As
filed with the Securities and Exchange Commission on June 14, 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
Protagenic
Therapeutics, Inc.
(Exact
name of registrant as specified in its charter)
Delaware |
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149 Fifth
Avenue
New York, New York 10010
212-994-8200 |
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06-1390025 |
(State
or other jurisdiction of
incorporation
or organization) |
|
(Address, including zip
code, and telephone number, including area code, of registrant’s principal executive offices) |
|
(I.R.S.
Employer
Identification
Number) |
Garo
Armen
Executive
Chairman
Protagenic
Therapeutics, Inc.
149 Fifth Avenue
New York, New York 10010
212-994-8200
(Name,
address, including zip code, and telephone number,
including area code, of agent for service)
With
copies to:
Dean
M. Colucci, Esq.
Kelly
R. Carr, Esq.
Duane
Morris LLP
1540
Broadway
New
York, NY 10036
Telephone:
(973) 424-2020
Approximate
date of commencement of proposed sale to the public: From time to time after this Registration Statement becomes effective.
If
the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box. ☐
If
any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, as amended (“Securities Act”), other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. ☒
If
this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act Registration Statement number of the earlier effective Registration Statement for the same
offering. ☐
If
this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act Registration Statement number of the earlier effective Registration Statement for the same offering. ☐
If
this Form is a Registration Statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate
by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer”
and “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer |
☐ |
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Accelerated filer |
☐ |
Non-accelerated filer |
☒ |
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Smaller reporting company |
☒ |
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Emerging growth company |
☐ |
The
Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective
in accordance with section 8(a) of the Securities Act or until this Registration Statement shall become effective on such date as the
Commission acting pursuant to said section 8(a), may determine.
Pursuant
to Rule 415(a)(5) under the Securities Act of 1933 (the “Securities Act”), the Registrant intends to continue to offer and
sell securities under the Registrant’s registration statement on Form S-3 (File No. 333-256790) originally filed on June 4, 2021
and declared effective on June 23, 2021 (the “Prior Registration Statement”), until the earlier of (i) the date on which
the registration statement of which this prospectus forms a part (this “Registration Statement”) is declared effective by
the Securities and Exchange Commission, and (ii) December 20, 2024, which is 180 days after the third-year anniversary of the effective
date of the Prior Registration Statement (the “Expiration Date”). Until the Expiration Date, the Registrant may continue
to use the Prior Registration Statement and related prospectus supplements for offerings thereunder. In particular, the Registrant may
continue to offer and sell under the Prior Registration Statement shares of common stock in its at-the-market offering through B. Riley
Securities, Inc. and E.F. Hutton, division of Benchmark Investments, LLC, as sales agents, which offering shall remain registered under
the Prior Registration Statement using a prospectus supplement filed on July 2, 2021, until the Expiration Date. The Prior Registration
Statement and all offers and sales thereunder will be deemed terminated on the Expiration Date, except to the extent covered by this
Registration Statement.
Pursuant
to Rule 415(a)(6) under the Securities Act, this Registration Statement includes unsold securities under the Prior Registration Statement,
in addition to new securities being registered on this Registration Statement. Pursuant to Rule 415(a)(6), on or before the Expiration
Date, the Registrant may file a pre-effective amendment to this Registration Statement to update the amount of unsold securities previously
registered by the Prior Registration Statement being registered hereby, and continue to offer and sell such unsold securities under this
Registration Statement, including without limitation by continuing to conduct the at-the-market offering referenced above. If applicable,
such pre-effective amendment shall identify such unsold securities to be included in this Registration Statement, and the amount of any
new securities to be registered on this Registration Statement.
The
information in this prospectus is not complete and may be changed. We may not sell these securities or accept an offer to buy these securities
until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus
is not an offer to sell these securities and is not soliciting an offer to buy these securities in any jurisdiction where such offer
or sale is not permitted.
SUBJECT
TO COMPLETION, DATED JUNE 14, 2024
PROSPECTUS
$100,000,000
Common
Stock
Preferred
Stock
Depositary
Shares
Debt
Securities
Rights
to Purchase Common Stock, Preferred Stock
Warrants
Units
We
may offer and sell, from time to time in one or more offerings, any combination of common stock, preferred stock, debt securities, warrants,
or units having a maximum aggregate offering price of $100,000,000. When we decide to sell a particular class or series of securities,
we will provide specific terms of the offered securities in a prospectus supplement.
This
prospectus provides a general description of the securities we may offer. Each time we decide to offer securities pursuant to this prospectus,
we will provide a prospectus supplement containing specific terms of the particular offering together with this prospectus.
This
prospectus may not be used to offer and sell securities unless accompanied by the applicable prospectus supplement.
We
may sell the securities directly or to or through underwriters or dealers, and also to other purchasers or through agents. The names
of any underwriters or agents that are included in a sale of securities to you, and any applicable commissions or discounts, will be
stated in an accompanying prospectus supplement. In addition, the underwriters, if any, may over-allot a portion of the securities.
We
are a “smaller reporting company” as defined under the federal securities laws and, as such, are eligible for reduced public
company reporting requirements. See “Prospectus Summary - Implications of Being a Smaller Reporting Company.”
Our
common stock is listed on The Nasdaq Capital Market under the symbol “PTIX.” On June 13, 2024, the last reported sale
price of our common stock was $.927.
As
of June 14, 2024, the aggregate market value of our common stock held by non-affiliates pursuant to General Instruction I.B.6
of Form S-3 was $6,035,093, which is based on 3,354,693 shares of our common stock outstanding held by non-affiliates and
a price of $1.799 per share, the closing price of our common stock on May 22, 2024 which is the highest closing sale price of
our common stock on the Nasdaq Capital Market within the sixty (60) days prior to the date of this prospectus supplement. Pursuant to
General Instruction I.B.6 of Form S-3, in no event will we sell the securities described in this prospectus in a public primary offering
with an aggregate market value exceeding more than one-third of the aggregate market value of our common stock held by non-affiliates
in any 12-month period, so long as the aggregate market value of our outstanding common stock held by non-affiliates remains below $75
million. During the 12 calendar months prior to and including the date of this prospectus, we have not offered or sold any securities
pursuant to General Instruction I.B.6 of Form S-3.
An
investment in our securities involves a high degree of risk. We strongly recommend that you read carefully the risks we describe in this
prospectus and in any accompanying prospectus supplement, as well as the risk factors that are incorporated by reference into this prospectus
from our filings made with the Securities and Exchange Commission. See “Risk Factors” beginning on page 4 of this
prospectus.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed
upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The
date of this prospectus is , 2024
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission, or SEC, using a
“shelf” registration process. Under this shelf registration statement, we may sell from time to time in one or more offerings
up to a total dollar amount of $100,000,000 of common stock and preferred stock, depositary shares representing preferred stock and various
series of debt securities, rights, warrants to purchase any of such securities, and/or units, either individually or in combination with
other securities as described in this prospectus. Each time we sell any type or series of securities under this prospectus, we will provide
a prospectus supplement that will contain more specific information about the terms of that offering. We may also authorize one or more
free writing prospectuses to be provided to you that may contain material information relating to these offerings. We may also add, update
or change in a prospectus supplement or free writing prospectus any of the information contained in this prospectus or in documents we
have incorporated by reference into this prospectus. This prospectus, together with any applicable prospectus supplement or free writing
prospectus and the documents incorporated by reference into this prospectus, include all material information relating to this offering.
You should carefully read both this prospectus and any applicable prospectus supplement and any related free writing prospectus together
with the additional information described under “Where You Can Find More Information” before buying securities in this offering.
This
prospectus may not be used to consummate a sale of securities unless it is accompanied by a prospectus supplement.
You
should rely only on the information contained in, or incorporated by reference into, this prospectus and the applicable prospectus supplement,
along with the information contained in any free writing prospectuses we have authorized for use in connection with a specific offering.
We have not authorized anyone to provide you with different or additional information. We are not making an offer to sell or seeking
an offer to buy securities under this prospectus or any applicable prospectus supplement or free writing prospectus in any jurisdiction
where the offer or sale is not permitted. The information contained in this prospectus, any applicable prospectus supplement or free
writing prospectus and the documents incorporated by reference herein and therein are accurate only as of their respective dates, regardless
of the time of delivery of this prospectus or any sale of a security.
The
information appearing in this prospectus, any applicable prospectus supplement and any related free writing prospectus is accurate only
as of the date on the front of the document and any information we have incorporated by reference is accurate only as of the date of
the document incorporated by reference, regardless of the time of delivery of this prospectus, the applicable prospectus supplement or
any related free writing prospectus, or any sale of a security. Our business, financial condition, results of operations and prospects
may have changed since those dates.
This
prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the
actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some
of the documents referred to herein have been filed, will be filed or will be incorporated by reference as exhibits to the registration
statement of which this prospectus is a part, and you may obtain copies of those documents as described below under the section entitled
“Where You Can Find More Information.”
We
may sell securities through underwriters or dealers, through agents, directly to purchasers or through any combination of these methods.
We and our agents reserve the sole right to accept or reject in whole or in part any proposed purchase of securities. The prospectus
supplement, which we will prepare and file with the SEC each time we offer securities, will set forth the names of any underwriters,
agents or others involved in the sale of securities, and any applicable fee, commission or discount arrangements with them. See “Plan
of Distribution.”
In
this prospectus, unless otherwise indicated, “our company,” “Protagenic,” “we,” “us”
or “our” refer to Protagenic Therapeutics, Inc., a Delaware corporation, and its consolidated subsidiaries.
PROSPECTUS
SUMMARY
This
summary highlights selected information from this prospectus and does not contain all of the information that you need to consider in
making your investment decision. You should carefully read the entire prospectus, the applicable prospectus supplement and any related
free writing prospectus, including the risks of investing in our securities discussed under the heading “Risk Factors” contained
in the applicable prospectus supplement and any related free writing prospectus, and under similar headings in the other documents that
are incorporated by reference into this prospectus. You should also carefully read the information incorporated by reference into this
prospectus, including our consolidated financial statements, and the exhibits to the registration statement of which this prospectus
is a part.
Our
Company
We
are a biopharmaceutical company specializing in the discovery and development of therapeutics to treat stress-related neuropsychiatric
and mood disorders. Our proprietary, patent-protected, first-in-class lead compound, PT00114, is a synthetic form of Teneurin Carboxy-terminal
Associated Peptide (“TCAP”), an endogenous brain signaling peptide that can dampen overactive stress responses. Our preclinical
models have demonstrated efficacy of PT00114 in animal models of depression, anxiety, substance abuse & addiction, and PTSD.
PT00114
leverages a completely novel mechanism of action. Protagenic owns exclusive, worldwide rights to PT00114 through its license agreement
with the University of Toronto and has an exclusive right to license additional intellectual property generated by Dr. David Lovejoy’s
lab at University of Toronto. Additionally, the company is engaged in the research & development of follow-on compounds in the TCAP
family. Extensive publications in peer-reviewed scientific journals underline the central role stress plays in the onset and proliferation
of neuropsychiatric disorders like depression, anxiety, substance abuse & addiction, and PTSD. The mechanism of action of TCAP suggests
that it counterbalances stress overdrive at the cellular level within the brain’s stress response cascade. TCAP works to alleviate
the harmful behavioral, biochemical, and physiological effects of these disorders, while simultaneously restoring brain health. This
mechanism has been corroborated in preclinical animal models of the psychiatric disorders listed above. We completed our preclinical
experiments required for to begin a clinical trial in the first half of 2023. We commenced our first human trial, seeking to prove the
safety and efficacy of PT00114, on September 26, 2023. We announced that the trial has passed its safety milestone, relating to the complete
enrollment of the first cohort of patients in the single-dose portion of the Phase I trial, on February 13, 2024. We currently anticipate
that we will be able to announce the complete results of the single-dose portion of the Phase I trial in the second quarter of 2024.
As
we have transitioned into a clinical-stage company, we currently aim to complete certain key strategic and tactical milestones over the
coming two years:
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Rapidly
advance our lead product candidate, PT00114, through clinical trials in treatment resistant depression, substance use disorder, generalized
anxiety disorder, and/or post-traumatic stress disorder |
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Develop
additional product candidates from the TCAP family to build out a broad pipeline of assets with differentiated features using our
unique expertise with this mechanism |
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Explore
efficacy in additional stress-related neuropsychiatric and mood disorders beyond initially targeted indications |
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Facilitate
long-term growth by building a nimble R&D, operational, clinical and commercial team |
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Proactively
assess strategic partnership opportunities including in important international markets |
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Continue
with our strategy of strengthening our IP position in this important novel field of neuropsychiatry |
Our
principal offices are located at 149 Fifth Avenue, Suite 500, New York, New York 10010.
Our web address is www.protagenic.com.
We
make available, free of charge through our website, our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports
on Form 8-K and amendments to those reports filed or furnished pursuant to Section 13(a) of the Securities Exchange Act of 1934, as amended,
as soon as reasonably practicable after we electronically file or furnish such materials to the Securities and Exchange Commission, or
SEC. In addition, you may read and copy any materials we file with the SEC at its Public Reference Room at 100 F Street, NE, Washington,
DC 20549, on official business days during the hours of 10:00 am to 3:00 pm. You may obtain information on the operation of the Public
Reference Room by calling the SEC at 1-800-SEC-0330. The SEC maintains an Internet site, www.sec.gov that contains reports, proxy
and information statements, and other information that we file electronically with the SEC. All statements made in any of our securities
filings, including all forward-looking statements or information, are made as of the date of the document in which the statement is included,
and we do not assume or undertake any obligation to update any of those statements or documents unless we are required to do so by law.
Implications
of Being a Smaller Reporting Company
We
are a “smaller reporting company” as defined in the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
We may take advantage of certain of the scaled disclosures available to smaller reporting companies until the last day of the fiscal
year in which (i) the market value of our common stock held by non-affiliates exceeds $250 million as of the end of that year’s
second fiscal quarter and our annual revenue exceeds $100 million during such completed fiscal year, or (ii) the market value of our
common stock held by non-affiliates exceeds $700 million, regardless of our annual revenue, as of the end of that year’s second
fiscal quarter.
The
Securities We May Offer
We
may offer shares of our common stock and preferred stock, depositary shares representing a fractional interest in a share of preferred
stock, various series of debt securities, rights, warrants to purchase any of such securities, and/or units either individually or in
combination with other securities, with a total value of up to $100,000,000 from time to time under this prospectus, together with the
applicable prospectus supplement and any related free writing prospectus, at prices and on terms to be determined at the time of any
offering. We may also offer common stock, preferred stock and/or debt securities upon the exercise of the rights or warrants. This prospectus
provides you with a general description of the securities we may offer. Each time we offer a type or series of securities under this
prospectus, we will provide a prospectus supplement that will describe the specific amounts, prices and other important terms of the
securities, including.
RISK
FACTORS
Investing
in our securities involves risk. You should carefully consider the specific risks discussed or incorporated by reference into the applicable
prospectus supplement, together with all the other information contained in the prospectus or incorporated by reference into this prospectus
and the applicable prospectus supplement. You should also consider the risks, uncertainties and assumptions discussed under the caption
“Risk Factors” included in our Annual Report on Form 10-K for the year ended December 31, 2023, and in subsequent filings,
which are incorporated by reference into this prospectus. These risk factors may be amended, supplemented or superseded from time to
time by other reports we file with the SEC in the future or by a prospectus supplement relating to a particular offering of our securities.
These risks and uncertainties are not the only risks and uncertainties we face. Additional risks and uncertainties not presently known
to us, or that we currently view as immaterial, may also impair our business. If any of the risks or uncertainties described in our SEC
filings or any prospectus supplement or any additional risks and uncertainties actually occur, our business, financial condition and
results of operations could be materially and adversely affected. In that case, the trading price of our securities could decline and
you might lose all or part of your investment.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus contains “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended,
or Securities Act, and Section 21E of the Securities Exchange Act of 1934, or Exchange Act. Forward-looking statements reflect the current
view about future events. When used in this prospectus, the words “anticipate,” “believe,” “estimate,”
“expect,” “future,” “intend,” “plan,” or the negative of these terms and similar expressions,
as they relate to us or our management, identify forward-looking statements. Such statements, include, but are not limited to, statements
contained in this prospectus relating to our business strategy, our future operating results and liquidity and capital resources outlook.
Forward-looking statements are based on our current expectations and assumptions regarding our business, the economy and other future
conditions. Because forward–looking statements relate to the future, they are subject to inherent uncertainties, risks and changes
in circumstances that are difficult to predict. Our actual results may differ materially from those contemplated by the forward-looking
statements. They are neither statements of historical fact nor guarantees of assurance of future performance. We caution you therefore
against relying on any of these forward-looking statements. Important factors that could cause actual results to differ materially from
those in the forward-looking statements include, without limitation, the results of clinical trials and the regulatory approval process;
our ability to raise capital to fund continuing operations; market acceptance of any products that may be approved for commercialization;
our ability to protect our intellectual property rights; the impact of any infringement actions or other litigation brought against us;
competition from other providers and products; our ability to develop and commercialize new and improved products and services; changes
in government regulation; our ability to complete capital raising transactions; and other factors (including the risks contained in the
section entitled “Risk Factors” of the applicable prospectus supplement) relating to our industry, our operations and results
of operations. Should one or more of these risks or uncertainties materialize, or should the underlying assumptions prove incorrect,
actual results may differ significantly from those anticipated, believed, estimated, expected, intended or planned.
Factors
or events that could cause our actual results to differ may emerge from time to time, and it is not possible for us to predict all of
them. We cannot guarantee future results, levels of activity, performance or achievements. Except as required by applicable law, including
the securities laws of the United States, we do not intend to update any of the forward-looking statements to conform these statements
to actual results.
DIVIDEND
POLICY
We
have never paid or declared any cash dividends on our common stock, and we do not anticipate paying any cash dividends on our common
stock in the foreseeable future. We intend to retain all available funds and any future earnings to fund the development and expansion
of our business. Any future determination to pay dividends will be at the discretion of our board of directors and will depend upon a
number of factors, including our results of operations, financial condition, future prospects, contractual restrictions, restrictions
imposed by applicable law and other factors our board of directors deems relevant.
USE
OF PROCEEDS
Except
as otherwise provided in the applicable prospectus supplement, we intend to use the net proceeds from the sale of the securities covered
by this prospectus for general corporate purposes, which may include, but is not limited to, working capital, capital expenditures, research
and development clinical trial expenditures, acquisitions of additional companies or technologies and investments. We may temporarily
invest the net proceeds in investment-grade, interest-bearing securities until they are used for their stated purpose. We may also use
a portion of the net proceeds to acquire or invest in businesses and products that are complementary to our own, although we have no
current plans, commitments or agreements with respect to any acquisitions as of the date of this prospectus. We have not determined the
amount of net proceeds to be used specifically for such purposes. As a result, management will retain broad discretion over the allocation
of net proceeds.
DESCRIPTION
OF CAPITAL STOCK
The
following is a description of our Common Stock, $0.0001 par value (the “Common Stock”) and Preferred Stock, $0.000001 par
value (the “Preferred Stock”). The Common Stock is the only security of the Company registered pursuant to Section 12 of
the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
General.
We are authorized to issue 120,000,000 shares of all classes of capital stock, of which 100,000,000 shares are Common Stock, $0.001 par
value per share, and 20,000,000 shares are Preferred Stock, $0.000001 par value per share. Our capital is stated in U.S. dollars. As
of June 10, 2024, we had 4,452,270 outstanding shares of Common Stock.
Common
Stock
Voting.
The holders of our common stock are entitled to one vote for each share held of record on all matters on which the holders are entitled
to vote (or consent pursuant to written consent).
Dividends.
The holders of our common stock are entitled to receive, ratably, dividends only if, when and as declared by our board of directors out
of funds legally available therefor and after provision is made for each class of capital stock having preference over the common stock.
We have never declared or paid dividends. We do not intend to pay cash dividends on our common stock for the foreseeable future, but
currently intend to retain any future earnings to fund the development and growth of our business. The payment of dividends if any, on
our common stock will rest solely within the discretion of our board of directors and will depend, among other things, upon our earnings,
capital requirements, financial condition, and other relevant factors.
Liquidation
Rights. In the event of our liquidation, dissolution or winding-up, the holders of our common stock are entitled to share, ratably,
in all assets remaining available for distribution after payment of all liabilities and after provision is made for each class of capital
stock having preference over the common stock.
Conversion
Rights. The holders of our common stock have no conversion rights.
Preemptive
and Similar Rights. The holders of our common stock have no preemptive or similar rights.
Redemption/Put
Rights. There are no redemption or sinking fund provisions applicable to the common stock. All of the outstanding shares of our
common stock are fully-paid and non-assessable.
Anti-Takeover
Effect of Delaware Law, Certain Charter and Bylaw Provisions
In
addition to the provisions included in our Third Amended and Restated Certificate of Incorporation and Bylaws, we are subject to the
provisions of Section 203 of the General Corporation Law of the State of Delaware, an anti-takeover law. In general, Section 203 prohibits
a publicly held Delaware corporation from engaging in a “business combination” with an “interested stockholder”
for a period of three years after the date of the transaction in which the person became an interested stockholder, unless the business
combination is approved in the following prescribed manner:
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prior to the time of the
transaction, the board of directors of the corporation approved either the business combination or the transaction which resulted
in the stockholder becoming an interested stockholder; |
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upon completion of the
transaction that resulted in the stockholder becoming an interested stockholder, the stockholder owned at least 85% of the voting
stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the number of shares
outstanding (1) shares owned by persons who are directors and also officers and (2) shares owned by employee stock plans in which
employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered
in a tender or exchange offer; and |
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on or subsequent to the
time of the transaction, the business combination is approved by the board and authorized at an annual or special meeting of stockholders,
and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting stock which is not owned by the
interested stockholder. |
Generally,
for purposes of Section 203, a “business combination” includes a merger, asset or stock sale, or other transaction resulting
in a financial benefit to the interested stockholder. An “interested stockholder” is a person who, together with affiliates
and associates, owns or, within three years prior to the determination of interested stockholder status, owned 15% or more of a corporation’s
outstanding voting securities.
Transfer
Agent and Registrar
Equiniti
Trust Company, LLC is the transfer agent and registrar
for our common stock.
Preferred
Stock
Under
the terms of our Third Amended and Restated Certificate of Incorporation, our board of directors have the authority, without further
action by our stockholders, to issue up to 20,000,000 shares of Preferred Stock in one or more series, to establish from time to time
the number of shares to be included in each such series, to fix the rights, preferences and privileges of the shares of each wholly unissued
series and any qualifications, limitations or restrictions thereon, and to increase or decrease the number of shares of any such series,
but not below the number of shares of such series then outstanding. The powers, preferences and relative, participating, optional and
other special rights of each series of Preferred Stock, and the qualifications, limitations or restrictions thereof, if any, may differ
from those of any and all other series at any time outstanding.
Our
board of directors may authorize the issuance of Preferred Stock with voting or conversion rights that could adversely affect the voting
power or other rights of the holders of our Common Stock. The purpose of authorizing our board of directors to issue Preferred Stock
and determine its rights and preferences is to eliminate delays associated with a stockholder vote on specific issuances. The issuance
of Preferred Stock, while providing flexibility in connection with possible acquisitions and other corporate purposes, could, among other
things, have the effect of delaying, deferring or preventing a change in control of us and may adversely affect the market price of our
Common Stock and the voting and other rights of the holders of our Common Stock. It is not possible to state the actual effect of the
issuance of any shares of Preferred Stock on the rights of holders of Common Stock until the board of directors determines the specific
rights attached to that Preferred Stock.
DESCRIPTION
OF DEPOSITARY SHARES
We
may offer depositary shares, which will be evidenced by depositary receipts, representing fractional interests in shares of preferred
stock of any series. In connection with the issuance of any depositary shares, we will enter into a deposit agreement with a bank or
trust company, as depositary, which will be named in the applicable prospectus supplement. The following briefly summarizes the material
provisions of the deposit agreement and of the depositary shares and depositary receipts, other than pricing and related terms disclosed
for a particular issuance in an accompanying prospectus supplement. This description is not complete and is subject to, and qualified
in its entirety by reference to, all provisions of the deposit agreement, depositary shares and depositary receipts. You should read
the particular terms of any depositary shares and any depositary receipts that we offer and any deposit agreement relating to a particular
series of preferred stock described in more detail in a prospectus supplement. The prospectus supplement will also state whether any
of the generalized provisions summarized below do not apply to the depositary shares or depositary receipts being offered.
General
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 share of a particular series of preferred stock.
For a description of our preferred stock, see “Description of Capital Stock–Preferred Stock.”
The
shares of any series of preferred stock represented by depositary shares will be deposited under a deposit agreement between us and the
depositary we select. Each owner of a depositary share will be entitled to all the rights and preferences of the underlying preferred
stock, including any dividend, voting, redemption, conversion and liquidation rights described in the particular prospectus supplement,
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, if any, received in respect of the deposited
preferred stock to the record holders of depositary shares relating to the preferred stock in proportion to the number of depositary
shares owned by such holders on the relevant record date.
In
the case of a distribution other than in cash, the preferred stock depositary will distribute any property received by it other than
cash to the record holders of depositary shares entitled to receive it in proportion to the number of depositary shares owned by such
holder. If the preferred stock depositary determines that it is not feasible to make such a distribution, it may, with our approval,
sell the property and distribute the net proceeds from the sale to the holders of the depositary shares.
The
amounts distributed in any such distribution, whether in cash or otherwise, will be reduced by any amount required to be withheld by
us or the preferred stock depositary on account of taxes.
Withdrawal
of Preferred Stock
Unless
otherwise indicated in the applicable prospectus supplement and unless the related depositary shares have been called for redemption,
when a holder surrenders depositary receipts at the office of the preferred stock depositary maintained for that purpose, and pays any
necessary taxes, charges or other fees, the holder will be entitled to receive the number of whole shares of the related series of preferred
stock, and any money or other property, if any, represented by the holder’s depositary shares. Once a holder exchanges depositary
shares for whole shares of preferred stock, that holder generally cannot “re-deposit” these shares of preferred stock with
the preferred stock depositary, or exchange them for depositary shares. If a holder delivers depositary receipts that represent a number
of depositary shares other than a whole number of shares of preferred stock for redemption or exchange, the preferred stock depositary
will issue a new depositary receipt to the holder that evidences the remainder of depositary shares at the same time that the preferred
stock is withdrawn.
Redemption,
Conversion and Exchange 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 that 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 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 shares of preferred stock 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, in each case as we may determine.
If
a series of preferred stock represented by depositary shares is to be converted or exchanged, the holder of depositary receipts representing
the shares of preferred stock being converted or exchanged will have the right or obligation to convert or exchange the depositary shares
evidenced by the depositary receipts.
After
the redemption, conversion or exchange date, the depositary shares called for redemption, conversion or exchange will no longer be outstanding.
When the depositary shares are no longer outstanding, all rights of the holders will end, except the right to receive money, securities
or other property payable upon redemption, conversion or exchange.
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 the notice of meeting to the record holders of the depositary receipts evidencing
the depositary shares relating to that series of preferred stock. Each record holder of the depositary receipts on the record date will
be entitled to instruct the preferred stock depositary to vote the amount of the preferred stock represented by the holder’s depositary
shares. The preferred stock depositary will try, if practical, 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 actions that the preferred stock depositary determines are necessary to enable the preferred stock
depositary to vote as instructed. The preferred stock depositary will abstain from voting shares of any series of preferred stock held
by it for which it does not receive specific instructions from the holders of depositary shares representing those preferred shares.
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 materially and adversely alters any existing right
of the holders of depositary receipts will not be effective unless the amendment has been approved by the holders of depositary receipts
representing at least a majority of the depositary shares then outstanding. Additionally, in the case of amendments relating to or affecting
rights to receive dividends or distributions or voting or redemption rights, approval is also required by the holders of depositary receipts
representing not less than a specified percentage or all of the depositary shares of such series or class then outstanding, as provided
in the applicable prospectus supplement. Every holder of an outstanding depositary receipt at the time any such amendment becomes effective
will be deemed, by continuing to hold the depositary receipt, to consent and agree to the amendment and to be bound by the deposit agreement,
as amended.
We
may direct the preferred stock depositary to terminate the deposit agreement at any time by mailing notice of termination to the record
holders of the depositary receipts then outstanding at least 30 days prior to the date fixed for termination. Upon termination, the preferred
stock depositary will deliver to each holder of depositary receipts, upon surrender of those receipts, such number of whole shares of
the series of preferred stock represented by the depositary shares together with cash in lieu of any fractional shares, to the extent
we have deposited cash for payment in lieu of fractional shares with the preferred stock depositary. In addition, the deposit agreement
will automatically terminate if:
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all
of the outstanding shares of the preferred stock deposited with the preferred stock depositary have been withdrawn, redeemed, converted
or exchanged; or |
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there
has been a final distribution in respect of the deposited preferred stock in connection with our liquidation, dissolution or winding
up and the distribution has been made to the holders of the related depositary shares evidenced by depositary receipts. |
Charges
of Preferred Stock Depositary; Taxes and Other Governmental Charges
We
will pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements. We also
will pay charges of the preferred stock depositary in connection with the initial deposit of preferred stock and any redemption of preferred
stock. Holders of depositary receipts will pay other transfer and other taxes and governmental charges and such other charges, including
a fee for the withdrawal of shares of preferred stock upon surrender of depositary receipts, as are expressly provided in the deposit
agreement to be for their accounts.
Prospective
purchasers of depositary shares should be aware that special tax, accounting and other issues may be applicable to instruments such as
depositary shares.
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
meeting the requirements specified in the deposit agreement and its acceptance of such appointment.
Miscellaneous
The
preferred stock depositary will forward all reports and communications from us which are delivered to the preferred stock depositary
and which we are required to furnish to the holders of the deposited preferred stock.
Neither
we nor the preferred stock depositary will be liable if we are or the preferred stock depositary is prevented or delayed by law or any
circumstances beyond our or its control in performing our or 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 in good faith of the duties under the deposit
agreement, and we and the preferred stock depositary will not 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.
DESCRIPTION
OF DEBT SECURITIES
We
may issue debt securities from time to time, in one or more series, as either senior or subordinated debt or as senior or subordinated
convertible debt. While the terms we have summarized below will apply generally to any debt securities that we may offer under this prospectus,
we will describe the particular terms of any debt securities that we may offer in more detail in the applicable prospectus supplement.
The terms of any debt securities offered under a prospectus supplement may differ from the terms described below. Unless the context
requires otherwise, whenever we refer to the indenture, we also are referring to any supplemental indentures that specify the terms of
a particular series of debt securities.
We
will issue the debt securities under the indenture that we will enter into with the trustee named in the indenture. The indenture will
be qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”). We have filed the form of indenture
as an exhibit to the Registration Statement of which this prospectus is a part, and supplemental indentures and forms of debt securities
containing the terms of the debt securities being offered will be filed as exhibits to the Registration Statement of which this prospectus
is a part or will be incorporated by reference from reports that we file with the SEC.
The
following summary of material provisions of the debt securities and the indenture is subject to, and qualified in its entirety by reference
to, all of the provisions of the indenture applicable to a particular series of debt securities. We urge you to read the applicable prospectus
supplements and any related free writing prospectuses related to the debt securities that we may offer under this prospectus, as well
as the complete indenture that contains the terms of the debt securities.
General
The
indenture does not limit the amount of debt securities that we may issue. It provides that we may issue debt securities up to the principal
amount that we may authorize and may be in any currency or currency unit that we may designate. Except for the limitations on consolidation,
merger and sale of all or substantially all of our assets contained in the indenture, the terms of the indenture do not contain any covenants
or other provisions designed to give holders of any debt securities protection against changes in our operations, financial condition
or transactions involving us.
We
may issue the debt securities issued under the indenture as “discount securities,” which means they may be sold at a discount
below their stated principal amount. These debt securities, as well as other debt securities that are not issued at a discount, may be
issued with OID for U.S. federal income tax purposes because of interest payment and other characteristics or terms of the debt securities.
Material U.S. federal income tax considerations applicable to debt securities issued with OID will be described in more detail in any
applicable prospectus supplement.
We
will describe in the applicable prospectus supplement the terms of the series of debt securities being offered, including:
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title of the series of debt securities; |
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any
limit upon the aggregate principal amount that may be issued; |
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the
maturity date or dates; |
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the
form of the debt securities of the series; |
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the
applicability of any guarantees; |
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whether
or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
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whether
the debt securities rank as senior debt, senior subordinated debt, subordinated debt or any combination thereof, and the terms of
any subordination; |
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if
the price (expressed as a percentage of the aggregate principal amount thereof) at which such debt securities will be issued is a
price other than the principal amount thereof, the portion of the principal amount thereof payable upon declaration of acceleration
of the maturity thereof, or if applicable, the portion of the principal amount of such debt securities that is convertible into another
security or the method by which any such portion shall be determined; |
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the
interest rate or rates, which may be fixed or variable, or the method for determining the rate and the date interest will begin to
accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining
such dates; |
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our
right, if any, to defer payment of interest and the maximum length of any such deferral period; |
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if
applicable, the date or dates after which, or the period or periods during which, and the price or prices at which, we may, at our
option, redeem the series of debt securities pursuant to any optional or provisional redemption provisions and the terms of those
redemption provisions; |
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the
date or dates, if any, on which, and the price or prices at which we are obligated, pursuant to any mandatory sinking fund or analogous
fund provisions or otherwise, to redeem, or at the holder’s option to purchase, the series of debt securities and the currency
or currency unit in which the debt securities are payable; |
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the
denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral multiple
thereof; |
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any
and all terms, if applicable, relating to any auction or remarketing of the debt securities of that series and any security for our
obligations with respect to such debt securities and any other terms which may be advisable in connection with the marketing of debt
securities of that series; |
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whether
the debt securities of the series shall be issued in whole or in part in the form of a global security or securities; the terms and
conditions, if any, upon which such global security or securities may be exchanged in whole or in part for other individual securities;
and the depositary for such global security or securities; |
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if
applicable, the provisions relating to conversion or exchange of any debt securities of the series and the terms and conditions upon
which such debt securities will be so convertible or exchangeable, including the conversion or exchange price, as applicable, or
how it will be calculated and may be adjusted, any mandatory or optional (at our option or the holders’ option) conversion
or exchange features, the applicable conversion or exchange period and the manner of settlement for any conversion or exchange; |
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if
other than the full principal amount thereof, the portion of the principal amount of debt securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof; |
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additions
to or changes in the covenants applicable to the particular debt securities being issued, including, among others, the consolidation,
merger or sale covenant; |
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additions
to or changes in the events of default with respect to the securities and any change in the right of the trustee or the holders to
declare the principal, premium, if any, and interest, if any, with respect to such securities to be due and payable; |
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additions
to or changes in or deletions of the provisions relating to covenant defeasance and legal defeasance; |
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additions
to or changes in the provisions relating to satisfaction and discharge of the indenture; |
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additions
to or changes in the provisions relating to the modification of the indenture both with and without the consent of holders of debt
securities issued under the indenture; |
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the
currency of payment of debt securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S. dollars; |
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whether
interest will be payable in cash or additional debt securities at our or the holders’ option and the terms and conditions upon
which the election may be made; |
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the
terms and conditions, if any, upon which we will pay amounts in addition to the stated interest, premium, if any, and principal amounts
of the debt securities of the series to any holder that is not a “United States person” for federal tax purposes; |
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any
restrictions on transfer, sale or assignment of the debt securities of the series; and |
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any
other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities, any other additions or changes
in the provisions of the indenture, and any terms that may be required by us or advisable under applicable laws or regulations. |
Conversion
or Exchange Rights
We
will set forth in the applicable prospectus supplement the terms on which a series of debt securities may be convertible into or exchangeable
for our common stock or our other securities. We will include provisions as to settlement upon conversion or exchange and whether conversion
or exchange is mandatory, at the option of the holder or at our option. We may include provisions pursuant to which the number of shares
of our common stock or our other securities that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation,
Merger or Sale
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the indenture will not contain
any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of our assets as an entirety
or substantially as an entirety. However, any successor to or acquirer of such assets (other than a subsidiary of ours) must assume all
of our obligations under the indenture or the debt securities, as appropriate.
Events
of Default Under the Indenture
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the following are events of default
under the indenture with respect to any series of debt securities that we may issue:
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if
we fail to pay any installment of interest on any series of debt securities, as and when the same shall become due and payable, and
such default continues for a period of 90 days; provided, however, that a valid extension of an interest payment period by us in
accordance with the terms of any indenture supplemental thereto shall not constitute a default in the payment of interest for this
purpose; |
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if
we fail to pay the principal of, or premium, if any, on any series of debt securities as and when the same shall become due and payable
whether at maturity, upon redemption, by declaration or otherwise, or in any payment required by any sinking or analogous fund established
with respect to such series; provided, however, that a valid extension of the maturity of such debt securities in accordance with
the terms of any indenture supplemental thereto shall not constitute a default in the payment of principal or premium, if any; |
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if
we fail to observe or perform any other covenant or agreement contained in the debt securities or the indenture, other than a covenant
specifically relating to another series of debt securities, and our failure continues for 90 days after we receive written notice
of such failure, requiring the same to be remedied and stating that such is a notice of default thereunder, from the trustee or holders
of at least 25% in aggregate principal amount of the outstanding debt securities of the applicable series; and |
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if
specified events of bankruptcy, insolvency or reorganization occur. |
If
an event of default with respect to debt securities of any series occurs and is continuing, other than an event of default specified
in the last bullet point above, the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities
of that series, by notice to us in writing, and to the trustee if notice is given by such holders, may declare the unpaid principal of,
premium, if any, and accrued interest, if any, due and payable immediately. If an event of default specified in the last bullet point
above occurs with respect to us, the principal amount of and accrued interest, if any, of each issue of debt securities then outstanding
shall be due and payable without any notice or other action on the part of the trustee or any holder.
The
holders of a majority in principal amount of the outstanding debt securities of an affected series may waive any default or event of
default with respect to the series and its consequences, except defaults or events of default regarding payment of principal, premium,
if any, or interest, unless we have cured the default or event of default in accordance with the indenture. Any waiver shall cure the
default or event of default.
Subject
to the terms of the indenture, if an event of default under an indenture shall occur and be continuing, the trustee will be under no
obligation to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of the applicable
series of debt securities, unless such holders have offered the trustee reasonable indemnity. 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, provided that:
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direction so given by the holder is not in conflict with any law or the applicable indenture; and |
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subject
to its duties under the Trust Indenture Act, the trustee need not take any action that might involve it in personal liability or
might be unduly prejudicial to the holders not involved in the proceeding. |
A
holder of the debt securities of any series will have the right to institute a proceeding under the indenture or to appoint a receiver
or trustee, or to seek other remedies only if:
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holder has given written notice to the trustee of a continuing event of default with respect to that series; |
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the
holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made written request; |
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such
holders have offered to the trustee indemnity satisfactory to it against the costs, expenses and liabilities to be incurred by the
trustee in compliance with the request; and |
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trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount of the
outstanding debt securities of that series other conflicting directions within 90 days after the notice, request and offer. |
These
limitations do not apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium,
if any, or interest on, the debt securities.
We
will periodically file statements with the trustee regarding our compliance with specified covenants in the indenture.
Modification
of Indenture; Waiver
We
and the trustee may change an indenture without the consent of any holders with respect to specific matters:
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to
cure any ambiguity, defect or inconsistency in the indenture or in the debt securities of any series; |
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to
comply with the provisions described above under “Description of Debt Securities-Consolidation, Merger or Sale;” |
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to
provide for uncertificated debt securities in addition to or in place of certificated debt securities; |
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to
add to our covenants, restrictions, conditions or provisions such new covenants, restrictions, conditions or provisions for the benefit
of the holders of all or any series of debt securities, to make the occurrence, or the occurrence and the continuance, of a default
in any such additional covenants, restrictions, conditions or provisions an event of default or to surrender any right or power conferred
upon us in the indenture; |
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to
add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue,
authentication and delivery of debt securities, as set forth in the indenture; |
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to
make any change that does not adversely affect the interests of any holder of debt securities of any series in any material respect; |
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to
provide for the issuance of and establish the form and terms and conditions of the debt securities of any series as provided above
under “Description of Debt Securities-General” to establish the form of any certifications required to be furnished pursuant
to the terms of the indenture or any series of debt securities, or to add to the rights of the holders of any series of debt securities; |
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to
evidence and provide for the acceptance of appointment under any indenture by a successor trustee; or |
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to
comply with any requirements of the SEC in connection with the qualification of any indenture under the Trust Indenture Act. |
In
addition, under the indenture, the rights of holders of a series of debt securities may be changed by us and the trustee with the written
consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of each series that is
affected. However, unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, we
and the trustee may make the following changes only with the consent of each holder of any outstanding debt securities affected:
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extending
the fixed maturity of any debt securities of any series; |
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reducing
the principal amount, reducing the rate of or extending the time of payment of interest, or reducing any premium payable upon the
redemption of any series of any debt securities; or |
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reducing
the percentage of debt securities, the holders of which are required to consent to any amendment, supplement, modification or waiver. |
Discharge
Each
indenture provides that we can elect to be discharged from our obligations with respect to one or more series of debt securities, except
for specified obligations, including obligations to:
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provide
for payment; |
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register
the transfer or exchange of debt securities of the series; |
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replace
stolen, lost or mutilated debt securities of the series; |
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pay principal
of and premium and interest on any debt securities of the series; |
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maintain
paying agencies; |
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hold monies
for payment in trust; |
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recover
excess money held by the trustee; |
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compensate
and indemnify the trustee; and |
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appoint
any successor trustee. |
In
order to exercise our rights to be discharged, we must deposit with the trustee money or government obligations sufficient to pay all
the principal of, any premium, if any, and interest on, the debt securities of the series on the dates payments are due.
Form,
Exchange and Transfer
We
will issue the debt securities of each series only in fully registered form without coupons and, unless we provide otherwise in the applicable
prospectus supplement, in denominations of $1,000 and any integral multiple thereof. The indenture provides that we may issue debt securities
of a series in temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depository
Trust Company (“DTC”), or another depositary named by us and identified in the applicable prospectus supplement with respect
to that series. To the extent the debt securities of a series are issued in global form and as book-entry, a description of terms relating
to any book-entry securities will be set forth in the applicable prospectus supplement.
At
the option of the holder, subject to the terms of the indenture and the limitations applicable to global securities described in the
applicable prospectus supplement, the holder of the debt securities of any series can exchange the debt securities for other debt securities
of the same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject
to the terms of the indenture and the limitations applicable to global securities set forth in the applicable prospectus supplement,
holders of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the
form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the security registrar
or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder
presents for transfer or exchange, we will impose no service charge for any registration of transfer or exchange, but we may require
payment of any taxes or other governmental charges.
We
will name in the applicable prospectus supplement the security registrar, and any transfer agent in addition to the security registrar,
that we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation
of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required to maintain
a transfer agent in each place of payment for the debt securities of each series.
If
we elect to redeem the debt securities of any series, we will not be required to:
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issue,
register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business 15
days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption and ending at
the close of business on the day of the mailing; or |
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register
the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion of
any debt securities we are redeeming in part. |
Information
Concerning the Trustee
The
trustee, other than during the occurrence and continuance of an event of default under an indenture, undertakes to perform only those
duties as are specifically set forth in the applicable indenture. Upon an event of default under an indenture, the trustee must use the
same degree of care as a prudent person would exercise or use in the conduct of his or her own affairs. Subject to this provision, the
trustee is under no obligation to exercise any of the powers given it by the indenture at the request of any holder of debt securities
unless it is offered reasonable security and indemnity against the costs, expenses and liabilities that it might incur.
Payment
and Paying Agents
Unless
we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest
payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business
on the regular record date for the interest.
We
will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents designated
by us, except that unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments by check that
we will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable prospectus supplement,
we will designate the corporate trust office of the trustee as our sole paying agent for payments with respect to debt securities of
each series. We will name in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities
of a particular series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All
money we pay to a paying agent or the trustee for the payment of the principal of or any premium or interest on any debt securities that
remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid to us,
and the holder of the debt security thereafter may look only to us for payment thereof.
Governing
Law
The
indenture and the debt securities will be governed by and construed in accordance with the internal laws of the State of New York, except
to the extent that the Trust Indenture Act is applicable.
DESCRIPTION
OF RIGHTS
The
complete terms of the rights will be contained in the rights agreements we enter into with rights agents. These documents will be included
or incorporated by reference as exhibits to the registration statement of which this prospectus is a part. You should read the rights
agreements and any related documents. You also should read the prospectus supplement, which will contain additional information and which
may update or change some of the information below.
This
section describes the general terms of the rights to purchase common stock or other securities that we may offer to stockholders using
this prospectus. Further terms of the rights will be stated in the applicable prospectus supplement (or applicable free writing prospectus).
The following description and any description of the rights in a prospectus supplement (or applicable free writing prospectus) may not
be complete and is subject to and qualified in its entirety by reference to the terms of any agreement relating to the rights.
Rights
may be issued independently or together with any other security and may or may not be transferable. As part of any rights offering, we
may enter into a standby underwriting or other arrangement under which the underwriters or any other person would purchase any securities
that are not purchased in such rights offering. If we issue rights, each series of rights will be issued under a separate rights agreement
to be entered into between us and a bank or trust company, as rights agent, that will be named in the applicable prospectus supplement.
Further terms of the rights will be stated in the applicable prospectus supplement. The rights agent will act solely as our agent and
will not assume any obligation to any holders of rights certificates or beneficial owners of rights. The rights agreements and rights
certificates will be filed with the SEC as an exhibit to the registration statement of which this prospectus is a part or as an exhibit
to a filing incorporated by reference in the registration statement. See “Where You Can Find Additional Information” for
information on how to obtain copies of the rights agreements and rights certificates.
The
prospectus supplement relating to any rights we offer will describe the specific terms of the offering and the rights, including the
record date for stockholders entitled to the rights distribution, the number of rights issued and the number of shares of common stock
that may be purchased upon exercise of the rights, the exercise price of the rights, the date on which the rights will become effective
and the date on which the rights will expire, and any applicable U.S. federal income tax considerations.
In
general, a right entitles the holder to purchase for cash a specific number of shares of common stock or other securities at a specified
exercise price. The rights are normally issued to stockholders as of a specific record date, may be exercised only for a limited period
of time and become void following the expiration of such period. If we determine to issue rights, we will accompany this prospectus with
a prospectus supplement that will describe, among other things:
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● |
the record date for stockholders
entitled to receive the rights; |
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● |
the number of shares of
common stock or other securities that may be purchased upon exercise of each right; |
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● |
the exercise price of the
rights; |
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● |
the terms for changes to
or adjustments in the exercise price, if any; |
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● |
whether the rights are
transferable; |
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● |
the period during which
the rights may be exercised and when they will expire; |
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● |
the steps required to exercise
the rights; |
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● |
whether the rights include
“oversubscription rights” so that the holder may purchase more securities if other holders do not purchase their full
allotments; |
|
● |
whether we intend to sell
the shares of common stock or other securities that are not purchased in the rights offering to an underwriter or other purchaser
under a contractual “standby” commitment or other arrangement; |
|
● |
our ability to withdraw
or terminate the rights offering; |
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● |
any material United States
federal income tax consequences; and |
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● |
other material terms, including
terms relating to transferability, exchange, exercise or amendment of the rights. |
If
fewer than all of the rights issued in any rights offering are exercised, we may offer any unsubscribed securities directly to persons
other than stockholders, to or through agents, underwriters or dealers or through a combination of such methods, including pursuant to
standby arrangements, as described in the applicable prospectus supplement. After the close of business on the expiration date, all unexercised
rights will become void.
DESCRIPTION
OF WARRANTS
The
following description, together with the additional information we may include in any applicable prospectus supplement and free writing
prospectus, summarizes the material terms and provisions of the warrants that we may offer under this prospectus, which may consist of
warrants to purchase common stock, preferred stock or debt securities and may be issued in one or more series. Warrants may be offered
independently or in combination with common stock, preferred stock or debt securities offered by any prospectus supplement. While the
terms we have summarized below will apply generally to any warrants that we may offer under this prospectus, we will describe the particular
terms of any series of warrants in more detail in the applicable prospectus supplement. The following description of warrants will apply
to the warrants offered by this prospectus unless we provide otherwise in the applicable prospectus supplement. The applicable prospectus
supplement for a particular series of warrants may specify different or additional terms.
We
have filed forms of the warrant agreements and forms of warrant certificates containing the terms of the warrants that may be offered
as exhibits to the Registration Statement of which this prospectus is a part. We will file as exhibits to the Registration Statement
of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of warrant and/or
the warrant agreement and warrant certificate, as applicable, that describes the terms of the particular series of warrants we are offering
and any supplemental agreements, before the issuance of such warrants. The following summaries of material terms and provisions of the
warrants are subject to, and qualified in their entirety by reference to, all the provisions of the form of warrant and/or warrant agreement
and warrant certificate, as applicable, and any supplemental agreements applicable to a particular series of warrants that we may offer
under this prospectus. We urge you to read the applicable prospectus supplement related to the particular series of warrants that we
may offer under this prospectus, as well as any related free writing prospectus, and the complete form of warrant and/or warrant agreement
and warrant certificates, as applicable, and any supplemental agreements that contain the terms of the warrants.
General
We
will describe in the applicable prospectus supplement the terms of the series of warrants being offered, including:
|
● |
the
title of such securities; |
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|
|
● |
the
offering price or prices and aggregate number of warrants offered; |
|
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● |
the
currency or currencies for which the warrants may be purchased; |
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● |
if
applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with
each such security or each principal amount of such security; |
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● |
if
applicable, the date on and after which the warrants and the related securities will be separately transferable; |
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● |
if
applicable, the minimum or maximum amount of such warrants which may be exercised at any one time; |
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● |
in
the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one warrant
and the price at which, and currency in which, this principal amount of debt securities may be purchased upon such exercise; |
|
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|
|
● |
in
the case of warrants to purchase common stock or preferred stock, the number of shares of common stock or preferred stock, as the
case may be, purchasable upon the exercise of one warrant and the price at which, and the currency in which, these shares may be
purchased upon such exercise; |
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● |
the
effect of any merger, consolidation, sale or other disposition of our business on the warrant agreements and the warrants; |
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● |
the
terms of any rights to redeem or call the warrants; |
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● |
the
terms of any rights to force the exercise of the warrants; |
|
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● |
any
provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants; |
|
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● |
the
dates on which the right to exercise the warrants will commence and expire; |
|
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● |
the
manner in which the warrant agreements and warrants may be modified; |
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● |
a
discussion of any material or special U.S. federal income tax consequences of holding or exercising the warrants; |
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● |
the
terms of the securities issuable upon exercise of the warrants; and |
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● |
any
other specific terms, preferences, rights or limitations of or restrictions on the warrants. |
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● |
Before
exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such
exercise, including: |
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● |
in
the case of warrants to purchase debt securities, the right to receive payments of principal of, or premium, if any, or interest
on, the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture; or |
|
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● |
in
the case of warrants to purchase common stock or preferred stock, the right to receive dividends, if any, or, payments upon our liquidation,
dissolution or winding up or to exercise voting rights, if any. |
Exercise
of Warrants
Each
warrant will entitle the holder to purchase the securities that we specify in the applicable prospectus supplement at the exercise price
that we describe in the applicable prospectus supplement. The warrants may be exercised as set forth in the prospectus supplement relating
to the warrants offered. Unless we otherwise specify in the applicable prospectus supplement, the warrants may be exercised at any time
up to the specified time on the expiration date that we set forth in the applicable prospectus supplement relating to the warrants offered
thereby. After the close of business on the expiration date, unexercised warrants will become void.
Upon
receipt of payment and the warrant or warrant certificate, as applicable, properly completed and duly executed at the corporate trust
office of the warrant agent, if any, or any other office indicated in the applicable prospectus supplement, we will, as soon as practicable,
issue and deliver the securities purchasable upon such exercise. If less than all of the warrants (or the warrants represented by such
warrant certificate) are exercised, then we will issue a new warrant or warrant certificate, as applicable, for the remaining warrants.
Governing
Law
Unless
we otherwise specify in the applicable prospectus supplement, the warrants and any warrant agreements will be governed by and construed
in accordance with the laws of the State of New York.
Enforceability
of Rights By Holders of Warrants
Each
warrant agent, if any, will act solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship
of agency or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of
warrants. A warrant agent will have no duty or responsibility in case of any default by us under the applicable warrant agreement or
warrant, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder
of a warrant may, without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action
its right to exercise, and receive the securities purchasable upon exercise of, its warrants.
DESCRIPTION
OF UNITS
We
may issue units comprised of one or more of the other securities described in this prospectus or in any prospectus supplement in any
combination. Each unit will be issued so that the holder of the unit is also the holder, with the rights and obligations of a holder,
of each security included in the unit. The unit agreement under which a unit is issued may provide that the securities included in the
unit may not be held or transferred separately, at any time or at any time before a specified date or upon the occurrence of a specified
event or occurrence.
The
applicable prospectus supplement relating to units offered under this prospectus will describe the following terms, where applicable,
of such units:
|
● |
the designation and terms
of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held
or transferred separately; |
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|
● |
any unit agreement under
which the units will be issued; |
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● |
any provisions for the
issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; and |
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● |
whether the units will
be issued in fully registered or global form. |
PLAN
OF DISTRIBUTION
We
may sell the securities being offered pursuant to this prospectus to or through underwriters, through dealers, through agents, or directly
to one or more purchasers or through a combination of these methods. The applicable prospectus supplement will describe the terms of
the offering of the securities, including:
|
● |
the name or names of any
underwriters, if, and if required, any dealers or agents; |
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● |
the purchase price of the
securities and the proceeds we will receive from the sale; |
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● |
any underwriting discounts
and other items constituting underwriters’ compensation; |
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● |
any discounts or concessions
allowed or re-allowed or paid to dealers; and |
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● |
any securities exchange
or market on which the securities may be listed or traded. |
We
may distribute the securities from time to time in one or more transactions at:
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● |
a fixed price or prices,
which may be changed; |
|
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|
● |
market prices prevailing
at the time of sale; |
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● |
prices related to such
prevailing market prices; or |
|
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● |
negotiated prices. |
Only
underwriters named in the prospectus supplement are underwriters of the securities offered by the prospectus supplement.
If
underwriters are used in an offering, we will execute an underwriting agreement with such underwriters and will specify the name of each
underwriter and the terms of the transaction (including any underwriting discounts and other terms constituting compensation of the underwriters
and any dealers) in a prospectus supplement. The securities may be offered to the public either through underwriting syndicates represented
by managing underwriters or directly by one or more investment banking firms or others, as designated. If an underwriting syndicate is
used, the managing underwriter(s) will be specified on the cover of the prospectus supplement. If underwriters are used in the sale,
the offered securities will be acquired by the underwriters for their own accounts and may be resold from time to time in one or more
transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale.
Any public offering price and any discounts or concessions allowed or re-allowed or paid to dealers may be changed from time to time.
Unless otherwise set forth in the prospectus supplement, the obligations of the underwriters to purchase the offered securities will
be subject to conditions precedent, and the underwriters will be obligated to purchase all of the offered securities, if any are purchased.
We
may grant to the underwriters options to purchase additional securities to cover over-allotments, if any, at the public offering price,
with additional underwriting commissions or discounts, as may be set forth in a related prospectus supplement. The terms of any over-allotment
option will be set forth in the prospectus supplement for those securities.
If
we use a dealer in the sale of the securities being offered pursuant to this prospectus or any prospectus supplement, we will sell the
securities to the dealer, as principal. The dealer may then resell the securities to the public at varying prices to be determined by
the dealer at the time of resale. The names of the dealers and the terms of the transaction will be specified in a prospectus supplement.
We
may sell the securities directly or through agents we designate from time to time. We will name any agent involved in the offering and
sale of securities and we will describe any commissions we will pay the agent in the prospectus supplement.
We
may authorize agents or underwriters to solicit offers by institutional investors to purchase securities from us at the public offering
price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified
date in the future. We will describe the conditions to these contracts and the commissions we must pay for solicitation of these contracts
in the prospectus supplement.
In
connection with the sale of the securities, underwriters, dealers or agents may receive compensation from us or from purchasers of the
securities for whom they act as agents, in the form of discounts, concessions or commissions. Underwriters may sell the securities to
or through dealers, and those dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters
or commissions from the purchasers for whom they may act as agents. Underwriters, dealers and agents that participate in the distribution
of the securities, and any institutional investors or others that purchase securities directly for the purpose of resale or distribution,
may be deemed to be underwriters, and any discounts or commissions received by them from us and any profit on the resale of the common
stock by them may be deemed to be underwriting discounts and commissions under the Securities Act. No FINRA member firm may receive compensation
in excess of that allowable under FINRA rules, including Rule 5110, in connection with the offering of the securities.
We
may provide agents, underwriters and other purchasers with indemnification against particular civil liabilities, including liabilities
under the Securities Act, or contribution with respect to payments that the agents, underwriters or other purchasers may make with respect
to such liabilities. Agents and underwriters may engage in transactions with, or perform services for, us in the ordinary course of business.
To
facilitate the public offering of a series of securities, persons participating in the offering may engage in transactions that stabilize,
maintain, or otherwise affect the market price of the securities. This may include over-allotments or short sales of the securities,
which involves the sale by persons participating in the offering of more securities than have been sold to them by us. In exercising
the over-allotment option granted to those persons. In addition, those persons may stabilize or maintain the price of the securities
by bidding for or purchasing securities in the open market or by imposing penalty bids, whereby selling concessions allowed to underwriters
or dealers participating in any such offering may be reclaimed if securities sold by them are repurchased in connection with stabilization
transactions. The effect of these transactions may be to stabilize or maintain the market price of the securities at a level above that
which might otherwise prevail in the open market. Such transactions, if commenced, may be discontinued at any time. We make no representation
or prediction as to the direction or magnitude of any effect that the transactions described above, if implemented, may have on the price
of our securities.
Unless
otherwise specified in the applicable prospectus supplement, any common stock sold pursuant to a prospectus supplement will be eligible
for trading on Nasdaq Capital Market. Any underwriters to whom securities are sold by us for public offering and sale may make a market
in the securities, but such underwriters will not be obligated to do so and may discontinue any market making at any time without notice.
We
may engage in at the market offerings into an existing trading market in accordance with Rule 415(a)(4) under the Securities Act. In
addition, we may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties
in privately negotiated transactions. If the applicable prospectus supplement indicates, in connection with those derivatives, the third
parties may sell securities covered by this prospectus and the applicable prospectus supplement, including short sale transactions. If
so, the third party may use securities pledged by us or borrowed from us or others to settle those sales or to close out any related
open borrowings of stock, and they may use securities received from us in settlement of those derivatives to close out any related open
borrowings of stock. The third party in these sale transactions will be an underwriter and will be identified in the applicable prospectus
supplement. In addition, we may otherwise loan or pledge securities to a financial institution or other third party that in turn may
sell the securities short using this prospectus. The financial institution or other third party may transfer its economic short position
to investors in our securities or in connection with a concurrent offering of other securities.
We
will file a prospectus supplement to describe the terms of any offering of our securities covered by this prospectus. The prospectus
supplement will disclose:
|
● |
the purchase price of the
securities from us; |
|
● |
the net proceeds to us from
the sale of the securities; |
|
● |
any delayed delivery arrangements; |
|
● |
any over-allotment or other
options under which underwriters, if any, may purchase additional securities from us; |
|
● |
any underwriting discounts,
commissions or other items constituting underwriters’ compensation, and any commissions paid to agents; |
|
● |
in a subscription rights
offering, whether we have engaged dealer-managers to facilitate the offering or subscription, including their name or names and compensation; |
|
● |
any public offering price;
and |
|
● |
other facts material to the
transaction. |
We
will bear all or substantially all of the costs, expenses and fees in connection with the registration of our securities under this prospectus.
The underwriters, dealers and agents may engage in transactions with us, or perform services for us, in the ordinary course of business.
In
order to comply with the securities laws of some states, if applicable, the securities offered pursuant to this prospectus will be sold
in those states only through registered or licensed brokers or dealers. In addition, in some states securities may not be sold unless
they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirement
is available and complied with.
LEGAL
MATTERS
Unless
otherwise indicated in the applicable prospectus supplement, the validity of the securities offered hereby will be passed upon for us
by Duane Morris LLP, New York, New York. If the validity of the securities offered hereby in connection with offerings made pursuant
to this prospectus are passed upon by counsel for the underwriters, dealers or agents, if any, such counsel will be named in the prospectus
supplement relating to such offering.
EXPERTS
Our
financial statements as of and for the years ended December 31, 2023 and 2022 incorporated by reference in this prospectus have been
audited by MaloneBailey, LLP, independent registered accounting firm, and are incorporated in reliance on their report (the report
on the financial statements contains an explanatory paragraph regarding the Company’s ability to continue as a going concern) given
upon the authority of said firm as experts in auditing and accounting.
LIMITATION
ON LIABILITY AND DISCLOSURE OF COMMISSION POSITION ON
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers and controlling persons
pursuant to the foregoing provisions, or otherwise, we have 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, we will, unless in the opinion of our counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by us is against public policy as
expressed in the Securities Act and will be governed by the final adjudication of such issue.
WHERE
YOU CAN FIND MORE INFORMATION
This
prospectus and any subsequent prospectus supplements do not contain all of the information in the Registration Statement. We have omitted
from this prospectus some parts of the Registration Statement as permitted by the rules and regulations of the SEC. Statements in this
prospectus concerning any document we have filed as an exhibit to the Registration Statement or that we otherwise filed with the SEC
are not intended to be comprehensive and are qualified in their entirety by reference to these filings. In addition, we file annual,
quarterly and current reports, proxy statements and other information with the SEC. The SEC maintains an Internet site that contains
reports, proxy and information statements and other information that we file electronically with the SEC, including us. The SEC’s
Internet site can be found at http://www.sec.gov. In addition, we make available on or through our Internet site copies of these reports
as soon as reasonably practicable after we electronically file or furnished them to the SEC. Our Internet site can be found at http:www.protagenic.com.
Our website is not a part of this prospectus.
INFORMATION
INCORPORATED BY REFERENCE
We
have elected to incorporate certain information by reference into this prospectus. By incorporating by reference, we can disclose important
information to you by referring you to other documents we have filed or will file with the SEC. The information incorporated by reference
is deemed to be part of this prospectus, except for information incorporated by reference that is superseded by information contained
in this prospectus. This means that you must look at all of the SEC filings that we incorporate by reference to determine if any statements
in the prospectus or any document previously incorporated by reference have been modified or superseded. This prospectus incorporates
by reference the documents set forth below that we have previously filed with the SEC under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”):
|
● |
our
Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the SEC on April 1, 2024, and amended by Amendment
No. 1 to Annual Report on Form 10-K/A filed with the SEC on April 24, 2024 and amended by Amendment No. 2 to Annual Report on Form 10-K/A filed with the SEC on May 14, 2024; |
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our
Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2024, filed with the SEC on May 15, 2024; |
|
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● |
the
Current Reports on Form
8-K filed with the SEC on March 21, 2024 (excluding the information and related exhibit furnished pursuant to Item
7.01) and May 24, 2024; and |
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|
● |
the
description of our common stock set forth in the Registration Statement on Form 8-A12B filed with the Securities Exchange Commission
on April 26, 2021, including any amendment or report filed for the purpose of updating such description. |
We
also incorporate by reference any future filings (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits
filed on such form that are related to such items unless such Form 8-K expressly provides to the contrary) made with the SEC pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, including those made after the date of the initial filing of the registration
statement of which this prospectus is a part and prior to effectiveness of such registration statement, until we file a post-effective
amendment that indicates the termination of the offering of the securities made by this prospectus, which will become a part of this
prospectus from the date that such documents are filed with the SEC. Information in such future filings updates and supplements the information
provided in this prospectus. Any statements in any such future filings will automatically be deemed to modify and supersede any information
in any document we previously filed with the SEC that is incorporated or deemed to be incorporated herein by reference to the extent
that statements in the later-filed document modify or replace such earlier statements.
You should not assume that the information in
this prospectus or any document incorporated by reference herein is accurate as of any date other than the date of this prospectus or the date of the documents incorporated by reference in this prospectust
We will furnish without charge to each person,
including any beneficial owner, to whom a prospectus is delivered, upon written or oral request, a copy of any or all of the documents
incorporated by reference into this prospectus but not delivered with the prospectus, including exhibits that are specifically incorporated
by reference into such documents. You should direct any requests for documents to:
Protagenic
Therapeutics, Inc.
149 Fifth Avenue
New York, New York 10010
212-994-8200
Attention:
Chief Financial Officer
You
may also access these documents on our website, www.protagenic.com.
The information on, or accessible through, our website, or any other website described herein, is not a part of, and is not incorporated
or deemed to be incorporated by reference in, this prospectus, or the registration statement of which it forms a part.
$100,000,000
Common
Stock
Preferred
Stock
Depositary
Shares
Debt
Securities
Rights
to Purchase Common Stock, Preferred Stock
Warrants
Units
PROSPECTUS
,
2024
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
13. Other Expenses of Issuance and Distribution.
The
following table sets forth our costs and expenses in connection with the registration of our securities as described in this registration
statement. All of the amounts shown are estimates except the Commission Registration Fee and the FINRA filing fee.
| |
AMOUNT | |
SEC registration fee | |
$ | 14,760 | |
FINRA filing fee | |
$ | 15,500 | |
Legal fees and expenses | |
| * | |
Accounting fees and expenses | |
| * | |
Transfer agent fees and expenses | |
| * | |
Miscellaneous expenses | |
| * | |
Total | |
$ | 30,260 | |
*
Estimated expenses not presently known.
Item
14. Indemnification of Directors and Officers.
We
are incorporated under the laws of the state of Delaware. Section 145 of the Delaware General Corporation Law provides that a Delaware
corporation may indemnify any persons who are, or are threatened to be made, parties to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation),
by reason of the fact that such person was an officer, director, employee or agent of such corporation, or is or was serving at the request
of such person as an officer, director, employee or agent of another corporation or enterprise. The indemnity may include expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection
with such action, suit or proceeding, provided that such person acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the corporation’s best interests and, with respect to any criminal action or proceeding, had no reasonable
cause to believe that his or her conduct was illegal. A Delaware corporation may indemnify any persons who are, or are threatened to
be made, a party to any threatened, pending or completed action or suit by or in the right of the corporation by reason of the fact that
such person was a director, officer, employee or agent of such corporation, or is or was serving at the request of such corporation as
a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’
fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit provided such
person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests
except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation.
Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation
must indemnify him or her against the expenses that such officer or director has actually and reasonably incurred. Our charter and bylaws
provide for the indemnification of our directors and officers to the fullest extent permitted under the Delaware General Corporation
Law.
Section
102(b)(7) of the Delaware General Corporation Law permits a corporation to provide in its certificate of incorporation that a director
of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary
duties as a director, except for liability for:
|
● |
any
breach of the director’s duty of loyalty to the corporation or its stockholders; |
|
|
|
|
● |
any
act or omission not in good faith or that involves intentional misconduct or a knowing violation of law; |
|
|
|
|
● |
any
act related to unlawful stock repurchases, redemptions or other distributions or payment of dividends; or |
|
|
|
|
● |
any
transaction from which the director derived an improper personal benefit. |
These
limitations of liability do not affect the availability of equitable remedies such as injunctive relief or rescission. Our charter also
authorizes us to indemnify our officers, directors and other agents to the fullest extent permitted under Delaware law.
As
permitted by Section 145 of the Delaware General Corporation Law, our bylaws provide that:
● |
we may indemnify our directors,
officers and employees to the fullest extent permitted by the Delaware General Corporation Law, subject to limited exceptions; |
|
|
● |
we may advance expenses
to our directors, officers and employees in connection with a legal proceeding to the fullest extent permitted by the Delaware General
Corporation Law, subject to limited exceptions; and |
|
|
● |
the rights provided in
our bylaws are not exclusive. |
Section
174 of the Delaware General Corporation Law provides, among other things, that a director who willfully or negligently approves of an
unlawful payment of dividends or an unlawful stock purchase or redemption may be held liable for such actions. A director who was either
absent when the unlawful actions were approved, or dissented at the time, may avoid liability by causing his or her dissent to such actions
to be entered in the books containing minutes of the meetings of the board of directors at the time such action occurred or immediately
after such absent director receives notice of the unlawful acts.
Our
Third Amended and Restated Certificate of Incorporation provides that no director shall be liable to us or our stockholders for monetary
damages for breach of fiduciary duty as a director to the fullest extent permitted by the DGCL.
We
have entered into Indemnification Agreements with the each of our directors and executive officers. Pursuant to our agreements, we will
be obligated, to the extent permitted by applicable law, to indemnify our directors and officers against all expenses, judgments, fines
and penalties incurred in connection with the defense or settlement of any actions brought against them by reason of the fact that they
were our directors or officers or assumed certain responsibilities at our direction.
We
also have purchased directors and officer’s liability insurance in order to limit our exposure to liability of indemnification
of directors and officers.
The
form of Underwriting Agreement, to be filed as Exhibit 1.1 hereto, provides for indemnification by the underwriters of us and our officers
who sign this Registration Statement and directors for specified liabilities, including matters arising under the Securities Act.
Item
15. Recent Sales of Unregistered Securities.
During
the year ended December 31, 2023, $520,867 in principal and interest were converted to 104,173 shares of the Company’s common stock.
Item
16. Exhibits.
Exhibit
Number |
|
Description
of Document |
1.1* |
|
Form
of Underwriting Agreement. |
3.1† |
|
Third Amended and Restated Certificate of Incorporation of Protagenic Therapeutics, Inc. (Incorporated by reference to Exhibit 3.1 to Company’s Current Report on Form 8-K, as filed with the SEC on June 20, 2016). |
3.2† |
|
Second Amended and Restated Bylaws of Protagenic Therapeutics, Inc., (Incorporated by reference to Exhibit 3.1 to Company’s Current Report on Form 8-K, as filed with the SEC on June 1, 2018). |
4.1* |
|
Form
of warrant agreement and warrant certificate |
4.2* |
|
Form
of specimen preferred stock certificate |
4.3* |
|
Certificate
of designation for preferred stock |
4.4 |
|
Form of Indenture with respect to senior debt securities, between the registrant and one or more trustees to be named. |
4.5 |
|
Form of Indenture with respect to subordinated debt securities, between the registrant and one or more trustees to be named. |
4.6* |
|
Form
of debt security |
4.7* |
|
Form
of rights agreement |
5.1 |
|
Opinion of Duane Morris LLP. |
21.1 |
|
Subsidiaries (Incorporated by reference to Exhibit 21.1 to Company’s Annual Report on Form 10-K, as filed with the SEC on April 4, 2024)
|
23.1 |
|
Consent of MaloneBailey, LLP, Independent Registered Public Accounting Firm. |
23.2 |
|
Consent of Duane Morris LLP (included in Exhibit 5.1). |
24.1 |
|
Powers of Attorney |
25.1** |
|
Statement
of Eligibility of Trustee on Form T-1 of Trustee under the Senior Debt Indenture. |
25.2
** |
|
Statement
of Eligibility of Trustee on Form T-1 of Trustee under the Subordinated Debt Indenture. |
107 |
|
Filing Fee Table |
*
To the extent applicable, to be filed by a post-effective amendment or as an exhibit to a document filed under the Exchange Act and incorporated
by reference herein.
**
To be filed subsequent to the effectiveness of this registration statement pursuant to Section 305(b)(2) of the Trust Indenture Act of
1939, as amended.
†
Previously filed.
Item
17. Undertakings.
a. |
The undersigned Registrant hereby undertakes: |
|
1. |
To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
|
i. |
To include any prospectus
required by Section 10(a)(3) of the Securities Act; |
|
|
|
|
ii. |
To
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end
of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth
in the “Calculation of Registration Fee” table in the effective registration statement. |
|
|
|
|
iii. |
To
include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement
or any material change to such information in the registration statement; |
Provided
however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the Registrant pursuant
to section 13 or section 15(d) of the Exchange Act that are incorporated by reference in the registration statement, or is contained
in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
|
2. |
That,
for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof. |
|
|
|
|
3. |
To remove from registration
by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
|
|
|
|
4. |
That, for the purpose of
determining liability under the Securities Act to any purchaser: |
|
i. |
Each
prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and |
|
ii. |
Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities
in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is
at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities
in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof; provided, however, that no statement made in a registration statement or prospectus
that is part of the Registration Statement or made in a document incorporated or deemed incorporated by reference into the registration
statement or prospectus that is part of the Registration Statement will, as to a purchaser with a time of contract of sale prior
to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part
of the registration statement or made in any such document immediately prior to such effective date. |
|
5. |
That,
for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the initial distribution
of the securities, the undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant
to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller
to the purchaser and will be considered to offer or sell such securities to such purchaser: |
|
i. |
Any
preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule
424; |
|
|
|
|
ii. |
Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by
the undersigned Registrant; |
|
|
|
|
iii. |
The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant
or its securities provided by or on behalf of the undersigned Registrant; and |
|
|
|
|
iv. |
Any
other communication that is an offer in the offering made by the undersigned Registrant to the purchaser. |
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. |
The undersigned registrant
hereby undertakes to supplement the prospectus, after the expiration of the subscription period, to set forth the results of the
subscription offer, the transactions by the underwriters during the subscription period, the amount of unsubscribed securities to
be purchased by the underwriters, and the terms of any subsequent reoffering thereof. If any public offering by the underwriters
is to be made on terms differing from those set forth on the cover page of the prospectus, a post-effective amendment will be filed
to set forth the terms of such offering. |
|
|
d. |
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 New York, New York, on June 14, 2024.
|
PROTAGENIC THERAPEUTICS, INC. |
|
|
|
|
By: |
/s/ Garo
H. Armen |
|
Name: |
Garo H. Armen |
|
Title: |
Chairman (Principal Executive Officer and Duly Authorized
Officer) |
POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby severally constitutes and appoints Garo H. Armen
and Alexander K. Arrow, and each of them singly, as such person’s true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for such person and in such person’s name, place and stead, in any and all capacities, to sign
any and all amendments (including, without limitation, post-effective amendments) to this registration statement (or any registration
statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933), and to
file the same, with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting
unto each said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as such person might or could do in person, hereby ratifying
and confirming all that any said attorney-in-fact and agent, or any substitute or substitutes of any of them, 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/
Garo H. Armen |
|
Director
and Chairman of the Board |
|
June
14, 2024 |
Garo
H. Armen |
|
(Principal Executive Officer) |
|
|
|
|
|
|
|
/s/
Alexander K. Arrow |
|
Chief
Financial Officer |
|
June
14, 2024 |
Alexander
K. Arrow |
|
(Principal
Financial Officer) |
|
|
|
|
|
|
|
/s/
Robert B. Stein |
|
Director
and Chief Medical Officer |
|
June
14, 2024 |
Robert
B. Stein |
|
|
|
|
|
|
|
|
|
/s/
Khalil Barrage |
|
Director |
|
June
14, 2024 |
Khalil
Barrage |
|
|
|
|
|
|
|
|
|
/s/
Brian Corvese |
|
Director |
|
June
14, 2024 |
Brian
Corvese |
|
|
|
|
|
|
|
|
|
/s/
Timothy Wright |
|
Director |
|
June
14, 2024 |
Timothy
Wright |
|
|
|
|
|
|
|
|
|
/s/
Jennifer Buell |
|
Director |
|
June
14, 2024 |
Jennifer
Buell |
|
|
|
|
EXHIBIT
4.4
PROTAGENIC
THERAPEUTICS, INC.
Issuer
AND
[TRUSTEE]
Trustee
INDENTURE
Dated
as of [●], 20[●]
Senior
Debt Securities
TABLE
OF CONTENTS
ARTICLE
1 DEFINITIONS |
1 |
Section
1.01 Definitions of Terms. |
1 |
|
|
ARTICLE
2 ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES |
5 |
Section
2.01 Designation and Terms of Securities. |
5 |
Section
2.02 Form of Securities and Trustee’s Certificate. |
7 |
Section
2.03 Denominations: Provisions for Payment. |
7 |
Section
2.04 Execution and Authentication. |
9 |
Section
2.05 Registration of Transfer and Exchange. |
9 |
Section
2.06 Temporary Securities. |
11 |
Section
2.07 Mutilated, Destroyed, Lost or Stolen Securities. |
11 |
Section
2.08 Cancellation. |
12 |
Section
2.09 Benefits of Indenture. |
12 |
Section
2.10 Authenticating Agent. |
12 |
Section
2.11 Global Securities. |
13 |
|
|
ARTICLE
3 REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS |
14 |
Section
3.01 Redemption. |
14 |
Section
3.02 Notice of Redemption. |
14 |
Section
3.03 Payment Upon Redemption. |
15 |
Section
3.04 Sinking Fund. |
16 |
Section
3.05 Satisfaction of Sinking Fund Payments with Securities. |
16 |
Section
3.06 Redemption of Securities for Sinking Fund. |
16 |
|
|
ARTICLE
4 COVENANTS |
16 |
Section
4.01 Payment of Principal, Premium and Interest. |
16 |
Section
4.02 Maintenance of Office or Agency. |
17 |
Section
4.03 Paying Agents. |
17 |
Section
4.04 Appointment to Fill Vacancy in Office of Trustee. |
18 |
Section
4.05 Compliance with Consolidation Provisions. |
18 |
|
|
ARTICLE
5 SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
18 |
Section
5.01 Company to Furnish Trustee Names and Addresses of Securityholders. |
18 |
Section
5.02 Preservation Of Information; Communications With Securityholders. |
19 |
Section
5.03 Reports by the Company. |
19 |
Section
5.04 Reports by the Trustee. |
19 |
|
|
ARTICLE
6 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
20 |
Section
6.01 Events of Default. |
20 |
Section
6.02 Collection of Indebtedness and Suits for Enforcement by Trustee. |
21 |
Section
6.03 Application of Moneys or Property Collected. |
23 |
Section
6.04 Limitation on Suits. |
23 |
Section
6.05 Rights and Remedies Cumulative; Delay or Omission Not Waiver. |
24 |
Section
6.06 Control by Securityholders. |
24 |
Section
6.07 Undertaking to Pay Costs. |
25 |
|
|
ARTICLE
7 CONCERNING THE TRUSTEE |
25 |
Section
7.01 Certain Duties and Responsibilities of Trustee. |
25 |
Section
7.02 Certain Rights of Trustee. |
26 |
Section
7.03 Trustee Not Responsible for Recitals or Issuance or Securities. |
28 |
Section
7.04 May Hold Securities. |
28 |
Section
7.05 Moneys Held in Trust. |
28 |
Section
7.06 Compensation and Reimbursement. |
28 |
Section
7.07 Reliance on Officers’ Certificate. |
29 |
Section
7.08 Disqualification; Conflicting Interests. |
29 |
Section
7.09 Corporate Trustee Required; Eligibility. |
29 |
Section
7.10 Resignation and Removal; Appointment of Successor. |
30 |
Section
7.11 Acceptance of Appointment By Successor. |
31 |
Section
7.12 Merger, Conversion, Consolidation or Succession to Business. |
32 |
Section
7.13 Preferential Collection of Claims Against the Company. |
32 |
Section
7.14 Notice of Default |
32 |
|
|
ARTICLE
8 CONCERNING THE SECURITYHOLDERS |
33 |
Section
8.01 Evidence of Action by Securityholders. |
33 |
Section
8.02 Proof of Execution by Securityholders. |
33 |
Section
8.03 Who May be Deemed Owners. |
34 |
Section
8.04 Certain Securities Owned by Company Disregarded. |
34 |
Section
8.05 Actions Binding on Future Securityholders. |
34 |
|
|
ARTICLE
9 SUPPLEMENTAL INDENTURES |
35 |
Section
9.01 Supplemental Indentures Without the Consent of Securityholders. |
35 |
Section
9.02 Supplemental Indentures With Consent of Securityholders. |
36 |
Section
9.03 Effect of Supplemental Indentures. |
36 |
Section
9.04 Securities Affected by Supplemental Indentures. |
37 |
Section
9.05 Execution of Supplemental Indentures. |
37 |
ARTICLE
10 SUCCESSOR ENTITY |
38 |
Section
10.01 Company May Consolidate, Etc. |
38 |
Section
10.02 Successor Entity Substituted. |
38 |
Section
10.03 Evidence of Consolidation, Etc. to Trustee. |
38 |
|
|
ARTICLE
11 SATISFACTION AND DISCHARGE |
39 |
Section
11.01 Satisfaction and Discharge of Indenture. |
39 |
Section
11.02 Discharge of Obligations. |
39 |
Section
11.03 Deposited Moneys to be Held in Trust. |
40 |
Section
11.04 Payment of Moneys Held by Paying Agents. |
40 |
Section
11.05 Repayment to Company. |
40 |
|
|
ARTICLE
12 IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
40 |
Section
12.01 No Recourse. |
40 |
|
|
ARTICLE
13 MISCELLANEOUS PROVISIONS |
41 |
Section
13.01 Effect on Successors and Assigns. |
41 |
Section
13.02 Actions by Successor. |
41 |
Section
13.03 Surrender of Company Powers. |
41 |
Section
13.04 Notices. |
41 |
Section
13.05 Governing Law. |
42 |
Section
13.06 Treatment of Securities as Debt. |
42 |
Section
13.07 Certificates and Opinions as to Conditions Precedent. |
42 |
Section
13.08 Payments on Business Days. |
42 |
Section
13.09 Conflict with Trust Indenture Act. |
42 |
Section
13.10 Indenture and Securities Solely Corporate Obligations. |
43 |
Section
13.11 Counterparts. |
43 |
Section
13.12 Separability. |
43 |
Section
13.13 Compliance Certificates. |
43 |
(1) |
This
Table of Contents does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms
or provisions. |
INDENTURE
INDENTURE,
dated as of [●], 20[●], among PROTAGENIC THERAPEUTICS, INC., a Delaware corporation (the “Company”), and [TRUSTEE],
as trustee (the “Trustee”).
WHEREAS,
for its lawful corporate purposes, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance
of debt securities (hereinafter referred to as the “Securities”), in an unlimited aggregate principal amount to be issued
from time to time in one or more series as in this Indenture provided, as registered Securities without coupons, to be authenticated
by the certificate of the Trustee;
WHEREAS,
to provide the terms and conditions upon which the Securities are to be authenticated, issued and delivered, the Company has duly authorized
the execution of this Indenture; and
WHEREAS,
all things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
NOW,
THEREFORE, in consideration of the premises and the purchase of the Securities by the holders thereof, it is mutually covenanted
and agreed as follows for the equal and ratable benefit of the holders of Securities:
ARTICLE
1
DEFINITIONS
Section
1.01 Definitions of Terms.
The
terms defined in this Section (except as in this Indenture or any indenture supplemental hereto otherwise expressly provided or unless
the context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective
meanings specified in this Section and shall include the plural as well as the singular. All other terms used in this Indenture that
are defined in the Trust Indenture Act of 1939, as amended, or that are by reference in such Act defined in the Securities Act of 1933,
as amended (except as herein or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires),
shall have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of the
execution of this instrument.
“Authenticating
Agent” means an authenticating agent with respect to all or any of the series of Securities appointed by the Trustee pursuant
to Section 2.10.
“Bankruptcy
Law” means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.
“Board
of Directors” means the Board of Directors of the Company or any duly authorized committee of such Board.
“Board
Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and effect on the date of such certification.
“Business
Day” means, with respect to any series of Securities, any day other than a day on which federal or state banking institutions
in the Borough of Manhattan, the City of New York, or in the city of the Corporate Trust Office of the Trustee, are authorized or obligated
by law, executive order or regulation to close.
“Certificate”
means a certificate signed by any Officer. The Certificate need not comply with the provisions of Section 13.07.
“Company”
means Protagenic Therapeutics, Inc., a corporation duly organized and existing under the laws of the State of Delaware, and, subject
to the provisions of Article Ten, shall also include its successors and assigns.
“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 .
“Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
“Default”
means any event, act or condition that with notice or lapse of time, or both, would constitute an Event of Default.
“Depositary”
means, with respect to Securities of any series for which the Company shall determine that such Securities will be issued as a Global
Security, The Depository Trust Company, New York, New York, another clearing agency, or any successor registered as a clearing agency
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other applicable statute or regulation, which,
in each case, shall be designated by the Company pursuant to either Section 2.01 or 2.11.
“Event
of Default” means, with respect to Securities of a particular series, any event specified in Section 6.01, continued for
the period of time, if any, therein designated.
“Global
Security” means, with respect to any series of Securities, a Security executed by the Company and delivered by the Trustee
to the Depositary or pursuant to the Depositary’s instruction, all in accordance with the Indenture, which shall be registered
in the name of the Depositary or its nominee.
“Governmental
Obligations” means securities that are (a) direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United
States of America that, in either case, are not callable or redeemable at the option of the issuer thereof at any time prior to the stated
maturity of the Securities, and shall also include a depositary receipt issued by a bank or trust company as custodian with respect to
any such Governmental Obligation or a specific payment of principal of or interest on any such Governmental Obligation held by such custodian
for the account of the holder of such depositary receipt; provided, however, 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 Governmental Obligation or the specific payment of principal of or interest on the Governmental Obligation evidenced by such depositary
receipt.
“herein”,
“hereof” and “hereunder”, and other words of similar import, refer to this Indenture
as a whole and not to any particular Article, Section or other subdivision.
“Indenture”
means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental
hereto entered into in accordance with the terms hereof.
“Interest
Payment Date”, when used with respect to any installment of interest on a Security of a particular series, means the date
specified in such Security or in a Board Resolution or in an indenture supplemental hereto with respect to such series as the fixed date
on which an installment of interest with respect to Securities of that series is due and payable.
“Officer”
means, with respect to the Company, the chairman of the Board of Directors, a chief executive officer, a president, a chief financial
officer, chief operating officer, any executive vice president, any senior vice president, any vice president, the treasurer or any assistant
treasurer, the controller or any assistant controller or the secretary or any assistant secretary.
“Officers’
Certificate” means a certificate signed by any two Officers. Each such certificate shall include the statements provided
for in Section 13.07, if and to the extent required by the provisions thereof.
“Opinion
of Counsel” means an opinion in writing subject to customary exceptions of legal counsel, who may be an employee of or
counsel for the Company, that is delivered to the Trustee in accordance with the terms hereof. Each such opinion shall include the statements
provided for in Section 13.07, if and to the extent required by the provisions thereof.
“Outstanding”,
when used with reference to Securities of any series, means, subject to the provisions of Section 8.04, as of any particular time, all
Securities of that series theretofore authenticated and delivered by the Trustee under this Indenture, except (a) Securities theretofore
canceled by the Trustee or any paying agent, or delivered to the Trustee or any paying agent for cancellation or that have previously
been canceled; (b) Securities or portions thereof for the payment or redemption of which moneys or Governmental Obligations in the necessary
amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been set aside
and segregated in trust by the Company (if the Company shall act as its own paying agent); provided, however, that if such Securities
or portions of such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as in
Article Three provided, or provision satisfactory to the Trustee shall have been made for giving such notice; and (c) Securities in lieu
of or in substitution for which other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.07.
“Person”
means any individual, corporation, partnership, joint venture, joint-stock company, limited liability company, association, trust, unincorporated
organization, any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“Predecessor
Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section
2.07 in lieu of a lost, destroyed or stolen Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Security.
“Responsible
Officer” when used with respect to the Trustee means the chairman of its board of directors, the chief executive officer,
the president, any vice president, the secretary, the treasurer, any trust officer, any corporate trust officer or any other officer
or assistant officer of the Trustee customarily performing functions similar to those performed by the Persons who at the time shall
be such officers, respectively, or to whom any corporate trust matter is referred because of his or her knowledge of and familiarity
with the particular subject.
“Securities”
means the debt Securities authenticated and delivered under this Indenture.
“Securityholder”,
“holder of Securities”, “registered holder”, or other similar term, means the Person or Persons in whose name
or names a particular Security shall be registered on the books of the Company kept for that purpose in accordance with the terms of
this Indenture.
“Security
Register” and “Security Registrar” shall have the meanings as set forth in Section 2.05.
“Subsidiary”
means, with respect to any Person, (i) any corporation at least a majority of whose outstanding Voting Stock shall at the time be owned,
directly or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, (ii)
any general partnership, joint venture or similar entity, at least a majority of whose outstanding partnership or similar interests shall
at the time be owned by such Person, or by one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries and
(iii) any limited partnership of which such Person or any of its Subsidiaries is a general partner.
“Trustee”
means , and, subject to the provisions of Article Seven, shall also include its successors and assigns, and, if at any time there is
more than one Person acting in such capacity hereunder, “Trustee” shall mean each such Person. The term “Trustee”
as used with respect to a particular series of the Securities shall mean the trustee with respect to that series.
“Trust
Indenture Act” means the Trust Indenture Act of 1939, as amended.
“Voting
Stock”, as applied to stock of any Person, means shares, interests, participations or other equivalents in the equity interest
(however designated) in such Person having ordinary voting power for the election of a majority of the directors (or the equivalent)
of such Person, other than shares, interests, participations or other equivalents having such power only by reason of the occurrence
of a contingency.
ARTICLE
2
ISSUE,
DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
Section
2.01 Designation and Terms of Securities.
(a)
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 up to the aggregate principal amount of Securities of that series from time to time authorized by
or pursuant to a Board Resolution or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of Securities
of any series, there shall be established in or pursuant to a Board Resolution, and set forth in an Officers’ Certificate, or established
in one or more indentures supplemental hereto:
(1)
the title of the Securities of the series (which shall distinguish the Securities of that series from all other Securities);
(2)
any limit upon the aggregate principal amount of the Securities of that series that 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 that series);
(3)
the date or dates on which the principal of the Securities of the series is payable, any original issue discount that may apply to
the Securities of that series upon their issuance, the principal amount due at maturity, and the place(s) of payment;
(4)
the rate or rates at which the Securities of the series shall bear interest or the manner of calculation of such rate or rates, if
any;
(5)
the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest will be payable or the
manner of determination of such Interest Payment Dates, the place(s) of payment, and the record date for the determination of holders
to whom interest is payable on any such Interest Payment Dates or the manner of determination of such record dates;
(6)
the right, if any, to extend the interest payment periods and the duration of such extension, including the maximum consecutive period
during which interest payments may be extended;
(7)
the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the Company;
(8)
the obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund, mandatory redemption,
or analogous provisions (including payments made in cash in satisfaction of future sinking fund obligations) 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;
(9)
the form of the Securities of the series including the form of the Certificate of Authentication for such series;
(10)
if other than denominations of one thousand U.S. dollars ($1,000) or any integral multiple thereof, the denominations in which the
Securities of the series shall be issuable;
(11)
any and all other terms (including terms, to the extent applicable, relating to any auction or remarketing of the Securities of that
series and any security for the obligations of the Company with respect to such Securities) with respect to such series (which terms
shall not be inconsistent with the terms of this Indenture, as amended by any supplemental indenture) including any terms which may be
required by or advisable under United States laws or regulations or advisable in connection with the marketing of Securities of that
series;
(12)
whether the Securities are issuable as a Global Security and, in such case, the terms and the identity of the Depositary for such
series;
(13)
whether the Securities will be convertible into or exchangeable for shares of common stock or other securities of the Company or
any other Person and, if so, the terms and conditions upon which such Securities will be so convertible or exchangeable, including the
conversion or exchange price, as applicable, or how it will be calculated and may be adjusted, any mandatory or optional (at the Company’s
option or the holders’ option) conversion or exchange features, and the applicable conversion or exchange period;
(14)
if other than the principal amount thereof, the portion, or methods of determining the portion, of the principal amount of Securities
of the series which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.01;
(15)
any additional or different Events of Default or restrictive covenants (which may include, among other restrictions, restrictions
on the Company’s ability or the ability of the Company’s Subsidiaries to: incur additional indebtedness; issue additional
securities; create liens; pay dividends or make distributions in respect of their capital stock; redeem capital stock; place restrictions
on such Subsidiaries placing restrictions on their ability to pay dividends, make distributions or transfer assets; make investments
or other restricted payments; sell or otherwise dispose of assets; enter into sale-leaseback transactions; engage in transactions with
stockholders and affiliates; issue or sell stock of their Subsidiaries; or effect a consolidation or merger) or financial covenants (which
may include, among other financial covenants, financial covenants that require the Company and its Subsidiaries to maintain specified
interest coverage, fixed charge, cash flow-based or asset-based ratios) provided for with respect to the Securities of the series;
(16)
if other than dollars, the coin or currency in which the Securities of the series are denominated (including, but not limited to,
foreign currency);
(17)
the terms and conditions, if any, upon which the Company shall pay amounts in addition to the stated interest, premium, if any and
principal amounts of the Securities of the series to any Securityholder that is not a “United States person” for federal
tax purposes; and
(18)
any restrictions on transfer, sale or assignment of the Securities of the series.
All
Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or
pursuant to any such Board Resolution or in any indentures supplemental hereto.
If
any of the terms of the series are established by action taken pursuant to a Board Resolution of the Company, a copy of an appropriate
record of such action shall be certified by the secretary or an assistant secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Officers’ Certificate of the Company setting forth the terms of the series.
Securities
of any particular series may be issued at various times, with different dates on which the principal or any installment of principal
is payable, with different rates of interest, if any, or different methods by which rates of interest may be determined, with different
dates on which such interest may be payable and with different redemption dates.
Section
2.02 Form of Securities and Trustee’s Certificate.
The
Securities of any series and the Trustee’s certificate of authentication to be borne by such Securities shall be substantially
of the tenor and purport as set forth in one or more indentures supplemental hereto or as provided in a Board Resolution, and set forth
in an Officers’ Certificate, and they may have such letters, numbers or other marks of identification or designation and such legends
or endorsements printed, lithographed or engraved thereon as the Company may deem appropriate and as are not inconsistent with the provisions
of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule
or regulation of any securities exchange on which Securities of that series may be listed, or to conform to usage.
Section
2.03 Denominations: Provisions for Payment.
The
Securities shall be issuable as registered Securities and in the denominations of one thousand U.S. dollars ($1,000) or any integral
multiple thereof, subject to Section 2.01(a)(10). The Securities of a particular series shall bear interest payable on the dates and
at the rate specified with respect to that series. Subject to Section 2.01(a)(16), the principal of and the interest on the Securities
of any series, as well as any premium thereon in case of redemption thereof prior to maturity, shall be payable in the coin or currency
of the United States of America that at the time is legal tender for public and private debt, at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, the City and State of New York. Each Security shall be dated the date of its
authentication. Interest on the Securities shall be computed on the basis of a 360-day year composed of twelve 30-day months.
The
interest installment on any Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date for Securities
of that series shall be paid to the Person in whose name said Security (or one or more Predecessor Securities) is registered at the close
of business on the regular record date for such interest installment. In the event that any Security of a particular series or portion
thereof is called for redemption and the redemption date is subsequent to a regular record date with respect to any Interest Payment
Date and prior to such Interest Payment Date, interest on such Security will be paid upon presentation and surrender of such Security
as provided in Section 3.03.
Any
interest on any Security that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date for Securities
of the same series (herein called “Defaulted Interest”) shall forthwith cease to be payable to the registered holder on the
relevant regular record date by virtue of having been such holder; and such Defaulted Interest shall be paid by the Company, at its election,
as provided in clause (1) or clause (2) below:
(1)
The Company may make payment of any Defaulted Interest on Securities to the Persons in whose names such Securities (or their respective
Predecessor Securities) are registered at the close of business on a special record date for the payment of such Defaulted Interest,
which shall be fixed in the following manner: the Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each such Security and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee
an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a special
record date for the payment of such Defaulted Interest which shall not be more than 15 nor less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such special record date and, in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the special record date therefor to be mailed, first class postage prepaid, to each Securityholder
at his or her address as it appears in the Security Register (as hereinafter defined), not less than 10 days prior to such special record
date. Notice of the proposed payment of such Defaulted Interest and the special record date therefor having been mailed as aforesaid,
such Defaulted Interest shall be paid to the Persons in whose names such Securities (or their respective Predecessor Securities) are
registered on such special record date.
(2)
The Company may make payment of any Defaulted Interest on any Securities in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable
by the Trustee.
Unless
otherwise set forth in a Board Resolution or one or more indentures supplemental hereto establishing the terms of any series of Securities
pursuant to Section 2.01 hereof, the term “regular record date” as used in this Section with respect to a series of Securities
and any Interest Payment Date for such series shall mean either the fifteenth day of the month immediately preceding the month in which
an Interest Payment Date established for such series pursuant to Section 2.01 hereof shall occur, if such Interest Payment Date is the
first day of a month, or the first day of the month in which an Interest Payment Date established for such series pursuant to Section
2.01 hereof shall occur, if such Interest Payment Date is the fifteenth day of a month, whether or not such date is a Business Day.
Subject
to the foregoing provisions of this Section, each Security of a series delivered under this Indenture upon transfer of or in exchange
for or in lieu of any other Security of such series shall carry the rights to interest accrued and unpaid, and to accrue, that were carried
by such other Security.
Section
2.04 Execution and Authentication.
The
Securities shall be signed on behalf of the Company by one of its Officers. Signatures may be in the form of a manual or facsimile signature.
The
Company may use the facsimile signature of any Person who shall have been an Officer, notwithstanding the fact that at the time the Securities
shall be authenticated and delivered or disposed of such Person shall have ceased to be such an officer of the Company. The Securities
may contain such notations, legends or endorsements required by law, stock exchange rule or usage. Each Security shall be dated the date
of its authentication by the Trustee.
A
Security shall not be valid until authenticated manually by an authorized signatory of the Trustee, or by an Authenticating Agent. Such
signature shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that
the holder is entitled to the benefits of this Indenture. At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication, together with
a written order of the Company for the authentication and delivery of such Securities, signed by an Officer, and the Trustee in accordance
with such written order shall authenticate and deliver such Securities.
In
authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 7.01) shall be fully protected in relying upon, an Opinion of Counsel stating
that the form and terms thereof have been established in conformity with the provisions of this Indenture.
The
Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect
the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner that is not reasonably
acceptable to the Trustee.
Section
2.05 Registration of Transfer and Exchange.
(a)
Securities of any series may be exchanged upon presentation thereof at the office or agency of the Company designated for such purpose
in the Borough of Manhattan, the City and State of New York, for other Securities of such series of authorized denominations, and for
a like aggregate principal amount, upon payment of a sum sufficient to cover any tax or other governmental charge in relation thereto,
all as provided in this Section. In respect of any Securities so surrendered for exchange, the Company shall execute, the Trustee shall
authenticate and such office or agency shall deliver in exchange therefor the Security or Securities of the same series that the Securityholder
making the exchange shall be entitled to receive, bearing numbers not contemporaneously outstanding.
(b)
The Company shall keep, or cause to be kept, at its office or agency designated for such purpose in the Borough of Manhattan, the
City and State of New York, or such other location designated by the Company, a register or registers (herein referred to as the “Security
Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall register the Securities and
the transfers of Securities as in this Article provided and which at all reasonable times shall be open for inspection by the Trustee.
The registrar for the purpose of registering Securities and transfer of Securities as herein provided shall be appointed as authorized
by Board Resolution (the “Security Registrar”).
Upon
surrender for transfer of any Security at the office or agency of the Company designated for such purpose, the Company shall execute,
the Trustee shall authenticate and such office or agency shall deliver in the name of the transferee or transferees a new Security or
Securities of the same series as the Security presented for a like aggregate principal amount.
All
Securities presented or surrendered for exchange or registration of transfer, as provided in this Section, shall be accompanied (if so
required by the Company or the Security Registrar) by a written instrument or instruments of transfer, in form satisfactory to the Company
or the Security Registrar, duly executed by the registered holder or by such holder’s duly authorized attorney in writing.
(c)
Except as provided pursuant to Section 2.01 pursuant to a Board Resolution, and set forth in an Officers’ Certificate, or established
in one or more indentures supplemental to this Indenture, no service charge shall be made for any exchange or registration of transfer
of Securities, or issue of new Securities in case of partial redemption of any series, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge in relation thereto, other than exchanges pursuant to Section 2.06, Section 3.03(b) and
Section 9.04 not involving any transfer.
(d)
The Company shall not be required (i) to issue, exchange or register the transfer of any Securities during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of redemption of less than all the Outstanding Securities of
the same series and ending at the close of business on the day of such mailing, nor (ii) to register the transfer of or exchange any
Securities of any series or portions thereof called for redemption, other than the unredeemed portion of any such Securities being redeemed
in part. The provisions of this Section 2.05 are, with respect to any Global Security, subject to Section 2.11 hereof.
Section
2.06 Temporary Securities.
Pending
the preparation of definitive Securities of any series, the Company may execute, and the Trustee shall authenticate and deliver, temporary
Securities (printed, lithographed or typewritten) of any authorized denomination. Such temporary Securities shall be substantially in
the form of the definitive Securities in lieu of which they are issued, but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Company. Every temporary Security of any series shall be executed
by the Company and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect,
as the definitive Securities of such series. Without unnecessary delay the Company will execute and will furnish definitive Securities
of such series and thereupon any or all temporary Securities of such series may be surrendered in exchange therefor (without charge to
the holders), at the office or agency of the Company designated for the purpose in the Borough of Manhattan, the City and State of New
York, and the Trustee shall authenticate and such office or agency shall deliver in exchange for such temporary Securities an equal aggregate
principal amount of definitive Securities of such series, unless the Company advises the Trustee to the effect that definitive Securities
need not be executed and furnished until further notice from the Company. Until so exchanged, the temporary Securities of such series
shall be entitled to the same benefits under this Indenture as definitive Securities of such series authenticated and delivered hereunder.
Section
2.07 Mutilated, Destroyed, Lost or Stolen Securities.
In
case any temporary or definitive Security shall become mutilated or be destroyed, lost or stolen, the Company (subject to the next succeeding
sentence) shall execute, and upon the Company’s request the Trustee (subject as aforesaid) shall authenticate and deliver, a new
Security of the same series, bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Security,
or in lieu of and in substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substituted Security
shall furnish to the Company and the Trustee such security or indemnity as may be required by them to save each of them harmless, and,
in every case of destruction, loss or theft, the applicant shall also furnish to the Company and the Trustee evidence to their satisfaction
of the destruction, loss or theft of the applicant’s Security and of the ownership thereof. The Trustee may authenticate any such
substituted Security and deliver the same upon the written request or authorization of any officer of the Company. Upon the issuance
of any substituted Security, 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.
In
case any Security that has matured or is about to mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead
of issuing a substitute Security, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated
Security) if the applicant for such payment shall furnish to the Company and the Trustee such security or indemnity as they may require
to save them harmless, and, in case of destruction, loss or theft, evidence to the satisfaction of the Company and the Trustee of the
destruction, loss or theft of such Security and of the ownership thereof.
Every
replacement Security issued pursuant to the provisions of this Section shall constitute an additional contractual obligation of the Company
whether or not the mutilated, destroyed, lost or stolen Security shall be found at any time, or be enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of the same series duly
issued hereunder. All Securities shall be held and owned upon the express condition that the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities, and shall preclude (to the extent lawful) any
and all other rights or remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without their surrender.
Section
2.08 Cancellation.
All
Securities surrendered for the purpose of payment, redemption, exchange or registration of transfer shall, if surrendered to the Company
or any paying agent, be delivered to the Trustee for cancellation, or, if surrendered to the Trustee, shall be cancelled by it, and no
Securities shall be issued in lieu thereof except as expressly required or permitted by any of the provisions of this Indenture. In the
absence of such request the Trustee may dispose of canceled Securities in accordance with its standard procedures and deliver a certificate
of disposition to the Company. If the Company shall otherwise 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 delivered to the Trustee
for cancellation.
Section
2.09 Benefits of Indenture.
Nothing
in this Indenture or in the Securities, express or implied, shall give or be construed to give to any Person, other than the parties
hereto and the holders of the Securities any legal or equitable right, remedy or claim under or in respect of this Indenture, or under
any covenant, condition or provision herein contained; all such covenants, conditions and provisions being for the sole benefit of the
parties hereto and of the holders of the Securities.
Section
2.10 Authenticating Agent.
So
long as any of the Securities of any series remain Outstanding there may be an Authenticating Agent for any or all such series of Securities
which the Trustee shall have the right to appoint. Said Authenticating Agent shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon exchange, transfer or partial redemption thereof, and Securities so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. All
references in this Indenture to the authentication of Securities by the Trustee shall be deemed to include authentication by an Authenticating
Agent for such series. Each Authenticating Agent shall be acceptable to the Company and shall be a corporation that has a combined capital
and surplus, as most recently reported or determined by it, sufficient under the laws of any jurisdiction under which it is organized
or in which it is doing business to conduct a trust business, and that is otherwise authorized under such laws to conduct such business
and is subject to supervision or examination by federal or state authorities. If at any time any Authenticating Agent shall cease to
be eligible in accordance with these provisions, it shall resign immediately.
Any
Authenticating Agent may at any time resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may
at any time (and upon request by the Company shall) terminate the agency of any Authenticating Agent by giving written notice of termination
to such Authenticating Agent and to the Company. Upon resignation, termination or cessation of eligibility of any Authenticating Agent,
the Trustee may appoint an eligible successor Authenticating Agent acceptable to the Company. Any successor Authenticating Agent, upon
acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder as if
originally named as an Authenticating Agent pursuant hereto.
Section
2.11 Global Securities.
(a)
If the Company shall establish pursuant to Section 2.01 that the Securities of a particular series are to be issued as a Global Security,
then the Company shall execute and the Trustee shall, in accordance with Section 2.04, authenticate and deliver, a Global Security that
(i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, all of the Outstanding Securities
of such series, (ii) shall be registered in the name of the Depositary or its nominee, (iii) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary’s instruction and (iv) shall bear a legend substantially to the following effect: “Except
as otherwise provided in Section 2.11 of the Indenture, this Security may be transferred, in whole but not in part, only to another nominee
of the Depositary or to a successor Depositary or to a nominee of such successor Depositary.”
(b)
Notwithstanding the provisions of Section 2.05, the Global Security of a series may be transferred, in whole but not in part and
in the manner provided in Section 2.05, only to another nominee of the Depositary for such series, or to a successor Depositary for such
series selected or approved by the Company or to a nominee of such successor Depositary.
(c)
If at any time the Depositary for a series of the Securities notifies the Company that it is unwilling or unable to continue as Depositary
for such series or if at any time the Depositary for such series shall no longer be registered or in good standing under the Exchange
Act, or other applicable statute or regulation, and a successor Depositary for such series is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such condition, as the case may be, or if an Event of Default has occurred
and is continuing and the Company has received a request from the Depositary, this Section 2.11 shall no longer be applicable to the
Securities of such series and the Company will execute, and subject to Section 2.04, the Trustee will authenticate and deliver the Securities
of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate principal amount equal
to the principal amount of the Global Security of such series in exchange for such Global Security. In addition, the Company may at any
time determine that the Securities of any series shall no longer be represented by a Global Security and that the provisions of this
Section 2.11 shall no longer apply to the Securities of such series. In such event the Company will execute and, subject to Section 2.04,
the Trustee, upon receipt of an Officers’ Certificate evidencing such determination by the Company, will authenticate and deliver
the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Security of such series in exchange for such Global Security. Upon the exchange of
the Global Security for such Securities in definitive registered form without coupons, in authorized denominations, the Global Security
shall be canceled by the Trustee. Such Securities in definitive registered form issued in exchange for the Global Security pursuant to
this Section 2.11(c) shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Depositary
for delivery to the Persons in whose names such Securities are so registered.
ARTICLE
3
REDEMPTION
OF SECURITIES AND SINKING FUND PROVISIONS
Section
3.01 Redemption.
The
Company may redeem the Securities of any series issued hereunder on and after the dates and in accordance with the terms established
for such series pursuant to Section 2.01 hereof.
Section
3.02 Notice of Redemption.
(a)
In case the Company shall desire to exercise such right to redeem all or, as the case may be, a portion of the Securities of any
series in accordance with any right the Company reserved for itself to do so pursuant to Section 2.01 hereof, the Company shall, or shall
cause the Trustee to, give notice of such redemption to holders of the Securities of such series to be redeemed by mailing, first class
postage prepaid, a notice of such redemption not less than 30 days and not more than 90 days before the date fixed for redemption of
that series to such holders at their last addresses as they shall appear upon the Security Register, unless a shorter period is specified
in the Securities to be redeemed. Any notice that is mailed in the manner herein provided shall be conclusively presumed to have been
duly given, whether or not the registered holder receives the notice. In any case, failure duly to give such notice to the holder of
any Security of any series designated for redemption in whole or in part, or any defect in the notice, shall not affect the validity
of the proceedings for the redemption of any other Securities of such series or any other series. In the case of any redemption of Securities
prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture,
the Company shall furnish the Trustee with an Officers’ Certificate evidencing compliance with any such restriction.
Each
such notice of redemption shall specify the date fixed for redemption and the redemption price at which Securities of that series are
to be redeemed, and shall state that payment of the redemption price of such Securities to be redeemed will be made at the office or
agency of the Company in the Borough of Manhattan, the City and State of New York, upon presentation and surrender of such Securities,
that interest accrued to the date fixed for redemption will be paid as specified in said notice, that from and after said date interest
will cease to accrue and that the redemption is for a sinking fund, if such is the case. If less than all the Securities of a series
are to be redeemed, the notice to the holders of Securities of that series to be redeemed in part shall specify the particular Securities
to be so redeemed.
In
case any Security is to be redeemed in part only, the notice that relates to such Security shall state the portion of the principal amount
thereof to be redeemed, and shall state that on and after the redemption date, upon surrender of such Security, a new Security or Securities
of such series in principal amount equal to the unredeemed portion thereof will be issued.
(b)
If less than all the Securities of a series are to be redeemed, the Company shall give the Trustee at least 45 days’ notice
(unless a shorter notice shall be satisfactory to the Trustee) in advance of the date fixed for redemption as to the aggregate principal
amount of Securities of the series to be redeemed, and thereupon the Trustee shall select, by lot or in such other manner as it shall
deem appropriate and fair in its discretion and that may provide for the selection of a portion or portions (equal to one thousand U.S.
dollars ($1,000) or any integral multiple thereof) of the principal amount of such Securities of a denomination larger than $1,000, the
Securities to be redeemed and shall thereafter promptly notify the Company in writing of the numbers of the Securities to be redeemed,
in whole or in part. The Company may, if and whenever it shall so elect, by delivery of instructions signed on its behalf by an Officer,
instruct the Trustee or any paying agent to call all or any part of the Securities of a particular series for redemption and to give
notice of redemption in the manner set forth in this Section, such notice to be in the name of the Company or its own name as the Trustee
or such paying agent may deem advisable. In any case in which notice of redemption is to be given by the Trustee or any such paying agent,
the Company shall deliver or cause to be delivered to, or permit to remain with, the Trustee or such paying agent, as the case may be,
such Security Register, transfer books or other records, or suitable copies or extracts therefrom, sufficient to enable the Trustee or
such paying agent to give any notice by mail that may be required under the provisions of this Section.
Section
3.03 Payment Upon Redemption.
(a)
If the giving of notice of redemption shall have been completed as above provided, the Securities or portions of Securities of the
series to be redeemed specified in such notice shall become due and payable on the date and at the place stated in such notice at the
applicable redemption price, together with interest accrued to the date fixed for redemption and interest on such Securities or portions
of Securities shall cease to accrue on and after the date fixed for redemption, unless the Company shall default in the payment of such
redemption price and accrued interest with respect to any such Security or portion thereof. On presentation and surrender of such Securities
on or after the date fixed for redemption at the place of payment specified in the notice, said Securities shall be paid and redeemed
at the applicable redemption price for such series, together with interest accrued thereon to the date fixed for redemption (but if the
date fixed for redemption is an interest payment date, the interest installment payable on such date shall be payable to the registered
holder at the close of business on the applicable record date pursuant to Section 2.03).
(b)
Upon presentation of any Security of such series that is to be redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Security is presented shall deliver to the holder thereof, at the expense of the Company,
a new Security of the same series of authorized denominations in principal amount equal to the unredeemed portion of the Security so
presented.
Section
3.04 Sinking Fund.
The
provisions of Sections 3.04, 3.05 and 3.06 shall be applicable to any sinking fund for the retirement of Securities of a series, except
as otherwise specified as contemplated by Section 2.01 for Securities of such series. The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,” and any
payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional
sinking fund payment”. If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 3.05. Each sinking fund payment shall be applied to the redemption of Securities of any
series as provided for by the terms of Securities of such series.
Section
3.05 Satisfaction of Sinking Fund Payments with Securities.
The
Company (i) may deliver Outstanding Securities of a series and (ii) may apply as a credit Securities of a series that have been redeemed
either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with
respect to the Securities of such series required to be made pursuant to the terms of such Securities as provided for by the terms of
such series, provided that such Securities have not been previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the redemption 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.
Section
3.06 Redemption of Securities for Sinking Fund.
Not
less than 45 days prior to each sinking fund payment date for any series of Securities (unless a shorter period shall be satisfactory
to the Trustee), the Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing sinking
fund payment for that series pursuant to the terms of the series, the portion thereof, if any, that is to be satisfied by delivering
and crediting Securities of that series pursuant to Section 3.05 and the basis for such credit and will, together with such Officers’
Certificate, deliver to the Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date
the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 3.02 and
cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section
3.02. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in
Section 3.03.
ARTICLE
4
COVENANTS
Section
4.01 Payment of Principal, Premium and Interest.
The
Company will duly and punctually pay or cause to be paid the principal of (and premium, if any) and interest on the Securities of that
series at the time and place and in the manner provided herein and established with respect to such Securities.
Section
4.02 Maintenance of Office or Agency.
So
long as any series of the Securities remain Outstanding, the Company agrees to maintain an office or agency in the Borough of Manhattan,
the City and State of New York, with respect to each such series and at such other location or locations as may be designated as provided
in this Section 4.02, where (i) Securities of that series may be presented for payment, (ii) Securities of that series may be presented
as herein above authorized for registration of transfer and exchange, and (iii) notices and demands to or upon the Company in respect
of the Securities of that series and this Indenture may be given or served, such designation to continue with respect to such office
or agency until the Company shall, by written notice signed by any officer authorized to sign an Officers’ Certificate and delivered
to the Trustee, designate some other office or agency for such purposes or any of them. If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, 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, notices and demands. The Company initially appoints the Corporate Trust Office of the Trustee located in the
Borough of Manhattan, the City of New York as its paying agent with respect to the Securities.
Section
4.03 Paying Agents.
(a)
If the Company shall appoint one or more paying agents for all or any series of the Securities, other than the Trustee, the Company
will cause each such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section:
(1)
that it will hold all sums held by it as such agent for the payment of the principal of (and premium, if any) or interest on the
Securities of that series (whether such sums have been paid to it by the Company or by any other obligor of such Securities) in trust
for the benefit of the Persons entitled thereto;
(2)
that it will give the Trustee notice of any failure by the Company (or by any other obligor of such Securities) to make any payment
of the principal of (and premium, if any) or interest on the Securities of that series when the same shall be due and payable;
(3)
that it will, at any time during the continuance of any failure referred to in the preceding paragraph (a)(2) above, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such paying agent; and
(4)
that it will perform all other duties of paying agent as set forth in this Indenture.
(b)
If the Company shall act as its own paying agent with respect to any series of the Securities, it will on or before each due date
of the principal of (and premium, if any) or interest on Securities of that series, set aside, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay such principal (and premium, if any) or interest so becoming due on Securities
of that series until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the
Trustee of such action, or any failure (by it or any other obligor on such Securities) to take such action. Whenever the Company shall
have one or more paying agents for any series of Securities, it will, prior to each due date of the principal of (and premium, if any)
or interest on any Securities of that series, deposit with the paying agent a sum sufficient to pay the principal (and premium, if any)
or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest,
and (unless such paying agent is the Trustee) the Company will promptly notify the Trustee of this action or failure so to act.
(c)
Notwithstanding anything in this Section to the contrary, (i) the agreement to hold sums in trust as provided in this Section is
subject to the provisions of Section 11.05, and (ii) the Company may at any time, for the purpose of obtaining the satisfaction and discharge
of this Indenture or for any other purpose, pay, or direct any paying agent to pay, to the Trustee all sums held in trust by the Company
or such paying agent, such sums to be held by the Trustee upon the same terms and conditions as those upon which such sums were held
by the Company or such paying agent; and, upon such payment by the Company or any paying agent to the Trustee, the Company or such paying
agent shall be released from all further liability with respect to such money.
Section
4.04 Appointment to Fill Vacancy in Office of Trustee.
The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.10,
a Trustee, so that there shall at all times be a Trustee hereunder.
Section
4.05 Compliance with Consolidation Provisions.
The
Company will not, while any of the Securities remain Outstanding, consolidate with or merge into any other Person, in either case where
the Company is not the survivor of such transaction, or sell or convey all or substantially all of its property to any other Person unless
the provisions of Article Ten hereof are complied with.
ARTICLE
5
SECURITYHOLDERS’
LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section
5.01 Company to Furnish Trustee Names and Addresses of Securityholders.
The
Company will furnish or cause to be furnished to the Trustee (a) within 15 days after each regular record date (as defined in Section
2.03) a list, in such form as the Trustee may reasonably require, of the names and addresses of the holders of each series of Securities
as of such regular record date, provided that the Company shall not be obligated to furnish or cause to furnish such list at any time
that the list shall not differ in any respect from the most recent list furnished to the Trustee by the Company and (b) at such other
times as the Trustee may request in writing within 30 days after the receipt by the Company of any such request, a list of similar form
and content as of a date not more than 15 days prior to the time such list is furnished; provided, however, that, in either case, no
such list need be furnished for any series for which the Trustee shall be the Security Registrar.
Section
5.02 Preservation Of Information; Communications With Securityholders.
(a)
The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the
holders of Securities contained in the most recent list furnished to it as provided in Section 5.01 and as to the names and addresses
of holders of Securities received by the Trustee in its capacity as Security Registrar (if acting in such capacity).
(b)
The Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.
(c)
Securityholders may communicate as provided in Section 312(b) of the Trust Indenture Act with other Securityholders with respect
to their rights under this Indenture or under the Securities, and, in connection with any such communications, the Trustee shall satisfy
its obligations under Section 312(b) of the Trust Indenture Act in accordance with the provisions of Section 312(b) of the Trust Indenture
Act.
Section
5.03 Reports by the Company.
The
Company covenants and agrees to provide a copy to the Trustee, after the Company files the same with the Securities and Exchange Commission,
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 Securities and Exchange Commission may from time to time by rules and regulations prescribe) that the Company files with the Securities
and Exchange Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; provided, however, the Company shall not be required
to deliver to the Trustee any materials for which the Company has sought and received confidential treatment by the Securities and Exchange
Commission. The Company shall also comply with the requirements of Section 314 of the Trust Indenture Act, but only to the extent then
applicable to the Company.
Section
5.04 Reports by the Trustee.
(a)
On or before July 1 in each year in which any of the Securities are Outstanding, the Trustee shall transmit by mail, first class
postage prepaid, to the Securityholders, as their names and addresses appear upon the Security Register, a brief report dated as of the
preceding May 1, if and to the extent required under Section 313(a) of the Trust Indenture Act.
(b)
The Trustee shall comply with Section 313(b) and 313(c) of the Trust Indenture Act.
(c)
A copy of each such report shall, at the time of such transmission to Securityholders, be filed by the Trustee with the Company,
with each securities exchange upon which any Securities are listed (if so listed) and also with the Securities and Exchange Commission.
The Company agrees to notify the Trustee when any Securities become listed on any securities exchange.
ARTICLE
6
REMEDIES
OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section
6.01 Events of Default.
(a)
Whenever used herein with respect to Securities of a particular series, “Event of Default” means any one or more of the
following events that has occurred and is continuing:
(1)
the Company defaults in the payment of any installment of interest upon any of the Securities of that series, as and when the same
shall become due and payable, and such default continues for a period of 30 days; provided, however, that a valid extension of an interest
payment period by the Company in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the
payment of interest for this purpose;
(2)
the Company defaults in the payment of the principal of (or premium, if any, on) any of the Securities of that series as and when
the same shall become due and payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment required by
any sinking or analogous fund established with respect to that series; provided, however, that a valid extension of the maturity of such
Securities in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment of principal
or premium, if any;
(3)
the Company fails to observe or perform any other of its covenants or agreements with respect to that series contained in this Indenture
or otherwise established with respect to that series of Securities pursuant to Section 2.01 hereof (other than a covenant or agreement
that has been expressly included in this Indenture solely for the benefit of one or more series of Securities other than such series)
for a period of 90 days after the date on which written notice of such failure, requiring the same to be remedied and stating that such
notice is a “Notice of Default” hereunder, shall have been given to the Company by the Trustee, by registered or certified
mail, or to the Company and the Trustee by the holders of at least 25% in principal amount of the Securities of that series at the time
Outstanding;
(4)
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 or (iv) makes a general assignment for the benefit of its creditors; or
(5)
a court of competent jurisdiction enters an order under any Bankruptcy Law that (i) is for relief against the Company in an involuntary
case, (ii) appoints a Custodian of the Company 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 90 days.
(b)
In each and every such case (other than an Event of Default specified in clause (4) or clause (5) above), unless the principal of
all the Securities of that series shall have already become due and payable, either the Trustee or the holders of not less than 25% in
aggregate principal amount of the Securities of that series then Outstanding hereunder, by notice in writing to the Company (and to the
Trustee if given by such Securityholders), may declare the principal of (and premium, if any, on) and accrued and unpaid interest on
all the Securities of that series to be due and payable immediately, and upon any such declaration the same shall become and shall be
immediately due and payable. If an Event of Default specified in clause (4) or clause (5) above occurs, the principal of and accrued
and unpaid interest on all the Securities of that series shall automatically be immediately due and payable without any declaration or
other act on the part of the Trustee or the holders of the Securities.
(c)
At any time after the principal of (and premium, if any, on) and accrued and unpaid interest on the Securities of that series shall
have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or
entered as hereinafter provided, the holders of a majority in aggregate principal amount of the Securities of that series then Outstanding
hereunder, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if: (i) the
Company has paid or deposited with the Trustee a sum sufficient to pay all matured installments of interest upon all the Securities of
that series and the principal of (and premium, if any, on) any and all Securities of that series that shall have become due otherwise
than by acceleration (with interest upon such principal and premium, if any, and, to the extent that such payment is enforceable under
applicable law, upon overdue installments of interest, at the rate per annum expressed in the Securities of that series to the date of
such payment or deposit) and the amount payable to the Trustee under Section 7.06, and (ii) any and all Events of Default under the Indenture
with respect to such series, other than the nonpayment of principal on (and premium, if any, on) and accrued and unpaid interest on Securities
of that series that shall not have become due by their terms, shall have been remedied or waived as provided in Section 6.06.
No
such rescission and annulment shall extend to or shall affect any subsequent default or impair any right consequent thereon.
(d)
In case the Trustee shall have proceeded to enforce any right with respect to Securities of that series under this Indenture and
such proceedings shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case, subject to any determination in such proceedings, the Company
and the Trustee shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of
the Company and the Trustee shall continue as though no such proceedings had been taken.
Section
6.02 Collection of Indebtedness and Suits for Enforcement by Trustee.
(a)
The Company covenants that (i) in case it shall default in the payment of any installment of interest on any of the Securities of
a series, or in any payment required by any sinking or analogous fund established with respect to that series as and when the same shall
have become due and payable, and such default shall have continued for a period of 90 Business Days, or (ii) in case it shall default
in the payment of the principal of (or premium, if any, on) any of the Securities of a series when the same shall have become due and
payable, whether upon maturity of the Securities of a series or upon redemption or upon declaration or otherwise then, upon demand of
the Trustee, the Company will pay to the Trustee, for the benefit of the holders of the Securities of that series, the whole amount that
then shall have been become due and payable on all such Securities for principal (and premium, if any) or interest, or both, as the case
may be, with interest upon the overdue principal (and premium, if any) and (to the extent that payment of such interest is enforceable
under applicable law) upon overdue installments of interest at the rate per annum expressed in the Securities of that series; and, in
addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, and the amount payable to
the Trustee under Section 7.06.
(b)
If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due
and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree
against the Company or other obligor upon the Securities of that series and collect the moneys adjudged or decreed to be payable in the
manner provided by law or equity out of the property of the Company or other obligor upon the Securities of that series, wherever situated.
(c)
In case of any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or judicial
proceedings affecting the Company, or its creditors or property, the Trustee shall have power to intervene in such proceedings and take
any action therein that may be permitted by the court and shall (except as may be otherwise provided by law) be entitled to file such
proofs of claim and other papers and documents as may be necessary or advisable in order to have the claims of the Trustee and of the
holders of Securities of such series allowed for the entire amount due and payable by the Company under the Indenture at the date of
institution of such proceedings and for any additional amount that may become due and payable by the Company after such date, and to
collect and receive any moneys or other property payable or deliverable on any such claim, and to distribute the same after the deduction
of the amount payable to the Trustee under Section 7.06; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the holders of Securities of such series to make such payments to the Trustee, and, in the event that the Trustee
shall consent to the making of such payments directly to such Securityholders, to pay to the Trustee any amount due it under Section
7.06.
(d)
All rights of action and of asserting claims under this Indenture, or under any of the terms established with respect to Securities
of that series, may be enforced by the Trustee without the possession of any of such Securities, or the production thereof at any trial
or other proceeding relative thereto, and any such suit or 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 payment to the Trustee of any amounts due under Section
7.06, be for the ratable benefit of the holders of the Securities of such series.
In
case of an Event of Default hereunder, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights,
either at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained
in the Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested
in the Trustee by this Indenture or by law.
Nothing
contained herein shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder
any plan of reorganization, arrangement, adjustment or composition affecting the Securities of that series or the rights of any holder
thereof or to authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding.
Section
6.03 Application of Moneys or Property Collected.
Any
moneys or property collected by the Trustee pursuant to this Article with respect to a particular series of Securities shall be applied
in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such moneys or property on account
of principal (or premium, if any) or interest, upon presentation of the Securities of that series, and notation thereon of the payment,
if only partially paid, and upon surrender thereof if fully paid:
FIRST:
To the payment of reasonable costs and expenses of collection and of all amounts payable to the Trustee under Section 7.06;
SECOND:
To the payment of the amounts then due and unpaid upon Securities of such series for principal (and premium, if any) and interest, 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 premium, if any) and interest, respectively; and
THIRD:
To the payment of the remainder, if any, to the Company or any other Person lawfully entitled thereto as requested by the Company.
Section
6.04 Limitation on Suits.
No
holder of any Security of any series shall have any right by virtue or by availing of any provision of this Indenture to institute any
suit, action or proceeding in equity or at law upon or under or with respect to this Indenture or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless (i) such holder previously shall have given to the Trustee written notice of an Event
of Default and of the continuance thereof with respect to the Securities of such series specifying such Event of Default, as hereinbefore
provided; (ii) the holders of not less than 25% in aggregate principal amount of the Securities of such series then Outstanding shall
have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder; (iii) such
holder or holders shall have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses and liabilities
to be incurred therein or thereby; (iv) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity, shall
have failed to institute any such action, suit or proceeding and (v) during such 60 day period, the holders of a majority in principal
amount of the Securities of that series do not give the Trustee a direction inconsistent with the request.
Notwithstanding
anything contained herein to the contrary or any other provisions of this Indenture, the right of any holder of any Security to receive
payment of the principal of (and premium, if any) and interest on such Security, as therein provided, on or after the respective due
dates expressed in such Security (or in the case of redemption, on the redemption date), or to institute suit for the enforcement of
any such payment on or after such respective dates or redemption date, shall not be impaired or affected without the consent of such
holder and by accepting a Security hereunder it is expressly understood, intended and covenanted by the taker and holder of every Security
of such series with every other such taker and holder and the Trustee, that no one or more holders of Securities of such series shall
have any right in any manner whatsoever by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the
rights of the holders of any other of such Securities, or to obtain or seek to obtain priority over or preference to any other such holder,
or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all
holders of Securities of such series. For the protection and enforcement of the provisions of this Section, each and every Securityholder
and the Trustee shall be entitled to such relief as can be given either at law or in equity.
Section
6.05 Rights and Remedies Cumulative; Delay or Omission Not Waiver.
(a)
Except as otherwise provided in Section 2.07, all powers and remedies given by this Article to the Trustee or to the Securityholders
shall, to the extent permitted by law, be deemed cumulative and not exclusive of any other powers and remedies available to the Trustee
or the holders of the Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture or otherwise established with respect to such Securities.
(b)
No delay or omission of the Trustee or of any holder of any of the Securities to exercise any right or power accruing upon any Event
of Default occurring and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver of any such
default or an acquiescence therein; and, subject to the provisions of Section 6.04, every power and remedy given by this Article or by
law to the Trustee or the Securityholders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee
or by the Securityholders.
Section
6.06 Control by Securityholders.
The
holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding, determined in accordance
with Section 8.04, 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 such series; provided, however, that such direction
shall not be in conflict with any rule of law or with this Indenture. Subject to the provisions of Section 7.01, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good faith shall, by a Responsible Officer or officers of the Trustee,
determine that the proceeding so directed, subject to the Trustee’s duties under the Trust Indenture Act, would involve the Trustee
in personal liability or might be unduly prejudicial to the Securityholders not involved in the proceeding. The holders of a majority
in aggregate principal amount of the Securities of any series at the time Outstanding affected thereby, determined in accordance with
Section 8.04, may on behalf of the holders of all of the Securities of such series waive any past default in the performance of any of
the covenants contained herein or established pursuant to Section 2.01 with respect to such series and its consequences, except a default
in the payment of the principal of, or premium, if any, or interest on, any of the Securities of that series as and when the same shall
become due by the terms of such Securities otherwise than by acceleration (unless such default has been cured and a sum sufficient to
pay all matured installments of interest and principal and any premium has been deposited with the Trustee (in accordance with Section
6.01(c)). Upon any such waiver, the default covered thereby shall be deemed to be cured for all purposes of this Indenture and the Company,
the Trustee and the holders of the Securities of such series shall be restored to their former positions and rights hereunder, respectively;
but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section
6.07 Undertaking to Pay Costs.
All
parties to this Indenture agree, and each holder of any Securities by such holder’s 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 or omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any
Securityholder, or group of Securityholders, holding more than 10% in aggregate principal amount of the Outstanding Securities of any
series, or to any suit instituted by any Securityholder for the enforcement of the payment of the principal of (or premium, if any) or
interest on any Security of such series, on or after the respective due dates expressed in such Security or established pursuant to this
Indenture.
ARTICLE
7
CONCERNING
THE TRUSTEE
Section
7.01 Certain Duties and Responsibilities of Trustee.
(a)
The Trustee, prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing of all
Events of Default with respect to the Securities of that series that may have occurred, shall undertake to perform with respect to the
Securities of such series such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants
shall be read into this Indenture against the Trustee. In case an Event of Default with respect to the Securities of a series has occurred
(that has not been cured or waived), the Trustee shall exercise with respect to Securities of that series such of 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 man would exercise or use under
the circumstances in the conduct of his own affairs.
(b)
No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i)
prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing or waiving of all
such Events of Default with respect to that series that may have occurred:
(A)
the duties and obligations of the Trustee shall with respect to the Securities of such series be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable with respect to the Securities of such series except for the performance
of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(B)
in the absence of bad faith on the part of the Trustee, the Trustee may with respect to the Securities of such series conclusively
rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirement of this Indenture;
(ii)
the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officers of
the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii)
the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the
direction of the holders of not less than a majority in principal amount of the Securities of any series at the time Outstanding 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 that series; and
(iv)
None of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise of any of its rights or powers if there is reasonable
ground for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Indenture
or adequate indemnity against such risk is not reasonably assured to it.
Section
7.02 Certain Rights of Trustee.
Except
as otherwise provided in Section 7.01:
(a)
The Trustee may rely conclusively and shall be protected in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond, security or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(b)
Any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Board Resolution or
an instrument signed in the name of the Company by any authorized officer of the Company (unless other evidence in respect thereof is
specifically prescribed herein);
(c)
The Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or omitted hereunder in good faith and in reliance thereon;
(d)
The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order
or direction of any of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses and liabilities that may be incurred therein or thereby;
nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default with respect
to a series of the Securities (that has not been cured or waived), to exercise with respect to Securities of that series such of the
rights and powers vested in it by this Indenture, and to use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs;
(e)
The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this Indenture;
(f)
The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond, security, or other papers or documents, unless requested
in writing so to do by the holders of not less than a majority in principal amount of the Outstanding Securities of the particular series
affected thereby (determined as provided in Section 8.04); provided, however, that if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee,
not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require reasonable
indemnity against such costs, expenses or liabilities as a condition to so proceeding. The reasonable expense of every such examination
shall be paid by the Company or, if paid by the Trustee, shall be repaid by the Company upon demand; and
(g)
The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder.
In
addition, the Trustee shall not be deemed to have knowledge of any Default or Event of Default except (1) any Event of Default occurring
pursuant to Sections 6.01(a)(1), 6.01(a)(2) and 4.01 hereof or (2) any Default or Event of Default of which the Trustee shall have received
written notification in the manner set forth in this Indenture or a Responsible Officer of the Trustee shall have obtained actual knowledge.
Delivery of reports, information and documents to the Trustee under Section 5.03 is for informational purposes only and the information
and the Trustee’s receipt of the foregoing shall not constitute constructive notice of any information contained therein, or determinable
from information contained therein including the Company’s compliance with any of their covenants thereunder (as to which the Trustee
is entitled to rely conclusively on an Officers’ Certificate).
Section
7.03 Trustee Not Responsible for Recitals or Issuance or Securities.
(a)
The recitals contained herein and in the Securities shall be taken as the statements of the Company, and the Trustee assumes no responsibility
for the correctness of the same.
(b)
The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities.
(c)
The Trustee shall not be accountable for the use or application by the Company of any of the Securities or of the proceeds of such
Securities, or for the use or application of any moneys paid over by the Trustee in accordance with any provision of this Indenture or
established pursuant to Section 2.01, or for the use or application of any moneys received by any paying agent other than the Trustee.
Section
7.04 May Hold Securities.
The
Trustee or any paying agent or Security Registrar, in its individual or any other capacity, may become the owner or pledgee of Securities
with the same rights it would have if it were not Trustee, paying agent or Security Registrar.
Section
7.05 Moneys Held in Trust.
Subject
to the provisions of Section 11.05, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust
for the purposes for which they were received, but need not be segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any moneys received by it hereunder except such as it may agree with the Company
to pay thereon.
Section
7.06 Compensation and Reimbursement.
(a)
The Company covenants and agrees to pay to the Trustee, and the Trustee shall be entitled to, such reasonable compensation (which
shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) as the Company and the Trustee
may from time to time agree in writing, for all services rendered by it in the execution of the trusts hereby created and in the exercise
and performance of any of the powers and duties hereunder of the Trustee, and, except as otherwise expressly provided herein, the Company
will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements
of its counsel and of all Persons not regularly in its employ), except any such expense, disbursement or advance as may arise from its
negligence or bad faith and except as the Company and Trustee may from time to time agree in writing. The Company also covenants to indemnify
the Trustee (and its officers, agents, directors and employees) for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on the part of the Trustee and arising out of or in connection with the acceptance or administration
of this trust, including the reasonable costs and expenses of defending itself against any claim of liability in the premises.
(b)
The obligations of the Company under this Section to compensate and indemnify the Trustee and to pay or reimburse the Trustee for
reasonable expenses, disbursements and advances shall constitute additional indebtedness hereunder. Such additional indebtedness shall
be secured by a lien prior to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds
held in trust for the benefit of the holders of particular Securities.
Section
7.07 Reliance on Officers’ Certificate.
Except
as otherwise provided in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it reasonably
necessary or desirable that a matter be proved or established prior to taking or suffering or omitting to take any action hereunder,
such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established by an Officers’ Certificate delivered to the Trustee
and such certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for
any action taken, suffered or omitted to be taken by it under the provisions of this Indenture upon the faith thereof.
Section
7.08 Disqualification; Conflicting Interests.
If
the Trustee has or shall acquire any “conflicting interest” within the meaning of Section 310(b) of the Trust Indenture Act,
the Trustee and the Company shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act.
Section
7.09 Corporate Trustee Required; Eligibility.
There
shall at all times be a Trustee with respect to the Securities issued hereunder which shall at all times be a corporation organized and
doing business under the laws of the United States of America or any state or territory thereof or of the District of Columbia, or a
corporation or other Person permitted to act as trustee by the Securities and Exchange Commission, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least fifty million U.S. dollars ($50,000,000), and subject to supervision
or examination by federal, state, territorial, or District of Columbia authority.
If
such corporation or other Person publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation or other
Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. The Company
may not, nor may any Person directly or indirectly controlling, controlled by, or under common control with the Company, serve as Trustee.
In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 7.10.
Section
7.10 Resignation and Removal; Appointment of Successor.
(a)
The Trustee or any successor hereafter appointed may at any time resign with respect to the Securities of one or more series by giving
written notice thereof to the Company and by transmitting notice of resignation by mail, first class postage prepaid, to the Securityholders
of such series, as their names and addresses appear upon the Security Register.
Upon
receiving such notice of resignation, the Company shall promptly appoint a successor trustee with respect to Securities of such series
by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to
the resigning Trustee and one copy to the successor trustee. If no successor trustee shall have been so appointed and have accepted appointment
within 30 days after the mailing of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction
for the appointment of a successor trustee with respect to Securities of such series, or any Securityholder of that series who has been
a bona fide holder of a Security or Securities for at least six months may on behalf of himself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper
and prescribe, appoint a successor trustee.
(b)
In case at any time any one of the following shall occur:
(i)
the Trustee shall fail to comply with the provisions of Section 7.08 after written request therefor by the Company or by any Securityholder
who has been a bona fide holder of a Security or Securities for at least six months; or
(ii)
the Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 and shall fail to resign after written request
therefor by the Company or by any such Securityholder; or
(iii)
the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding,
or a receiver of the Trustee or of its property shall be appointed or consented to, or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation; then, in any such case,
the Company may remove the Trustee with respect to all Securities and appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to
the successor trustee, or any Securityholder who has been a bona fide holder of a Security or Securities for at least six months may,
on behalf of that holder and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.
(c)
The holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding may at any time remove
the Trustee with respect to such series by so notifying the Trustee and the Company and may appoint a successor Trustee for such series
with the consent of the Company.
(d)
Any resignation or removal of the Trustee and appointment of a successor trustee with respect to the Securities of a series pursuant
to any of the provisions of this Section shall become effective upon acceptance of appointment by the successor trustee as provided in
Section 7.11.
(e)
Any successor trustee appointed pursuant to this Section may be appointed with respect to the Securities of one or more series or
all of such series, and at any time there shall be only one Trustee with respect to the Securities of any particular series.
Section
7.11 Acceptance of Appointment By Successor.
(a)
In case of the appointment hereunder of a successor trustee with respect to all Securities, every such successor trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company
or the successor trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to
such successor trustee all the rights, powers, and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such
successor trustee all property and money held by such retiring Trustee hereunder.
(b)
In case of the appointment hereunder of a successor trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor trustee with respect to the Securities of one or more series shall execute and deliver
an indenture supplemental hereto wherein each successor trustee shall accept such appointment and which (i) shall contain such provisions
as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor trustee all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor
trustee relates, (ii) shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee, and (iii) shall add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such
Trustee and that no Trustee shall be responsible for any act or failure to act on the part of any other Trustee hereunder; and upon the
execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the
extent provided therein, such retiring Trustee shall with respect to the Securities of that or those series to which the appointment
of such successor trustee relates have no further responsibility for the exercise of rights and powers or for the performance of the
duties and obligations vested in the Trustee under this Indenture, and each such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such successor trustee relates; but, on request of the Company or any successor trustee,
such retiring Trustee shall duly assign, transfer and deliver to such successor trustee, to the extent contemplated by such supplemental
indenture, the property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which
the appointment of such successor trustee relates.
(c)
Upon request of any such successor trustee, the Company shall execute any and all instruments for more fully and certainly vesting
in and confirming to such successor trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as
the case may be.
(d)
No successor trustee shall accept its appointment unless at the time of such acceptance such successor trustee shall be qualified
and eligible under this Article.
(e)
Upon acceptance of appointment by a successor trustee as provided in this Section, the Company shall transmit notice of the succession
of such trustee hereunder by mail, first class postage prepaid, to the Securityholders, as their names and addresses appear upon the
Security Register. If the Company fails to transmit such notice within ten days after acceptance of appointment by the successor trustee,
the successor trustee shall cause such notice to be transmitted at the expense of the Company.
Section
7.12 Merger, Conversion, Consolidation or Succession to Business.
Any
corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from
any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided that such corporation shall be qualified under the provisions
of Section 7.08 and eligible under the provisions of Section 7.09, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary notwithstanding. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
Section
7.13 Preferential Collection of Claims Against the Company.
The
Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship described in Section 311(b)
of the Trust Indenture Act. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act
to the extent included therein.
Section
7.14 Notice of Default
If
any Default or any Event of Default occurs and is continuing and if such Default or Event of Default is known to a Responsible Officer
of the Trustee, the Trustee shall mail to each Securityholder in the manner and to the extent provided in Section 313(c) of the Trust
Indenture Act notice of the Default or Event of Default within 90 days after it occurs and becomes known to the Trustee, unless such
Default or Event of Default has been cured; provided, however, that, except in the case of a default in the payment of the principal
of (or premium, if any) or interest on any Security, the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interest of the Securityholders.
ARTICLE
8
CONCERNING
THE SECURITYHOLDERS
Section
8.01 Evidence of Action by Securityholders.
Whenever
in this Indenture it is provided that the holders of a majority or specified percentage in aggregate principal amount of the Securities
of a particular series may take any action (including the making of any demand or request, the giving of any notice, consent or waiver
or the taking of any other action), the fact that at the time of taking any such action the holders of such majority or specified percentage
of that series have joined therein may be evidenced by any instrument or any number of instruments of similar tenor executed by such
holders of Securities of that series in person or by agent or proxy appointed in writing.
If
the Company shall solicit from the Securityholders of any series any request, demand, authorization, direction, notice, consent, waiver
or other action, the Company may, at its option, as evidenced by an Officers’ Certificate, fix in advance a record date for such
series for the determination of Securityholders entitled to give such request, demand, authorization, direction, notice, consent, waiver
or other action, but the Company shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other action may be given before or after the record date, but only the Securityholders of record
at the close of business on the record date shall be deemed to be Securityholders for the purposes of determining whether Securityholders
of the requisite proportion of Outstanding Securities of that series have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action, and for that purpose the Outstanding Securities of that series shall
be computed as of the record date; provided, however, that no such authorization, agreement or consent by such Securityholders on the
record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six
months after the record date.
Section
8.02 Proof of Execution by Securityholders.
Subject
to the provisions of Section 7.01, proof of the execution of any instrument by a Securityholder (such proof will not require notarization)
or his agent or proxy and proof of the holding by any Person of any of the Securities shall be sufficient if made in the following manner:
(a)
The fact and date of the execution by any such Person of any instrument may be proved in any reasonable manner acceptable to the
Trustee.
(b)
The ownership of Securities shall be proved by the Security Register of such Securities or by a certificate of the Security Registrar
thereof.
The
Trustee may require such additional proof of any matter referred to in this Section as it shall deem necessary.
Section
8.03 Who May be Deemed Owners.
Prior
to the due presentment for registration of transfer of any Security, the Company, the Trustee, any paying agent and any Security Registrar
may deem and treat the Person in whose name such Security shall be registered upon the books of the Company as the absolute owner of
such Security (whether or not such Security shall be overdue and notwithstanding any notice of ownership or writing thereon made by anyone
other than the Security Registrar) for the purpose of receiving payment of or on account of the principal of, premium, if any, and (subject
to Section 2.03) interest on such Security and for all other purposes; and neither the Company nor the Trustee nor any paying agent nor
any Security Registrar shall be affected by any notice to the contrary.
Section
8.04 Certain Securities Owned by Company Disregarded.
In
determining whether the holders of the requisite aggregate principal amount of Securities of a particular series have concurred in any
direction, consent or waiver under this Indenture, the Securities of that series that are owned by the Company or any other obligor on
the Securities of that series or by any Person directly or indirectly controlling or controlled by or under common control with the Company
or any other obligor on the Securities of that series shall be disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction, consent
or waiver, only Securities of such series that the Trustee actually knows are so owned shall be so disregarded. The Securities so owned
that have been pledged in good faith may be regarded as Outstanding for the purposes of this Section, if the pledgee shall establish
to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not a
Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any such other
obligor. In case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection
to the Trustee.
Section
8.05 Actions Binding on Future Securityholders.
At
any time prior to (but not after) the evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the holders
of the majority or percentage in aggregate principal amount of the Securities of a particular series specified in this Indenture in connection
with such action, any holder of a Security of that series that is shown by the evidence to be included in the Securities the holders
of which have consented to such action may, by filing written notice with the Trustee, and upon proof of holding as provided in Section
8.02, revoke such action so far as concerns such Security. Except as aforesaid any such action taken by the holder of any Security shall
be conclusive and binding upon such holder and upon all future holders and owners of such Security, and of any Security issued in exchange
therefor, on registration of transfer thereof or in place thereof, irrespective of whether or not any notation in regard thereto is made
upon such Security. Any action taken by the holders of the majority or percentage in aggregate principal amount of the Securities of
a particular series specified in this Indenture in connection with such action shall be conclusively binding upon the Company, the Trustee
and the holders of all the Securities of that series.
ARTICLE
9
SUPPLEMENTAL
INDENTURES
Section
9.01 Supplemental Indentures Without the Consent of Securityholders.
In
addition to any supplemental indenture otherwise authorized by this Indenture, the Company and the Trustee may from time to time and
at any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act
as then in effect), without the consent of the Securityholders, for one or more of the following purposes:
(a)
to cure any ambiguity, defect, or inconsistency herein or in the Securities of any series;
(b)
to comply with Article Ten;
(c)
to provide for uncertificated Securities in addition to or in place of certificated Securities and to make all appropriate changes
for such purpose;
(d)
to add to the covenants, restrictions, conditions or provisions relating to the Company for the benefit of the holders of all or
any series of Securities (and if such covenants, restrictions, conditions or provisions are to be for the benefit of less than all series
of Securities, stating that such covenants, restrictions, conditions or provisions are expressly being included solely for the benefit
of such series), to make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants, restrictions,
conditions or provisions an Event of Default, or to surrender any right or power herein conferred upon the Company;
(e)
to add to, delete from, or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue,
authentication, and delivery of Securities, as herein set forth;
(f)
to make any change that does not adversely affect the rights of any Securityholder in any material respect;
(g)
to provide for the issuance of and establish the form and terms and conditions of the Securities of any series as provided in Section
2.01, to establish the form of any certifications required to be furnished pursuant to the terms of this Indenture or any series of Securities,
or to add to the rights of the holders of any series of Securities;
(h)
to evidence and provide for the acceptance of appointment hereunder by a successor trustee; or
(i)
to comply with any requirements of the Securities and Exchange Commission or any successor in connection with the qualification of
this Indenture under the Trust Indenture Act.
The
Trustee is hereby authorized to join with the Company in the execution of any such supplemental indenture, and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into any such supplemental
indenture that affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Any
supplemental indenture authorized by the provisions of this Section may be executed by the Company and the Trustee without the consent
of the holders of any of the Securities at the time Outstanding, notwithstanding any of the provisions of Section 9.02.
Section
9.02 Supplemental Indentures With Consent of Securityholders.
With
the consent (evidenced as provided in Section 8.01) of the holders of not less than a majority in aggregate principal amount of the Securities
of each series affected by such supplemental indenture or indentures at the time Outstanding, the Company, when authorized by a Board
Resolution, and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as then in effect) 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 not covered
by Section 9.01 the rights of the holders of the Securities of such series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the holders of each Security then Outstanding and affected thereby, (a) extend the fixed maturity
of any Securities of any series, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest
thereon, or reduce any premium payable upon the redemption thereof, (b) make any Security payable in money other than that stated in
the Security, (c) impair the right of any Holder to receive payment of principal of, premium, if any, and interest, if any, on, such
Holder’s Securities on or after the due dates therefor or to institute suit for the enforcement of any payment, or (d) adversely
change the right to convert or exchange, including decreasing the conversion rate or increasing the conversion price of, any Security,
or (e) reduce the aforesaid percentage of Securities, the holders of which are required to consent to any such supplemental indenture.
It
shall not be necessary for the consent of the Securityholders of any series affected thereby under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Section
9.03 Effect of Supplemental Indentures.
Upon
the execution of any supplemental indenture pursuant to the provisions of this Article or of Section 10.01, this Indenture shall, with
respect to such series, be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture of the Trustee, the Company and the holders of Securities of the series
affected thereby shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
Section
9.04 Securities Affected by Supplemental Indentures.
Securities
of any series affected by a supplemental indenture, authenticated and delivered after the execution of such supplemental indenture pursuant
to the provisions of this Article or of Section 10.01, may bear a notation in form approved by the Company, provided such form meets
the requirements of any securities exchange upon which such series may be listed, as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of that series so modified as to conform, in the opinion of the Board of
Directors, to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Company, authenticated
by the Trustee and delivered in exchange for the Securities of that series then Outstanding.
Section
9.05 Execution of Supplemental Indentures.
Upon
the request of the Company, accompanied by its Board Resolutions authorizing the execution of any such supplemental indenture, and upon
the filing with the Trustee of evidence of the consent of Securityholders required to consent thereto as aforesaid, the Trustee shall
join with the Company in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion but shall not be
obligated to enter into such supplemental indenture. The Trustee, subject to the provisions of Section 7.01, will be entitled to receive
and will be fully protected in relying upon an Officers’ Certificate and an Opinion of Counsel stating that any supplemental indenture
executed pursuant to this Article is authorized or permitted by, and conforms to, the terms of this Article and that it is proper for
the Trustee under the provisions of this Article to join in the execution thereof; provided, however, that such Officers’ Certificate
or Opinion of Counsel need not be provided in connection with the execution of a supplemental indenture that establishes the terms of
a series of Securities pursuant to Section 2.01 hereof.
Promptly
after the execution by the Company and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first class postage prepaid, a notice, setting forth in general terms the substance of such supplemental indenture,
to the Securityholders of all series affected thereby as their names and addresses appear upon the Security Register. Any failure of
the Trustee to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental
indenture.
ARTICLE
10
SUCCESSOR
ENTITY
Section
10.01 Company May Consolidate, Etc.
The
Company shall not consolidate with or merge into any other Person (in a transaction in which the Company is not the surviving corporation)
or convey, transfer or lease its properties and assets substantially as an entirety to any Person, unless (a) the Person formed by such
consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases, the properties
and assets of the Company substantially as an entirety shall expressly assume, by an indenture supplemental hereto, executed and delivered
to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of and any premium and interest on
all the Securities and the performance or observance of every covenant of this Indenture on the part of the Company to be performed,
by supplemental indenture satisfactory in form to the Trustee, executed and delivered to the Trustee, by the Person (if other than the
Company) formed by such consolidation or into which the Company shall have been merged or by the Person which shall have acquired the
Company’s assets; (b) immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation
of the Company or any Subsidiary as a result of such transaction as having been incurred by the Company or such Subsidiary at the time
of such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default,
shall have happened and be continuing; and (c) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion
of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture comply with this Article and that all conditions precedent herein provided
for relating to such transaction have been complied with.
The
restrictions in this Section 10.01 shall not apply to the merger of the Company with or into a single direct or indirect wholly owned
Subsidiary.
Section
10.02 Successor Entity Substituted.
(a)
In case of any such consolidation, merger, sale, conveyance, transfer or other disposition and upon the assumption by the successor
entity by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the obligations set
forth under Section 10.01 on all of the Securities of all series Outstanding, such successor entity shall succeed to and be substituted
for the Company with the same effect as if it had been named as the Company herein, and thereupon the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture and the Securities.
(b)
In case of any such consolidation, merger, sale, conveyance, transfer or other disposition, such changes in phraseology and form
(but not in substance) may be made in the Securities thereafter to be issued as may be appropriate.
(c)
Nothing contained in this Article shall require any action by the Company in the case of a consolidation or merger of any Person
into the Company where the Company is the survivor of such transaction, or the acquisition by the Company, by purchase or otherwise,
of all or any part of the property of any other Person (whether or not affiliated with the Company).
Section
10.03 Evidence of Consolidation, Etc. to Trustee.
The
Trustee, subject to the provisions of Section 7.01, may receive an Officers’ Certificate or an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, conveyance, transfer or other disposition, and any such assumption, comply with the
provisions of this Article.
ARTICLE
11
SATISFACTION
AND DISCHARGE
Section
11.01 Satisfaction and Discharge of Indenture.
If
at any time: (a) the Company shall have delivered to the Trustee for cancellation all Securities of a series theretofore authenticated
and not delivered to the Trustee for cancellation (other than any Securities that shall have been destroyed, lost or stolen and that
shall have been replaced or paid as provided in Section 2.07 and Securities for whose payment money or Governmental Obligations have
theretofore been deposited in trust or segregated and held in trust by the Company and thereupon repaid to the Company or discharged
from such trust, as provided in Section 11.05); or (b) all such Securities of a particular series not theretofore delivered to the Trustee
for cancellation shall have become due and payable, or are by their terms to become due and payable within one year or are to be called
for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and the Company
shall deposit or cause to be deposited with the Trustee as trust funds the entire amount in moneys or Governmental Obligations or a combination
thereof, sufficient in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay at maturity or upon redemption all Securities of that series not theretofore delivered to the
Trustee for cancellation, including principal (and premium, if any) and interest due or to become due to such date of maturity or date
fixed for redemption, as the case may be, and if the Company shall also pay or cause to be paid all other sums payable hereunder with
respect to such series by the Company then this Indenture shall thereupon cease to be of further effect with respect to such series except
for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03 and 7.10, that shall survive until the date of maturity or redemption
date, as the case may be, and Sections 7.06 and 11.05, that shall survive to such date and thereafter, and the Trustee, on demand of
the Company and at the cost and expense of the Company shall execute proper instruments acknowledging satisfaction of and discharging
this Indenture with respect to such series.
Section
11.02 Discharge of Obligations.
If
at any time all such Securities of a particular series not heretofore delivered to the Trustee for cancellation or that have not become
due and payable as described in Section 11.01 shall have been paid by the Company by depositing irrevocably with the Trustee as trust
funds moneys or an amount of Governmental Obligations sufficient to pay at maturity or upon redemption all such Securities of that series
not theretofore delivered to the Trustee for cancellation, including principal (and premium, if any) and interest due or to become due
to such date of maturity or date fixed for redemption, as the case may be, and if the Company shall also pay or cause to be paid all
other sums payable hereunder by the Company with respect to such series, then after the date such moneys or Governmental Obligations,
as the case may be, are deposited with the Trustee the obligations of the Company under this Indenture with respect to such series shall
cease to be of further effect except for the provisions of Sections 2.03, 2.05, 2.07, 4,01, 4.02, 4,03, 7.06, 7.10 and 11.05 hereof that
shall survive until such Securities shall mature and be paid.
Thereafter,
Sections 7.06 and 11.05 shall survive.
Section
11.03 Deposited Moneys to be Held in Trust.
All
moneys or Governmental Obligations deposited with the Trustee pursuant to Sections 11.01 or 11.02 shall be held in trust and shall be
available for payment as due, either directly or through any paying agent (including the Company acting as its own paying agent), to
the holders of the particular series of Securities for the payment or redemption of which such moneys or Governmental Obligations have
been deposited with the Trustee.
Section
11.04 Payment of Moneys Held by Paying Agents.
In
connection with the satisfaction and discharge of this Indenture all moneys or Governmental Obligations then held by any paying agent
under the provisions of this Indenture shall, upon demand of the Company, be paid to the Trustee and thereupon such paying agent shall
be released from all further liability with respect to such moneys or Governmental Obligations.
Section
11.05 Repayment to Company.
Any
moneys or Governmental Obligations deposited with any paying agent or the Trustee, or then held by the Company, in trust for payment
of principal of or premium, if any, or interest on the Securities of a particular series that are not applied but remain unclaimed by
the holders of such Securities for at least two years after the date upon which the principal of (and premium, if any) or interest on
such Securities shall have respectively become due and payable, or such other shorter period set forth in applicable escheat or abandoned
or unclaimed property law, shall be repaid to the Company on May 31 of each year or upon the Company’s request or (if then held
by the Company) shall be discharged from such trust; and thereupon the paying agent and the Trustee shall be released from all further
liability with respect to such moneys or Governmental Obligations, and the holder of any of the Securities entitled to receive such payment
shall thereafter, as a general creditor, look only to the Company for the payment thereof.
ARTICLE
12
IMMUNITY
OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section
12.01 No Recourse.
No
recourse under or upon any obligation, covenant or agreement of this Indenture, or of any Security, or for any claim based thereon or
otherwise in respect thereof, shall be had against any incorporator, stockholder, officer or director, past, present or future as such,
of the Company or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly understood that this Indenture and the obligations issued hereunder are solely corporate obligations, and that no
such personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, stockholders, officers or directors
as such, of the Company or of any predecessor or successor corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom; and that any and all such personal liability of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against, every such incorporator, stockholder, officer or director
as such, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied therefrom, are hereby expressly waived and released as a condition
of, and as a consideration for, the execution of this Indenture and the issuance of such Securities.
ARTICLE
13
MISCELLANEOUS
PROVISIONS
Section
13.01 Effect on Successors and Assigns.
All
the covenants, stipulations, promises and agreements in this Indenture made by or on behalf of the Company shall bind its successors
and assigns, whether so expressed or not.
Section
13.02 Actions by Successor.
Any
act or proceeding by any provision of this Indenture authorized or required to be done or performed by any board, committee or officer
of the Company shall and may be done and performed with like force and effect by the corresponding board, committee or officer of any
corporation that shall at the time be the lawful successor of the Company.
Section
13.03 Surrender of Company Powers.
The
Company by instrument in writing executed by authority of its Board of Directors and delivered to the Trustee may surrender any of the
powers reserved to the Company, and thereupon such power so surrendered shall terminate both as to the Company and as to any successor
corporation.
Section
13.04 Notices.
Except
as otherwise expressly provided herein, any notice, request or demand that by any provision of this Indenture is required or permitted
to be given, made or served by the Trustee or by the holders of Securities or by any other Person pursuant to this Indenture to
or on the Company may be given or served by being deposited in first class mail, postage prepaid, addressed (until another address
is filed in writing by the Company with the Trustee), as follows: 149 Fifth Avenue, New York, NY 10010, with a copy to Duane Morris
LLP, 1540 Broadway, New York, New York 10036, Attn: Dean M. Colucci, Esq. Any notice, election, request or demand by the
Company or any Securityholder or by any other Person pursuant to this Indenture to or upon the Trustee shall be deemed to have
been sufficiently given or made, for all purposes, if given or made in writing at the Corporate Trust Office of the Trustee.
Section
13.05 Governing Law.
This
Indenture and each Security shall be deemed to be a contract made under the internal laws of the State of New York, and for all purposes
shall be construed in accordance with the laws of said State, except to the extent that the Trust Indenture Act is applicable.
Section
13.06 Treatment of Securities as Debt.
It
is intended that the Securities will be treated as indebtedness and not as equity for federal income tax purposes. The provisions of
this Indenture shall be interpreted to further this intention.
Section
13.07 Certificates and Opinions as to Conditions Precedent.
(a)
Upon any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent provided for in this Indenture
(other than the certificate to be delivered pursuant to Section 13.13) relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with, except that in
the case of any such application or demand as to which the furnishing of such documents is specifically required by any provision of
this Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished.
(b)
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition
or covenant in this Indenture shall include (i) a statement that the Person making such certificate or opinion has read such covenant
or condition; (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (iii) a statement that, in the opinion of such Person, he has made such examination
or investigation as is reasonably necessary to enable him to express an informed opinion as to whether or not such covenant or condition
has been complied with; and (iv) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been
complied with.
Section
13.08 Payments on Business Days.
Except
as provided pursuant to Section 2.01 pursuant to a Board Resolution, and set forth in an Officers’ Certificate, or established
in one or more indentures supplemental to this Indenture, in any case where the date of maturity of interest or principal of any Security
or the date of redemption of any Security shall not be a Business Day, then payment of interest or principal (and premium, if any) may
be made on the next succeeding Business Day with the same force and effect as if made on the nominal date of maturity or redemption,
and no interest shall accrue for the period after such nominal date.
Section
13.09 Conflict with Trust Indenture Act.
If
and to the extent that any provision of this Indenture limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
Section
13.10 Indenture and Securities Solely Corporate Obligations.
No
recourse for the payment of the principal of, premium, if any, or interest on any Securities, or for any claim based thereon or otherwise
in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company in this Indenture or in any supplemental
indenture or in any Security, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator,
shareholder, employee, agent, officer, director or subsidiary, as such, past, present or future, of the Company or of any successor entity,
either directly or through the Company or any successor entity, whether by virtue of any constitution, statute, or rule of law, or by
the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly
waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issuance of the Securities.
Section
13.11 Counterparts.
This
Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute
but one and the same instrument.
Section
13.12 Separability.
In
case any one or more of the provisions contained in this Indenture or in the Securities of any series shall for any reason be held to
be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions
of this Indenture or of such Securities, but this Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
Section
13.13 Compliance Certificates.
The
Company shall deliver to the Trustee, within 120 days after the end of each fiscal year during which any Securities of any series were
outstanding, a compliance certificate stating whether or not the signer knows of any Default or Event of Default that occurred during
such fiscal year. Such certificate shall contain a certification from the principal executive officer, principal financial officer or
principal accounting officer of the Company that a review has been conducted of the activities of the Company and the Company’s
performance under this Indenture and that the Company has complied with all conditions and covenants under this Indenture. For purposes
of this Section 13.13, such compliance shall be determined without regard to any period of grace or requirement of notice provided under
this Indenture. If the officer of the Company signing such certificate has knowledge of such a Default or Event of Default, the certificate
shall describe any such Default or Event of Default and its status.
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed all as of the day and year first above written.
PROTAGENIC
THERAPEUTICS, INC. |
|
|
|
By: |
|
|
Name: |
|
|
Title: |
|
|
|
|
[TRUSTEE],
as Trustee |
|
|
|
By: |
|
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Name: |
|
|
Title: |
|
|
CROSS-REFERENCE
TABLE (1)
Section
of Trust Indenture Act of 1939, as Amended |
|
Section
of Indenture |
310(a) |
|
7.09 |
310(b) |
|
7.08 |
|
|
7.10 |
310(c) |
|
Inapplicable |
311(a) |
|
7.13 |
311(b) |
|
7.13 |
|
|
|
311(c) |
|
Inapplicable |
312(a) |
|
5.01 |
|
|
5.02(a) |
312(b) |
|
5.02(c) |
312(c) |
|
5.02(c) |
313(a) |
|
5.04(a) |
313(b) |
|
5.04(b) |
313(c) |
|
5.04(a) |
|
|
5.04(b) |
313(d) |
|
5.04(c) |
314(a) |
|
5.03 |
|
|
13.12 |
314(b) |
|
Inapplicable |
314(c) |
|
13.07(a) |
314(d) |
|
Inapplicable |
Section
of Trust Indenture Act of 1939, as Amended |
|
Section
of Indenture |
314(e) |
|
13.07(b) |
314(f) |
|
Inapplicable |
315(a) |
|
7.01(a) |
|
|
7.01(b) |
315(b) |
|
7.14 |
315(c) |
|
7.01 |
315(d) |
|
7.01(b) |
|
|
|
315(e) |
|
6.07 |
316(a) |
|
6.06 |
|
|
8.04 |
316(b) |
|
6.04 |
316(c) |
|
8.01 |
317(a) |
|
6.02 |
317(b) |
|
4.03 |
318(a) |
|
13.09 |
(1) |
This
Cross-Reference Table does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its
terms or provisions. |
Exhibit
4.5
PROTAGENIC
THERAPEUTICS, INC.
Company
AND
[TRUSTEE]
Trustee
INDENTURE
Dated
as of [●], 20[●]
Subordinated
Debt Securities
TABLE
OF CONTENTS
ARTICLE
1 DEFINITIONS |
1 |
Section
1.01 Definitions of Terms. |
1 |
|
|
ARTICLE
2 ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES |
5 |
Section
2.01 Designation and Terms of Securities. |
5 |
Section
2.02 Form of Securities and Trustee’s Certificate. |
7 |
Section
2.03 Denominations: Provisions for Payment. |
7 |
Section
2.04 Execution and Authentication. |
9 |
Section
2.05 Registration of Transfer and Exchange. |
9 |
Section
2.06 Temporary Securities. |
10 |
Section
2.07 Mutilated, Destroyed, Lost or Stolen Securities. |
10 |
Section
2.08 Cancellation. |
11 |
Section
2.09 Benefits of Indenture. |
11 |
Section
2.10 Authenticating Agent. |
12 |
Section
2.11 Global Securities. |
12 |
|
|
ARTICLE
3 REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS |
13 |
Section
3.01 Redemption. |
13 |
Section
3.02 Notice of Redemption. |
13 |
Section
3.03 Payment Upon Redemption. |
14 |
Section
3.04 Sinking Fund. |
14 |
Section
3.05 Satisfaction of Sinking Fund Payments with Securities. |
15 |
Section
3.06 Redemption of Securities for Sinking Fund. |
15 |
|
|
ARTICLE
4 COVENANTS |
15 |
Section
4.01 Payment of Principal, Premium and Interest. |
15 |
Section
4.02 Maintenance of Office or Agency. |
15 |
Section
4.03 Paying Agents. |
16 |
Section
4.04 Appointment to Fill Vacancy in Office of Trustee. |
17 |
Section
4.05 Compliance with Consolidation Provisions. |
17 |
|
|
ARTICLE
5 SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
17 |
Section
5.01 Company to Furnish Trustee Names and Addresses of Securityholders. |
17 |
Section
5.02 Preservation Of Information; Communications With Securityholders. |
17 |
Section
5.03 Reports by the Company. |
18 |
Section
5.04 Reports by the Trustee. |
18 |
ARTICLE
6 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
18 |
Section
6.01 Events of Default. |
18 |
Section
6.02 Collection of Indebtedness and Suits for Enforcement by Trustee. |
20 |
Section
6.03 Application of Moneys or Property Collected. |
21 |
Section
6.04 Limitation on Suits. |
21 |
Section
6.05 Rights and Remedies Cumulative; Delay or Omission Not Waiver. |
22 |
Section
6.06 Control by Securityholders. |
22 |
Section
6.07 Undertaking to Pay Costs. |
23 |
|
|
ARTICLE
7 CONCERNING THE TRUSTEE |
23 |
Section
7.01 Certain Duties and Responsibilities of Trustee. |
23 |
Section
7.02 Certain Rights of Trustee. |
24 |
Section
7.03 Trustee Not Responsible for Recitals or Issuance or Securities. |
25 |
Section
7.04 May Hold Securities. |
25 |
Section
7.05 Moneys Held in Trust. |
26 |
Section
7.06 Compensation and Reimbursement. |
26 |
Section
7.07 Reliance on Officers’ Certificate. |
26 |
Section
7.08 Disqualification; Conflicting Interests. |
26 |
Section
7.09 Corporate Trustee Required; Eligibility. |
27 |
Section
7.10 Resignation and Removal; Appointment of Successor. |
27 |
Section
7.11 Acceptance of Appointment By Successor. |
28 |
Section
7.12 Merger, Conversion, Consolidation or Succession to Business. |
29 |
Section
7.13 Preferential Collection of Claims Against the Company. |
29 |
Section
7.14 Notice of Default |
29 |
|
|
ARTICLE
8 CONCERNING THE SECURITYHOLDERS |
30 |
Section
8.01 Evidence of Action by Securityholders. |
30 |
Section
8.02 Proof of Execution by Securityholders. |
30 |
Section
8.03 Who May be Deemed Owners. |
30 |
Section
8.04 Certain Securities Owned by Company Disregarded. |
31 |
Section
8.05 Actions Binding on Future Securityholders. |
31 |
|
|
ARTICLE
9 SUPPLEMENTAL INDENTURES |
31 |
Section
9.01 Supplemental Indentures Without the Consent of Securityholders. |
31 |
Section
9.02 Supplemental Indentures With Consent of Securityholders. |
32 |
Section
9.03 Effect of Supplemental Indentures. |
33 |
Section
9.04 Securities Affected by Supplemental Indentures. |
33 |
Section
9.05 Execution of Supplemental Indentures. |
33 |
|
|
ARTICLE
10 SUCCESSOR ENTITY |
34 |
Section
10.01 Company May Consolidate, Etc. |
34 |
Section
10.02 Successor Entity Substituted. |
34 |
Section
10.03 Evidence of Consolidation, Etc. to Trustee. |
35 |
ARTICLE
11 SATISFACTION AND DISCHARGE |
35 |
Section
11.01 Satisfaction and Discharge of Indenture. |
35 |
Section
11.02 Discharge of Obligations. |
35 |
Section
11.03 Deposited Moneys to be Held in Trust. |
36 |
Section
11.04 Payment of Moneys Held by Paying Agents. |
36 |
Section
11.05 Repayment to Company. |
36 |
|
|
ARTICLE
12 IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
36 |
Section
12.01 No Recourse. |
36 |
|
|
ARTICLE
13 MISCELLANEOUS PROVISIONS |
37 |
Section
13.01 Effect on Successors and Assigns. |
37 |
Section
13.02 Actions by Successor. |
37 |
Section
13.03 Surrender of Company Powers. |
37 |
Section
13.04 Notices. |
37 |
Section
13.05 Governing Law. |
37 |
Section
13.06 Treatment of Securities as Debt. |
37 |
Section
13.07 Certificates and Opinions as to Conditions Precedent. |
38 |
Section
13.08 Payments on Business Days. |
38 |
Section
13.09 Conflict with Trust Indenture Act. |
38 |
Section
13.10 Indenture and Securities Solely Corporate Obligations. |
38 |
Section
13.11 Counterparts. |
39 |
Section
13.12 Separability. |
39 |
Section
13.13 Compliance Certificates. |
39 |
|
|
ARTICLE
14 SUBORDINATION OF SECURITIES |
39 |
Section
14.01 Subordination Terms. |
39 |
(1) |
This
Table of Contents does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms
or provisions. |
INDENTURE
INDENTURE,
dated as of [●], 20[●], among PROTAGENIC THERAPEUTICS, INC., a Delaware corporation (the “Company”), and [TRUSTEE],
as trustee (the “Trustee”).
WHEREAS,
for its lawful corporate purposes, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance
of subordinated debt securities (hereinafter referred to as the “Securities”), in an unlimited aggregate principal amount
to be issued from time to time in one or more series as in this Indenture provided, as registered Securities without coupons, to be authenticated
by the certificate of the Trustee;
WHEREAS,
to provide the terms and conditions upon which the Securities are to be authenticated, issued and delivered, the Company has duly authorized
the execution of this Indenture; and
WHEREAS,
all things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
NOW,
THEREFORE, in consideration of the premises and the purchase of the Securities by the holders thereof, it is mutually covenanted
and agreed as follows for the equal and ratable benefit of the holders of Securities:
ARTICLE
1
DEFINITIONS
Section
1.01 Definitions of Terms.
The
terms defined in this Section (except as in this Indenture or any indenture supplemental hereto otherwise expressly provided or unless
the context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective
meanings specified in this Section and shall include the plural as well as the singular. All other terms used in this Indenture that
are defined in the Trust Indenture Act of 1939, as amended, or that are by reference in such Act defined in the Securities Act of 1933,
as amended (except as herein or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires),
shall have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of the
execution of this instrument.
“Authenticating
Agent” means an authenticating agent with respect to all or any of the series of Securities appointed by the Trustee pursuant
to Section 2.10.
“Bankruptcy
Law” means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.
“Board
of Directors” means the Board of Directors of the Company or any duly authorized committee of such Board.
“Board
Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and effect on the date of such certification.
“Business
Day” means, with respect to any series of Securities, any day other than a day on which federal or state banking institutions
in the Borough of Manhattan, the City of New York, or in the city of the
Corporate
Trust Office of the Trustee, are authorized or obligated by law, executive order or regulation to close.
“Certificate”
means a certificate signed by any Officer. The Certificate need not comply with the provisions of Section 13.07.
“Company”
means Protagenic Therapeutics, Inc., a corporation duly organized and existing under the laws of the State of Delaware, and, subject
to the provisions of Article Ten, shall also include its successors and assigns.
“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 .
“Currency
Agreement” means any foreign exchange contract, currency swap agreement or other similar agreement with respect to currency
values.
“Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
“Default”
means any event, act or condition that with notice or lapse of time, or both, would constitute an Event of Default.
“Depositary”
means, with respect to Securities of any series for which the Company shall determine that such Securities will be issued as a Global
Security, The Depository Trust Company, New York, New York, another clearing agency, or any successor registered as a clearing agency
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or other applicable statute or regulation, which,
in each case, shall be designated by the Company pursuant to either Section 2.01 or 2.11.
“Event
of Default” means, with respect to Securities of a particular series, any event specified in Section 6.01, continued for
the period of time, if any, therein designated.
“Global
Security” means, with respect to any series of Securities, a Security executed by the Company and delivered by the Trustee
to the Depositary or pursuant to the Depositary’s instruction, all in accordance with the Indenture, which shall be registered
in the name of the Depositary or its nominee.
“Governmental
Obligations” means securities that are (a) direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United
States of America that, in either case, are not callable or redeemable at the option of the Company thereof at any time prior to the
stated maturity of the Securities, and shall also include a depositary receipt issued by a bank or trust company as custodian with respect
to any such Governmental Obligation or a specific payment of principal of or interest on any such Governmental Obligation held by such
custodian for the account of the holder of such depositary receipt; provided, however, 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 Governmental Obligation or the specific payment of principal of or interest on the Governmental Obligation
evidenced by such depositary receipt.
“herein”,
“hereof” and “hereunder”, and other words of similar import, refer to this Indenture
as a whole and not to any particular Article, Section or other subdivision.
“Indenture”
means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental
hereto entered into in accordance with the terms hereof.
“Interest
Payment Date”, when used with respect to any installment of interest on a Security of a particular series, means the date
specified in such Security or in a Board Resolution or in an indenture supplemental hereto with respect to such series as the fixed date
on which an installment of interest with respect to Securities of that series is due and payable.
“Interest
Rate Agreement” means any interest rate swap agreement, interest rate cap agreement or other financial agreement or arrangement
with respect to exposure to interest rates.
“Officer”
means, with respect to the Company, the chairman of the Board of Directors, a chief executive officer, a president, a chief financial
officer, chief operating officer, any executive vice president, any senior vice president, any vice president, the treasurer or any assistant
treasurer, the controller or any assistant controller or the secretary or any assistant secretary.
“Officers’
Certificate” means a certificate signed by any two Officers. Each such certificate shall include the statements provided
for in Section 13.07, if and to the extent required by the provisions thereof.
“Opinion
of Counsel” means an opinion in writing subject to customary exceptions of legal counsel, who may be an employee of or
counsel for the Company, that is delivered to the Trustee in accordance with the terms hereof. Each such opinion shall include the statements
provided for in Section 13.07, if and to the extent required by the provisions thereof.
“Outstanding”,
when used with reference to Securities of any series, means, subject to the provisions of Section 8.04, as of any particular time, all
Securities of that series theretofore authenticated and delivered by the Trustee under this Indenture, except (a) Securities theretofore
canceled by the Trustee or any paying agent, or delivered to the Trustee or any paying agent for cancellation or that have previously
been canceled; (b) Securities or portions thereof for the payment or redemption of which moneys or Governmental Obligations in the necessary
amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been set aside
and segregated in trust by the Company (if the Company shall act as its own paying agent); provided, however, that if such Securities
or portions of such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as in
Article Three provided, or provision satisfactory to the Trustee shall have been made for giving such notice; and (c) Securities in lieu
of or in substitution for which other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.07.
“Person”
means any individual, corporation, partnership, joint venture, joint-stock company, limited liability company, association, trust, unincorporated
organization, any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“Predecessor
Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section
2.07 in lieu of a lost, destroyed or stolen Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Security.
“Responsible
Officer” when used with respect to the Trustee means the chairman of its board of directors, the chief executive officer,
the president, any vice president, the secretary, the treasurer, any trust officer, any corporate trust officer or any other officer
or assistant officer of the Trustee customarily performing functions similar to those performed by the Persons who at the time shall
be such officers, respectively, or to whom any corporate trust matter is referred because of his or her knowledge of and familiarity
with the particular subject.
“Securities”
means the debt Securities authenticated and delivered under this Indenture.
“Securityholder”,
“holder of Securities”, “registered holder”, or other similar term, means the Person or Persons in whose name
or names a particular Security shall be registered on the books of the Company kept for that purpose in accordance with the terms of
this Indenture.
“Security
Register” and “Security Registrar” shall have the meanings as set forth in Section 2.05.
“Senior
Indebtedness” of a Person means the principal of, premium, if any, interest on, and any other payment due pursuant to any
of the following, whether outstanding at the date hereof or hereafter incurred or created:
(a)
all of the principal of (and premium, if any) and interest due on indebtedness of that Person for money borrowed;
(b)
all of the indebtedness of that Person evidenced by notes, debentures, bonds or other securities sold by that Person for money;
(c)
all of the lease obligations which are capitalized on the books of that Person in accordance with generally accepted accounting principles;
(d)
all obligations of such Person for the reimbursement of any obligor on any letter of credit, banker’s acceptance or similar credit
transaction (other than obligations with respect to letters of credit securing obligations (other than obligations described in (a) through
(c) above) entered into in the ordinary course of business of such Person to the extent such letters of credit are not drawn upon or,
if and to the extent drawn upon, such drawing is reimbursed no later than the third Business Day following receipt by such Person of
a demand for reimbursement following payment on the letter of credit);
(e)
the amount of all obligations of such Person with respect to Interest Rate Agreements or Currency Agreements;
(f)
all obligations of the type referred to in clauses (a) through (e) above of other Persons and all dividends of other Persons for the
payment of which, in either case, such Person is responsible or liable, directly or indirectly, as obligor, guarantor or otherwise, including
by means of any guarantee;
(g)
all obligations of the type referred to in clauses (a) through (f) above of other Persons secured by any Lien on any Property of such
Person (whether or not such obligation is assumed by such Person);
(h)
all renewals, extensions or refundings of indebtedness of the kinds described in any of the preceding clauses (a), (b), (d), (e), (f)
and (g) and all renewals or extensions of leases of the kinds described in the preceding clause (c) above;
unless,
in the case of any particular indebtedness, lease, renewal, extension or refunding, the instrument or lease creating or evidencing it
or the assumption or guarantee relating to it expressly provides that such indebtedness, lease, renewal, extension or refunding is not
superior in right of payment to the Securities, and provided however that Senior Indebtedness shall not include indebtedness in
respect of Securities or indebtedness of any Subsidiary.
“Subsidiary”
means, with respect to any Person, (i) any corporation at least a majority of whose outstanding Voting Stock shall at the time be owned,
directly or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, (ii)
any general partnership, joint venture or similar entity, at least a majority of whose outstanding partnership or similar interests shall
at the time be owned by such Person, or by one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries and
(iii) any limited partnership of which such Person or any of its Subsidiaries is a general partner.
“Trustee”
means , and, subject to the provisions of Article Seven, shall also include its successors and assigns, and, if at any time there is
more than one Person acting in such capacity hereunder, “Trustee” shall mean each such Person. The term “Trustee”
as used with respect to a particular series of the Securities shall mean the trustee with respect to that series.
“Trust
Indenture Act” means the Trust Indenture Act of 1939, as amended.
“Voting
Stock”, as applied to stock of any Person, means shares, interests, participations or other equivalents in the equity interest
(however designated) in such Person having ordinary voting power for the election of a majority of the directors (or the equivalent)
of such Person, other than shares, interests, participations or other equivalents having such power only by reason of the occurrence
of a contingency.
ARTICLE
2
ISSUE,
DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES
Section
2.01 Designation and Terms of Securities.
(a)
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 up to the aggregate principal amount of Securities of that series from time to time authorized by
or pursuant to a Board Resolution or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of Securities
of any series, there shall be established in or pursuant to a Board Resolution, and set forth in an Officers’ Certificate, or established
in one or more indentures supplemental hereto:
(1)
the title of the Securities of the series (which shall distinguish the Securities of that series from all other Securities);
(2)
any limit upon the aggregate principal amount of the Securities of that series that 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 that series);
(3)
the date or dates on which the principal of the Securities of the series is payable, any original issue discount that may apply to the
Securities of that series upon their issuance, the principal amount due at maturity, and the place(s) of payment;
(4)
the rate or rates at which the Securities of the series shall bear interest or the manner of calculation of such rate or rates, if any;
(5)
the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest will be payable or the manner
of determination of such Interest Payment Dates, the place(s) of payment, and the record date for the determination of holders to whom
interest is payable on any such Interest Payment Dates or the manner of determination of such record dates;
(6)
the right, if any, to extend the interest payment periods and the duration of such extension, including the maximum consecutive periods
during which interest payments may be extended;
(7)
the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series may
be redeemed, in whole or in part, at the option of the Company;
(8)
the obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund, mandatory redemption,
or analogous provisions (including payments made in cash in satisfaction of future sinking fund obligations) 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;
(9)
the form of the Securities of the series including the form of the Certificate of Authentication for such series;
(10)
if other than denominations of one thousand U.S. dollars ($1,000) or any integral multiple thereof, the denominations in which the Securities
of the series shall be issuable;
(11)
any and all other terms (including terms, to the extent applicable, relating to any auction or remarketing of the Securities of that
series and any security for the obligations of the Company with respect to such Securities) with respect to such series (which terms
shall not be inconsistent with the terms of this Indenture, as amended by any supplemental indenture) including any terms which may be
required by or advisable under United States laws or regulations or advisable in connection with the marketing of Securities of that
series;
(12)
whether the Securities are issuable as a Global Security and, in such case, the terms and the identity of the Depositary for such series;
(13)
whether the Securities will be convertible into or exchangeable for shares of common stock or other securities of the Company or any
other Person and, if so, the terms and conditions upon which such Securities will be so convertible or exchangeable, including the conversion
or exchange price, as applicable, or how it will be calculated and may be adjusted, any mandatory or optional (at the Company’s
option or the holders’ option) conversion or exchange features, and the applicable conversion or exchange period;
(14)
if other than the principal amount thereof, the portion, or methods of determining the portion, of the principal amount of Securities
of the series which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.01;
(15)
any additional or different Events of Default or restrictive covenants (which may include, among other restrictions, restrictions on
the Company’s ability or the ability of the Company’s Subsidiaries to: incur additional indebtedness; issue additional securities;
create liens; pay dividends or make distributions in respect of their capital stock; redeem capital stock; place restrictions on such
Subsidiaries placing restrictions on their ability to pay dividends, make distributions or transfer assets; make investments or other
restricted payments; sell or otherwise dispose of assets; enter into sale- leaseback transactions; engage in transactions with stockholders
and affiliates; issue or sell stock of their Subsidiaries; or effect a consolidation or merger) or financial covenants (which may include,
among other financial covenants, financial covenants that require the Company and its Subsidiaries to maintain specified interest coverage,
fixed charge, cash flow-based or asset-based ratios) provided for with respect to the Securities of the series;
(16)
if other than dollars, the coin or currency in which the Securities of the series are denominated (including, but not limited to, foreign
currency);
(17)
the terms and conditions, if any, upon which the Company shall pay amounts in addition to the stated interest, premium, if any and principal
amounts of the Securities of the series to any Securityholder that is not a “United States person” for federal tax purposes;
(18)
any restrictions on transfer, sale or assignment of the Securities of the series; and
(19)
the subordination terms of the Securities of the series.
All
Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or
pursuant to any such Board Resolution or in any indentures supplemental hereto.
If
any of the terms of the series are established by action taken pursuant to a Board Resolution of the Company, a copy of an appropriate
record of such action shall be certified by the secretary or an assistant secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Officers’ Certificate of the Company setting forth the terms of the series.
Securities
of any particular series may be issued at various times, with different dates on which the principal or any installment of principal
is payable, with different rates of interest, if any, or different methods by which rates of interest may be determined, with different
dates on which such interest may be payable and with different redemption dates.
Section
2.02 Form of Securities and Trustee’s Certificate.
The
Securities of any series and the Trustee’s certificate of authentication to be borne by such Securities shall be substantially
of the tenor and purport as set forth in one or more indentures supplemental hereto or as provided in a Board Resolution, and set forth
in an Officers’ Certificate, and they may have such letters, numbers or other marks of identification or designation and such legends
or endorsements printed, lithographed or engraved thereon as the Company may deem appropriate and as are not inconsistent with the provisions
of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule
or regulation of any securities exchange on which Securities of that series may be listed, or to conform to usage.
Section
2.03 Denominations: Provisions for Payment.
The
Securities shall be issuable as registered Securities and in the denominations of one thousand U.S. dollars ($1,000) or any integral
multiple thereof, subject to Section 2.01(a)(10). The Securities of a particular series shall bear interest payable on the dates and
at the rate specified with respect to that series. Subject to Section 2.01(a)(16), the principal of and the interest on the Securities
of any series, as well as any premium thereon in case of redemption thereof prior to maturity, shall be payable in the coin or currency
of the United States of America that at the time is legal tender for public and private debt, at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, the City and State of New York. Each Security shall be dated the date of its
authentication. Interest on the Securities shall be computed on the basis of a 360-day year composed of twelve 30-day months.
The
interest installment on any Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date for Securities
of that series shall be paid to the Person in whose name said Security (or one or more Predecessor Securities) is registered at the close
of business on the regular record date for such interest installment. In the event that any Security of a particular series or portion
thereof is called for redemption and the redemption date is subsequent to a regular record date with respect to any Interest Payment
Date and prior to such Interest Payment Date, interest on such Security will be paid upon presentation and surrender of such Security
as provided in Section 3.03.
Any
interest on any Security that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date for Securities
of the same series (herein called “Defaulted Interest”) shall forthwith cease to be payable to the registered holder on the
relevant regular record date by virtue of having been such holder; and such Defaulted Interest shall be paid by the Company, at its election,
as provided in clause (1) or clause (2) below:
(1)
The Company may make payment of any Defaulted Interest on Securities to the Persons in whose names such Securities (or their respective
Predecessor Securities) are registered at the close of business on a special record date for the payment of such Defaulted Interest,
which shall be fixed in the following manner: the Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each such Security and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee
an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a special
record date for the payment of such Defaulted Interest which shall not be more than 15 nor less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such special record date and, in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the special record date therefor to be mailed, first class postage prepaid, to each Securityholder
at his or her address as it appears in the Security Register (as hereinafter defined), not less than 10 days prior to such special record
date. Notice of the proposed payment of such Defaulted Interest and the special record date therefor having been mailed as aforesaid,
such Defaulted Interest shall be paid to the Persons in whose names such Securities (or their respective Predecessor Securities) are
registered on such special record date.
(2)
The Company may make payment of any Defaulted Interest on any Securities in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable
by the Trustee.
Unless
otherwise set forth in a Board Resolution or one or more indentures supplemental hereto establishing the terms of any series of Securities
pursuant to Section 2.01 hereof, the term “regular record date” as used in this Section with respect to a series of Securities
and any Interest Payment Date for such series shall mean either the fifteenth day of the month immediately preceding the month in which
an Interest Payment Date established for such series pursuant to Section 2.01 hereof shall occur, if such Interest Payment Date is the
first day of a month, or the first day of the month in which an Interest Payment Date established for such series pursuant to Section
2.01 hereof shall occur, if such Interest Payment Date is the fifteenth day of a month, whether or not such date is a Business Day.
Subject
to the foregoing provisions of this Section, each Security of a series delivered under this Indenture upon transfer of or in exchange
for or in lieu of any other Security of such series shall carry the rights to interest accrued and unpaid, and to accrue, that were carried
by such other Security.
Section
2.04 Execution and Authentication.
The
Securities shall be signed on behalf of the Company by one of its Officers. Signatures may be in the form of a manual or facsimile signature.
The
Company may use the facsimile signature of any Person who shall have been an Officer, notwithstanding the fact that at the time the Securities
shall be authenticated and delivered or disposed of such Person shall have ceased to be such an officer of the Company. The Securities
may contain such notations, legends or endorsements required by law, stock exchange rule or usage. Each Security shall be dated the date
of its authentication by the Trustee.
A
Security shall not be valid until authenticated manually by an authorized signatory of the Trustee, or by an Authenticating Agent. Such
signature shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that
the holder is entitled to the benefits of this Indenture. At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication, together with
a written order of the Company for the authentication and delivery of such Securities, signed by an Officer, and the Trustee in accordance
with such written order shall authenticate and deliver such Securities.
In
authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 7.01) shall be fully protected in relying upon, an Opinion of Counsel stating
that the form and terms thereof have been established in conformity with the provisions of this Indenture.
The
Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect
the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner that is not reasonably
acceptable to the Trustee.
Section
2.05 Registration of Transfer and Exchange.
(a)
Securities of any series may be exchanged upon presentation thereof at the office or agency of the Company designated for such purpose
in the Borough of Manhattan, the City and State of New York, for other Securities of such series of authorized denominations, and for
a like aggregate principal amount, upon payment of a sum sufficient to cover any tax or other governmental charge in relation thereto,
all as provided in this Section. In respect of any Securities so surrendered for exchange, the Company shall execute, the Trustee shall
authenticate and such office or agency shall deliver in exchange therefor the Security or Securities of the same series that the Securityholder
making the exchange shall be entitled to receive, bearing numbers not contemporaneously outstanding.
(b)
The Company shall keep, or cause to be kept, at its office or agency designated for such purpose in the Borough of Manhattan, the City
and State of New York, or such other location designated by the Company, a register or registers (herein referred to as the “Security
Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall register the Securities and
the transfers of Securities as in this Article provided and which at all reasonable times shall be open for inspection by the Trustee.
The registrar for the purpose of registering Securities and transfer of Securities as herein provided shall be appointed as authorized
by Board Resolution (the “Security Registrar”).
Upon
surrender for transfer of any Security at the office or agency of the Company designated for such purpose, the Company shall execute,
the Trustee shall authenticate and such office or agency shall deliver in the name of the transferee or transferees a new Security or
Securities of the same series as the Security presented for a like aggregate principal amount.
All
Securities presented or surrendered for exchange or registration of transfer, as provided in this Section, shall be accompanied (if so
required by the Company or the Security Registrar) by a written instrument or instruments of transfer, in form satisfactory to the Company
or the Security Registrar, duly executed by the registered holder or by such holder’s duly authorized attorney in writing.
(c)
Except as provided pursuant to Section 2.01 pursuant to a Board Resolution, and set forth in an Officers’ Certificate, or established
in one or more indentures supplemental to this Indenture, no service charge shall be made for any exchange or registration of transfer
of Securities, or issue of new Securities in case of partial redemption of any series, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge in relation thereto, other than exchanges pursuant to Section 2.06, Section 3.03(b) and
Section 9.04 not involving any transfer.
(d)
The Company shall not be required (i) to issue, exchange or register the transfer of any Securities during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of redemption of less than all the Outstanding Securities of the
same series and ending at the close of business on the day of such mailing, nor (ii) to register the transfer of or exchange any Securities
of any series or portions thereof called for redemption, other than the unredeemed portion of any such Securities being redeemed in part.
The provisions of this Section 2.05 are, with respect to any Global Security, subject to Section 2.11 hereof.
Section
2.06 Temporary Securities.
Pending
the preparation of definitive Securities of any series, the Company may execute, and the Trustee shall authenticate and deliver, temporary
Securities (printed, lithographed or typewritten) of any authorized denomination. Such temporary Securities shall be substantially in
the form of the definitive Securities in lieu of which they are issued, but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Company. Every temporary Security of any series shall be executed
by the Company and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect,
as the definitive Securities of such series. Without unnecessary delay the Company will execute and will furnish definitive Securities
of such series and thereupon any or all temporary Securities of such series may be surrendered in exchange therefor (without charge to
the holders), at the office or agency of the Company designated for the purpose in the Borough of Manhattan, the City and State of New
York, and the Trustee shall authenticate and such office or agency shall deliver in exchange for such temporary Securities an equal aggregate
principal amount of definitive Securities of such series, unless the Company advises the Trustee to the effect that definitive Securities
need not be executed and furnished until further notice from the Company. Until so exchanged, the temporary Securities of such series
shall be entitled to the same benefits under this Indenture as definitive Securities of such series authenticated and delivered hereunder.
Section
2.07 Mutilated, Destroyed, Lost or Stolen Securities.
In
case any temporary or definitive Security shall become mutilated or be destroyed, lost or stolen, the Company (subject to the next succeeding
sentence) shall execute, and upon the Company’s request the Trustee (subject as aforesaid) shall authenticate and deliver, a new
Security of the same series, bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Security,
or in lieu of and in substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substituted Security
shall furnish to the Company and the Trustee such security or indemnity as may be required by them to save each of them harmless, and,
in every case of destruction, loss or theft, the applicant shall also furnish to the Company and the Trustee evidence to their satisfaction
of the destruction, loss or theft of the applicant’s Security and of the ownership thereof. The Trustee may authenticate any such
substituted Security and deliver the same upon the written request or authorization of any officer of the Company. Upon the issuance
of any substituted Security, 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.
In
case any Security that has matured or is about to mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead
of issuing a substitute Security, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated
Security) if the applicant for such payment shall furnish to the Company and the Trustee such security or indemnity as they may require
to save them harmless, and, in case of destruction, loss or theft, evidence to the satisfaction of the Company and the Trustee of the
destruction, loss or theft of such Security and of the ownership thereof.
Every
replacement Security issued pursuant to the provisions of this Section shall constitute an additional contractual obligation of the Company
whether or not the mutilated, destroyed, lost or stolen Security shall be found at any time, or be enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of the same series duly
issued hereunder. All Securities shall be held and owned upon the express condition that the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities, and shall preclude (to the extent lawful) any
and all other rights or remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without their surrender.
Section
2.08 Cancellation.
All
Securities surrendered for the purpose of payment, redemption, exchange or registration of transfer shall, if surrendered to the Company
or any paying agent, be delivered to the Trustee for cancellation, or, if surrendered to the Trustee, shall be cancelled by it, and no
Securities shall be issued in lieu thereof except as expressly required or permitted by any of the provisions of this Indenture. In the
absence of such request the Trustee may dispose of canceled Securities in accordance with its standard procedures and deliver a certificate
of disposition to the Company. If the Company shall otherwise 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 delivered to the Trustee
for cancellation.
Section
2.09 Benefits of Indenture.
Nothing
in this Indenture or in the Securities, express or implied, shall give or be construed to give to any Person, other than the parties
hereto and the holders of the Securities (and, with respect to the provisions of Article Fourteen, the holders of any indebtedness of
the Company to which the Securities of any series are subordinated) any legal or equitable right, remedy or claim under or in respect
of this Indenture, or under any covenant, condition or provision herein contained; all such covenants, conditions and provisions being
for the sole benefit of the parties hereto and of the holders of the Securities (and, with respect to the provisions of Article Fourteen,
the holders of any indebtedness of the Company to which the Securities of any series are subordinated).
Section
2.10 Authenticating Agent.
So
long as any of the Securities of any series remain Outstanding there may be an Authenticating Agent for any or all such series of Securities
which the Trustee shall have the right to appoint. Said Authenticating Agent shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon exchange, transfer or partial redemption thereof, and Securities so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. All
references in this Indenture to the authentication of Securities by the Trustee shall be deemed to include authentication by an Authenticating
Agent for such series. Each Authenticating Agent shall be acceptable to the Company and shall be a corporation that has a combined capital
and surplus, as most recently reported or determined by it, sufficient under the laws of any jurisdiction under which it is organized
or in which it is doing business to conduct a trust business, and that is otherwise authorized under such laws to conduct such business
and is subject to supervision or examination by federal or state authorities. If at any time any Authenticating Agent shall cease to
be eligible in accordance with these provisions, it shall resign immediately.
Any
Authenticating Agent may at any time resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may
at any time (and upon request by the Company shall) terminate the agency of any Authenticating Agent by giving written notice of termination
to such Authenticating Agent and to the Company. Upon resignation, termination or cessation of eligibility of any Authenticating Agent,
the Trustee may appoint an eligible successor Authenticating Agent acceptable to the Company. Any successor Authenticating Agent, upon
acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder as if
originally named as an Authenticating Agent pursuant hereto.
Section
2.11 Global Securities.
(a)
If the Company shall establish pursuant to Section 2.01 that the Securities of a particular series are to be issued as a Global Security,
then the Company shall execute and the Trustee shall, in accordance with Section 2.04, authenticate and deliver, a Global Security that
(i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, all of the Outstanding Securities
of such series, (ii) shall be registered in the name of the Depositary or its nominee, (iii) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary’s instruction and (iv) shall bear a legend substantially to the following effect: “Except
as otherwise provided in Section 2.11 of the Indenture, this Security may be transferred, in whole but not in part, only to another nominee
of the Depositary or to a successor Depositary or to a nominee of such successor Depositary.”
(b)
Notwithstanding the provisions of Section 2.05, the Global Security of a series may be transferred, in whole but not in part and in the
manner provided in Section 2.05, only to another nominee of the Depositary for such series, or to a successor Depositary for such series
selected or approved by the Company or to a nominee of such successor Depositary.
(c)
If at any time the Depositary for a series of the Securities notifies the Company that it is unwilling or unable to continue as Depositary
for such series or if at any time the Depositary for such series shall no longer be registered or in good standing under the Exchange
Act, or other applicable statute or regulation, and a successor Depositary for such series is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such condition, as the case may be, or if an Event of Default has occurred
and is continuing and the Company has received a request from the Depositary, this Section 2.11 shall no longer be applicable to the
Securities of such series and the Company will execute, and subject to Section 2.04, the Trustee will authenticate and deliver the Securities
of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate principal amount equal
to the principal amount of the Global Security of such series in exchange for such Global Security. In addition, the Company may at any
time determine that the Securities of any series shall no longer be represented by a Global Security and that the provisions of this
Section 2.11 shall no longer apply to the Securities of such series. In such event the Company will execute and, subject to Section 2.04,
the Trustee, upon receipt of an Officers’ Certificate evidencing such determination by the Company, will authenticate and deliver
the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Security of such series in exchange for such Global Security. Upon the exchange of
the Global Security for such Securities in definitive registered form without coupons, in authorized denominations, the Global Security
shall be canceled by the Trustee. Such Securities in definitive registered form issued in exchange for the Global Security pursuant to
this Section 2.11(c) shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Depositary
for delivery to the Persons in whose names such Securities are so registered.
ARTICLE
3
REDEMPTION
OF SECURITIES AND SINKING FUND PROVISIONS
Section
3.01 Redemption.
The
Company may redeem the Securities of any series issued hereunder on and after the dates and in accordance with the terms established
for such series pursuant to Section 2.01 hereof.
Section
3.02 Notice of Redemption.
(a)
In case the Company shall desire to exercise such right to redeem all or, as the case may be, a portion of the Securities of any series
in accordance with any right the Company reserved for itself to do so pursuant to Section 2.01 hereof, the Company shall, or shall cause
the Trustee to, give notice of such redemption to holders of the Securities of such series to be redeemed by mailing, first class postage
prepaid, a notice of such redemption not less than 30 days and not more than 90 days before the date fixed for redemption of that series
to such holders at their last addresses as they shall appear upon the Security Register, unless a shorter period is specified in the
Securities to be redeemed. Any notice that is mailed in the manner herein provided shall be conclusively presumed to have been duly given,
whether or not the registered holder receives the notice. In any case, failure duly to give such notice to the holder of any Security
of any series designated for redemption in whole or in part, or any defect in the notice, shall not affect the validity of the proceedings
for the redemption of any other Securities of such series or any other series. In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company
shall furnish the Trustee with an Officers’ Certificate evidencing compliance with any such restriction.
Each
such notice of redemption shall specify the date fixed for redemption and the redemption price at which Securities of that series are
to be redeemed, and shall state that payment of the redemption price of such Securities to be redeemed will be made at the office or
agency of the Company in the Borough of Manhattan, the City and State of New York, upon presentation and surrender of such Securities,
that interest accrued to the date fixed for redemption will be paid as specified in said notice, that from and after said date interest
will cease to accrue and that the redemption is for a sinking fund, if such is the case. If less than all the Securities of a series
are to be redeemed, the notice to the holders of Securities of that series to be redeemed in part shall specify the particular Securities
to be so redeemed.
In
case any Security is to be redeemed in part only, the notice that relates to such Security shall state the portion of the principal amount
thereof to be redeemed, and shall state that on and after the redemption date, upon surrender of such Security, a new Security or Securities
of such series in principal amount equal to the unredeemed portion thereof will be issued.
(b)
If less than all the Securities of a series are to be redeemed, the Company shall give the Trustee at least 45 days’ notice (unless
a shorter notice shall be satisfactory to the Trustee) in advance of the date fixed for redemption as to the aggregate principal amount
of Securities of the series to be redeemed, and thereupon the Trustee shall select, by lot or in such other manner as it shall deem appropriate
and fair in its discretion and that may provide for the selection of a portion or portions (equal to one thousand U.S. dollars ($1,000)
or any integral multiple thereof) of the principal amount of such Securities of a denomination larger than $1,000, the Securities to
be redeemed and shall thereafter promptly notify the Company in writing of the numbers of the Securities to be redeemed, in whole or
in part. The Company may, if and whenever it shall so elect, by delivery of instructions signed on its behalf by an Officer, instruct
the Trustee or any paying agent to call all or any part of the Securities of a particular series for redemption and to give notice of
redemption in the manner set forth in this Section, such notice to be in the name of the Company or its own name as the Trustee or such
paying agent may deem advisable. In any case in which notice of redemption is to be given by the Trustee or any such paying agent, the
Company shall deliver or cause to be delivered to, or permit to remain with, the Trustee or such paying agent, as the case may be, such
Security Register, transfer books or other records, or suitable copies or extracts therefrom, sufficient to enable the Trustee or such
paying agent to give any notice by mail that may be required under the provisions of this Section.
Section
3.03 Payment Upon Redemption.
(a)
If the giving of notice of redemption shall have been completed as above provided, the Securities or portions of Securities of the series
to be redeemed specified in such notice shall become due and payable on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for redemption and interest on such Securities or portions of Securities
shall cease to accrue on and after the date fixed for redemption, unless the Company shall default in the payment of such redemption
price and accrued interest with respect to any such Security or portion thereof. On presentation and surrender of such Securities on
or after the date fixed for redemption at the place of payment specified in the notice, said Securities shall be paid and redeemed at
the applicable redemption price for such series, together with interest accrued thereon to the date fixed for redemption (but if the
date fixed for redemption is an interest payment date, the interest installment payable on such date shall be payable to the registered
holder at the close of business on the applicable record date pursuant to Section 2.03).
(b)
Upon presentation of any Security of such series that is to be redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Security is presented shall deliver to the holder thereof, at the expense of the Company,
a new Security of the same series of authorized denominations in principal amount equal to the unredeemed portion of the Security so
presented.
Section
3.04 Sinking Fund.
The
provisions of Sections 3.04, 3.05 and 3.06 shall be applicable to any sinking fund for the retirement of Securities of a series, except
as otherwise specified as contemplated by Section 2.01 for Securities of such series.
The
minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory
sinking fund payment,” and any payment in excess of such minimum amount provided for by the terms of Securities of any series is
herein referred to as an “optional sinking fund payment”. If provided for by the terms of Securities of any series, the cash
amount of any sinking fund payment may be subject to reduction as provided in Section 3.05. Each sinking fund payment shall be applied
to the redemption of Securities of any series as provided for by the terms of Securities of such series.
Section
3.05 Satisfaction of Sinking Fund Payments with Securities.
The
Company (i) may deliver Outstanding Securities of a series and (ii) may apply as a credit Securities of a series that have been redeemed
either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with
respect to the Securities of such series required to be made pursuant to the terms of such Securities as provided for by the terms of
such series, provided that such Securities have not been previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the redemption 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.
Section
3.06 Redemption of Securities for Sinking Fund.
Not
less than 45 days prior to each sinking fund payment date for any series of Securities (unless a shorter period shall be satisfactory
to the Trustee), the Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing sinking
fund payment for that series pursuant to the terms of the series, the portion thereof, if any, that is to be satisfied by delivering
and crediting Securities of that series pursuant to Section 3.05 and the basis for such credit and will, together with such Officers’
Certificate, deliver to the Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date
the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 3.02 and
cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section
3.02. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in
Section 3.03.
ARTICLE
4
COVENANTS
Section
4.01 Payment of Principal, Premium and Interest.
The
Company will duly and punctually pay or cause to be paid the principal of (and premium, if any) and interest on the Securities of that
series at the time and place and in the manner provided herein and established with respect to such Securities.
Section
4.02 Maintenance of Office or Agency.
So
long as any series of the Securities remain Outstanding, the Company agrees to maintain an office or agency in the Borough of Manhattan,
the City and State of New York, with respect to each such series and at such other location or locations as may be designated as provided
in this Section 4.02, where (i) Securities of that series may be presented for payment, (ii) Securities of that series may be presented
as herein above authorized for registration of transfer and exchange, and (iii) notices and demands to or upon the Company in respect
of the Securities of that series and this Indenture may be given or served, such designation to continue with respect to such office
or agency until the Company shall, by written notice signed by any officer authorized to sign an Officers’ Certificate and delivered
to the Trustee, designate some other office or agency for such purposes or any of them. If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, 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, notices and demands. The Company initially appoints the Corporate Trust Office of the Trustee located in the
Borough of Manhattan, the City of New York as its paying agent with respect to the Securities.
Section
4.03 Paying Agents.
(a)
If the Company shall appoint one or more paying agents for all or any series of the Securities, other than the Trustee, the Company will
cause each such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject
to the provisions of this Section:
(1)
that it will hold all sums held by it as such agent for the payment of the principal of (and premium, if any) or interest on the Securities
of that series (whether such sums have been paid to it by the Company or by any other obligor of such Securities) in trust for the benefit
of the Persons entitled thereto;
(2)
that it will give the Trustee notice of any failure by the Company (or by any other obligor of such Securities) to make any payment of
the principal of (and premium, if any) or interest on the Securities of that series when the same shall be due and payable;
(3)
that it will, at any time during the continuance of any failure referred to in the preceding paragraph (a)(2) above, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such paying agent; and
(4)
that it will perform all other duties of paying agent as set forth in this Indenture.
(b)
If the Company shall act as its own paying agent with respect to any series of the Securities, it will on or before each due date of
the principal of (and premium, if any) or interest on Securities of that series, set aside, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay such principal (and premium, if any) or interest so becoming due on Securities
of that series until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the
Trustee of such action, or any failure (by it or any other obligor on such Securities) to take such action. Whenever the Company shall
have one or more paying agents for any series of Securities, it will, prior to each due date of the principal of (and premium, if any)
or interest on any Securities of that series, deposit with the paying agent a sum sufficient to pay the principal (and premium, if any)
or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest,
and (unless such paying agent is the Trustee) the Company will promptly notify the Trustee of this action or failure so to act.
(c)
Notwithstanding anything in this Section to the contrary, (i) the agreement to hold sums in trust as provided in this Section is subject
to the provisions of Section 11.05, and (ii) the Company may at any time, for the purpose of obtaining the satisfaction and discharge
of this Indenture or for any other purpose, pay, or direct any paying agent to pay, to the Trustee all sums held in trust by the Company
or such paying agent, such sums to be held by the Trustee upon the same terms and conditions as those upon which such sums were held
by the Company or such paying agent; and, upon such payment by the Company or any paying agent to the Trustee, the Company or such paying
agent shall be released from all further liability with respect to such money.
Section
4.04 Appointment to Fill Vacancy in Office of Trustee.
The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.10,
a Trustee, so that there shall at all times be a Trustee hereunder.
Section
4.05 Compliance with Consolidation Provisions.
The
Company will not, while any of the Securities remain Outstanding, consolidate with or merge into any other Person, in either case where
the Company is not the survivor of such transaction, or sell or convey all or substantially all of its property to any other Person unless
the provisions of Article Ten hereof are complied with.
ARTICLE
5
SECURITYHOLDERS’
LISTS AND REPORTS BY
THE
COMPANY AND THE TRUSTEE
Section
5.01 Company to Furnish Trustee Names and Addresses of Securityholders.
The
Company will furnish or cause to be furnished to the Trustee (a) within 15 days after each regular record date (as defined in Section
2.03) a list, in such form as the Trustee may reasonably require, of the names and addresses of the holders of each series of Securities
as of such regular record date, provided that the Company shall not be obligated to furnish or cause to furnish such list at any time
that the list shall not differ in any respect from the most recent list furnished to the Trustee by the Company and (b) at such other
times as the Trustee may request in writing within 30 days after the receipt by the Company of any such request, a list of similar form
and content as of a date not more than 15 days prior to the time such list is furnished; provided, however, that, in either case, no
such list need be furnished for any series for which the Trustee shall be the Security Registrar .
Section
5.02 Preservation Of Information; Communications With Securityholders.
(a)
The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the holders
of Securities contained in the most recent list furnished to it as provided in Section 5.01 and as to the names and addresses of holders
of Securities received by the Trustee in its capacity as Security Registrar (if acting in such capacity).
(b)
The Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.
(c)
Securityholders may communicate as provided in Section 312(b) of the Trust Indenture Act with other Securityholders with respect to their
rights under this Indenture or under the Securities, and, in connection with any such communications, the Trustee shall satisfy its obligations
under Section 312(b) of the Trust Indenture Act in accordance with the provisions of Section 312(b) of the Trust Indenture Act.
Section
5.03 Reports by the Company.
The
Company covenants and agrees to provide a copy to the Trustee, after the Company files the same with the Securities and Exchange Commission,
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 Securities and Exchange Commission may from time to time by rules and regulations prescribe) that the Company files with the Securities
and Exchange Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; provided, however, the Company shall not be required
to deliver to the Trustee any materials for which the Company has sought and received confidential treatment by the Securities and Exchange
Commission. The Company shall also comply with the requirements of Section 314 of the Trust Indenture Act, but only to the extent then
applicable to the Company.
Section
5.04 Reports by the Trustee.
(a)
On or before July 1 in each year in which any of the Securities are Outstanding, the Trustee shall transmit by mail, first class postage
prepaid, to the Securityholders, as their names and addresses appear upon the Security Register, a brief report dated as of the preceding
May 1, if and to the extent required under Section 313(a) of the Trust Indenture Act.
(b)
The Trustee shall comply with Section 313(b) and 313(c) of the Trust Indenture Act.
(c)
A copy of each such report shall, at the time of such transmission to Securityholders, be filed by the Trustee with the Company, with
each securities exchange upon which any Securities are listed (if so listed) and also with the Securities and Exchange Commission. The
Company agrees to notify the Trustee when any Securities become listed on any securities exchange.
ARTICLE
6
REMEDIES
OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section
6.01 Events of Default.
(a)
Whenever used herein with respect to Securities of a particular series, “Event of Default” means any one or more of the following
events that has occurred and is continuing:
(1)
the Company defaults in the payment of any installment of interest upon any of the Securities of that series, as and when the same shall
become due and payable, and such default continues for a period of 30 days; provided, however, that a valid extension of an interest
payment period by the Company in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the
payment of interest for this purpose;
(2)
the Company defaults in the payment of the principal of (or premium, if any, on) any of the Securities of that series as and when the
same shall become due and payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment required by any
sinking or analogous fund established with respect to that series; provided, however, that a valid extension of the maturity of such
Securities in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment of principal
or premium, if any;
(3)
the Company fails to observe or perform any other of its covenants or agreements with respect to that series contained in this Indenture
or otherwise established with respect to that series of Securities pursuant to Section 2.01 hereof (other than a covenant or agreement
that has been expressly included in this Indenture solely for the benefit of one or more series of Securities other than such series)
for a period of 90 days after the date on which written notice of such failure, requiring the same to be remedied and stating that such
notice is a “Notice of Default” hereunder, shall have been given to the Company by the Trustee, by registered or certified
mail, or to the Company and the Trustee by the holders of at least 25% in principal amount of the Securities of that series at the time
Outstanding;
(4)
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 or (iv) makes a general assignment for the benefit of its creditors; or
(5)
a court of competent jurisdiction enters an order under any Bankruptcy Law that (i) is for relief against the Company in an involuntary
case, (ii) appoints a Custodian of the Company 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 90 days.
(b)
In each and every such case (other than an Event of Default specified in clause (4) or clause (5) above), unless the principal of all
the Securities of that series shall have already become due and payable, either the Trustee or the holders of not less than 25% in aggregate
principal amount of the Securities of that series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee
if given by such Securityholders), may declare the principal of (and premium, if any, on) and accrued and unpaid interest on all the
Securities of that series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately
due and payable. If an Event of Default specified in clause (4) or clause (5) above occurs, the principal of and accrued and unpaid interest
on all the Securities of that series shall automatically be immediately due and payable without any declaration or other act on the part
of the Trustee or the holders of the Securities.
(c)
At any time after the principal of (and premium, if any, on) and accrued and unpaid interest on the Securities of that series shall have
been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered
as hereinafter provided, the holders of a majority in aggregate principal amount of the Securities of that series then Outstanding hereunder,
by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if: (i) the Company has
paid or deposited with the Trustee a sum sufficient to pay all matured installments of interest upon all the Securities of that series
and the principal of (and premium, if any, on) any and all Securities of that series that shall have become due otherwise than by acceleration
(with interest upon such principal and premium, if any, and, to the extent that such payment is enforceable under applicable law, upon
overdue installments of interest, at the rate per annum expressed in the Securities of that series to the date of such payment or deposit)
and the amount payable to the Trustee under Section 7.06, and (ii) any and all Events of Default under the Indenture with respect to
such series, other than the nonpayment of principal on (and premium, if any, on) and accrued and unpaid interest on Securities of that
series that shall not have become due by their terms, shall have been remedied or waived as provided in Section 6.06.
No
such rescission and annulment shall extend to or shall affect any subsequent default or impair any right consequent thereon.
(d)
In case the Trustee shall have proceeded to enforce any right with respect to Securities of that series under this Indenture and such
proceedings shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case, subject to any determination in such proceedings, the Company and the
Trustee shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Company
and the Trustee shall continue as though no such proceedings had been taken.
Section
6.02 Collection of Indebtedness and Suits for Enforcement by Trustee.
(a)
The Company covenants that (i) in case it shall default in the payment of any installment of interest on any of the Securities of a series,
or in any payment required by any sinking or analogous fund established with respect to that series as and when the same shall have become
due and payable, and such default shall have continued for a period of 90 Business Days, or (ii) in case it shall default in the payment
of the principal of (or premium, if any, on) any of the Securities of a series when the same shall have become due and payable, whether
upon maturity of the Securities of a series or upon redemption or upon declaration or otherwise then, upon demand of the Trustee, the
Company will pay to the Trustee, for the benefit of the holders of the Securities of that series, the whole amount that then shall have
been become due and payable on all such Securities for principal (and premium, if any) or interest, or both, as the case may be, with
interest upon the overdue principal (and premium, if any) and (to the extent that payment of such interest is enforceable under applicable
law) upon overdue installments of interest at the rate per annum expressed in the Securities of that series; and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of collection, and the amount payable to the Trustee under
Section 7.06.
(b)
If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree
against the Company or other obligor upon the Securities of that series and collect the moneys adjudged or decreed to be payable in the
manner provided by law or equity out of the property of the Company or other obligor upon the Securities of that series, wherever situated.
(c)
In case of any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or judicial
proceedings affecting the Company, or its creditors or property, the Trustee shall have power to intervene in such proceedings and take
any action therein that may be permitted by the court and shall (except as may be otherwise provided by law) be entitled to file such
proofs of claim and other papers and documents as may be necessary or advisable in order to have the claims of the Trustee and of the
holders of Securities of such series allowed for the entire amount due and payable by the Company under the Indenture at the date of
institution of such proceedings and for any additional amount that may become due and payable by the Company after such date, and to
collect and receive any moneys or other property payable or deliverable on any such claim, and to distribute the same after the deduction
of the amount payable to the Trustee under Section 7.06; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the holders of Securities of such series to make such payments to the Trustee, and, in the event that the Trustee
shall consent to the making of such payments directly to such Securityholders, to pay to the Trustee any amount due it under Section
7.06.
(d)
All rights of action and of asserting claims under this Indenture, or under any of the terms established with respect to Securities of
that series, may be enforced by the Trustee without the possession of any of such Securities, or the production thereof at any trial
or other proceeding relative thereto, and any such suit or 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 payment to the Trustee of any amounts due under Section
7.06, be for the ratable benefit of the holders of the Securities of such series.
In
case of an Event of Default hereunder, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights,
either at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained
in the Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested
in the Trustee by this Indenture or by law.
Nothing
contained herein shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder
any plan of reorganization, arrangement, adjustment or composition affecting the Securities of that series or the rights of any holder
thereof or to authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding.
Section
6.03 Application of Moneys or Property Collected.
Any
moneys or property collected by the Trustee pursuant to this Article with respect to a particular series of Securities shall be applied
in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such moneys or property on account
of principal (or premium, if any) or interest, upon presentation of the Securities of that series, and notation thereon of the payment,
if only partially paid, and upon surrender thereof if fully paid:
FIRST:
To the payment of reasonable costs and expenses of collection and of all amounts payable to the Trustee under Section 7.06;
SECOND:
To the payment of all indebtedness of the Company to which such series of Securities is subordinated to the extent required by Section
7.06 and Article Fourteen;
THIRD:
To the payment of the amounts then due and unpaid upon Securities of such series for principal (and premium, if any) and interest, 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 premium, if any) and interest, respectively; and
FOURTH:
To the payment of the remainder, if any, to the Company or any other Person lawfully entitled thereto, as requested by the Company.
Section
6.04 Limitation on Suits.
No
holder of any Security of any series shall have any right by virtue or by availing of any provision of this Indenture to institute any
suit, action or proceeding in equity or at law upon or under or with respect to this Indenture or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless (i) such holder previously shall have given to the Trustee written notice of an Event
of Default and of the continuance thereof with respect to the Securities of such series specifying such Event of Default, as hereinbefore
provided; (ii) the holders of not less than 25% in aggregate principal amount of the Securities of such series then Outstanding shall
have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder; (iii) such
holder or holders shall have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses and liabilities
to be incurred therein or thereby; (iv) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity, shall
have failed to institute any such action, suit or proceeding and (v) during such 60 day period, the holders of a majority in principal
amount of the Securities of that series do not give the Trustee a direction inconsistent with the request.
Notwithstanding
anything contained herein to the contrary or any other provisions of this Indenture, the right of any holder of any Security to receive
payment of the principal of (and premium, if any) and interest on such Security, as therein provided, on or after the respective due
dates expressed in such Security (or in the case of redemption, on the redemption date), or to institute suit for the enforcement of
any such payment on or after such respective dates or redemption date, shall not be impaired or affected without the consent of such
holder and by accepting a Security hereunder it is expressly understood, intended and covenanted by the taker and holder of every Security
of such series with every other such taker and holder and the Trustee, that no one or more holders of Securities of such series shall
have any right in any manner whatsoever by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the
rights of the holders of any other of such Securities, or to obtain or seek to obtain priority over or preference to any other such holder,
or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all
holders of Securities of such series. For the protection and enforcement of the provisions of this Section, each and every Securityholder
and the Trustee shall be entitled to such relief as can be given either at law or in equity.
Section
6.05 Rights and Remedies Cumulative; Delay or Omission Not Waiver.
(a)
Except as otherwise provided in Section 2.07, all powers and remedies given by this Article to the Trustee or to the Securityholders
shall, to the extent permitted by law, be deemed cumulative and not exclusive of any other powers and remedies available to the Trustee
or the holders of the Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture or otherwise established with respect to such Securities.
(b)
No delay or omission of the Trustee or of any holder of any of the Securities to exercise any right or power accruing upon any Event
of Default occurring and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver of any such
default or an acquiescence therein; and, subject to the provisions of Section 6.04, every power and remedy given by this Article or by
law to the Trustee or the Securityholders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee
or by the Securityholders.
Section
6.06 Control by Securityholders.
The
holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding, determined in
accordance with Section 8.04, 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 such series; provided, however,
that such direction shall not be in conflict with any rule of law or with this Indenture. Subject to the provisions of Section 7.01,
the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith shall, by a Responsible
Officer or officers of the Trustee, determine that the proceeding so directed, subject to the Trustee’s duties under the Trust
Indenture Act, would involve the Trustee in personal liability or might be unduly prejudicial to the Securityholders not involved in
the proceeding. The holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding
affected thereby, determined in accordance with Section 8.04, may on behalf of the holders of all of the Securities of such series
waive any past default in the performance of any of the covenants contained herein or established pursuant to Section 2.01 with
respect to such series and its consequences, except a default in the payment of the principal of, or premium, if any, or interest
on, any of the Securities of that series as and when the same shall become due by the terms of such Securities otherwise than by
acceleration (unless such default has been cured and a sum sufficient to pay all matured installments of interest and principal and
any premium has been deposited with the Trustee (in accordance with Section 6.01(c)). Upon any such waiver, the default covered
thereby shall be deemed to be cured for all purposes of this Indenture and the Company, the Trustee and the holders of the
Securities of such series shall be restored to their former positions and rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other default or impair any right consequent thereon.
Section
6.07 Undertaking to Pay Costs.
All
parties to this Indenture agree, and each holder of any Securities by such holder’s 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 or omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any
Securityholder, or group of Securityholders, holding more than 10% in aggregate principal amount of the Outstanding Securities of any
series, or to any suit instituted by any Securityholder for the enforcement of the payment of the principal of (or premium, if any) or
interest on any Security of such series, on or after the respective due dates expressed in such Security or established pursuant to this
Indenture.
ARTICLE
7
CONCERNING
THE TRUSTEE
Section
7.01 Certain Duties and Responsibilities of Trustee.
(a)
The Trustee, prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing of all Events
of Default with respect to the Securities of that series that may have occurred, shall undertake to perform with respect to the Securities
of such series such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants shall be read
into this Indenture against the Trustee. In case an Event of Default with respect to the Securities of a series has occurred (that has
not been cured or waived), the Trustee shall exercise with respect to Securities of that series such of 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 man would exercise or use under the
circumstances in the conduct of his own affairs.
(b)
No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i)
prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing or waiving of all such
Events of Default with respect to that series that may have occurred:
(A)
the duties and obligations of the Trustee shall with respect to the Securities of such series be determined solely by the express provisions
of this Indenture, and the Trustee shall not be liable with respect to the Securities of such series except for the performance of such
duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(B)
in the absence of bad faith on the part of the Trustee, the Trustee may with respect to the Securities of such series conclusively rely,
as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirement of this Indenture;
(ii)
the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii)
the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction
of the holders of not less than a majority in principal amount of the Securities of any series at the time Outstanding 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 that series; and
(iv)
None of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise of any of its rights or powers if there is reasonable
ground for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Indenture
or adequate indemnity against such risk is not reasonably assured to it.
Section
7.02 Certain Rights of Trustee.
Except
as otherwise provided in Section 7.01:
(a)
The Trustee may rely conclusively and shall be protected in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond, security or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(b)
Any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Board Resolution or an instrument
signed in the name of the Company by any authorized officer of the Company (unless other evidence in respect thereof is specifically
prescribed herein);
(c)
The Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted hereunder in good faith and in reliance thereon;
(d)
The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order
or direction of any of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses and liabilities that may be incurred therein or thereby;
nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default with respect
to a series of the Securities (that has not been cured or waived), to exercise with respect to Securities of that series such of the
rights and powers vested in it by this Indenture, and to use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs;
(e)
The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Indenture;
(f)
The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond, security, or other papers or documents, unless requested
in writing so to do by the holders of not less than a majority in principal amount of the Outstanding Securities of the particular series
affected thereby (determined as provided in Section 8.04); provided, however, that if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee,
not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require reasonable
indemnity against such costs, expenses or liabilities as a condition to so proceeding. The reasonable expense of every such examination
shall be paid by the Company or, if paid by the Trustee, shall be repaid by the Company upon demand; and
(g)
The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder.
In
addition, the Trustee shall not be deemed to have knowledge of any Default or Event of Default except (1) any Event of Default occurring
pursuant to Sections 6.01(a)(1), 6.01(a)(2) and 4.01 hereof or (2) any Default or Event of Default of which the Trustee shall have received
written notification in the manner set forth in this Indenture or a Responsible Officer of the Trustee shall have obtained actual knowledge.
Delivery of reports, information and documents to the Trustee under Section 5.03 is for informational purposes only and the information
and the Trustee’s receipt of the foregoing shall not constitute constructive notice of any information contained therein, or determinable
from information contained therein including the Company’s compliance with any of their covenants thereunder (as to which the Trustee
is entitled to rely conclusively on an Officers’ Certificate).
Section
7.03 Trustee Not Responsible for Recitals or Issuance or Securities.
(a)
The recitals contained herein and in the Securities shall be taken as the statements of the Company, and the Trustee assumes no responsibility
for the correctness of the same.
(b)
The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities.
(c)
The Trustee shall not be accountable for the use or application by the Company of any of the Securities or of the proceeds of such Securities,
or for the use or application of any moneys paid over by the Trustee in accordance with any provision of this Indenture or established
pursuant to Section 2.01, or for the use or application of any moneys received by any paying agent other than the Trustee.
Section
7.04 May Hold Securities.
The
Trustee or any paying agent or Security Registrar, in its individual or any other capacity, may become the owner or pledgee of Securities
with the same rights it would have if it were not Trustee, paying agent or Security Registrar.
Section
7.05 Moneys Held in Trust.
Subject
to the provisions of Section 11.05, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust
for the purposes for which they were received, but need not be segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any moneys received by it hereunder except such as it may agree with the Company
to pay thereon.
Section
7.06 Compensation and Reimbursement.
(a)
The Company covenants and agrees to pay to the Trustee, and the Trustee shall be entitled to, such reasonable compensation (which shall
not be limited by any provision of law in regard to the compensation of a trustee of an express trust) as the Company and the Trustee
may from time to time agree in writing, for all services rendered by it in the execution of the trusts hereby created and in the exercise
and performance of any of the powers and duties hereunder of the Trustee, and, except as otherwise expressly provided herein, the Company
will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements
of its counsel and of all Persons not regularly in its employ), except any such expense, disbursement or advance as may arise from its
negligence or bad faith and except as the Company and Trustee may from time to time agree in writing. The Company also covenants to indemnify
the Trustee (and its officers, agents, directors and employees) for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on the part of the Trustee and arising out of or in connection with the acceptance or administration
of this trust, including the reasonable costs and expenses of defending itself against any claim of liability in the premises.
(b)
The obligations of the Company under this Section to compensate and indemnify the Trustee and to pay or reimburse the Trustee for reasonable
expenses, disbursements and advances shall constitute indebtedness of the Company to which the Securities are subordinated. Such additional
indebtedness shall be secured by a lien prior to that of the Securities upon all property and funds held or collected by the Trustee
as such, except funds held in trust for the benefit of the holders of particular Securities.
Section
7.07 Reliance on Officers’ Certificate.
Except
as otherwise provided in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it reasonably
necessary or desirable that a matter be proved or established prior to taking or suffering or omitting to take any action hereunder,
such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established by an Officers’ Certificate delivered to the Trustee
and such certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for
any action taken, suffered or omitted to be taken by it under the provisions of this Indenture upon the faith thereof.
Section
7.08 Disqualification; Conflicting Interests.
If
the Trustee has or shall acquire any “conflicting interest” within the meaning of Section 310(b) of the Trust Indenture Act,
the Trustee and the Company shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act.
Section
7.09 Corporate Trustee Required; Eligibility.
There
shall at all times be a Trustee with respect to the Securities issued hereunder which shall at all times be a corporation organized and
doing business under the laws of the United States of America or any state or territory thereof or of the District of Columbia, or a
corporation or other Person permitted to act as trustee by the Securities and Exchange Commission, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least fifty million U.S. dollars ($50,000,000), and subject to supervision
or examination by federal, state, territorial, or District of Columbia authority.
If
such corporation or other Person publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation or other
Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. The Company
may not, nor may any Person directly or indirectly controlling, controlled by, or under common control with the Company, serve as Trustee.
In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 7.10.
Section
7.10 Resignation and Removal; Appointment of Successor.
(a)
The Trustee or any successor hereafter appointed may at any time resign with respect to the Securities of one or more series by giving
written notice thereof to the Company and by transmitting notice of resignation by mail, first class postage prepaid, to the Securityholders
of such series, as their names and addresses appear upon the Security Register. Upon receiving such notice of resignation, the Company
shall promptly appoint a successor trustee with respect to Securities of such series by written instrument, in duplicate, executed by
order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor
trustee. If no successor trustee shall have been so appointed and have accepted appointment within 30 days after the mailing of such
notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor trustee
with respect to Securities of such series, or any Securityholder of that series who has been a bona fide holder of a Security or Securities
for at least six months may on behalf of himself and all others similarly situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.
(b)
In case at any time any one of the following shall occur:
(i)
the Trustee shall fail to comply with the provisions of Section 7.08 after written request therefor by the Company or by any Securityholder
who has been a bona fide holder of a Security or Securities for at least six months; or
(ii)
the Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 and shall fail to resign after written request
therefor by the Company or by any such Securityholder; or
(iii)
the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding,
or a receiver of the Trustee or of its property shall be appointed or consented to, or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;
then,
in any such case, the Company may remove the Trustee with respect to all Securities and appoint a successor trustee by written instrument,
in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed
and one copy to the successor trustee, or any Securityholder who has been a bona fide holder of a Security or Securities for at least
six months may, on behalf of that holder and all others similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper
and prescribe, remove the Trustee and appoint a successor trustee.
(c)
The holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding may at any time remove
the Trustee with respect to such series by so notifying the Trustee and the Company and may appoint a successor Trustee for such series
with the consent of the Company.
(d)
Any resignation or removal of the Trustee and appointment of a successor trustee with respect to the Securities of a series pursuant
to any of the provisions of this Section shall become effective upon acceptance of appointment by the successor trustee as provided in
Section 7.11.
(e)
Any successor trustee appointed pursuant to this Section may be appointed with respect to the Securities of one or more series or all
of such series, and at any time there shall be only one Trustee with respect to the Securities of any particular series.
Section
7.11 Acceptance of Appointment By Successor.
(a)
In case of the appointment hereunder of a successor trustee with respect to all Securities, every such successor trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company
or the successor trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to
such successor trustee all the rights, powers, and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such
successor trustee all property and money held by such retiring Trustee hereunder.
(b)
In case of the appointment hereunder of a successor trustee with respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor trustee with respect to the Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor trustee shall accept such appointment and which (i) shall contain such provisions as shall
be necessary or desirable to transfer and confirm to, and to vest in, each successor trustee all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor trustee relates,
(ii) shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (iii) shall add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust, that each such Trustee shall be trustee
of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee and that
no Trustee shall be responsible for any act or failure to act on the part of any other Trustee hereunder; and upon the execution and
delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided
therein, such retiring Trustee shall with respect to the Securities of that or those series to which the appointment of such successor
trustee relates have no further responsibility for the exercise of rights and powers or for the performance of the duties and obligations
vested in the Trustee under this Indenture, and each such successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor trustee relates; but, on request of the Company or any successor trustee, such retiring Trustee
shall duly assign, transfer and deliver to such successor trustee, to the extent contemplated by such supplemental indenture, the property
and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of
such successor trustee relates.
(c)
Upon request of any such successor trustee, the Company shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the
case may be.
(d)
No successor trustee shall accept its appointment unless at the time of such acceptance such successor trustee shall be qualified and
eligible under this Article.
(e)
Upon acceptance of appointment by a successor trustee as provided in this Section, the Company shall transmit notice of the succession
of such trustee hereunder by mail, first class postage prepaid, to the Securityholders, as their names and addresses appear upon the
Security Register. If the Company fails to transmit such notice within ten days after acceptance of appointment by the successor trustee,
the successor trustee shall cause such notice to be transmitted at the expense of the Company.
Section
7.12 Merger, Conversion, Consolidation or Succession to Business.
Any
corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from
any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided that such corporation shall be qualified under the provisions
of Section 7.08 and eligible under the provisions of Section 7.09, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary notwithstanding. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
Section
7.13 Preferential Collection of Claims Against the Company.
The
Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship described in Section 311(b)
of the Trust Indenture Act. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act
to the extent included therein.
Section
7.14 Notice of Default
If
any Default or any Event of Default occurs and is continuing and if such Default or Event of Default is known to a Responsible Officer
of the Trustee, the Trustee shall mail to each Securityholder in the manner and to the extent provided in Section 313(c) of the Trust
Indenture Act notice of the Default or Event of Default within 90 days after it occurs and becomes known to the Trustee, unless such
Default or Event of Default has been cured; provided, however, that, except in the case of a default in the payment of the principal
of (or premium, if any) or interest on any Security, the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interest of the Securityholders.
ARTICLE
8
CONCERNING
THE SECURITYHOLDERS
Section
8.01 Evidence of Action by Securityholders.
Whenever
in this Indenture it is provided that the holders of a majority or specified percentage in aggregate principal amount of the Securities
of a particular series may take any action (including the making of any demand or request, the giving of any notice, consent or waiver
or the taking of any other action), the fact that at the time of taking any such action the holders of such majority or specified percentage
of that series have joined therein may be evidenced by any instrument or any number of instruments of similar tenor executed by such
holders of Securities of that series in person or by agent or proxy appointed in writing.
If
the Company shall solicit from the Securityholders of any series any request, demand, authorization, direction, notice, consent, waiver
or other action, the Company may, at its option, as evidenced by an Officers’ Certificate, fix in advance a record date for such
series for the determination of Securityholders entitled to give such request, demand, authorization, direction, notice, consent, waiver
or other action, but the Company shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other action may be given before or after the record date, but only the Securityholders of record
at the close of business on the record date shall be deemed to be Securityholders for the purposes of determining whether Securityholders
of the requisite proportion of Outstanding Securities of that series have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action, and for that purpose the Outstanding Securities of that series shall
be computed as of the record date; provided, however, that no such authorization, agreement or consent by such Securityholders on the
record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six
months after the record date.
Section
8.02 Proof of Execution by Securityholders.
Subject
to the provisions of Section 7.01, proof of the execution of any instrument by a Securityholder (such proof will not require notarization)
or his agent or proxy and proof of the holding by any Person of any of the Securities shall be sufficient if made in the following manner:
(a)
The fact and date of the execution by any such Person of any instrument may be proved in any reasonable manner acceptable to the Trustee.
(b)
The ownership of Securities shall be proved by the Security Register of such Securities or by a certificate of the Security Registrar
thereof.
The
Trustee may require such additional proof of any matter referred to in this Section as it shall deem necessary.
Section
8.03 Who May be Deemed Owners.
Prior
to the due presentment for registration of transfer of any Security, the Company, the Trustee, any paying agent and any Security Registrar
may deem and treat the Person in whose name such Security shall be registered upon the books of the Company as the absolute owner of
such Security (whether or not such Security shall be overdue and notwithstanding any notice of ownership or writing thereon made by anyone
other than the Security Registrar) for the purpose of receiving payment of or on account of the principal of, premium, if any, and (subject
to Section 2.03) interest on such Security and for all other purposes; and neither the Company nor the Trustee nor any paying agent nor
any Security Registrar shall be affected by any notice to the contrary.
Section
8.04 Certain Securities Owned by Company Disregarded.
In
determining whether the holders of the requisite aggregate principal amount of Securities of a particular series have concurred in any
direction, consent or waiver under this Indenture, the Securities of that series that are owned by the Company or any other obligor on
the Securities of that series or by any Person directly or indirectly controlling or controlled by or under common control with the Company
or any other obligor on the Securities of that series shall be disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction, consent
or waiver, only Securities of such series that the Trustee actually knows are so owned shall be so disregarded. The Securities so owned
that have been pledged in good faith may be regarded as Outstanding for the purposes of this Section, if the pledgee shall establish
to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not a
Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any such other
obligor. In case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection
to the Trustee.
Section
8.05 Actions Binding on Future Securityholders.
At
any time prior to (but not after) the evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the holders
of the majority or percentage in aggregate principal amount of the Securities of a particular series specified in this Indenture in connection
with such action, any holder of a Security of that series that is shown by the evidence to be included in the Securities the holders
of which have consented to such action may, by filing written notice with the Trustee, and upon proof of holding as provided in Section
8.02, revoke such action so far as concerns such Security. Except as aforesaid any such action taken by the holder of any Security shall
be conclusive and binding upon such holder and upon all future holders and owners of such Security, and of any Security issued in exchange
therefor, on registration of transfer thereof or in place thereof, irrespective of whether or not any notation in regard thereto is made
upon such Security. Any action taken by the holders of the majority or percentage in aggregate principal amount of the Securities of
a particular series specified in this Indenture in connection with such action shall be conclusively binding upon the Company, the Trustee
and the holders of all the Securities of that series.
ARTICLE
9
SUPPLEMENTAL
INDENTURES
Section
9.01 Supplemental Indentures Without the Consent of Securityholders.
In
addition to any supplemental indenture otherwise authorized by this Indenture, the Company and the Trustee may from time to time and
at any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act
as then in effect), without the consent of the Securityholders, for one or more of the following purposes:
(a)
to cure any ambiguity, defect, or inconsistency herein or in the Securities of any series;
(b)
to comply with Article Ten;
(c)
to provide for uncertificated Securities in addition to or in place of certificated Securities and to make all appropriate changes for
such purpose;
(d)
to add to the covenants, restrictions, conditions or provisions relating to the Company for the benefit of the holders of all or any
series of Securities (and if such covenants, restrictions, conditions or provisions are to be for the benefit of less than all series
of Securities, stating that such covenants, restrictions, conditions or provisions are expressly being included solely for the benefit
of such series), to make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants, restrictions,
conditions or provisions an Event of Default, or to surrender any right or power herein conferred upon the Company;
(e)
to add to, delete from, or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue,
authentication, and delivery of Securities, as herein set forth;
(f)
to make any change that does not adversely affect the rights of any Securityholder in any material respect;
(g)
to provide for the issuance of and establish the form and terms and conditions of the Securities of any series as provided in Section
2.01, to establish the form of any certifications required to be furnished pursuant to the terms of this Indenture or any series of Securities,
or to add to the rights of the holders of any series of Securities;
(h)
to evidence and provide for the acceptance of appointment hereunder by a successor trustee; or
(i)
to comply with any requirements of the Securities and Exchange Commission or any successor in connection with the qualification of this
Indenture under the Trust Indenture Act.
The
Trustee is hereby authorized to join with the Company in the execution of any such supplemental indenture, and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into any such supplemental
indenture that affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Any
supplemental indenture authorized by the provisions of this Section may be executed by the Company and the Trustee without the consent
of the holders of any of the Securities at the time Outstanding, notwithstanding any of the provisions of Section 9.02.
Section
9.02 Supplemental Indentures With Consent of Securityholders.
With
the consent (evidenced as provided in Section 8.01) of the holders of not less than a majority in aggregate principal amount of the Securities
of each series affected by such supplemental indenture or indentures at the time Outstanding, the Company, when authorized by a Board
Resolution, and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as then in effect) 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 not covered
by Section 9.01 the rights of the holders of the Securities of such series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the holders of each Security then Outstanding and affected thereby, (a) extend the fixed maturity
of any Securities of any series, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest
thereon, or reduce any premium payable upon the redemption thereof, (b) make any Security payable in money other than that stated in
the Security, (c) impair the right of any Holder to receive payment of principal of, premium, if any, and interest, if any, on, such
Holder’s Securities on or after the due dates therefor or to institute suit for the enforcement of any payment, or (d) adversely
change the right to convert or exchange, including decreasing the conversion rate or increasing the conversion price of, any Security,
or (e) reduce the aforesaid percentage of Securities, the holders of which are required to consent to any such supplemental indenture.
It
shall not be necessary for the consent of the Securityholders of any series affected thereby under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Section
9.03 Effect of Supplemental Indentures.
Upon
the execution of any supplemental indenture pursuant to the provisions of this Article or of Section 10.01, this Indenture shall, with
respect to such series, be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture of the Trustee, the Company and the holders of Securities of the series
affected thereby shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
Section
9.04 Securities Affected by Supplemental Indentures.
Securities
of any series affected by a supplemental indenture, authenticated and delivered after the execution of such supplemental indenture pursuant
to the provisions of this Article or of Section 10.01, may bear a notation in form approved by the Company, provided such form meets
the requirements of any securities exchange upon which such series may be listed, as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of that series so modified as to conform, in the opinion of the Board of
Directors, to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Company, authenticated
by the Trustee and delivered in exchange for the Securities of that series then Outstanding.
Section
9.05 Execution of Supplemental Indentures.
Upon
the request of the Company, accompanied by its Board Resolutions authorizing the execution of any such supplemental indenture, and upon
the filing with the Trustee of evidence of the consent of Securityholders required to consent thereto as aforesaid, the Trustee shall
join with the Company in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion but shall not be
obligated to enter into such supplemental indenture. The Trustee, subject to the provisions of Section 7.01, will be entitled to receive
and will be fully protected in relying upon an Officers’ Certificate and an Opinion of Counsel stating that any supplemental indenture
executed pursuant to this Article is authorized or permitted by, and conforms to, the terms of this Article and that it is proper for
the Trustee under the provisions of this Article to join in the execution thereof; provided, however, that such Officers’ Certificate
or Opinion of Counsel need not be provided in connection with the execution of a supplemental indenture that establishes the terms of
a series of Securities pursuant to Section 2.01 hereof.
Promptly
after the execution by the Company and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first class postage prepaid, a notice, setting forth in general terms the substance of such supplemental indenture,
to the Securityholders of all series affected thereby as their names and addresses appear upon the Security Register. Any failure of
the Trustee to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental
indenture.
ARTICLE
10
SUCCESSOR
ENTITY
Section
10.01 Company May Consolidate, Etc.
The
Company shall not consolidate with or merge into any other Person (in a transaction in which the Company is not the surviving corporation)
or convey, transfer or lease its properties and assets substantially as an entirety to any Person, unless (a) the Person formed by such
consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases, the properties
and assets of the Company substantially as an entirety shall expressly assume, by an indenture supplemental hereto, executed and delivered
to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of and any premium and interest on
all the Securities and the performance or observance of every covenant of this Indenture on the part of the Company to be performed,
by supplemental indenture satisfactory in form to the Trustee, executed and delivered to the Trustee, by the Person (if other than the
Company) formed by such consolidation or into which the Company shall have been merged or by the Person which shall have acquired the
Company’s assets; (b) immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation
of the Company or any Subsidiary as a result of such transaction as having been incurred by the Company or such Subsidiary at the time
of such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default,
shall have happened and be continuing; and (c) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion
of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture comply with this Article and that all conditions precedent herein provided
for relating to such transaction have been complied with.
The
restrictions in this Section 10.01 shall not apply to the merger of the Company with or into a single direct or indirect wholly owned
Subsidiary.
Section
10.02 Successor Entity Substituted.
(a)
In case of any such consolidation, merger, sale, conveyance, transfer or other disposition and upon the assumption by the successor entity
by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the obligations set forth
under Section 10.01 on all of the Securities of all series Outstanding, such successor entity shall succeed to and be substituted for
the Company with the same effect as if it had been named as the Company herein, and thereupon the predecessor corporation shall be relieved
of all obligations and covenants under this Indenture and the Securities.
(b)
In case of any such consolidation, merger, sale, conveyance, transfer or other disposition, such changes in phraseology and form (but
not in substance) may be made in the Securities thereafter to be issued as may be appropriate.
(c)
Nothing contained in this Article shall require any action by the Company in the case of a consolidation or merger of any Person into
the Company where the Company is the survivor of such transaction, or the acquisition by the Company, by purchase or otherwise, of all
or any part of the property of any other Person (whether or not affiliated with the Company).
Section
10.03 Evidence of Consolidation, Etc. to Trustee.
The
Trustee, subject to the provisions of Section 7.01, may receive an Officers’ Certificate or an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, conveyance, transfer or other disposition, and any such assumption, comply with the
provisions of this Article.
ARTICLE
11
SATISFACTION
AND DISCHARGE
Section
11.01 Satisfaction and Discharge of Indenture.
If
at any time: (a) the Company shall have delivered to the Trustee for cancellation all Securities of a series theretofore authenticated
and not delivered to the Trustee for cancellation (other than any Securities that shall have been destroyed, lost or stolen and that
shall have been replaced or paid as provided in Section 2.07 and Securities for whose payment money or Governmental Obligations have
theretofore been deposited in trust or segregated and held in trust by the Company and thereupon repaid to the Company or discharged
from such trust, as provided in Section 11.05); or (b) all such Securities of a particular series not theretofore delivered to the Trustee
for cancellation shall have become due and payable, or are by their terms to become due and payable within one year or are to be called
for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and the Company
shall deposit or cause to be deposited with the Trustee as trust funds the entire amount in moneys or Governmental Obligations or a combination
thereof, sufficient in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay at maturity or upon redemption all Securities of that series not theretofore delivered to the
Trustee for cancellation, including principal (and premium, if any) and interest due or to become due to such date of maturity or date
fixed for redemption, as the case may be, and if the Company shall also pay or cause to be paid all other sums payable hereunder with
respect to such series by the Company then this Indenture shall thereupon cease to be of further effect with respect to such series except
for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03 and 7.10, that shall survive until the date of maturity or redemption
date, as the case may be, and Sections 7.06 and 11.05, that shall survive to such date and thereafter, and the Trustee, on demand of
the Company and at the cost and expense of the Company shall execute proper instruments acknowledging satisfaction of and discharging
this Indenture with respect to such series.
Section
11.02 Discharge of Obligations.
If
at any time all such Securities of a particular series not heretofore delivered to the Trustee for cancellation or that have not become
due and payable as described in Section 11.01 shall have been paid by the Company by depositing irrevocably with the Trustee as trust
funds moneys or an amount of Governmental Obligations sufficient to pay at maturity or upon redemption all such Securities of that series
not theretofore delivered to the Trustee for cancellation, including principal (and premium, if any) and interest due or to become due
to such date of maturity or date fixed for redemption, as the case may be, and if the Company shall also pay or cause to be paid all
other sums payable hereunder by the Company with respect to such series, then after the date such moneys or Governmental Obligations,
as the case may be, are deposited with the Trustee the obligations of the Company under this Indenture with respect to such series shall
cease to be of further effect except for the provisions of Sections 2.03, 2.05, 2.07, 4,01, 4.02, 4,03, 7.06, 7.10 and 11.05 hereof that
shall survive until such Securities shall mature and be paid.
Thereafter,
Sections 7.06 and 11.05 shall survive.
Section
11.03 Deposited Moneys to be Held in Trust.
All
moneys or Governmental Obligations deposited with the Trustee pursuant to Sections 11.01 or 11.02 shall be held in trust and shall be
available for payment as due, either directly or through any paying agent (including the Company acting as its own paying agent), to
the holders of the particular series of Securities for the payment or redemption of which such moneys or Governmental Obligations have
been deposited with the Trustee.
Section
11.04 Payment of Moneys Held by Paying Agents.
In
connection with the satisfaction and discharge of this Indenture all moneys or Governmental Obligations then held by any paying agent
under the provisions of this Indenture shall, upon demand of the Company, be paid to the Trustee and thereupon such paying agent shall
be released from all further liability with respect to such moneys or Governmental Obligations.
Section
11.05 Repayment to Company.
Any
moneys or Governmental Obligations deposited with any paying agent or the Trustee, or then held by the Company, in trust for payment
of principal of or premium, if any, or interest on the Securities of a particular series that are not applied but remain unclaimed by
the holders of such Securities for at least two years after the date upon which the principal of (and premium, if any) or interest on
such Securities shall have respectively become due and payable, or such other shorter period set forth in applicable escheat or abandoned
or unclaimed property law, shall be repaid to the Company on May 31 of each year or upon the Company’s request or (if then held
by the Company) shall be discharged from such trust; and thereupon the paying agent and the Trustee shall be released from all further
liability with respect to such moneys or Governmental Obligations, and the holder of any of the Securities entitled to receive such payment
shall thereafter, as a general creditor, look only to the Company for the payment thereof.
ARTICLE
12
IMMUNITY
OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section
12.01 No Recourse.
No
recourse under or upon any obligation, covenant or agreement of this Indenture, or of any Security, or for any claim based thereon or
otherwise in respect thereof, shall be had against any incorporator, stockholder, officer or director, past, present or future as such,
of the Company or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly understood that this Indenture and the obligations issued hereunder are solely corporate obligations, and that no
such personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, stockholders, officers or directors
as such, of the Company or of any predecessor or successor corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom; and that any and all such personal liability of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against, every such incorporator, stockholder, officer or director
as such, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied therefrom, are hereby expressly waived and released as a condition
of, and as a consideration for, the execution of this Indenture and the issuance of such Securities.
ARTICLE
13
MISCELLANEOUS
PROVISIONS
Section
13.01 Effect on Successors and Assigns.
All
the covenants, stipulations, promises and agreements in this Indenture made by or on behalf of the Company shall bind its successors
and assigns, whether so expressed or not.
Section
13.02 Actions by Successor.
Any
act or proceeding by any provision of this Indenture authorized or required to be done or performed by any board, committee or officer
of the Company shall and may be done and performed with like force and effect by the corresponding board, committee or officer of any
corporation that shall at the time be the lawful successor of the Company.
Section
13.03 Surrender of Company Powers.
The
Company by instrument in writing executed by authority of its Board of Directors and delivered to the Trustee may surrender any of the
powers reserved to the Company, and thereupon such power so surrendered shall terminate both as to the Company and as to any successor
corporation.
Section
13.04 Notices.
Except
as otherwise expressly provided herein, any notice, request or demand that by any provision of this Indenture is required or permitted
to be given, made or served by the Trustee or by the holders of Securities or by any other Person pursuant to this Indenture to or on
the Company may be given or served by being deposited in first class mail, postage prepaid, addressed (until another address is filed
in writing by the Company with the Trustee), as follows: 149 Fifth Avenue, New York, NY 10010, with a copy to Duane Morris LLP, 1540
Broadway, New York, New York 10036, Attn: Dean M. Colucci, Esq. Any notice, election, request or demand by the Company or any Securityholder
or by any other Person pursuant to this Indenture to or upon the Trustee shall be deemed to have been sufficiently given or made, for
all purposes, if given or made in writing at the Corporate Trust Office of the Trustee.
Section
13.05 Governing Law.
This
Indenture and each Security shall be deemed to be a contract made under the internal laws of the State of New York, and for all purposes
shall be construed in accordance with the laws of said State, except to the extent that the Trust Indenture Act is applicable.
Section
13.06 Treatment of Securities as Debt.
It
is intended that the Securities will be treated as indebtedness and not as equity for federal income tax purposes. The provisions of
this Indenture shall be interpreted to further this intention.
Section
13.07 Certificates and Opinions as to Conditions Precedent.
(a)
Upon any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company
shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent provided for in this Indenture (other
than the certificate to be delivered pursuant to Section 13.13) relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with, except that in the case
of any such application or demand as to which the furnishing of such documents is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional certificate or opinion need be furnished.
(b)
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or
covenant in this Indenture shall include (i) a statement that the Person making such certificate or opinion has read such covenant or
condition; (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (iii) a statement that, in the opinion of such Person, he has made such examination
or investigation as is reasonably necessary to enable him to express an informed opinion as to whether or not such covenant or condition
has been complied with; and (iv) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been
complied with.
Section
13.08 Payments on Business Days.
Except
as provided pursuant to Section 2.01 pursuant to a Board Resolution, and set forth in an Officers’ Certificate, or established
in one or more indentures supplemental to this Indenture, in any case where the date of maturity of interest or principal of any Security
or the date of redemption of any Security shall not be a Business Day, then payment of interest or principal (and premium, if any) may
be made on the next succeeding Business Day with the same force and effect as if made on the nominal date of maturity or redemption,
and no interest shall accrue for the period after such nominal date.
Section
13.09 Conflict with Trust Indenture Act.
If
and to the extent that any provision of this Indenture limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
Section
13.10 Indenture and Securities Solely Corporate Obligations.
No
recourse for the payment of the principal of, premium, if any, or interest on any Securities, or for any claim based thereon or otherwise
in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company in this Indenture or in any supplemental
indenture or in any Security, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator,
shareholder, employee, agent, officer, director or subsidiary, as such, past, present or future, of the Company or of any successor entity,
either directly or through the Company or any successor entity, whether by virtue of any constitution, statute, or rule of law, or by
the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly
waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issuance of the Securities.
Section
13.11 Counterparts.
This
Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute
but one and the same instrument.
Section
13.12 Separability.
In
case any one or more of the provisions contained in this Indenture or in the Securities of any series shall for any reason be held to
be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions
of this Indenture or of such Securities, but this Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
Section
13.13 Compliance Certificates.
The
Company shall deliver to the Trustee, within 120 days after the end of each fiscal year during which any Securities of any series were
outstanding, a compliance certificate stating whether or not the signer knows of any Default or Event of Default that occurred during
such fiscal year. Such certificate shall contain a certification from the principal executive officer, principal financial officer or
principal accounting officer of the Company that a review has been conducted of the activities of the Company and the Company’s
performance under this Indenture and that the Company has complied with all conditions and covenants under this Indenture. For purposes
of this Section 13.13, such compliance shall be determined without regard to any period of grace or requirement of notice provided under
this Indenture. If the officer of the Company signing such certificate has knowledge of such a Default or Event of Default, the certificate
shall describe any such Default or Event of Default and its status.
ARTICLE
14
SUBORDINATION
OF SECURITIES
Section
14.01 Agreement of Subordination.
The
Company covenants and agrees, and each holder of Securities issued hereunder by his acceptance thereof likewise covenants and agrees,
that all Securities shall be issued subject to the provisions of this Article 14; and each Securityholder, whether upon original issue
or upon transfer or assignment thereof, accepts and agrees to be bound by such provisions.
The
payment of the principal of, premium, if any, and interest on all Securities issued hereunder shall, to the extent and in the manner
hereinafter set forth, be subordinated and subject in right of payment to the prior payment in full of all Senior Indebtedness of the
Company, whether outstanding at the date of this Indenture or thereafter incurred.
The
provisions of this Article 14 define the subordination of the Securities, as obligations of the Company, with respect to Senior Indebtedness
of the Company.
No
provision of this Article 14 shall prevent the occurrence of any default or Event of Default hereunder.
Section
14.02 Payments to Securityholders.
In
the event and during the continuation of any default in the payment of principal, premium, interest or any other payment due on any Senior
Indebtedness of the Company continuing beyond the period of grace, if any, specified in the instrument or lease evidencing such Senior
Indebtedness of the Company, then, unless and until such default shall have been cured or waived or shall have ceased to exist, no payment
shall be made by the Company with respect to the principal of, or premium, if any, or interest on the Securities, except payments made
pursuant to Article 11 hereof from monies deposited with the Trustee pursuant thereto prior to the happening of such default.
Upon
any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities,
to creditors upon any dissolution or winding-up or liquidation or reorganization of the Company, whether voluntary or involuntary or
in bankruptcy, insolvency, receivership or other proceedings, all amounts due or to become due upon all Senior Indebtedness of the Company
shall first be paid in full, or payment thereof provided for in money in accordance with its terms, before any payment is made on account
of the principal (and premium, if any) or interest on the Securities (except payments made pursuant to Article 11 hereof from monies
deposited with the Trustee pursuant thereto prior to the happening of such dissolution, winding-up, liquidation or reorganization); and
upon any such dissolution or winding-up or liquidation or reorganization any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to which the holders of the Securities or the Trustee would
be entitled, except for the provisions of this Article 14, shall (except as aforesaid) be paid by the Company or by any receiver, trustee
in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the holders of the Securities or
by the Trustee under this Indenture if received by them or it, directly to the holders of Senior Indebtedness of the Company (pro rata
to such holders on the basis of the respective amounts of Senior Indebtedness of the Company held by such holders, as calculated by the
Company) or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments
evidencing any Senior Indebtedness of the Company may have been issued, as their respective interests may appear, to the extent necessary
to pay all Senior Indebtedness of the Company in full, in money or money’s worth, after giving effect to any concurrent payment
or distribution to or for the holders of Senior Indebtedness of the Company, before any payment or distribution is made to the holders
of the Securities or to the Trustee.
In
the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any kind or character, whether
in cash, property or securities, prohibited by the foregoing, shall be received by the Trustee or the holders of the Securities before
all Senior Indebtedness of the Company is paid in full, or provision is made for such payment in money in accordance with its terms,
such payment or distribution shall be held in trust for the benefit of and shall be paid over or delivered to the holders of Senior Indebtedness
of the Company or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments
evidencing any Senior Indebtedness of the Company may have been issued, as their respective interests may appear, as calculated by the
Company, for application to the payment of all Senior Indebtedness of the Company remaining unpaid to the extent necessary to pay all
Senior Indebtedness of the Company in full in money in accordance with its terms, after giving effect to any concurrent payment or distribution
to or for the holders of such Senior Indebtedness.
For
purposes of this Article 14, the words, “cash, property or securities” shall not be deemed to include shares of stock of
the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization
or readjustment, the payment of which is subordinated at least to the extent provided in this Article 14 with respect to the Securities
to the payment of all Senior Indebtedness of the Company which may at the time be outstanding; provided that (i) the Senior Indebtedness
of the Company is assumed by the new corporation, if any, resulting from any such reorganization or readjustment, and (ii) the rights
of the holders of the Senior Indebtedness of the Company (other than leases) and of leases which are assumed are not, without the consent
of such holders, altered by such reorganization or readjustment. The consolidation of the Company with, or the merger of the Company
into, another corporation or the liquidation or dissolution of the Company following the conveyance or transfer of its property as an
entirety, or substantially as an entirety, to another corporation upon the terms and conditions provided for in Article 10 hereof shall
not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 14.02 if such other corporation
shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article 10 hereof. Nothing
in this Section 14.02 shall apply to claims of, or payments to, the Trustee under or pursuant to Article 7.
Section
14.03 Subrogation of Securities.
Subject
to the payment in full of all Senior Indebtedness of the Company, the rights of the holders of the Securities shall be subrogated to
the rights of the holders of Senior Indebtedness of the Company to receive payments or distributions of cash, property or securities
of the Company applicable to the Senior Indebtedness of the Company until the principal of (and premium, if any) and interest on the
Securities shall be paid in full; and, for the purposes of such subrogation, no payments or distributions to the holders of the Senior
Indebtedness of the Company of any cash, property or securities to which the holders of the Securities or the Trustee would be entitled
except for the provisions of this Article 14 to or for the benefit of the holders of Senior Indebtedness of the Company by holders of
the Securities or the Trustee, shall, as between the Company, its creditors other than holders of Senior Indebtedness of the Company,
and the holders of the Securities, be deemed to be a payment by the Company to or on account of the Senior Indebtedness of the Company.
It is understood that the provisions of this Article 13 are and are intended solely for the purpose of defining the relative rights of
the holders of the Securities, on the one hand, and the holders of the Senior Indebtedness of the Company, on the other hand.
Nothing
contained in this Article 14 or elsewhere in this Indenture or in the Securities is intended to or shall impair, as between the Company,
its creditors other than the holders of its Senior Indebtedness, and the holders of the Securities, the obligation of the Company, which
is absolute and unconditional, to pay to the holders of the Securities the principal of (and premium, if any) and interest on the Securities
as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights
of the holders of the Securities and creditors of the Company other than the holders of its Senior Indebtedness, nor shall anything herein
or therein prevent the Trustee or the holder of any Security from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this Article 14 of the holders of Senior Indebtedness of the Company
in respect of cash, property or securities of the Company received upon the exercise of any such remedy.
Upon
any payment or distribution of assets of the Company referred to in this Article 14, the Trustee, subject to the provisions of Article
7, and the holders of the Securities shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in
which such dissolution, winding-up, liquidation or reorganization proceedings are pending, or a certificate of the receiver, trustee
in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, delivered to the Trustee or to the holders
of the Securities, for the purpose of ascertaining the Persons entitled to participate in such distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article 14.
Section
14.04 Authorization by Securityholders. Each holder of a Security by his acceptance thereof authorizes and directs the Trustee
on his behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Article 14 appoints
the Trustee his attorney-in-fact for any and all such purposes.
Section
14.05 Notice to Trustee. The Company shall give promptly written notice to a Responsible Officer of the Trustee of any fact
known to the Company which would prohibit the making of any payment of monies to or by the Trustee in respect of the Securities pursuant
to the provisions of this Article 14. Notwithstanding the provisions of this Article 14 or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts which would prohibit the making of any payment of monies to
or by the Trustee in respect of the Securities pursuant to the provisions of this Article 14, unless and until a Responsible Officer
of the Trustee shall have received written notice thereof at the Corporate Trust Office of the Trustee from the Company or a holder or
holders of Senior Indebtedness of the Company or from any trustee therefor; and before the receipt of any such written notice, the Trustee,
subject to the provisions of Article 7, shall be entitled in all respects to assume that no such facts exist; provided that if
on a date not fewer than three Business Days prior to the date upon which by the terms hereof any such monies may become payable for
any purpose (including, without limitation, the payment of the principal of (or premium, if any) or interest on any Security) the Trustee
shall not have received, with respect to such monies, the notice provided for in this Section 14.05, then, anything herein contained
to the contrary notwithstanding, the Trustee shall have full power and authority to receive such monies and to apply the same to the
purpose for which they were received, and shall not be affected by any notice to the contrary which may be received by it on or after
such prior date. Notwithstanding anything to the contrary hereinbefore set forth, nothing shall prevent any payment by the Company or
the Trustee to the Securityholders of monies in connection with a redemption of Securities if (i) notice of such redemption has been
given in accordance herewith prior to the receipt by the Trustee of written notice as aforesaid, and (ii) such notice of redemption is
given not earlier than 60 days before the redemption date.
The
Trustee conclusively shall be entitled to rely on the delivery to it of a written notice by a Person representing himself to be a holder
of Senior Indebtedness of the Company (or a trustee on behalf of such holder) to establish that such notice has been given by a holder
of Senior Indebtedness of the Company or a trustee on behalf of any such holder or holders. In the event that the Trustee determines
in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Indebtedness of the Company
to participate in any payment or distribution pursuant to this Article 14, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness of the Company held by such Person, the extent to
which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person
under this Article 14, and if such evidence is not furnished the Trustee may defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment.
Section
14.06 Trustee’s Relation to Senior Indebtedness. The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article 14 in respect of any Senior Indebtedness of the Company at any time held by it, to the same extent as
any other holder of Senior Indebtedness of the Company and nothing elsewhere in this Indenture shall deprive the Trustee of any of its
rights as such holder.
With
respect to the holders of Senior Indebtedness of the Company, the Trustee undertakes to perform or to observe only such of its covenants
and obligations as are specifically set forth in this Article 14, and no implied covenants or obligations with respect to the holders
of Senior Indebtedness of the Company shall be read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness of the Company and the Trustee shall not be liable to any holder of Senior Indebtedness
of the Company if it shall pay over or deliver to holders of Securities, the Company or any other Person money or assets to which any
holder of Senior Indebtedness of the Company shall be entitled by virtue of this Article 14 or otherwise.
Section
14.07 No Impairment of Subordination. No right of any present or future holder of any Senior Indebtedness of the Company to enforce
subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the
Company or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the Company with the terms, provisions
and covenants of this Indenture, regardless of any knowledge thereof which any such holder may have or otherwise be charged with.
Section
13.08 Rights of Trustee. Nothing in this Article 14 shall apply to claims of or payments to, the Trustee pursuant to Article 7.
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed all as of the day and year first above written.
PROTAGENIC
THERAPEUTICS, Inc. |
|
|
|
|
By: |
|
|
Name: |
|
|
Title: |
|
|
|
|
[TRUSTEE],
as Trustee |
|
|
|
|
By: |
|
|
Name: |
|
|
Title: |
|
|
CROSS-REFERENCE
TABLE (1)
Section
of Trust Indenture Act Of 1939, as Amended |
|
Section
of Indenture |
310(a) |
|
7.09 |
310(b) |
|
7.08 |
|
|
7.10 |
310(c) |
|
Inapplicable |
311(a) |
|
7.13 |
311(b) |
|
7.13 |
311(c) |
|
Inapplicable |
312(a) |
|
5.01 |
|
|
5.02(a) |
312(b) |
|
5.02(c) |
312(c) |
|
5.02(c) |
313(a) |
|
5.04(a) |
313(b) |
|
5.04(b) |
313(c) |
|
5.04(a) |
|
|
5.04(b) |
313(d) |
|
5.04(c) |
314(a) |
|
5.03 |
|
|
13.12 |
314(b) |
|
Inapplicable |
314(c) |
|
13.07(a) |
314(d) |
|
Inapplicable |
314(e) |
|
13.07(b) |
Section
of Trust Indenture Act Of 1939, as Amended |
|
Section
of Indenture |
314(f) |
|
Inapplicable |
315(a) |
|
7.01(a) |
|
|
7.01(b) |
315(b) |
|
7.14 |
315(c) |
|
7.01 |
315(d) |
|
7.01(b) |
315(e) |
|
6.07 |
316(a) |
|
6.06 |
|
|
8.04 |
316(b) |
|
6.04 |
316(c) |
|
8.01 |
317(a) |
|
6.02 |
317(b) |
|
4.03 |
318(a) |
|
13.09 |
(1) |
This
Cross-Reference Table does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its
terms or provisions. |
Exhibit
5.1
NEW
YORK
LONDON
SINGAPORE
PHILADELPHIA |
|
ATLANTA
BALTIMORE
WILMINGTON
MIAMI |
CHICAGO
WASHINGTON,
DC
SAN
FRANCISCO
SILICON
VALLEY
SAN
DIEGO |
FIRM
and AFFILIATE OFFICES |
BOCA
RATON
PITTSBURGH
NEWARK
LAS
VEGAS
CHERRY
HILL
|
SHANGHAI
BOSTON
HOUSTON
LOS
ANGELES
HANOI
HO
CHI MINH CITY |
www.duanemorris.com |
LAKE
TAHOE
MYANMAR
OMAN
A
GCC REPRESENTATIVE OFFICE
OF
DUANE MORRIS
MEXICO
CITY
ALLIANCE
WITH
MIRANDA & ESTAVILLO
SRI
LANKA
ALLIANCE
WITH
GOWERS
INTERNATIONAL |
June
14, 2024
Protagenic
Therapeutics, Inc.
149
Fifth Avenue
New
York, NY 10010
| Re: | Protagenic
Therapeutics, Inc. (the “Company”) Registration Statement on Form S-3
(the “Registration Statement”) |
Ladies
and Gentlemen:
We
have acted as special counsel to the Company, a corporation incorporated under the laws of the State of Delaware, in connection with
the filing of the Registration Statement on Form S-3 with the Securities and Exchange Commission (the “Commission”),
pursuant to which the Company is registering under the Securities Act of 1933, as amended (the “Securities Act”),
the following:
(i)
common stock, $0.0001 par value per share (the “Common Stock”);
(ii)
preferred stock, $0.000001 par value per share (the “Preferred Stock”);
(iii)
depositary shares each representing a fraction of a share of a particular series of Preferred Stock (the “Depositary Shares”);
(iv)
senior debt securities, in one or more series (the “Senior Debt Securities”), which may be issued pursuant to an indenture
to be dated on or about the date of the first issuance of Senior Debt Securities thereunder, by and between the Company and a trustee
to be selected by the Company, in the form attached as Exhibit 4.4 to the Registration Statement, as such indenture may be amended or
supplemented from time to time (the “Senior Indenture”);
(v)
subordinated debt securities, in one or more series (the “Subordinated Debt Securities” and, together with the Senior
Debt Securities, the “Debt Securities”), which may be issued pursuant to an indenture to be dated on or about the
date of the first issuance of Subordinated Debt Securities thereunder, by and between the Company and a trustee to be selected by the
Company, in the form attached as Exhibit 4.5 to the Registration Statement, as such indenture may be amended or supplemented from time
to time (the “Subordinated Indenture”);
Protagenic
Therapeutics, Inc.
June
14, 2024
Page
2
(vi)
warrants to purchase Common Stock, Preferred Stock, and/or Debt Securities (the “Warrants”), which may be issued under
warrant agreements, to be dated on or about the date of the first issuance of the applicable Warrants thereunder, by and between the
Company and a warrant agent to be selected by the Company (each, a “Warrant Agreement”);
(vii)
rights to purchase Common Stock or Preferred Stock (the “Rights”), which may be issued pursuant to a rights agreement
and certificates issued thereunder, to be dated on or about the date of the first issuance of the applicable Rights thereunder, by and
between the Company and a rights agent to be selected by the Company (each, a “Rights Agreement”);
(viii)
units comprised of one or more Debt Securities, shares of Common Stock, shares of Preferred Stock, Rights and Warrants, in any combination
(the “Units”), which may be issued under unit agreements, to be dated on or about the date of the first issuance of
the applicable Units thereunder, by and between the Company and a unit agent to be selected by the Company (each, a “Unit Agreement”).
The
Common Stock, the Preferred Stock, the Depositary Shares, the Debt Securities, the Warrants, the Rights and the Units are collectively
referred to herein as the “Securities.” The Registration Statement relates to the registration of the Securities to
be offered and sold by the Company from time to time on a delayed or continuous basis pursuant to Rule 415 under the Securities Act.
The maximum aggregate public offering price of the Securities being registered is $100,000,000. This opinion is being rendered in connection
with the filing of the Registration Statement with the Commission. All capitalized terms used herein and not otherwise defined shall
have the respective meanings given to them in the Registration Statement.
In
connection with this opinion, we have examined originals, or copies certified or otherwise identified to our satisfaction, of such documents,
corporate records and other instruments as we have deemed necessary for the purposes of this opinion, including (i) the Third Amended
and Restated Certificate of Incorporation of the Company in the form filed as Exhibit 3.1 to the Registration Statement, as filed with
the Secretary of State of the State of Delaware on June 20, 2016 (the “Certificate of Incorporation”); (ii) the Second
Amended and Restated Bylaws of the Company in the form filed as Exhibit 3.3 to the Registration Statement, as filed with the Commission
on June 1, 2018 (the “Bylaws”); (iii) resolutions of the board of directors of the Company; and (vi); the Registration
Statement.
For
purposes of this opinion, we have assumed the authenticity of all documents submitted to us as originals, the conformity to the originals
of all documents submitted to us as copies and the authenticity of the originals of all documents submitted to us as copies. We have
also assumed the legal capacity of all natural persons, the genuineness of the signatures of persons signing all documents in connection
with which this opinion is rendered, the authority of such persons signing on behalf of the parties thereto and the due authorization,
execution and delivery of all documents by the parties thereto other than the Company. We have not independently established or verified
any facts relevant to the opinion expressed herein, but have relied upon statements and representations of officers and other representatives
of the Company and others as to factual matters.
Protagenic
Therapeutics, Inc.
June
14, 2024
Page
3
Based
upon and subject to the foregoing qualifications, assumptions and limitations and the further limitations set forth below, we are of
the opinion that,
(i)
With respect to the Common Stock, when (i) specifically authorized for issuance by the Company’s Board of Directors or an authorized
committee thereof (the “Authorizing Resolutions”), (ii) the Registration Statement, as finally amended (including
all post-effective amendments), has become effective under the Securities Act, (iii) an appropriate prospectus supplement with respect
to the applicable shares of Common Stock has been prepared, delivered and filed in compliance with the Securities Act and the applicable
rules and regulations thereunder, (iv) if the applicable shares of Common Stock are to be sold pursuant to a purchase, underwriting or
similar agreement (an “Underwriting Agreement”), such Underwriting Agreement with respect to the applicable shares
of Common Stock in the form filed as an exhibit to the Registration Statement, any post-effective amendment thereto or to a Current Report
on Form 8-K, has been duly authorized, executed and delivered by the Company and the other parties thereto, (v) the terms of the sale
of the Common Stock have been duly established in conformity with the Company’s then operative Certificate of Incorporation and
Bylaws and do not violate any applicable law or result in a default under or breach of any agreement or instrument binding on the Company
and comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, (vi) the
Common Stock has been issued and sold as contemplated by the Registration Statement and the prospectus included therein, and (vii) the
Company has received the consideration provided for in the Authorizing Resolutions and, if applicable, the Underwriting Agreement, the
Common Stock will be validly issued, fully paid and nonassessable.
(ii)
With respect to the Preferred Stock, when (i) specifically authorized for issuance by the Authorizing Resolutions, (ii) the Registration
Statement, as finally amended (including all post-effective amendments), has become effective under the Securities Act, (iii) an appropriate
prospectus supplement with respect to the applicable shares of Preferred Stock has been prepared, delivered and filed in compliance with
the Securities Act and the applicable rules and regulations thereunder, (iv) if the applicable shares of Preferred Stock are to be sold
pursuant to an Underwriting Agreement, such Underwriting Agreement with respect to the applicable shares of Preferred Stock in the form
filed as an exhibit to the Registration Statement, any post-effective amendment thereto or to a Current Report on Form 8-K, has been
duly authorized, executed and delivered by the Company and the other parties thereto, (v) an appropriate Certificate or Certificates
of Amendment or Designation relating to a class or series of the Preferred Stock to be sold under the Registration Statement has been
duly authorized and adopted and filed with the Secretary of State of the State of Delaware prior to the issuance of the Preferred Stock,
(vi) the terms of issuance and sale of shares of such class or series of Preferred Stock have been duly established in conformity with
the Company’s then operative Certificate of Incorporation and Bylaws and do not violate any applicable law or result in a default
under or breach of any agreement or instrument binding upon the Company and comply with any requirement or restriction imposed by any
court or governmental body having jurisdiction over the Company, (vii) shares of such class or series of Preferred Stock have been duly
issued and sold as contemplated by the Registration Statement and the prospectus included therein, and (viii) the Company has received
the consideration provided for in the Authorizing Resolutions and, if applicable, the Underwriting Agreement, the Preferred Stock will
be validly issued, fully paid and nonassessable.
(iii)
With respect to the Depositary Shares, when (i) specifically authorized for issuance by the Authorizing Resolutions, (ii) the Registration
Statement, as finally amended (including all post-effective amendments), has become effective under the Securities Act, (iii) the a deposit
agreement relating to such Depositary Shares (the “Deposit Agreement”) has been duly authorized, executed, and delivered
by the Company, (iv) an appropriate prospectus supplement with respect to the applicable Depositary Shares has been prepared, delivered
and filed in compliance with the Securities Act and the applicable rules and regulations thereunder, (v) if the applicable Depositary
Shares are to be sold pursuant to an Underwriting Agreement, such Underwriting Agreement with respect to the applicable Depositary Shares
in the form filed as an exhibit to the Registration Statement, any post-effective amendment thereto or to a Current Report on Form 8-K,
has been duly authorized, executed and delivered by the Company and the other parties thereto, (vi) the terms of the Depositary Shares
and of their issuance and sale have been duly established in conformity with the Deposit Agreement and do not violate any applicable
law or result in a default under or breach of any agreement or instrument binding upon the Company and comply with any requirement or
restriction imposed by any court or governmental body having jurisdiction over the Company, (vii) the Depositary Shares have been duly
executed and authenticated in accordance with the Deposit Agreement and issued and sold as contemplated by the Registration Statement
and the prospectus included therein, and (viii) the Company has received the consideration provided for in the Authorizing Resolutions
and, if applicable, the Underwriting Agreement, the Depositary Shares will constitute binding obligations of the Company.
Protagenic
Therapeutics, Inc.
June
14, 2024
Page
4
(iv)
With respect to the Debt Securities, when (i) specifically authorized for issuance by the Authorizing Resolutions, (ii) the Registration
Statement, as finally amended (including all post-effective amendments), has become effective under the Securities Act, (iii) the Senior
Indenture or the Subordinated Indenture, whichever the case may be, has been duly authorized, executed and delivered by the Company,
(iv) an appropriate prospectus supplement with respect to the applicable Debt Securities has been prepared, delivered and filed in compliance
with the Securities Act and the applicable rules and regulations thereunder, (v) if the applicable Debt Securities are to be sold pursuant
to an Underwriting Agreement, such Underwriting Agreement with respect to the applicable Debt Securities in the form filed as an exhibit
to the Registration Statement, any post-effective amendment thereto or to a Current Report on Form 8-K, has been duly authorized, executed
and delivered by the Company and the other parties thereto; (vi) the terms of the Debt Securities and of their issuance and sale have
been duly established in conformity with the Senior Indenture or the Subordinated Indenture, whichever the case may be, and do not violate
any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company and comply with any
requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, (vii) such Debt Securities
have been duly executed and authenticated in accordance with the Senior Indenture or the Subordinated Indenture, whichever the case may
be, and issued and sold as contemplated in the Registration Statement and the prospectus included therein, (viii) the Senior Indenture
or the Subordinated Indenture, whichever the case may be, relating to the Debt Securities has been qualified under the Trust Indenture
Act of 1939, as amended, and (ix) the Company has received the consideration provided for in the Authorizing Resolutions and, if applicable,
the Underwriting Agreement, the Debt Securities will constitute valid and legally binding obligations of the Company.
(v)
With respect to the Warrants, when (i) specifically authorized for issuance by the Authorizing Resolutions, (ii) the Registration Statement,
as finally amended (including all post-effective amendments), has become effective under the Securities Act, (iii) the Warrant Agreement
relating to the Warrants has been duly authorized, executed, and delivered by the Company, (iv) an appropriate prospectus supplement
with respect to the applicable Warrants has been prepared, delivered and filed in compliance with the Securities Act and the applicable
rules and regulations thereunder, (v) if the applicable Warrants are to be sold pursuant to an Underwriting Agreement, such Underwriting
Agreement with respect to the applicable Warrants in the form filed as an exhibit to the Registration Statement, any post-effective amendment
thereto or to a Current Report on Form 8-K, has been duly authorized, executed and delivered by the Company and the other parties thereto,
(vi) the terms of the Warrants and of their issuance and sale have been duly established in conformity with the Warrant Agreement and
do not violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company and
comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, (vii) the
Warrants have been duly executed and countersigned in accordance with the Warrant Agreement and issued and sold as contemplated by the
Registration Statement and the prospectus included therein, and (viii) the Company has received the consideration provided for in the
Authorizing Resolutions and, if applicable, the Underwriting Agreement, the Warrants will constitute binding obligations of the Company.
Protagenic
Therapeutics, Inc.
June
14, 2024
Page
5
(vi)
With respect to the Rights, when (i) specifically authorized for issuance by the Authorizing Resolutions, (ii) the Registration Statement,
as finally amended (including all post-effective amendments), has become effective under the Securities Act, (iii) the Rights Agreement
and any certificates relating to the Rights have been duly authorized, executed, and delivered by the Company, (iv) an appropriate prospectus
supplement with respect to the applicable Rights has been prepared, delivered and filed in compliance with the Securities Act and the
applicable rules and regulations thereunder, (v) if the applicable Rights are to be sold pursuant to an Underwriting Agreement, such
Underwriting Agreement with respect to the applicable Rights in the form filed as an exhibit to the Registration Statement, any post-effective
amendment thereto or to a Current Report on Form 8-K, has been duly authorized, executed and delivered by the Company and the other parties
thereto, (vi) the terms of the Rights and of their issuance and sale have been duly established in conformity with the Rights Agreement
and any rights certificates and do not violate any applicable law or result in a default under or breach of any agreement or instrument
binding upon the Company and comply with any requirement or restriction imposed by any court or governmental body having jurisdiction
over the Company, (vii) the Rights have been duly executed and countersigned in accordance with the Rights Agreement and issued and sold
as contemplated by the Registration Statement and the prospectus included therein, and (viii) the Company has received the consideration
provided for in the Authorizing Resolutions and, if applicable, the Underwriting Agreement, the Rights will constitute valid and legally
binding obligations of the Company.
(vii)
With respect to the Units, when (i) specifically authorized for issuance by the Authorizing Resolutions, (ii) the Registration Statement,
as finally amended (including all post-effective amendments), has become effective under the Securities Act, (iii) the Unit Agreement
relating to the Units has been duly authorized, executed, and delivered by the Company, (iv) an appropriate prospectus supplement with
respect to the applicable Units has been prepared, delivered and filed in compliance with the Securities Act and the applicable rules
and regulations thereunder, (v) if the applicable Units are to be sold pursuant to an Underwriting Agreement, such Underwriting Agreement
with respect to the applicable Units in the form filed as an exhibit to the Registration Statement, any post-effective amendment thereto
or to a Current Report on Form 8-K, has been duly authorized, executed and delivered by the Company and the other parties thereto, (vi)
the terms of the Units and of their issuance and sale have been duly established in conformity with the Unit Agreement and do not violate
any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company and comply with any
requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, (vii) the Units have been
duly executed and countersigned in accordance with the Unit Agreement and issued and sold as contemplated by the Registration Statement
and the prospectus included therein, and (viii) the Company has received the consideration provided for in the Authorizing Resolutions
and, if applicable, the Underwriting Agreement, the Units will constitute valid and legally binding obligations of the Company.
The
foregoing opinions are qualified to the extent that the enforceability of any document or instrument may be limited by or subject to
bankruptcy, insolvency, fraudulent transfer or conveyance, reorganization, moratorium or other similar laws relating to or affecting
creditors’ rights generally, and general equitable or public policy principles.
Our
opinions expressed above are subject to the qualifications that we express no opinion as to the applicability of, compliance with, or
effect of any laws except the General Corporation Law of the State of Delaware.
We
hereby consent to the filing of this opinion with the Commission as Exhibit 5.1 to the Registration Statement. We also consent to the
reference to our firm under the heading “Legal Matters” in the Registration Statement. In giving this consent, we do not
thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations
of the Commission.
We
do not find it necessary for the purposes of this opinion, and accordingly we do not purport to cover herein, the application of the
securities or “Blue Sky” laws of the various states to the offering of the Securities pursuant to the Registration Statement.
This
opinion letter is given to you solely for use in connection with the offer and sale of the Securities while the Registration Statement
is in effect and is not to be relied upon for any other purpose. This opinion is limited to the specific issues addressed herein, and
no opinion may be inferred or implied beyond that expressly stated herein. We assume no obligation to revise or supplement this opinion
should the General Corporation Law of the State of Delaware be changed by legislative action, judicial decision or otherwise.
|
Very truly yours, |
|
|
|
/s/ Duane Morris LLP |
Exhibit
23.1
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
consent to the incorporation by reference in this Registration Statement on Form S-3 of our report dated April 1, 2024 with respect to
the consolidated audited financial statements of Protagenic Therapeutics, Inc. for the years ended December 31, 2023 and 2022.
Our report contains an explanatory paragraph regarding the Company’s ability to continue as a going concern.
We
also consent to the references to us under the heading “Experts” in such Registration Statement.
/s/
MaloneBailey, LLP |
|
www.malonebailey.com |
|
Houston,
Texas |
|
June
14, 2024 |
|
Exhibit
107
Calculation
of Filing Fee Table
Form
S-3
(Form
Type)
Protagenic
Therapeutics, Inc.
(Exact
Name of Registrant as Specified in its Charter)
Table
1: Newly Registered Securities
| |
Security Type | |
Security Class Title | |
Fee
Calculation 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 Paid In Connection with Unsold Securities to be Carried Forward | |
Newly Registered
Securities | |
| |
Equity | |
Common Stock, $0.0001 par value | |
| 457(o) | | |
| (1 | ) | |
| (2 | ) | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| |
Equity | |
Preferred Stock, $0.000001 par value | |
| 457(o) | | |
| (1 | ) | |
| (2 | ) | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| |
Equity | |
Depositary Shares | |
| 457(o) | | |
| (1 | ) | |
| (2 | ) | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Newly Registered Securities | |
Debt | |
Debt Securities | |
| 457(o) | | |
| (1 | ) | |
| (2 | ) | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| |
Other | |
Rights (3) | |
| 457(o) | | |
| (1 | ) | |
| (2 | ) | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| |
Other | |
Warrants (3) | |
| 457(o) | | |
| (1 | ) | |
| (2 | ) | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| |
Other | |
Units (4) | |
| 457(o) | | |
| (1 | ) | |
| (2 | ) | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| |
Unallocated (Universal) Shelf | |
- | |
| 457(o) | | |
| (1 | ) | |
| (2 | ) | |
$ | 100,000,000 | | |
| 0.00014760 | | |
| $14,760 | (5) | |
| | | |
| | | |
| | | |
| | |
Carry Forward
Securities | |
Carry Forward Securities | |
| |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| |
Total Offering Amounts | |
| | | |
$ | 100,000,000 | | |
| 0.00014760 | | |
$ | 14,760 | | |
| | | |
| | | |
| | | |
| | |
| |
Total Fees Previously Paid | | |
| | | |
| | | |
| | | |
| N/A | | |
| | | |
| | | |
| | | |
| | |
| |
Total Fee Offset | | |
| | | |
| | | |
| | | |
| N/A | | |
| | | |
| | | |
| | | |
| | |
| |
Net Fee Due | | |
| | | |
| | | |
| | | |
$ | 14,760 | | |
| | | |
| | | |
| | | |
| | |
(1) |
There
are being registered hereunder such indeterminate number of shares of common stock and preferred stock, such indeterminate principal
amount of debt securities, such indeterminate number of warrants, rights to purchase common stock, preferred stock or debt securities,
and such indeterminate number of units, as shall have an aggregate initial offering price not to exceed $100,000,000. If any debt
securities are issued at an original issue discount, then the offering price of such debt securities shall be in such greater principal
amount as shall result in an aggregate initial offering price not to exceed $100,000,000, less the aggregate dollar amount of all
securities previously issued hereunder. Any securities registered hereunder may be sold separately or as units with other securities
registered hereunder. The proposed maximum initial offering price per unit will be determined, from time to time, by the registrant
in connection with the issuance by the registrant of the securities registered hereunder. The securities registered also include
such indeterminate number of shares of common stock and preferred stock and amount of debt securities as may be issued upon conversion
of or exchange for preferred stock or debt securities that provide for conversion or exchange, upon exercise of warrants or rights
or pursuant to the anti-dilution provisions of any such securities. In addition, pursuant to Rule 416 under the Securities Act of
1933, as amended (the “Securities Act”), the shares being registered hereunder include such indeterminate number of shares
of common stock and preferred stock as may be issuable with respect to the shares being registered hereunder as a result of stock
splits, stock dividends or similar transactions. |
|
|
(2) |
The
proposed maximum aggregate offering price per class of security will be determined from time to time by the registrant in connection
with the issuance by the registrant of the securities registered hereunder and is not specified as to each class of security pursuant
to Item 16(b) of Form S-3 under the Securities Act. |
|
|
(3) |
Each
right or warrant will represent the right to purchase shares of common stock or other securities covered by this registration statement. |
|
|
(4) |
Each
unit will represent an interest in two or more other securities, which may or may not be separable from one another. |
|
|
(5) |
Estimated
solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act. |
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