this registration statement based on the fee payment rate in effect on the date of such fee payment.
|
|
|
|
2
|
1. This registration covers an indeterminate number of securities of each identified class of the Registrant as may from time to time be issued at indeterminate prices. Any registered securities may be sold separately or as units with other securities registered under this registration statement. In addition, the securities may be sold in either primary or secondary offerings. In accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended, the Registrant is deferring payment of the registration fee and will pay the registration fee on a pay-as-you-go basis. The Registrant will calculate the registration fee applicable to an offer of securities pursuant to this registration statement based on the fee payment rate in effect on the date of such fee payment.
|
|
|
|
3
|
1. This registration covers an indeterminate number of securities of each identified class of the Registrant as may from time to time be issued at indeterminate prices. Any registered securities may be sold separately or as units with other securities registered under this registration statement. In addition, the securities may be sold in either primary or secondary offerings. In accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended, the Registrant is deferring payment of the registration fee and will pay the registration fee on a pay-as-you-go basis. The Registrant will calculate the registration fee applicable to an offer of securities pursuant to this registration statement based on the fee payment rate in effect on the date of such fee payment.
2. Such indeterminate number of Depositary Shares to be evidenced by depositary receipts issued pursuant to a deposit agreement.
|
|
|
|
4
|
1. This registration covers an indeterminate number of securities of each identified class of the Registrant as may from time to time be issued at indeterminate prices. Any registered securities may be sold separately or as units with other securities registered under this registration statement. In addition, the securities may be sold in either primary or secondary offerings. In accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended, the Registrant is deferring payment of the registration fee and will pay the registration fee on a pay-as-you-go basis. The Registrant will calculate the registration fee applicable to an offer of securities pursuant to this registration statement based on the fee payment rate in effect on the date of such fee payment.
|
|
|
|
5
|
1. This registration covers an indeterminate number of securities of each identified class of the Registrant as may from time to time be issued at indeterminate prices. Any registered securities may be sold separately or as units with other securities registered under this registration statement. In addition, the securities may be sold in either primary or secondary offerings. In accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended, the Registrant is deferring payment of the registration fee and will pay the registration fee on a pay-as-you-go basis. The Registrant will calculate the registration fee applicable to an offer of securities pursuant to this registration statement based on the fee payment rate in effect on the date of such fee payment.
|
|
|
|
6
|
1. This registration covers an indeterminate number of securities of each identified class of the Registrant as may from time to time be issued at indeterminate prices. Any registered securities may be sold separately or as units with other securities registered under this registration statement. In addition, the securities may be sold in either primary or secondary offerings. In accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended, the Registrant is deferring payment of the registration fee and will pay the registration fee on a pay-as-you-go basis. The Registrant will calculate the registration fee applicable to an offer of securities pursuant to this registration statement based on the fee payment rate in effect on the date of such fee payment.
|
|
|
|
7
|
1. This registration covers an indeterminate number of securities of each identified class of the Registrant as may from time to time be issued at indeterminate prices. Any registered securities may be sold separately or as units with other securities registered under this registration statement. In addition, the securities may be sold in either primary or secondary offerings. In accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended, the Registrant is deferring payment of the registration fee and will pay the registration fee on a pay-as-you-go basis. The Registrant will calculate the registration fee applicable to an offer of securities pursuant to this registration statement based on the fee payment rate in effect on the date of such fee payment.
|
|
|
|
8
|
1. This registration covers an indeterminate number of securities of each identified class of the Registrant as may from time to time be issued at indeterminate prices. Any registered securities may be sold separately or as units with other securities registered under this registration statement. In addition, the securities may be sold in either primary or secondary offerings. In accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended, the Registrant is deferring payment of the registration fee and will pay the registration fee on a pay-as-you-go basis. The Registrant will calculate the registration fee applicable to an offer of securities pursuant to this registration statement based on the fee payment rate in effect on the date of such fee payment.
3. Any securities registered hereunder may be sold as units with other securities registered hereunder; each unit will be issued under a unit agreement and will represent an interest in two or more securities, which may or may not be separable from one another.
|
|
|
v3.24.4
| X |
- DefinitionA unique 10-digit SEC-issued value to identify entities that have filed disclosures with the SEC. It is commonly abbreviated as CIK. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
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-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
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| X |
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|
v3.24.4
Offerings
|
Dec. 23, 2024 |
| Offering: 1 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Equity
|
| Security Class Title |
Common Stock, $0.0001 per share
|
| Fee Rate |
0.01531%
|
| Offering Note |
This registration covers an indeterminate number of securities of each identified class of the Registrant as may from time to time be issued at indeterminate prices. Any registered securities may be sold separately or as units with other securities registered under this registration statement. In addition, the securities may be sold in either primary or secondary offerings. In accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended, the Registrant is deferring payment of the registration fee and will pay the registration fee on a pay-as-you-go basis. The Registrant will calculate the registration fee applicable to an offer of securities pursuant to this registration statement based on the fee payment rate in effect on the date of such fee payment.
|
| Offering: 2 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Equity
|
| Security Class Title |
Preferred Stock, par value $0.0001 per share
|
| Fee Rate |
0.01531%
|
| Offering Note |
1. This registration covers an indeterminate number of securities of each identified class of the Registrant as may from time to time be issued at indeterminate prices. Any registered securities may be sold separately or as units with other securities registered under this registration statement. In addition, the securities may be sold in either primary or secondary offerings. In accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended, the Registrant is deferring payment of the registration fee and will pay the registration fee on a pay-as-you-go basis. The Registrant will calculate the registration fee applicable to an offer of securities pursuant to this registration statement based on the fee payment rate in effect on the date of such fee payment.
|
| Offering: 3 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Equity
|
| Security Class Title |
Depositary Shares
|
| Fee Rate |
0.01531%
|
| Offering Note |
1. This registration covers an indeterminate number of securities of each identified class of the Registrant as may from time to time be issued at indeterminate prices. Any registered securities may be sold separately or as units with other securities registered under this registration statement. In addition, the securities may be sold in either primary or secondary offerings. In accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended, the Registrant is deferring payment of the registration fee and will pay the registration fee on a pay-as-you-go basis. The Registrant will calculate the registration fee applicable to an offer of securities pursuant to this registration statement based on the fee payment rate in effect on the date of such fee payment.
2. Such indeterminate number of Depositary Shares to be evidenced by depositary receipts issued pursuant to a deposit agreement.
|
| Offering: 4 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Debt
|
| Security Class Title |
Debt Securities
|
| Fee Rate |
0.01531%
|
| Offering Note |
1. This registration covers an indeterminate number of securities of each identified class of the Registrant as may from time to time be issued at indeterminate prices. Any registered securities may be sold separately or as units with other securities registered under this registration statement. In addition, the securities may be sold in either primary or secondary offerings. In accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended, the Registrant is deferring payment of the registration fee and will pay the registration fee on a pay-as-you-go basis. The Registrant will calculate the registration fee applicable to an offer of securities pursuant to this registration statement based on the fee payment rate in effect on the date of such fee payment.
|
| Offering: 5 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Other
|
| Security Class Title |
Warrants
|
| Fee Rate |
0.01531%
|
| Offering Note |
1. This registration covers an indeterminate number of securities of each identified class of the Registrant as may from time to time be issued at indeterminate prices. Any registered securities may be sold separately or as units with other securities registered under this registration statement. In addition, the securities may be sold in either primary or secondary offerings. In accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended, the Registrant is deferring payment of the registration fee and will pay the registration fee on a pay-as-you-go basis. The Registrant will calculate the registration fee applicable to an offer of securities pursuant to this registration statement based on the fee payment rate in effect on the date of such fee payment.
|
| Offering: 6 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Other
|
| Security Class Title |
Subscription Rights
|
| Fee Rate |
0.01531%
|
| Offering Note |
1. This registration covers an indeterminate number of securities of each identified class of the Registrant as may from time to time be issued at indeterminate prices. Any registered securities may be sold separately or as units with other securities registered under this registration statement. In addition, the securities may be sold in either primary or secondary offerings. In accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended, the Registrant is deferring payment of the registration fee and will pay the registration fee on a pay-as-you-go basis. The Registrant will calculate the registration fee applicable to an offer of securities pursuant to this registration statement based on the fee payment rate in effect on the date of such fee payment.
|
| Offering: 7 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Other
|
| Security Class Title |
Stock Purchase Contracts
|
| Fee Rate |
0.01531%
|
| Offering Note |
1. This registration covers an indeterminate number of securities of each identified class of the Registrant as may from time to time be issued at indeterminate prices. Any registered securities may be sold separately or as units with other securities registered under this registration statement. In addition, the securities may be sold in either primary or secondary offerings. In accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended, the Registrant is deferring payment of the registration fee and will pay the registration fee on a pay-as-you-go basis. The Registrant will calculate the registration fee applicable to an offer of securities pursuant to this registration statement based on the fee payment rate in effect on the date of such fee payment.
|
| Offering: 8 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Other
|
| Security Class Title |
Stock Purchase Units
|
| Fee Rate |
0.01531%
|
| Offering Note |
1. This registration covers an indeterminate number of securities of each identified class of the Registrant as may from time to time be issued at indeterminate prices. Any registered securities may be sold separately or as units with other securities registered under this registration statement. In addition, the securities may be sold in either primary or secondary offerings. In accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended, the Registrant is deferring payment of the registration fee and will pay the registration fee on a pay-as-you-go basis. The Registrant will calculate the registration fee applicable to an offer of securities pursuant to this registration statement based on the fee payment rate in effect on the date of such fee payment.
3. Any securities registered hereunder may be sold as units with other securities registered hereunder; each unit will be issued under a unit agreement and will represent an interest in two or more securities, which may or may not be separable from one another.
|
| X |
- DefinitionThe rate per dollar of fees that public companies and other issuers pay to register their securities with the Commission. Reference 1: http://www.xbrl.org/2003/role/presentationRef
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v3.24.4
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Blue Bird (NASDAQ:BLBD)
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From Dec 2024 to Jan 2025
Blue Bird (NASDAQ:BLBD)
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From Jan 2024 to Jan 2025
