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Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BGC PARTNERS, INC.
(Exact Name of Registrant as Specified in Its Charter)
499 Park Avenue
New York, New York 10022
(212) 610-2200
(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Registrants Principal Executive Offices)
Stephen M. Merkel
Executive Vice President,
General Counsel and Secretary
BGC Partners, Inc.
499 Park Avenue
New York, New York 10022
(212) 610-2200
(212) 829-4708 fax
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
Copies to:
Christopher T. Jensen
George G. Yearsich
Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, New York 10178
(212) 309-6000
(212) 309-6001 fax
Approximate date of commencement of proposed sale to the
public:From time to time after the effective date of this
registration statement, as determined by market conditions.
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, please
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,
or a smaller reporting company. See the definitions of large
accelerated filer, accelerated filer and smaller reporting company
in Rule 12b-2 under the Securities Exchange Act of 1934:
CALCULATION OF REGISTRATION FEE
BGC PARTNERS, INC.
8.125% Senior Notes due 2042 (8.125% Senior Notes)
5.375% Senior Notes due 2019 (5.375% Senior Notes)
4.50% Convertible Senior Notes due 2016 (Convertible Notes)
This prospectus of BGC Partners, Inc., which we refer to as BGC
Partners, BGC, we, as, or our, may be used by our affiliate, Cantor
Fitzgerald & Co., which we refer to as CF&Co., in
connection with offers and sales by CF&Co. of our 8.125% Senior
Notes, 5.375% Senior Notes and Convertible Notes (which are
convertible into shares of our Class A Common Stock, par value
$0.01 per share, which we refer to as our Class A common stock) in
connection with ongoing market-making transactions. In this
prospectus, we refer to the 8.125% Senior Notes, the 5.375% Senior
Notes and the Convertible Notes collectively as the Securities.
Market-making transactions in the Securities may occur in the open
market or may be privately negotiated at prevailing market prices
at a time of resale or at related or negotiated prices. In these
transactions, CF&Co. may act as principal or agent, including
as agent for the counterparty in a transaction in which CF&Co.
acts as principal, or is agent for both counterparties in a
transaction in which CF&Co. does not act as a principal.
CF&Co. may receive compensation in the form of discounts and
commissions, including from both counterparties in some cases.
Other affiliates of ours may also engage in market-making
transactions of this kind and may use this prospectus for that
purpose.
We will not receive any proceeds from these market-making
transactions.
Neither CF&Co., nor any other of our affiliates, has any
obligation to make a market in our Securities, and CF&Co. or
any such other affiliate may discontinue market-making activities
at any time without notice.
The 8.125% Senior Notes are listed on the New York Stock
Exchange under the symbol BGCA. Neither the 5.375% Senior Notes nor
the Convertible Notes are listed on any exchange. Our Class A
common stock is traded on the Nasdaq Global Select Market under the
symbol BGCP.
An investment in our securities involves risks. See
Risk Factorsbeginning on page 3
of this prospectus, as well as the Risk Factors section of our
latest Annual Report on Form 10-K filed with the Securities and
Exchange Commission, which we refer to as the SEC, and any updates
to those risk factors or new risk factors contained in our
subsequent Quarterly Reports on Form 10-Q and Current Reports on
Form 8-K filed with the SEC, all of which we incorporate by
reference herein.
Neither the SEC nor any state securities commission has approved
or disapproved of these securities or determined if this prospectus
is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is October 9, 2015.
TABLE OF CONTENTS
You should rely only on the information provided in this
prospectus, as well as the information incorporated by reference
into this prospectus. We have not authorized anyone to provide you
with different information. We are not making an offer of these
securities in any jurisdiction where the offer is not permitted.
You should not assume that the information in this prospectus or
any documents incorporated by reference is accurate as of any date
other than the date of the applicable document. Since the
respective dates of this prospectus and the documents incorporated
by reference into this prospectus, our businesses, financial
condition, results of operations and prospects might have
changed.
i
FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference into
this prospectus contain forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933, as amended,
which we refer to as the Securities Act, and Section 21E of the
Securities Exchange Act of 1934, as amended, which we refer to as
the Exchange Act. Such statements are based upon current
expectations that involve risks and uncertainties. Any statements
contained herein or in documents incorporated by reference that are
not statements of historical fact may be deemed to be
forward-looking statements. For example, words such as may, will,
should, estimates, predicts, potential, continue, strategy,
believes, anticipates, plans, expects, intends and similar
expressions are intended to identify forward-looking
statements.
Our actual results and the outcome and timing of certain events
may differ significantly from the expectations discussed in the
forward-looking statements. Factors that might cause or contribute
to such a discrepancy include, but are not limited to, the factors
set forth below and may impact either or both of our operating
segments:
ii
iii
The foregoing risks and uncertainties, as well as any risks and
uncertainties referred to under the heading Risk Factors and those
incorporated by reference herein, may cause actual results and
events to differ materially from the forward-looking statements.
The information included or incorporated by reference is given as
of the respective dates of this prospectus or the documents
incorporated by reference herein, and future results or events
could differ significantly from these forward-looking statements.
We do not undertake to publicly update or revise any
forward-looking statements, whether as a result of new information,
future events, or otherwise.
iv
CERTAIN DEFINED TERMS
Unless we otherwise indicate or unless the context requires
otherwise, any reference in this prospectus to:
v
vi
SUMMARY
This summary highlights selected information from this
prospectus, but may not contain all information that may be
important to you. The following summary is qualified in its
entirety by the more detailed information included in or
incorporated by reference into this prospectus. Before making your
investment decision with respect to our Securities, you should
carefully read this entire prospectus and the documents referred to
in Where You Can Find More Information and Documents Incorporated
by Reference. See the Certain Defined Terms section beginning on
page v of this prospectus for the definition of certain terms used
in this prospectus.
When we use the words BGC Partners, BGC, we, us, or our, we are
referring to BGC Partners, Inc. and its consolidated
subsidiaries.
The Company
We are a leading global brokerage company servicing the
financial and real estate markets through our two segments,
Financial Services and Real Estate Services. Our Financial Services
segment specializes in the brokerage of a broad range of products,
including fixed income securities, interest rate swaps, foreign
exchange, equities, equity derivatives, credit derivatives, energy
and commodity derivatives and futures. We also provide a wide range
of services, including trade execution, broker-dealer services,
clearing, processing, information, and other back-office services
to a broad range of financial and non-financial institutions. Our
integrated platform is designed to provide flexibility to customers
with regard to price discovery, execution and processing of
transactions, and enables them to use voice, hybrid, or in many
markets, fully electronic brokerage services in connection with
transactions executed either over-the-counter or through an
exchange. Through our BGC Trader , BGC Market Data, Trayport
®and FENICS
®brands, we offer financial technology solutions, market
data, and analytics related to select financial instruments and
markets.
On February 26, 2015, we successfully completed our tender offer
to acquire shares of common stock, par value $0.01 per share, of
GFI Group Inc., which we refer to as GFI, for $6.10 per share in
cash and accepted for purchase 54.3 million shares, which we refer
to as the Tendered Shares, tendered to us pursuant to our offer. We
issued payment for the Tendered Shares on March 4, 2015 in the
aggregate amount of $331.1 million. The Tendered Shares, together
with the 17.1 million shares of GFI common stock then already owned
by us, represented approximately 56% of GFIs then-outstanding
shares of common stock as of the date of purchase. As part of a
tender offer agreement with GFI, we became entitled to designate
six out of eight directors on the GFI board of directors. These
designees were appointed to the GFI board effective February 26,
2015. On April 28, 2015, we purchased from GFI approximately 43.0
million additional shares of GFI common stock, for an aggregate
purchase price of $250 million paid in the form of a note,
increasing our ownership of shares of GFI common stock to
approximately 67%. We are obligated to enter into a back-end merger
agreement to acquire the outstanding shares of GFI common stock
that we do not own, subject to certain conditions, by December 21,
2015. It is expected that the merger will be completed no later
than January 29, 2016.
On July 10, 2015, we and GFI entered into a guarantee agreement
pursuant to which we have fully and unconditionally guaranteed the
8.375% GFI Notes, which we refer to as the BGC Guarantee. As a
result of the BGC Guarantee, the ratings on the 8.375% GFI Notes
were increased, and the penalty interest rate payable on the 8.375%
GFI Notes was reduced to 25 basis points effective July 19,
2015.
GFI is a leading intermediary and provider of securities trading
technologies and support services to the global OTC and listed
markets. GFI serves more than 2,500 institutional clients in
operating electronic and hybrid markets for cash and derivative
products across multiple asset classes. While BGC and GFI are
expected to remain separately branded divisions for the foreseeable
future, GFI now operates as a controlled company and as a division
of BGC within our Financial Services segment, reporting to Shaun
Lynn, President of BGC and GFI, and its financial results are
consolidated as part of BGC.
Newmark Grubb Knight Frank, which we refer to as NGKF, is a
full-service commercial real estate platform that comprises our
Real Estate Services segment. Through NGKF, we offer commercial
real estate tenants, owners, investors and
developers a wide range of services, including leasing and
corporate advisory, investment sales and financial services,
consulting, project management, and property and facilities
management.
Our customers include many of the worlds largest banks,
broker-dealers, investment banks, trading firms, hedge funds,
governments, corporations, property owners, real estate developers
and investment firms. We have offices in dozens of major markets,
including New York and London, as well as Atlanta, Beijing, Bogota,
Boston, Brussels, Buenos Aires, Cape Town, Charlotte, Chicago,
Copenhagen, Dallas, Denver, Dubai, Dublin, Hong Kong, Houston,
Istanbul, Johannesburg, Lima, Los Angeles, Madrid, Manila, Mexico
City, Miami, Moscow, Nyon, Paris, Philadelphia, Rio de Janeiro, San
Francisco, Santa Clara, Santiago, Săo Paulo, Seoul, Shanghai,
Singapore, Sugar Land (TX), Sydney, Tel Aviv, Tokyo, Toronto,
Washington, D.C. and Zurich.
Our Organizational Structure
We are a holding company, and our business is operated through
two operating partnerships, BGC U.S., which holds our U.S.
businesses, and BGC Global, which holds our non-U.S. businesses.
The limited partnership interests of the two operating partnerships
are held by us and BGC Holdings, and the limited partnership
interests of BGC Holdings are currently held by limited partnership
unit holders, founding partners, and Cantor. We hold the BGC
Holdings general partnership interest and the BGC Holdings special
voting limited partnership interest, which entitle us to remove and
appoint the general partner of BGC Holdings, and serve as the
general partner of BGC Holdings, which entitles us to control BGC
Holdings. BGC Holdings, in turn, holds the BGC U.S. general
partnership interest and the BGC U.S. special voting limited
partnership interest, which entitle the holder thereof to remove
and appoint the general partner of BGC U.S., and the BGC Global
general partnership interest and the BGC Global special voting
limited partnership interest, which entitle the holder thereof to
remove and appoint the general partner of BGC Global, and serves as
the general partner of BGC U.S. and BGC Global, all of which
entitle BGC Holdings (and thereby us) to control each of BGC U.S.
and BGC Global. BGC Holdings holds its BGC Global general
partnership interest through a company incorporated in the Cayman
Islands, BGC Global Holdings GP Limited.
Executive Offices
Our executive offices are located at 499 Park Avenue, New York,
New York 10022, while our international headquarters are located at
1 Churchill Place, Canary Wharf, London E14 5RD, United Kingdom.
Our telephone number is (212) 610-2200. Our website is located at
www.bgcpartners.com
, and our e-mail address is info@bgcpartners.com. The
information contained on, or that may be accessed through, our
website is not part of, and is not incorporated into, this
prospectus.
Ratio of Earnings to Fixed Charges
The following table presents the ratio of earnings to fixed
charges for us and our consolidated subsidiaries for each of the
periods indicated, including GFI beginning with the quarter ended
March 31, 2015. See Ratio of Earnings to Fixed Charges.
RISK FACTORS
An investment in our Securities involves risks and
uncertainties. You should consider carefully the risks described
below, as well as the Risk Factors section in our latest Annual
Report on Form 10-K filed with the SEC, and any updates to those
risk factors or new risk factors contained in our subsequent
Quarterly Reports on Form 10-Q and Current Reports on Form 8-K
filed with the SEC, all of which we incorporate by reference
herein, as well as the other information included in this
prospectus before making an investment decision. Any of the risk
factors could significantly and negatively affect our businesses,
financial condition, results of operations, cash flows, and
prospects and the trading price of our Securities. You could lose
all or part of your investment.
Risks Related to the Securities
The Securities are structurally subordinated to the obligations
of our subsidiaries and to any secured indebtedness we may incur,
and this may limit our ability to satisfy our obligations under the
Securities.
The Securities are our senior unsecured obligations and rank
equally with all of our other indebtedness that is not expressly
subordinated to the Securities. However, the Securities will be
structurally subordinated to all obligations of our subsidiaries
and to any secured indebtedness we may incur to the extent of the
value of the collateral securing such indebtedness.
We conduct substantially all of our operations through our
subsidiaries. We do not have any material assets other than our
direct and indirect ownership in the equity of our operating
subsidiaries. As a result, our cash flow and our ability to service
our debt, including the Securities, are dependent upon the earnings
of our subsidiaries. In addition, we are dependent on the
distribution of earnings, loans or other payments by our
subsidiaries to us. Certain debt and security agreements entered
into by our subsidiaries contain various restrictions, including
restrictions on payments by our subsidiaries to us and the transfer
by our subsidiaries of assets pledged as collateral. In the event
of a bankruptcy, liquidation, dissolution, reorganization or
similar proceeding with respect to any of our subsidiaries, we, as
an equity owner of such subsidiary, and therefore holders of our
debt, including the Securities, will be subject to the prior claims
of such subsidiarys creditors, including trade creditors, and any
preferred equity holders.
The Securities will also be effectively subordinated to any
secured indebtedness we may incur to the extent of the value of the
collateral securing such indebtedness. In the event of a
bankruptcy, liquidation, dissolution, reorganization or similar
proceeding with respect to us, the holders of any secured
indebtedness will be entitled to proceed directly against the
collateral that secures such secured indebtedness. Therefore, such
collateral will not be available for satisfaction of any amounts
owed under our unsecured indebtedness, including the Securities,
until such secured indebtedness is satisfied in full.
There are limited covenants and protections in the indentures
governing the Securities.
While the indentures governing the Securities contain terms
intended to provide protection to holders upon the occurrence of
certain events involving significant corporate transactions, these
terms are limited and may not be sufficient to protect an
investment in the Securities. For example, there are no financial
covenants. As a result, we are not restricted under the terms of
the Securities from entering into transactions that could increase
the total amount of our outstanding indebtedness, adversely affect
our capital structure or our credit ratings, or otherwise adversely
affect the holders of the Securities.
Ratings of the Securities may not reflect all risks of an
investment in the Securities and changes in our credit ratings
could adversely affect the market price of the Securities.
Our long-term debt is currently rated by two nationally
recognized statistical rating organizations. A debt rating is not a
recommendation to purchase, sell or hold the Securities. Moreover,
a debt rating does not reflect all risks of an investment in the
Securities and does not take into account market price or
suitability for a particular investor. The respective market prices
for the Securities are based on a number of factors, including our
ratings with major rating agencies. Rating agencies revise their
ratings for the companies that they follow from time to time, and
our ratings may be revised or withdrawn in their entirety at any
time. We cannot be sure that rating agencies will maintain their
current ratings. We undertake no obligation to maintain the ratings
or to advise holders of Securities of any change in ratings. A
negative change in our ratings could have an adverse effect on the
market price or liquidity of the Securities.
Changes in the credit markets could adversely affect the market
prices of the Securities.
The market prices of the Securities will be based on a number of
factors, including:
The condition of the credit markets and prevailing interest
rates have fluctuated in the past and can be expected to fluctuate
in the future. Fluctuations in these factors could have an adverse
effect on the prices and liquidity of the Securities. In addition,
the market price for the Convertible Notes will be impacted by the
market price of our Class A common stock.
There may not be an active trading market for any of the
Securities, which could adversely affect the prices of the
Securities in the secondary market and a holders ability to resell
its Securities should it desire to do so.
We cannot make any assurance as to:
Certain financial institutions (including CF&Co. and other
affiliates of ours, who may use this prospectus to do so) may make
a market in the Securities. However, no such financial institution,
including CF&Co. and any such other affiliate, has any
obligation to make a market in the Securities, and any such
financial institution (including CF&Co. and any such other
affiliate) may discontinue market-making activities in the
Securities at any time without notice.
There is no assurance that active trading markets in the
Securities will exist. If there are no active trading markets for
the Securities, the market prices and liquidity of the Securities
is likely to be adversely affected.
Risks Related to the 8.125% Senior Notes and the 5.375% Senior
Notes (collectively referred to as the Senior Notes)
We may not be able to repurchase the Senior Notes upon a Change
of Control Triggering Event.
Upon the occurrence of a Change of Control Triggering Event (as
defined in the indentures governing the Senior Notes), unless we
have exercised our right to redeem the Senior Notes, holders of
Senior Notes will have the right to require us to repurchase all or
any part of their Senior Notes for cash at a price equal to 101% of
the then-outstanding aggregate principal amount repurchased plus
accrued and unpaid interest, if any, on the Senior Notes
repurchased, to, but excluding, the date of purchase. If we
experience a Change of Control Triggering Event, we can offer no
assurance that we would have sufficient financial resources
available to satisfy our obligations to repurchase any or all of
the Senior Notes should any holder elect to cause us to do so. Our
failure to repurchase any Senior Notes as required would result in
a default under such Senior Notes, which in turn could result in
defaults under agreements governing certain of our other
indebtedness, including the acceleration of the payment of any
borrowings thereunder, and have material adverse consequences for
us and the holders of the Senior Notes.
In addition, the change of control provisions may not protect
holders of Senior Notes from certain important corporate events
(such as acquisitions by us, recapitalizations or going private
transactions by our affiliates) that could negatively affect the
value of the Senior Notes. A change of control transaction may only
occur if there is a change in the controlling interest in our
business. For a Change of Control Triggering Event to occur there
must be not
only a change of control transaction as defined in the
indentures governing the Senior Notes, but also a ratings downgrade
of the type specified in such indenture resulting from such
transaction. If an event occurs that does not constitute a Change
of Control Triggering Event, we will not be required to make an
offer to repurchase the Senior Notes and holders may be required to
continue to hold Senior Notes despite the event. See Description of
SecuritiesDescription of 8.125% Senior NotesOffer to Repurchase
Upon a Change of Control Triggering Event and Description of
SecuritiesDescription of 5.375% Senior NotesOffer to Repurchase
Upon a Change of Control Triggering Event.
Redemption of the 8.125% Senior Notes may adversely affect the
return on such notes.
On or after June 26, 2017, we will have the right to redeem some
or all of the 8.125% Senior Notes prior to maturity at a redemption
price equal to 100% of the principal amount of the 8.125% Senior
Notes to be redeemed, plus accrued but unpaid interest on the
principal amount being redeemed to, but not including, the
redemption date. We may redeem the 8.125% Senior Notes at times
when prevailing interest rates may be relatively low. Accordingly,
a holder of 8.125% Senior Notes may not be able to reinvest the
redemption proceeds in a comparable security at an effective
interest rate as high as that of the 8.125% Senior Notes.
Risks Related to the Convertible Notes
Holders of Convertible Notes are not entitled to any rights with
respect to our Class A common stock, but will be subject to all
changes affecting our Class A common stock.
Holders of Convertible Notes, are not be entitled to any rights
with respect to our Class A common stock (including, without
limitation, voting rights and rights to receive any dividends or
other distributions on our Class A common stock), but will be
subject to all changes affecting our Class A common stock. A holder
of Convertible Notes will have rights with respect to our Class A
common stock only if it receives shares of our Class A common stock
upon conversion and only as of the conversion date (if we elect to
settle our conversion obligation solely in shares of our Class A
common stock) or as of the last trading day of the applicable cash
settlement averaging period (if we elect to settle our conversion
obligation with a combination of cash and shares of our Class A
common stock).
The market price of our Class A common stock may be volatile,
which could cause the value of an investment in Convertible Notes
to decline.
The market price of our Class A common stock has experienced,
and may continue to experience, significant volatility. Numerous
factors, including many over which we have no control, may have a
significant impact on the market price of our Class A common stock.
In addition, the stock market may experience price and trading
volume fluctuations unrelated or disproportionate to the operating
performance of individual companies. These market fluctuations may
adversely affect the price of our Class A common stock, regardless
of our operating performance. As a result of these factors, among
others, the value of an investment in Convertible Notes may decline
because a decrease in the market price of our Class A common stock
would likely adversely impact the trading price of Convertible
Notes.
Future sales of shares of our Class A common stock may depress
its market price.
We have an existing controlled equity offering program with
respect to our Class A common stock, and we may, in the future,
sell shares of our Class A common stock to raise capital. In
addition, we have an effective registration statement under the
Securities Act pursuant to which Cantor could sell up to
approximately 24.0 million shares of Class A common stock. Sales of
substantial amounts of additional shares of Class A common stock by
us, Cantor or other stockholders, sales of shares of Class A common
stock underlying the Convertible Notes as well as sales of shares
of Class A common stock that may be issued in connection with
future acquisitions or for other purposes, or the perception that
such sales could occur, may have a harmful effect on prevailing
market price for our Class A common stock.
A holder of Convertible Notes may receive less proceeds than
expected upon conversion of its Convertible Notes because the value
of our Class A common stock may decline (or not appreciate as much
as expected) between the day that such holder exercises its
conversion right and the day the conversion value of the
Convertible Note is finally determined.
Unless we elect to deliver solely shares of our Class A common
stock in respect of our conversion obligation, we will satisfy our
conversion obligation to holders of Convertible Notes by paying
cash in respect of a specified portion of our conversion obligation
and by delivering shares of our Class A common stock in settlement
of any amounts in excess of such specified portion of our
conversion obligation. Accordingly, upon conversion of Convertible
Notes, a holder may not receive any shares of our Class A common
stock, or may receive fewer shares of our Class A common stock
relative to the conversion value of that note.
If we elect to satisfy our conversion obligation by paying cash
in respect of a specified portion of our conversion obligation, the
amount of consideration that a holder will receive upon conversion
of Convertible Notes will be in part determined by reference to the
volume-weighted average prices of our Class A common stock for each
trading day in a 40 trading-day cash settlement averaging period.
As described under Description of SecuritiesDescription of
Convertible NotesSettlement upon Conversion, this period means, for
Convertible Notes with a conversion date occurring on or after
March 15, 2016, the 40 consecutive trading-day period beginning on,
and including, the 42nd scheduled trading day prior to the maturity
date, and in all other instances, the 40 consecutive trading-day
period beginning on, and including, the third trading day
immediately following the relevant conversion date. As a result,
upon conversion of the Convertible Notes, a holder may receive less
proceeds than expected because the value of our Class A common
stock may decline (or not appreciate as much as expected) between
the day that such holder exercises its conversion right and the day
the conversion value of such Convertible Notes is finally
determined.
The conversion rate for Convertible Notes may not be adjusted
for all dilutive events.
The conversion rate of the Convertible Notes is subject to
adjustment for certain events, including, but not limited to, the
issuance of stock dividends on our Class A common stock, the
issuance of certain rights or warrants, subdivisions, combinations,
distributions of capital stock, indebtedness or assets, certain
cash dividends and certain issuer tender or exchange offers as
described under Description of SecuritiesDescription of Convertible
NotesConversion RightsConversion Rate Adjustments. Such conversion
rate will not be adjusted, however, for other events, such as a
third-party tender or exchange offer or an issuance of Class A
common stock for cash, that may adversely affect the trading price
of the Convertible Notes or our Class A common stock. In addition,
an event that adversely affects the value of the Convertible Notes
may occur, and that event may not result in an adjustment to such
conversion rate.
The adjustment to the applicable conversion rate for Convertible
Notes converted in connection with a specified corporate
transaction may not adequately compensate a holder for any loss in
value of its Convertible Notes as a result of such transaction.
If a specified corporate transaction constituting a make-whole
fundamental change, as described under Description of
SecuritiesDescription of Convertible NotesFundamental Change
Permits Holders to Require Us to Purchase Convertible Notes,
occurs, under certain circumstances we will increase the applicable
conversion rate by a number of additional shares of our Class A
common stock for Convertible Notes converted in connection with
such specified corporate transaction. The increase in the
applicable conversion rate will be determined based on the date on
which the specified corporate transaction becomes effective and the
price paid per share of our Class A common stock in, or the price
of our Class A common stock over a ten trading-day period
immediately preceding the effective date of, such transaction, as
described under Description of SecuritiesDescription of Convertible
NotesConversion RightsAdjustment to Shares Delivered upon
Conversion upon Certain Corporate Transactions. The adjustment to
the applicable conversion rate for Convertible Notes converted in
connection with a specified corporate transaction may not
adequately compensate holders of Convertible Notes for any loss in
value of the Convertible Notes as a result of such transaction. In
addition, if the stock price for such transaction (determined as
described under Description of NotesConversion RightsAdjustment to
Shares Delivered upon Conversion upon Certain Corporate
Transactions) is greater than $15.00 per share, or if such price is
less than $8.20 per share (each such price, subject to adjustment),
no adjustment will be made to the applicable conversion rate.
If we elect a cash settlement or a combination settlement in
connection with conversion of the Convertible Notes, it may have
adverse consequences.
In lieu of delivery of shares of our Class A common stock in
satisfaction of our obligation upon conversion of the Convertible
Notes, we may settle the Convertible Notes surrendered for
conversion entirely in cash or in a combination of cash and shares
of our Class A common stock. This feature of the Convertible Notes,
as described further under Description of SecuritiesDescription of
Convertible NotesSettlement upon Conversion, may:
Some significant restructuring transactions may not constitute a
fundamental change, in which case we would not be obligated to
offer to purchase the Convertible Notes.
Upon the occurrence of certain fundamental change transactions
described under Description of SecuritiesDescription of Convertible
NotesFundamental Change Permits Holders to Require Us to Purchase
Convertible Notes, holders of Convertible Notes have the right to
require us to repurchase the Convertible Notes. However, the
fundamental change provisions will only afford protection to
holders of Convertible Notes in the event of certain transactions.
Other transactions, such as leveraged recapitalizations,
refinancings, restructurings, or acquisitions initiated by us, may
not constitute a fundamental change requiring us to repurchase the
Convertible Notes. In the event of any such transaction, holders
would not have the right to require us to repurchase the
Convertible Notes, even though each of these transactions could
increase the amount of our indebtedness or otherwise adversely
affect our capital structure or our credit ratings, thereby
adversely affecting the holders of Convertible Notes.
We may not be able to purchase the Convertible Notes upon a
fundamental change as required by the indenture governing the
Convertible Notes.
Holders may require us to purchase their Convertible Notes for
cash upon a fundamental change as described under Description of
SecuritiesDescription of Convertible NotesFundamental Change
Permits Holders to Require Us to Purchase Convertible Notes. A
fundamental change may also constitute an event of default, and
result in the effective acceleration of the maturity of our
then-existing indebtedness. There can be no assurance that we would
have sufficient financial resources, or would be able to arrange
financing, to pay the fundamental change purchase price in full for
the Convertible Notes surrendered by the holders in cash. In
addition, the terms of any then existing credit facilities and
financing agreements may limit our ability to pay any fundamental
change purchase price. Failure by us to purchase the Convertible
Notes when required will result in an event of default with respect
to the Convertible Notes.
The fundamental change provisions may delay or prevent an
otherwise beneficial takeover attempt of us.
The fundamental change purchase rights, which will allow holders
of Convertible Notes to require us to purchase all or a portion of
their Convertible Notes upon the occurrence of a fundamental
change, as defined in Description of SecuritiesDescription of
Convertible NotesFundamental Change Permits Holders to Require Us
to Purchase Convertible Notes, and the provisions requiring an
increase to the conversion rate for conversions in connection with
make-whole fundamental changes may in certain circumstances delay
or prevent a takeover of us and the removal of incumbent management
that might otherwise be beneficial to investors.
A holder of Convertible Notes may be subject to tax upon an
adjustment to, or a failure to adjust, the conversion rate of the
Convertible Notes even though it did not receive a corresponding
cash distribution.
The conversion rate of the Convertible Notes is subject to
adjustment in certain circumstances, including the payment of
certain cash dividends. If the conversion rate is adjusted as a
result of a distribution that is taxable to our Class A common
stockholders, such as a cash dividend, a holder of Convertible
Notes will be deemed to have received for U.S. federal income tax
purposes a taxable dividend to the extent of our earnings and
profits without the receipt of any cash. In addition, a failure to
adjust (or adjust adequately) the conversion rate after an event
that increases a holders proportionate interest in us could be
treated as a deemed taxable dividend to the holder. If the holder
is a non-U.S. holder, such deemed dividend may be subject to U.S.
federal withholding tax (currently at a 30% rate, or such lower
rate as may be specified by an applicable treaty), which may be set
off against subsequent payments on the notes. See Description of
SecuritiesDescription of Convertible NotesConversion
RightsConversion Rate Adjustments.
If a make-whole fundamental change occurs on or prior to the
maturity date of the Convertible Notes, under some circumstances,
we will increase the conversion rate for notes converted in
connection with such make-whole fundamental change. Such increase
may be treated as a distribution subject to U.S. federal income tax
as a dividend. See Description of SecuritiesDescription of
Convertible NotesConversion RightsAdjustment to Shares Delivered
upon Conversion upon Certain Corporate Transactions.
USE OF PROCEEDS
We will not receive any of the proceeds from the market-making
activities in our Securities by CF&Co. (or any other of our
affiliates) pursuant to this prospectus.
RATIO OF EARNINGS TO FIXED CHARGES
The following table presents the ratio of earnings to fixed
charges for us and our consolidated subsidiaries for each of the
periods indicated, including GFI beginning with the quarter ended
March 31, 2015. For the purposes of calculating the ratio of
earnings to fixed charges, earnings consist of income from
operations before income taxes and fixed charges, net. Fixed
charges consist of interest expense incurred on all indebtedness,
amortized premiums, discounts and capitalized expenses relating to
indebtedness and interest within rental expense. Neither we nor any
of our consolidated subsidiaries had any preferred shares
outstanding for any of the periods reflected in this table.
DESCRIPTION OF SECURITIES
Description of 8.125% Senior Notes
We issued the 8.125% Senior Notes under a base indenture, as
supplemented by a supplemental indenture (which we refer to
collectively as the indenture governing the 8.125% Senior Notes),
that we, as issuer, entered into with U.S. Bank National
Association, as trustee, and that have been filed as exhibits to
the registration statement of which this prospectus is a part. The
statements made in this section relating to the 8.125% Senior Notes
are summaries of the material provisions thereof and do not purport
to be complete and are subject to, and are qualified in their
entirety by reference to, all of the provisions of the 8.125%
Senior Notes, such indenture and such supplemental indenture,
including the definitions therein of certain terms. You should read
these documents carefully to fully understand the terms of the
8.125% Senior Notes because they, and not this description, will
define your rights as holders of the 8.125% Senior Notes.
General
The 8.125% Senior Notes are our senior unsecured obligations and
rank equally in right of payment with all of our other senior
unsecured indebtedness from time to time outstanding. The 8.125%
Senior Notes will mature on June 15, 2042, unless previously
redeemed or repurchased in full by us as provided below under
Optional Redemption or Offer to Repurchase Upon a Change of Control
Triggering Event.
The 8.125% Senior Notes bear interest at the rate of 8.125% per
annum to the stated maturity or the date of earlier redemption.
Interest on the 8.125% Senior Notes is payable on the 15th day of
March, June, September and December of each year to the persons in
whose names such 8.125% Senior Notes were registered at the close
of business on the immediately preceding 1st day of March, June,
September and December (whether or not a business day),
respectively.
Interest payments in respect of the 8.125% Senior Notes will
equal the amount of interest accrued from and including the
immediately preceding interest payment date in respect of which
interest has been paid or duly provided for, to, but not including,
the applicable interest payment date or stated maturity date or
date of earlier redemption, as the case may be. Interest on the
8.125% Senior Notes is computed on the basis of a 360-day year
comprised of twelve 30-day months. The principal, interest, if any,
and additional amounts, if any, on the 8.125% Senior Notes is
payable through The Depository Trust Company.
If an interest payment or the stated maturity date or date of
early redemption of the 8.125% Senior Notes falls on a Saturday,
Sunday, or other day on which banking institutions in the City of
New York are authorized or obligated by law or executive order to
close, the required payment due on such date will instead be made
on the next business day. No further interest will accrue as a
result of such delayed payment.
An aggregate principal amount of $112.5 million of 8.125% Senior
Notes is outstanding as of the date of this prospectus. The
indenture governing the 8.125% Senior Notes does not limit the
aggregate principal amount of the debt securities which we may
issue thereunder and provides that we may issue debt securities
thereunder from time to time in one or more series. We may, from
time to time, without the consent of or notice to holders of the
8.125% Senior Notes, issue and sell additional debt securities
ranking equally and ratably with the 8.125% Senior Notes in all
respects and having the same terms as the 8.125% Senior Notes
(other than the issue date, and to the extent applicable, issue
price, initial date of interest accrual and initial interest
payment date of such additional debt securities), so that such
additional debt securities shall be consolidated and form a single
series with the 8.125% Senior Notes for all purposes, including
voting; provided, that such additional debt securities are fungible
with the previously issued 8.125% Senior Notes for U.S. federal
income tax purposes.
The 8.125% Senior Notes are not entitled to the benefit of any
mandatory redemption or sinking fund.
The 8.125% Senior Notes are issuable only in fully registered
form without coupons in minimum denominations of $25 and integral
multiples of $25 in excess thereof. The 8.125% Senior Notes may be
presented for transfer (duly endorsed or accompanied by a written
instrument of transfer, if so required by us or the security
registrar) or
exchanged for other 8.125% Senior Notes (containing identical
terms and provisions, in any authorized denominations, and of a
like aggregate principal amount) at the office or agency maintained
by us for such purposes (initially the corporate trust office of
the trustee). Such transfer or exchange will be made without
service charge, but we may require payment of a sum sufficient to
cover any tax or other governmental charge and any other expenses
then payable. Prior to the due presentment of an 8.125% Senior Note
for registration of transfer, we, the trustee and any other agent
of ours or the trustee may treat the registered holder of each
8.125% Senior Note as the owner of such 8.125% Senior Note for the
purpose of receiving payments of principal of and interest on such
8.125% Senior Note and for all other purposes whatsoever.
The indenture governing the 8.125% Senior Notes does not contain
any provisions that limit our ability to incur unsecured
indebtedness or that would afford holders of the 8.125% Senior
Notes protection in the event of a sudden and significant decline
in our credit quality or a takeover, recapitalization or highly
leveraged or similar transaction involving us. Accordingly, we
could in the future enter into transactions that could increase the
amount of our indebtedness outstanding at that time or otherwise
affect our capital structure or credit rating.
Optional Redemption
The 8.125% Senior Notes may be redeemed, for cash, in whole or
in part, on or after June 26, 2017, at our option, at any time and
from time to time, until maturity at a redemption price equal to
100% of the principal amount of the 8.125% Senior Notes to be
redeemed, plus accrued but unpaid interest on the principal amount
being redeemed to, but not including, the redemption date.
We will mail a notice of any redemption to each holder of 8.125%
Senior Notes to be redeemed, at its registered address, by
first-class mail (with a copy to the trustee) at least 30 and not
more than 60 days prior to the date fixed for redemption. Unless we
default on payment of the redemption price, interest will cease to
accrue on the 8.125% Senior Notes or portions thereof called for
redemption on the applicable redemption date. If fewer than all of
the 8.125% Senior Notes are to be redeemed, the trustee will
select, not more than 60 days prior to the redemption date, the
particular 8.125% Senior Notes or portions thereof for redemption
from the outstanding 8.125% Senior Notes not previously called for
redemption by lot or any other method as the trustee deems fair and
appropriate. The trustee is required to notify us in writing of the
8.125% Senior Notes that it has selected for redemption and, in the
case of any 8.125% Senior Note selected for partial redemption, the
principal amount of such 8.125% Senior Note to be redeemed.
Additionally, the 8.125% Senior Notes and the portions thereof that
the trustee selects for redemption must be in a minimum amount of
$25 or integral multiples of $25 in excess thereof. The provisions
of the indenture that apply to 8.125% Senior Notes that are called
for redemption also apply to portions of 8.125% Senior Notes that
are called for redemption.
Offer to Repurchase Upon a Change of Control Triggering
Event
If a Change of Control Triggering Event occurs, unless we have
exercised our right to redeem the 8.125% Senior Notes as described
above, holders of 8.125% Senior Notes will have the right to
require us to repurchase all or any part (in minimum original
principal amounts of $25 and integral multiples of $25 in excess
thereof) of their 8.125% Senior Notes pursuant to the offer
described below (the Change of Control Offer) on the terms set
forth in the 8.125% Senior Notes. In the Change of Control Offer,
we will be required to offer payment in cash equal to 101% of the
then outstanding aggregate principal amount of 8.125% Senior Notes
repurchased plus accrued and unpaid interest, if any, on the 8.125%
Senior Notes repurchased, to, but not including, the date of
purchase (the Change of Control Payment). Within 30 days following
any Change of Control Triggering Event, we will be required to mail
a notice to holders of 8.125% Senior Notes describing the
transaction or transactions that constitute the Change of Control
Triggering Event and offering to repurchase the 8.125% Senior Notes
on the date specified in the notice, which date will be no earlier
than 30 days and no later than 60 days from the date such notice is
mailed (the Change of Control Payment Date), pursuant to the
procedures required by the 8.125% Senior Notes and the indenture
and described in such notice. We must comply with the requirements
of Rule 14e-1 under the Securities Exchange Act of 1934, as amended
(the Exchange Act), and any other securities laws and regulations
thereunder to the extent those laws and regulations are applicable
in connection with the repurchase of the 8.125% Senior Notes as a
result of a Change of Control Triggering Event. To the extent that
the provisions of any securities laws or regulations conflict with
the Change of Control Triggering Event provisions of the 8.125%
Senior Notes, we will be required to comply with the applicable
securities laws and regulations and will not be deemed to have
breached our obligations under the Change of Control Triggering
Event provisions of the 8.125% Senior Notes by virtue of such
conflicts.
On the Change of Control Payment Date, we will be required, to
the extent lawful, to:
We will not be required to make a Change of Control Offer upon
the occurrence of a Change of Control Triggering Event if a third
party makes such an offer in the manner, at the times and otherwise
in compliance with the requirements for a Change of Control Offer
made by us and the third party repurchases all 8.125% Senior Notes
properly tendered and not withdrawn under its offer. In addition,
we will not repurchase any 8.125% Senior Notes if there has
occurred and is continuing on the Change of Control Payment Date an
event of default under the indenture governing the 8.125% Senior
Notes, other than a default in the payment of the Change of Control
Payment upon a Change of Control Triggering Event.
The change of control feature of the 8.125% Senior Notes may in
certain circumstances make more difficult or discourage a sale or
takeover of us and, thus, the removal of incumbent management. We
could, in the future, enter into certain transactions, including
acquisitions, refinancings or other recapitalizations, that would
not constitute a Change of Control under the 8.125% Senior Notes,
but that could increase the amount of our indebtedness outstanding
at such time or otherwise affect our capital structure or credit
ratings on the 8.125% Senior Notes.
For purposes of the foregoing discussion of a repurchase at the
option of holders, the following definitions are applicable:
Below Investment Grade Rating Event means that 8.125% Senior
Notes cease to be rated at or above an Investment Grade Rating by
at least two of the three Rating Agencies (as defined below) on any
date during the period (the Trigger Period) commencing 60 days
prior to the first public announcement by us of any Change of
Control (or pending Change of Control) and ending 60 days following
consummation of such Change of Control (which Trigger Period will
be extended following consummation of a Change of Control for so
long as any of the Rating Agencies has publicly announced that it
is considering a possible ratings change). Unless at least two of
the three Rating Agencies are providing a rating for the 8.125%
Senior Notes at the commencement of any Trigger Period, the 8.125%
Senior Notes will be deemed to have ceased to be rated Investment
Grade by at least two of the three Rating Agencies during that
Trigger Period.
A Change of Control will be deemed to have occurred at such time
after the original issuance of the 8.125% Senior Notes when any of
the following has occurred:
(1) a person or group within the meaning of Section 13(d) of the
Exchange Act, other than us, our Subsidiaries, our and their
respective employee benefit plans and any Permitted Holder, has
become the direct or indirect beneficial owner, as defined in Rule
13d-3 under the Exchange Act, of our capital stock representing, in
the aggregate, more than 50% of the voting power of all classes of
our capital stock; or
(2) one or more Permitted Holders shall cease to (i) own and
control, beneficially, capital stock of ours that possesses the
voting power under normal circumstances to cast 50% or more of the
total votes entitled to be cast for the election of directors of
ours; or (ii) have the voting power or the contractual right to
elect a majority of our directors; or
(3) our liquidation or dissolution or our stockholders approve
any plan or proposal for our liquidation or dissolution; or
(4) any conveyance, transfer, sale, lease or other disposition
of all or substantially all of the properties and assets of ours to
another person, other than:
Notwithstanding the foregoing, no Change of Control will be
deemed to have occurred in the event any successor issuer of the
8.125% Senior Notes shall be a corporation so long as one or more
Permitted Holders shall maintain the beneficial ownership of shares
of the capital stock of such successor possessing the voting power
under normal circumstances to elect, or one or more Permitted
Holders shall have the contractual right to elect, a majority of
the directors of such successor corporation. Notwithstanding the
foregoing, a transaction will not be deemed to result in a Change
of Control if (a) Cantor Fitzgerald, L.P. becomes a wholly owned
subsidiary of a holding company and (b) the holders of the voting
capital stock of such holding company immediately following that
transaction are substantially the same as the holders of Cantor
Fitzgerald, L.P.s voting partnership interests immediately prior to
that transaction.
Change of Control Triggering Event means the occurrence of both
a Change of Control and a Below Investment Grade Rating Event.
Fitch means Fitch Ratings.
Investment Grade Rating means a rating equal to or higher than
BBB- (or the equivalent) by Fitch, Baa3 (or the equivalent) by
Moodys and BBB- (or the equivalent) by S&P.
Moodys means Moodys Investors Service, Inc.
Permitted Holder means Howard W. Lutnick, any Person controlled
by him or any trust established for Mr. Lutnicks benefit or for the
benefit of his spouse, any of his descendants or any of his
relatives, in each case, so long as he is alive and, upon his death
or incapacity, any Person who shall, as a result of Mr. Lutnicks
death or incapacity, become a beneficial owner (as defined in Rule
13d-3 under the Exchange Act) of our capital stock by operation of
a trust, by will or the laws of descent and distribution or by
operation of law.
Person means an individual, a corporation, a limited liability
company, an association, a partnership, a joint venture, a joint
stock company, a trust, an unincorporated organization or a
government or agency or political subdivision thereof.
Rating Agencies means (1) each of Fitch, Moodys and S&P; and
(2) if any of Fitch, Moodys or S&P ceases to rate the 8.125%
Senior Notes or fails to make a rating of the 8.125% Senior Notes
publicly available for reasons outside of our control, a nationally
recognized statistical rating organization within the meaning of
Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act, selected by us (as
certified by a resolution of our board of directors) as a
replacement agency for Fitch, Moodys or S&P, or all of them, as
the case may be.
S&P means Standard & Poors Ratings Services, a division
of The McGraw-Hill Companies, Inc.
Certain Covenants
Limitations on Liens on Stock of Subsidiaries
Under the indenture governing the 8.125% Senior Notes, we agreed
that, so long as any of the 8.125% Senior Notes are outstanding, we
will not permit any Designated Subsidiary to create, assume, incur,
guarantee or otherwise permit to exist any Indebtedness secured by
any mortgage, pledge, lien, security interest or other encumbrance
(a lien) upon any shares of capital stock of any Designated
Subsidiary directly or indirectly held by us (whether such capital
stock is now owned or hereafter acquired) without effectively
providing concurrently that the 8.125% Senior Notes (and, if we so
elect, any other Indebtedness of ours that is not subordinate to
the 8.125% Senior Notes and with respect to which the governing
instruments of such Indebtedness require, or pursuant to which we
are otherwise obligated, to provide such security) will be secured
equally and ratably with, or prior to, such Indebtedness for at
least the time period such other Indebtedness is so secured. The
foregoing does not apply to liens on the securities of any entity
existing at the time it becomes a Designated Subsidiary (and any
extensions, renewals or replacements thereof).
The term capital stock of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or
other equivalents of or interests in (however designated) equity of
such Person, including preferred stock, but excluding any debt
securities convertible into such equity.
The term Designated Subsidiary means each of (i) BGC Holdings,
L.P., (ii) BGC Global Holdings, L.P. (iii) BGC Partners, L.P., and
(iv) any other direct or indirect subsidiary now owned or hereafter
acquired by us for which (a) the Net Assets constitute, as of the
last day of the most recently ended fiscal quarter, 5% or more of
our Total Stockholders Equity or (b) the net revenues constitute,
as of the last day of the most recently ended fiscal quarter, 10%
or more of the consolidated net revenues of ours during the most
recently ended period of four consecutive fiscal quarters;
provided, however, that the following shall not be Designated
Subsidiaries:
The term Indebtedness means, without duplication, with respect
to any Person, whether or not contingent:
if and to the extent any of the preceding items (other than
letters of credit) would appear as a liability upon a balance sheet
of such Person prepared in accordance with U.S. GAAP; provided,
however, the term Indebtedness includes all of the following items,
whether or not any such items would appear as a liability on a
balance sheet of such person prepared in accordance with U.S.
GAAP:
The term Net Assets means, with respect to any Person, the
excess (if positive) of (a) such Persons consolidated assets over
(b) such Persons consolidated liabilities, in each case determined
in accordance with U.S. GAAP.
The term Total Stockholders Equity means, as of the date of
determination, without duplication, all items which in conformity
with U.S. GAAP would be included under total stockholders equity on
our consolidated statement of financial condition. For purposes of
any determination of Total Stockholders Equity, we may include the
amount of any capital to be returned pursuant to the terms of the
Agreement of Limited Partnership of BGC Holdings, as amended from
time to time, to any limited or general partner who has been
terminated or withdrawn until such time as the amount of such
partners capital has been paid to such limited or general partner
pursuant to the terms of such Partnership Agreement plus, without
duplication, redeemable partnership interest representing former
partners equity in us. For the avoidance of doubt, Total
Stockholders Equity is inclusive of noncontrolling interests in
subsidiaries on our consolidated statement of financial
condition.
Consolidation, Merger or Sale
We may not consolidate or merge with or into, or transfer or
lease all or substantially all of our assets to, any Person unless
either (a) we will be the continuing entity or (b) the successor
entity or Person to which our assets are transferred or leased is
an entity organized under the laws of the United States, any state
of the United States or the District of Columbia and it expressly
assumes our obligations on the 8.125% Senior Notes and under the
indenture governing the 8.125% Senior Notes. In addition, we cannot
effect such a transaction unless, immediately after giving effect
to such transaction, no default or event of default under such
indenture shall have occurred and be continuing. Subject to certain
exceptions, when the Person to whom our assets are transferred or
leased has assumed our obligations under the 8.125% Senior Notes
and the indenture governing the 8.125% Senior Notes, we will be
discharged from all our obligations under the 8.125% Senior Notes
and the indenture governing the 8.125% Senior Notes, except in
limited circumstances.
This covenant does not apply to any recapitalization
transaction, a change of control of us or a highly leveraged
transaction, unless the transaction or change of control were
structured to include a merger or consolidation or transfer or
lease of all or substantially all of our assets.
Modification, Amendment or Waiver
We may from time to time amend or supplement the indenture
governing the 8.125% Senior Notes and the 8.125% Senior Notes
without the consent of registered holders to, among other things,
(i) modify the restrictions on
and procedures for resale, attempted resale, and other transfers
of the 8.125% Senior Notes or interests therein to reflect any
change in applicable law or regulation (or interpretation thereof)
or in practices relating to the resale or transfer of restricted
securities generally or (ii) to cure any ambiguity or defect in and
to correct or supplement any provision of such indenture or any
8.125% Senior Note that may be inconsistent with any other
provision in the indenture or the 8.125% Senior Notes; provided,
however, that any such cure, correction or supplement shall not
adversely affect the interests of the holders of the 8.125% Senior
Notes in any material respect.
With certain exceptions, we may make modifications and
amendments of the indenture governing the 8.125% Senior Notes with
the consent of the registered holders of not less than a majority
in aggregate principal amount of the 8.125% Senior Notes at the
time outstanding under such indenture. Compliance with certain
covenants may be waived on behalf of registered holders, either
generally or in a specific instance and either before or after the
time for compliance with those covenants, with the consent of
holders of not less than a majority in aggregate principal amount
of the then outstanding 8.125% Senior Notes. Nevertheless, without
the consent of each registered holder of the 8.125% Senior Notes,
no such modification or amendment may, among other things, reduce
the principal of or interest on any of the outstanding 8.125%
Senior Notes, extend the stated maturity of the 8.125% Senior
Notes, change the interest payment dates or terms of payment for
the 8.125% Senior Notes, or reduce the percentage of registered
holders necessary to modify or amend such indenture and the 8.125%
Senior Notes.
Events of Default
Unless otherwise indicated, the term Event of Default, when used
in the indenture governing the 8.125% Senior Notes means any of the
following:
If an Event of Default relating to the payment of interest or
principal with respect to the 8.125% Senior Notes has occurred and
is continuing, the trust