As
filed with the Securities and Exchange Commission on July 31, 2020
Registration
No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Globus
Maritime Limited
(Exact name of registrant as specified in its charter)
Not Applicable
(Translation of registrant’s name
into English)
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Republic of the Marshall Islands
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66-0757368
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification Number)
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128 Vouliagmenis Avenue, 3rd Floor
166 74 Glyfada
Athens, Greece
+30 210 960 8300
(Address and telephone number of Registrant’s
principal executive offices)
Watson Farley & Williams LLP
250 West 55th Street, 31st
Floor
New York, New York 10019
(212) 922-2200
(Name,
address, and telephone number of agent for service)
with copies to:
Steven J. Hollander, Esq.
Watson Farley & Williams LLP
250 West 55th Street, 31st
Floor
New York, New York 10019
(212) 922-2200 (Telephone)
(212) 922-1512 (Facsimile)
Approximate date of commencement
of proposed sale to the public: From time to time after this registration statement becomes effective as determined by market
conditions and other factors.
If the only securities
being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following
box. ¨
If any of the securities
being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, check the following box. x
If this Form is
filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, 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 registration statement pursuant to General
Instruction I.C. 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.C. 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 an emerging growth company as defined in Rule 405 of the Securities Act of 1933. ☐
Emerging growth company
If an emerging growth
company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected
not to use the extended transition period for complying with any new or revised financial accounting standards† provided
pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
† The term “new
or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its
Accounting Standards Codification after April 5, 2012.
CALCULATION
OF REGISTRATION FEE
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Title of Each Class of
Securities to be Registered
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Amount
to be
Registered (1)
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Proposed Maximum
Aggregate
Offering Price (1)(2)
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Amount of
Registration Fee (3)
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Common Stock, par value $0.004 per share
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Preferred Stock, par value $0.001 per share
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Debt Securities (4)
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Warrants (5)
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Purchase Contracts (6)
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Rights (7)
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Units (8)
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Total
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$
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300,000,000
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$
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36,003.86
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1.
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Such amount in U.S. dollars or the equivalent thereof in foreign currencies as shall result in
an aggregate initial public offering price for all securities of $300,000,000. Also includes such indeterminate amount of
debt securities and shares of common stock and preferred stock as may be issued upon conversion or exchange for any other securities
registered hereunder that provide for conversion or exchange into other securities.
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2.
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under
the Securities Act of 1933, as amended. Pursuant to General Instruction II.C of Form F-3, the table does not specify by each
class information as to the proposed maximum aggregate offering price. Any securities registered hereunder may be sold separately
or as units with other securities registered hereunder. In no event will the aggregate offering price of all securities sold
by Globus Maritime Limited pursuant to this registration statement exceed $300,000,000.
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3.
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Calculated in accordance with Rule 457(o) under the Securities Act of 1933, as amended. As
discussed below, pursuant to Rule 415(a)(6) under the Securities Act of 1933, as amended, this registration statement includes
a total of $22,620,500 aggregate offering price of unsold securities that were previously registered on a registration statement
on Form F-3 (Registration No. 333-222580) and for which the registration fee was previously paid. Accordingly, the $36,003.86 registration
fee shown above has been calculated based on the proposed maximum offering price of the additional $277,379,500 of securities registered
on this registration statement.
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4.
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If any debt securities are issued at an original issue discount, then the offering may be in such
greater principal amount as shall result in a maximum aggregate offering price not to exceed $300,000,000.
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5.
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There is being registered hereunder an indeterminate number of warrants as may from time to time
be sold at indeterminate prices not to exceed an aggregate offering price of $300,000,000.
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6.
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There is being registered hereunder an indeterminate number of purchase contracts as may from time
to time be sold at indeterminate prices not to exceed an aggregate offering price of $300,000,000.
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7.
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There is being registered hereunder an indeterminate number of rights as may from time to time
be sold at indeterminate prices not to exceed an aggregate offering price of $300,000,000.
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8.
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There is being registered hereunder an indeterminate number of units as may from time to time be
sold at indeterminate prices not to exceed an aggregate offering price of $300,000,000. Units may consist of any combination
of the securities registered hereunder.
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Pursuant to Rule 415(a)(6) under the
Securities Act of 1933, as amended, the securities registered pursuant to this registration statement include $22,620,500 aggregate
offering price of unsold securities of the Registrant previously registered on its registration statement on Form F-3 (Registration
No. 333-222580), filed with the Securities and Exchange Commission on January 17, 2018 and declared effective on February 8, 2018,
which the Registrant refers to as the Prior Registration Statement. The previously paid filing fee relating to such unsold securities
under the Prior Registration Statement will continue to be applied to such unsold securities registered on this registration statement.
To the extent that, after the filing date hereof and prior to the effectiveness of this registration statement, any such unsold
securities are sold pursuant to the Prior Registration Statement, the registrant will identify in a pre-effective amendment to
this registration statement the updated amount of unsold securities from the Prior Registration Statement to be included in this
registration statement pursuant to Rule 415(a)(6) and the updated amount of new securities to be registered on this registration
statement. Pursuant to Rule 415(a)(6), the offering of the unsold securities registered under the Prior Registration Statement,
if not previously terminated, will be deemed terminated as of the date of effectiveness of this Registration Statement.
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 of 1933 or until the Registration Statement shall become effective on such date as the Securities and Exchange
Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus
is not complete and may be changed. This prospectus is not an offer to sell these securities and it is not soliciting an offer
to buy or sell these securities in any jurisdiction where the offer or sale is not permitted. These securities may not be sold
until the registration statement filed with the Securities and Exchange Commission is effective.
PRELIMINARY PROSPECTUS
Subject to completion, dated July 31,
2020
$300,000,000
GLOBUS MARTIME LIMITED
Through this prospectus we may periodically
offer:
(1) shares of our common stock;
(2) shares of our preferred stock;
(3) our debt securities;
(4) our warrants;
(5) our purchase contracts;
(6) our rights; and
(7) our units.
We may also offer securities of the types
listed above that are convertible or exchangeable into one or more of the securities listed above.
The aggregate offering price of all securities
issued under this prospectus may not exceed $300,000,000. The securities issued under this prospectus may be offered directly or
through underwriters, agents or dealers. The names of any underwriters, agents or dealers will be included in a supplement to this
prospectus.
The prices and other terms of the securities
that we will offer will be determined at the time of their offering and will be described in a supplement to this prospectus.
Our common shares trade on the Nasdaq
Capital Market under the symbol “GLBS.”
An investment in these securities involves
risks. See the section entitled “Risk Factors” beginning on page 4 of this prospectus, and other risk factors
contained in the applicable prospectus supplement and in the documents incorporated by reference herein and therein.
Neither the Securities and Exchange
Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus
is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2020.
TABLE OF CONTENTS
This prospectus is
part of a registration statement that we filed with the U.S. Securities and Exchange Commission, or the SEC, using a shelf registration
process. Under the shelf registration process, we may sell shares of common stock, shares of preferred stock, debt securities,
warrants, purchase contracts, rights and units described in this prospectus from time to time in one or more offerings, up to a
total of $300,000,000. This prospectus only provides you with a general description of the securities we may offer. Each time we
offer securities, we will provide you with a supplement to this prospectus that will describe the specific information about the
securities being offered and the specific terms of that offering. The supplement may also add, update or change the information
contained in this prospectus. If there is any inconsistency between the information in this prospectus and any prospectus supplement,
you should rely on the prospectus supplement. Before purchasing any securities, you should read carefully both this prospectus
and any supplement, together with the additional information described below.
This prospectus and
any prospectus supplement are part of a registration statement we filed with the SEC and do not contain all the information in
the registration statement. Forms of the indenture and other documents establishing the terms of the offered securities are filed
as exhibits to the registration statement. Statements in this prospectus or any prospectus supplement about these documents are
summaries and each statement is qualified in all respects by reference to the document to which it refers. You should refer to
the actual documents for a more complete description of the relevant matters. For further information about us or the securities
offered hereby, you should refer to the registration statement, which you can obtain from the SEC as described below under the
section entitled “Where You Can Find Additional Information”.
You should rely only
on the information contained or incorporated by reference in this prospectus and in any prospectus supplement. We have not authorized
any other person to provide you with different information. If anyone provides you with different or inconsistent information,
you should not rely on it. We will not make an offer to sell these securities in any jurisdiction where the offer or sale is not
permitted. You should assume that the information appearing in this prospectus and the applicable supplement to this prospectus
is accurate as of the date on its respective cover, and that any information incorporated by reference is accurate only as of the
date of the document incorporated by reference, unless we indicate otherwise. Our business, financial condition, results of operations
and prospects may have changed since those dates.
We obtained certain
statistical data, market data and other industry data and forecasts used or incorporated by reference into this prospectus from
publicly available information. While we believe that the statistical data, industry data, forecasts and market research are reliable,
we have not independently verified the data, and we do not make any representation as to the accuracy of the information.
PROSPECTUS SUMMARY
This section summarizes
some of the information that is contained in or incorporated by reference in this prospectus. As an investor or prospective investor,
you should review carefully all of the information contained or incorporated by reference in this prospectus and any accompanying
prospectus supplement, including the “Risk Factors” and our financial statements and related notes contained or incorporated
by reference herein and therein, before making an investment decision.
Unless the context
otherwise requires, as used in this prospectus, the terms “Company”, “we”, “us”, and “our”
refer to Globus Maritime Limited and all of its subsidiaries, and “Globus Maritime Limited” or “Globus”
refers only to Globus Maritime Limited and not to its subsidiaries. We use the term deadweight ton, or dwt, in describing the size
of vessels. Dwt, expressed in metric tons each of which is equivalent to 1,000 kilograms, refers to the maximum weight of cargo
and supplies that a vessel can carry. Unless otherwise indicated, all references to “$” and “dollars” in
this prospectus are to United States dollars, and financial information presented in this prospectus is derived from financial
statements that are incorporated by reference and were prepared in accordance with International Financial Reporting Standards
(IFRS). We have a fiscal year end of December 31.
Overview
We are an integrated
international owner and operator of dry bulk vessels, focusing on the Panamax and Supramax sectors, providing marine transportation
services on a worldwide basis. We currently own five dry bulk vessels, four Supramaxes and one Panamax, with 300,571 dwt carrying
capacity and an average age of 12.3 years as of June 30, 2020. We own each of our vessels through separate, wholly owned subsidiaries,
four of which are incorporated in the Marshall Islands, and one of which is incorporated in Malta. All of our Supramax vessels
are geared. Geared vessels can operate in ports with minimal shore-side infrastructure. Due to the ability to switch between various
dry bulk cargo types and to service a wider variety of ports, the day rates for geared vessels tend to have a premium. Our vessels
can carry the majority of dry bulk commodities such as, coal, finished steel products, as well as minerals such as, iron ore, chromium
ore, and nickel ore. In addition, we are also engaged in the carriage of agribulks such as grains, soy bean, rice, and sugar. Our
fleet operates on a worldwide basis with presence in both the Pacific and Atlantic oceans.
Our operations are
managed by our Attica, Greece-based wholly owned subsidiary, Globus Shipmanagement Corp., which we refer to as our Manager, which
provides in-house commercial and technical management for our vessels and provided consulting services for an affiliated ship-management
company. Our Manager has entered into a ship management agreement with each of our wholly owned vessel-owning subsidiaries. Virtually
all aspects of our vessels are managed in-house including managing day-to-day vessel operations, such as supervising the crewing,
supplying, maintaining of vessels and other services. We believe that by having these critical management functions in-house provides
efficiency, fast reaction times, good communication among departments and effective cost management.
We intend to grow our
fleet through timely and selective acquisitions of modern vessels in a manner that we believe will provide an attractive return
on equity and will be accretive to our earnings and cash flow based on anticipated market rates at the time of purchase. Additionally,
we may target asset divestitures in line with our strategy as we look to grow and modernize our fleet. There is no guarantee however,
that we will be able to find suitable vessels to purchase or that such vessels will provide an attractive return on equity or be
accretive to our earnings and cash flow.
Our company was incorporated
in 2006 in Jersey, and in 2010 we redomiciled into the Republic of the Marshall Islands.
Our Fleet
Our Current Fleet
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Vessel
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Year
Built
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Flag
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Direct
Owner
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Shipyard
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Vessel
Type
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Type
of
Employment
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Delivery
Date
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Carrying
Capacity
(dwt)
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m/v River Globe
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2007
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Marshall
Islands
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Devocean Maritime Ltd.
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Yangzhou
Dayang
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Supramax
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Spot
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December
2007
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53,627
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m/v Sky Globe
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2009
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Marshall
Islands
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Domina Maritime Ltd.
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Taizhou
Kouan
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Supramax
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Spot
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May 2010
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56,855
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m/v Star Globe
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2010
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Marshall
Islands
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Dulac Maritime S.A.
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Taizhou
Kouan
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Supramax
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Spot
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May 2010
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56,867
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m/v Moon Globe
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2005
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Marshall
Islands
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Artful Shipholding S.A.
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Hudong-
Zhonghua
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Panamax
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Spot
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June 2011
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74,432
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m/v
Sun Globe
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2007
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Malta
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Longevity Maritime Limited
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Tsuneishi
Cebu
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Supramax
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Spot
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September
2011
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58,790
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Ave. Age:
12.3*
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Total
dwt: 300,571
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*As of June 30, 2020
Our fleet is currently
comprised of a total of five dry bulk vessels consisting of one Panamax and four Supramaxes. The weighted average age of the vessels
we owned as of June 30, 2020 was 12.3 years, and their carrying capacity was 300,571 dwt.
M/V Sky Globe, Star
Globe, River Globe, Sun Globe are Supramax vessels that primarily trade in the Far East, Indian Ocean, South America and the Persian
Gulf. The vessels are engaged in the coal, ore and agribulk trades.
M/V Moon Globe is a
Panamax and trades primarily in the East Coast of South America, the Far East and the Mediterranean. The vessel is primarily engaged
in ore and agribulk trading.
All the above-mentioned
vessels are operating in the spot market or on short period charters.
Corporate Information
We originally incorporated
as Globus Maritime Limited on July 26, 2006 pursuant to the Companies (Jersey) Law 1991 (as amended) and re-domiciled into the
Marshall Islands on November 24, 2010. Our registered address is located at Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands
MH 96960. Our registered agent in the Republic of the Marshall Islands is The Trust Company
of the Marshall Islands, Inc., Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960. Our
principal executive office is located at 128 Vouliagmenis Avenue, 3rd Floor, 166 74 Glyfada, Attica, Greece. Our telephone number
is +30 210 960 8300. Our corporate website address is http://www.globusmaritime.gr. The information contained on or accessed through
our website does not constitute part of, and is not incorporated into, this prospectus. The SEC maintains a website that contains
reports, proxy and information statements, and other information that we and other issuers file electronically at http://www.sec.gov.
Going Concern
Our consolidated
financial statements as of and for the year ended December 31, 2019 and our unaudited interim consolidated financial
statements for the three months ended March 31, 2020 were prepared assuming that we will continue as a going concern and do
not include any adjustments that might be necessary if we are unable to continue as a going concern. However, there are
substantial doubts about our ability to continue as a going concern. We acknowledge that uncertainty remains over our ability
to meet our liabilities as they fall due. We may be unable to realize assets at their recognized values and to extinguish
liabilities in the normal course of business at the amounts stated in these consolidated financial statements. If we cannot
secure the financing needed to continue as a viable business, our shareholders may lose some or all of their investment in
us. Our independent registered public accounting firm, Ernst & Young (Hellas) Certified Auditors Accountants S.A., or EY,
has issued their opinion with an explanatory paragraph in connection with the consolidated financial statements for the year
ended December 31, 2019 included in our annual report that includes an emphasis of matter in relation to the substantial
doubt about our ability to continue as a going concern.
RISK FACTORS
An investment in
our securities involves a high degree of risk and uncertainty. You should carefully consider the risks discussed under the caption
“Risk Factors” in our Annual Report on Form 20-F for the year ended December 31, 2019, and incorporated by reference
herein, as well as the other information included in this prospectus and the other documents we have incorporated by reference
in this prospectus, including the section entitled “Risk Factors” in future Annual Reports before deciding to invest
in our securities. In addition, prospective holders of our securities should consider the significant U.S. tax consequences relating
to the ownership of our securities. Furthermore, you should also consider carefully the risks set forth under the heading
“Risk Factors” in any prospectus supplement before investing in any securities offered by this prospectus. The occurrence
of one or more of those risk factors could adversely impact our business, results of operations or financial condition. This prospectus
also contains forward-looking statements that involve risks and uncertainties. Our actual results could differ materially from
those anticipated in the forward-looking statements as a result of the risks below.
Our
stock price has been volatile and no assurance can be made that it will not substantially depreciate.
Our
stock price has been volatile recently. The closing price of our common shares within 2019 has ranged from a peak of $8.54 on March
11, 2019 to a low of $0.96 on December 23, 2019, representing a decrease of 89%. Our share price further declined in 2020 and hit
a low of $0.15 on July 27, 2020. We can offer no comfort or assurance that our stock price will stop being volatile or not substantially
depreciate.
The
superior voting rights of our Series B preferred shares limits the ability of our common shareholders to control or influence corporate
matters, and the interests of the holder of such shares could conflict with the interests of our other shareholders.
While our common shares
have one vote per share, each of our 30,000 Series B preferred shares presently outstanding has 25,000 votes per share; however,
the voting power of the Series B preferred shares is limited such that no holder of Series B preferred shares may exercise voting
rights pursuant to any Series B preferred shares that would result in the total number of votes a holder is entitled to vote on
any matter submitted to a vote of shareholders of the Company to exceed 49.99% of the total number of votes eligible to be cast
on such matter. The Series B preferred shares, however, have no dividend rights or distribution rights, other than the right upon
dissolution to receive a priority payment equal to the par value per of $0.001 per share.
As of the date of this
prospectus and until and unless we issue a significant number of securities, Goldenmare Limited, a company affiliated with our
Chief Executive Officer, can therefore control 49.99% of the voting power of our outstanding capital stock and will have substantial
control and influence over our management and affairs and over matters requiring shareholder approval, including the election of
directors and significant corporate transactions, even though Goldenmare Limited owns significantly less than 50% of the Company
economically.
The superior voting
rights of our Series B preferred shares limit our common shareholders’ ability to influence corporate matters. The interests
of the holder of the Series B preferred shares may conflict with the interests of our common shareholders, and as a result, we
may take actions that our common shareholders do not view as beneficial. Any such conflicts of interest could adversely affect
our business, financial condition and results of operations, and the trading price of our common shares.
Our existing shareholders’ ownership
interests will be diluted each time we issue securities or our outstanding warrants are exercised and such issuances may depress
the market price of our common shares.
As of July 29, 2020,
collectively, holders of our outstanding warrants had the right to purchase an aggregate of 168,053,333 common shares. The number
of common shares issuable upon exercise and price of exercise are subject to adjustment. The exercise of such outstanding warrants
may dilute the value of our shares. In addition, we may issue common shares to repay all or a portion of any amounts outstanding
under our loan with Firment Shipping Inc., noting that, currently, no amounts are outstanding under the facility.
We
may issue additional common shares or other equity securities of equal or senior rank in the future without shareholder approval
in connection with, among other things, future vessel acquisitions, the repayment of outstanding indebtedness, and the conversion
of convertible financial instruments. Furthermore, in the future, we may issue additional common shares or other equity
or debt securities convertible into common shares in connection with a financing, acquisition, litigation settlement, employee
arrangements, or otherwise. Any such issuance could result in substantial dilution to our existing shareholders and could cause
our stock price to decline.
We may issue additional common shares
or other equity securities without shareholder approval, which would dilute our existing shareholders’ ownership interests
and may depress the market price of our common shares.
We may issue additional
common shares or other equity securities of equal or senior rank in the future without shareholder approval in connection with,
among other things, future vessel acquisitions, the repayment of outstanding indebtedness, and the conversion of convertible financial
instruments.
Our issuance of additional
common shares or other equity securities of equal or senior rank in these situations would have the following effects:
• our
existing shareholders’ proportionate ownership interest in us would decrease;
• the
proportionate amount of cash available for dividends payable on our common shares could decrease;
• the
relative voting strength of each previously outstanding common share could be diminished; and
• the
market price of our common shares could decline.
In addition, we may
be obligated to issue, upon exercise or conversion of outstanding agreements, warrants and credit facilities pursuant to the terms
thereof:
• 45,850,000
common shares issuable upon the exercise of outstanding warrants issued in June 2020 at an exercise price of $0.18 per share and
which expire in December 2025;
• 83,333,333
common shares issuable upon the exercise of outstanding warrants issued in July 2020 at an exercise price of $0.18 per share and
which expire in January 2026;
• 38,870,000 common shares issuable upon the exercise of outstanding
Class A Warrants at an exercise price of $0.35 per share and which expire in June 2025;
• 3,571
common shares and/or pre-funded warrants in lieu thereof (and 3,571 common shares issuable upon the exercise of 3,571 additional
Class A Warrants) issuable on further exercise of the overallotment option granted to the representative of the underwriters in
our public offering which closed on June 22, 2020; and
• common
shares issuable to repay any future amounts outstanding under the $15 million credit facility with Firment Shipping Inc., which
could be issuable if we borrow additional funds under that credit facility.
We
also issue, on a quarterly basis, common shares to certain of our directors.
Our issuance of additional
common shares upon the exercise of such warrants and credit facilities would cause the proportionate ownership interest in us of
our existing shareholders, other than the exercising warrant or credit facility holder, to decrease; the relative voting strength
of each previously outstanding common share held by our existing shareholders to decrease; and, depending on our share price when
and if these warrants or notes are exercised, may result in dilution to our existing shareholders.
The sale of a substantial amount of
our common shares could adversely affect the prevailing market price of our common shares.
We are registering
the sale of common shares with an aggregate offering price to the public of $300,000,000. Both the number of common shares issuable
upon exercise of our outstanding warrants and the exercise price are subject to adjustment as more fully described in “Description
of Capital Stock - Description of our Warrants”. Sales of substantial amounts of our common shares in the public market,
or the perception that such sales might occur, could adversely affect the market price of our common shares, and the market value
of our other securities.
A substantial
number of common shares are being offered by this prospectus. Furthermore, in the future, we may issue additional common
shares pursuant to this prospectus or other equity or debt securities, including securities convertible into common shares,
in connection with a financing, acquisition, litigation settlement, employee arrangements, or otherwise. Any such issuance
could result in substantial dilution to our existing shareholders and could cause our stock price to decline.
Certain shareholders hold registration
rights, which may have an adverse effect on the market price of our common shares.
Firment Shipping Inc.
has the right to register common shares for resale pursuant to a registration rights agreement we entered into with its affiliate,
Firment Trading Limited. The resale of those common shares in addition to the offer and sale of the other securities included in
this registration statement and prospectus may have an adverse effect on the market price of our common shares.
If we are unable to deliver common
shares free of restrictive legends and within a certain period of time where required by our warrants, we must make whole any purchaser
who loses money by purchasing common shares on the market to complete a trade.
Each of our warrants
requires that we issue the shares within one trading day of receipt of funds and the exercise notice. If we are unable to deliver
shares when required and if a warrant or shareholder has traded the common shares that we have failed to deliver, provisions of
the warrants require us to make whole any warrant holder or shareholder who loses money by purchasing shares on the common market
to complete its trade. Depending on our share price during this time and the number of shares to which the payments relate, we
could be required to pay a substantial sum.
At March 31, 2020,
our current liabilities exceeded our current assets and we do not believe that we will be able to generate sufficient cash during
the next 12-month period to be in compliance with the minimum liquidity requirements contained in our loan and credit arrangements
or to cover scheduled debt repayments due during this period.
As of March 31, 2020,
our working capital, measured as our current assets, minus our current liabilities, including the current portion of long-term
debt, amounted to a working capital deficit of $41.5 million. As of March 31, 2020, the Company was not in compliance with all
of the covenants included in the loan agreement with EnTrust Global’s Blue Ocean Fund (the “Entrust Loan Facility”).
But on May 5, 2020, the Company obtained waivers and relaxations of the breached covenants for the period commencing on March 31,
2020 and ending September 30, 2020. Our total assets exceeded our total liabilities as of March 31, 2020.
Based on our cash flow
projections for the twelve-month period ending following the issuance of those consolidated financial statements, cash on hand
and cash generated from operating activities will not be sufficient for us to be in compliance with the minimum liquidity requirement
contained in certain of our loan and credit facilities or to cover scheduled debt payments due in this period. All of our vessels
are pledged as collateral to the banks, and therefore if we were to sell one or more vessels, the net proceeds of such sale would
be used first to repay the outstanding debt to which the vessel is collateralized, and the remainder, if any, would be for our
use, subject to the terms of our remaining loan and credit arrangements. We acknowledge that uncertainty remains over our ability
to meet our liabilities as they fall due. If for any reason we are unable to continue as a going concern, our investors may lose
all or a portion of their investment, and we may be unable to pay all of our outstanding debts and other obligations.
One
of our loan agreements include covenants regarding the continued service of our officers and directors.
One of our loan agreements
include a covenant regarding the continued service of our chief executive officer, which covenants would be breached if our chief
executive officer resigned, died, were not reelected, or otherwise could not continue to serve the Company in such capacity. If
one of those events occurred, the lender under that loan agreement could declare an event of default. Each of our outstanding loan
arrangements also contains a cross-default provision that may be triggered by a default under any of our other loans. A cross-default
provision means that a default on one loan could result in a default on all of our other loans. Because of the presence of cross-default
provisions in our secured loan agreement, the refusal of any one lender to grant or extend a relaxation or waiver could result
in most of our indebtedness being accelerated even if our other lenders have relaxed or waived covenant defaults under their respective
loan arrangements. If our indebtedness is accelerated, it could be very difficult in the current financing environment for us to
refinance our debt or obtain additional financing and we could lose our vessels if our lenders foreclose their liens, and our ability
to conduct our business would be severely impaired.
Our
stock price has fluctuated below the minimum required to continue the listing of our common shares on Nasdaq.
We are required to
meet certain qualitative and financial tests (including a minimum bid price for our common shares of $1.00 per share, at least
500,000 publicly held shares, at least 300 public holders, and a market value of publicly held securities of $1 million), as well
as other corporate governance standards, to maintain the listing of our common shares on the Nasdaq Capital Market. In calendar
year 2020 to July 27, 2020, our stock price has fluctuated from a high of $1.09 on January 3, 2020 to a low of $0.15 on July 27,
2020, which low price falls beneath the $1.00 per share requirement imposed by the Nasdaq Capital Market to continue listing our
shares.
On March 6, 2020, we announced that we
had received written notification from The Nasdaq Stock Market dated March 2, 2020, indicating that because the closing bid price
of our common stock for the last 30 consecutive business days was below $1.00 per share, we no longer meet the minimum bid price
continued listing requirement for the Nasdaq Capital Market, as set forth in Nasdaq Listing Rule 5450(a)(1). Pursuant to Nasdaq
Listing Rules, the applicable grace period to regain compliance is 180 days, or until August 31, 2020, but citing extraordinary
market conditions, Nasdaq filed an immediately effective rule change with the Securities and Exchange Commission which, with effect
from April 16, 2020, tolled the listing process until July 1, 2020. Consequently, the Company’s compliance period has effectively
been extended until November 12, 2020.
There can be no assurance
that we will be able to maintain compliance with the minimum bid price, shareholders’ equity, number of publicly held shares
or other listing standards in the future. We may receive notices from Nasdaq that we have failed to meet its requirements, and
proceedings to delist our stock could be commenced. If we are unable to maintain or regain compliance in a timely manner and our
common shares are delisted, it could be more difficult to buy or sell our common shares and obtain accurate quotations, and the
price of our shares could suffer a material decline. Delisting of our shares would breach a number of our credit facilities and
loan arrangements, some of which contain cross default provisions. Delisting may also impair our ability to raise capital. We
refer you to our annual report on Form 20-F for more information about our listing requirements.
The public market may not continue to
be active and liquid enough for you to resell our common shares in the future.
The price of our common
shares may be volatile and may fluctuate due to factors such as:
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actual or anticipated fluctuations in our quarterly
and annual results and those of other public companies in our industry;
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mergers and strategic alliances in the dry bulk shipping
industry;
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market conditions in the dry bulk shipping industry;
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changes in government regulation;
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shortfalls in our operating results from levels forecast
by securities analysts;
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announcements concerning us or our competitors; and
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the general state of the securities market.
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Furthermore, Mr. Georgios
Feidakis, the chairman of our board of directors, beneficially owns a significant number (but not a majority) of our outstanding
common shares. Please read Item 7.A. “Major Shareholders” in our Annual Report on Form 20-F. Where a substantial percentage
of the shares of publicly traded companies are held by a small number of shareholders, the shares may have a lower trading volume
than similarly-sized publicly traded companies. Until such time as we issue a significant number of securities to persons other
than Mr. Georgios Feidakis or entities not beneficially owned by Mr. Georgios Feidakis, or Mr. Georgios Feidakis sells all or a
portion of his common shares, we may have a lower trading volume than similarly-sized companies, which means shareholders who buy
or sell relatively small amounts of our common shares could have a disproportionately large impact on our stock price, either positively
or negatively, and could thus make our stock price more volatile than it otherwise would be. The dry bulk shipping industry has
been highly unpredictable and volatile. The market for common shares in this industry may be equally volatile.
Our ability to declare and pay dividends
to holders of our common shares will depend on a number of factors and will always be subject to the discretion of our board of
directors.
If we are not in compliance
with our loan covenants and received a notice of default and were unable to cure it under the terms of our loan covenants, we may
be forbidden from issuing dividends. There can be no assurance that dividends will be paid to holders of our shares in any anticipated
amounts and frequency at all. We may incur other expenses or liabilities that would reduce or eliminate the cash available for
distribution as dividends, including as a result of the risks described in this section of this annual report on Form 20-F. The
EnTrust Loan Facility prohibits our declaration and payment of dividends under some circumstances. Under the EnTrust Loan Facility
we will be prohibited from paying dividends if an event of default has occurred or any event has occurred or circumstance arisen
which with the giving of notice or the lapse of time or the satisfaction of any other condition would constitute an event of default
under the EnTrust Loan Facility or where the payment of dividends would result in any such event or circumstance. We may also enter
into new financing or other agreements that may restrict our ability to pay dividends even without an event of default. In addition,
we may pay dividends to the holders of our preferred shares prior to the holders of our common shares, depending on the terms of
the preferred shares.
The declaration and
payment of dividends to holders of our shares will be subject at all times to the discretion of our board of directors, and will
be paid equally on a per-share basis between our common shares and our Class B shares, to the extent any are issued and outstanding.
We can provide no assurance that dividends will be paid in the future.
There may be a high
degree of variability from period to period in the amount of cash, if any, that is available for the payment of dividends based
upon, among other things:
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the rates we obtain from our charters as well as the
rates obtained upon the expiration of our existing charters;
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the level of our operating costs;
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the number of unscheduled off-hire days and the timing
of, and number of days required for, scheduled drydocking of our vessels;
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vessel acquisitions and related financings;
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restrictions in the EnTrust Loan Facility and in any
future debt arrangements;
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our ability to obtain debt and equity financing on
acceptable terms as contemplated by our growth strategy;
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prevailing global and regional economic and political
conditions;
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the effect of governmental regulations and maritime
self-regulatory organization standards on the conduct of our business;
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our overall financial condition;
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our cash requirements and availability;
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the amount of cash reserves established by our board
of directors; and
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restrictions under Marshall Islands law.
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Marshall Islands law
generally prohibits the payment of dividends other than from surplus or certain net profits, or while a company is insolvent or
would be rendered insolvent by the payment of such a dividend. We may not have sufficient funds, surplus, or net profits to make
distributions.
We may incur expenses or liabilities or be subject to other circumstances in the future that reduce or eliminate
the amount of cash that we have available for distribution as dividends, if any. Our growth strategy contemplates that we will
finance the acquisition of our new-buildings or selective acquisitions of vessels through a combination of our operating cash
flow and debt financing through our subsidiaries or equity financing. If financing is not available to us on acceptable terms,
our board of directors may decide to finance or refinance acquisitions with a greater percentage of cash from operations to the
extent available, which would reduce or even eliminate the amount of cash available for the payment of dividends. We may also
enter into other agreements that will restrict our ability to pay dividends.
The amount of cash
we generate from our operations may differ materially from our net income or loss for the period, which will be affected by non-cash
items. We may incur other expenses or liabilities that could reduce or eliminate the cash available for distribution as dividends.
As a result of these and the other factors mentioned above, we may pay dividends during periods when we record losses and may not
pay dividends during periods when we record net income, if we pay dividends at all.
Provisions of our
articles of incorporation and bylaws may have anti-takeover effects.
Several provisions
of our articles of incorporation and bylaws, which are summarized below, may have anti-takeover effects. These provisions are intended
to avoid costly takeover battles, lessen our vulnerability to a hostile change of control and enhance the ability of our board
of directors to maximize shareholder value in connection with any unsolicited offer to acquire our company. However, these anti-takeover
provisions could also discourage, delay or prevent the merger or acquisition of our company by means of a tender offer, a proxy
contest or otherwise that a shareholder may consider in its best interest and the removal of incumbent officers and directors.
Multi Class Stock.
Our multi-class stock structure, which consists of common shares, Class B shares, and preferred shares, can provide holders of
our Class B shares or preferred shares a significant degree of control over all matters requiring shareholder approval, including
the election of directors and significant corporate transactions, such as a merger or other sale of our company or its assets,
because our different classes of shares can have different numbers of votes. For instance, our articles of incorporation grant
20 votes to each Class B share, as compared to one vote per common share; although no Class B shares are currently issued and outstanding,
any person who held Class B shares representing more than 4.762% of the Company’s total issued and outstanding shares could
control a majority of the Company’s votes and would be able to exert substantial control over our management and all matters
requiring shareholder approval, including electing directors and significant corporate transactions, such as a merger. Such holder’s
interest could differ from yours, and the issuance of such shares could decrease the price of our common shares.
Blank Check Preferred
Shares. Under the terms of our articles of incorporation, our board of directors has authority, without any further vote or
action by our shareholders, to issue up to 100 million shares of “blank check” preferred shares. Our board could authorize
the issuance of preferred shares with voting or conversion rights that could dilute the voting power or rights of the holders of
common shares. The issuance of preferred shares, 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 or
the removal of our management and may harm the market price of our common shares.
Classified Board
of Directors. Our articles of incorporation provide for the division of our board of directors into three classes of directors,
with each class as nearly equal in number as possible, serving staggered, three-year terms beginning upon the expiration of the
initial term for each class. Approximately one-third of our board of directors is elected each year. This classified board provision
could discourage a third party from making a tender offer for our shares or attempting to obtain control of us. It could also delay
shareholders who do not agree with the policies of our board of directors from removing a majority of our board of directors for
up to two years.
Election of Directors.
Our articles of incorporation do not provide for cumulative voting in the election of directors. Our bylaws require parties, other
than the chairman of the board of directors, board of directors and shareholders holding 30% or more of the voting power of the
aggregate number of our shares issued and outstanding and entitled to vote, to provide advance written notice of nominations for
the election of directors. These provisions may discourage, delay or prevent the removal of incumbent officers and directors.
Advance Notice
Requirements for Shareholder Proposals and Director Nominations. Our bylaws provide that shareholders, other than shareholders
holding 30% or more of the voting power of the aggregate number of our shares issued and outstanding and entitled to vote, seeking
to nominate candidates for election as directors or to bring business before an annual meeting of shareholders must provide timely
notice of their proposal in writing to the corporate secretary. Generally, to be timely, a shareholder’s notice must be
received at our principal executive offices not less than 150 days or more than 180 days prior to the first anniversary date of
the immediately preceding annual meeting of shareholders. Our bylaws also specify requirements as to the form and content of a
shareholder’s notice. These provisions may impede a shareholder’s ability to bring matters before an annual meeting
of shareholders or make nominations for directors at an annual meeting of shareholders.
Pandemics such as the novel coronavirus
(COVID-19) make it very difficult for us to operate in the short-term and have unpredictable long-term consequences, all of which
could decrease the supply of and demand for the raw materials we transport, the rates that we are paid to carry our cargo, and
our financial outlook.
On March 11, 2020,
the World Health Organization declared the spread of a novel coronavirus (COVID-19) to be a global pandemic. In the name of public
health, governments around the world have shuttered workplaces, restricted travel, and put in place other measures which have resulted
in a dramatic decrease of economic activity, including a reduction of goods imported and exported worldwide. While some economies
have begun re-opening in limited capacities, it is impossible to predict the course the virus will take, how governments would
respond to a second or third wave of the virus, whether an effective vaccine can be produced economically at scale, and how the
behavior of our clients will change, if at all, due to the coronavirus pandemic’s economic shock. Some experts fear that
the economic consequences of COVID-19 could cause a recession that outlives the pandemic.
We have thus far been affected by COVID-19
as follows:
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The pandemic has had a negative impact on our voyage revenues for the three-month period ended March 31, 2020, which reached $2.3 million, compared to $3.5 million to the same period in 2019. We attribute this 35% decrease to the low freight rates achieved in the first quarter of 2020, which we attribute mainly to the outbreak of the novel coronavirus.
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Based upon increased volatility in the charter market and its effect on the recoverability of the carrying amount for our vessels, we concluded that the pandemic may have trigged the impairment of our vessels. We performed an impairment assessment of our vessels by comparing the discounted projected net operating cash flows for each vessel to its carrying value. As of March 31, 2020, the Company concluded that the recoverable amounts of the vessels were lower than their carrying amounts and recorded an impairment loss of $4.6 million.
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Our vessels have been subject to quarantine checks upon arriving at certain ports. This has functionally limited the amount of cargo that the Company (and its competitors) are able to move because countries worldwide have imposed quarantine checks on arriving vessels, which have caused delays in loading and delivery of cargoes.
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Due to quarantine restrictions placed on persons and additional procedures using commercial aviation and other forms of public transportation, our crew has had difficulty embarking and disembarking on our ships. This has not thus far functionally affected our ability to crew out vessels.
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We expect that pandemics generally, including
the current novel coronavirus pandemic, could affect our business in the following ways, among others:
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Pandemics generally reduce the demand for goods worldwide without a commensurate corresponding change in the number of vessels worldwide, thereby increasing competition for cargo and decreasing the market price for transporting dry bulk products.
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Countries could impose quarantine checks and hygiene measures on arriving vessels, which functionally reduce the amount of cargo that we and our competitors are able to move by causing delays in loading and delivery of cargo.
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The process of buying, selling, and maintaining vessels is made more onerous and time-intensive. For instance, delays may be caused at shipyards for newbuildings, drydocks and other works, in vessel inspections and related certifications by class societies, customers or government agencies, as well as delays and shortages or a lack of access to required spare parts and lack of berths or shortages in labor, which may in turn delay any repairs to, scheduled or unscheduled maintenance or modifications, or drydocking of, our vessels.
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We have a decrease in productivity, generally, as people—including our office employees and crews, as well as our counterparties—get sick and take time off from work. We are particularly vulnerable to our crew members getting sick, as if even one of our crew members gets sick, local authorities could require us to detain and quarantine the ship and its crew for an unspecified amount of time, disinfect and fumigate the vessels, or take similar precautions, which would add costs, decrease our utilization, and substantially disrupt our cargo operations. If a vessel’s entire crew fell seriously ill, we may have substantial difficulty operating its vessel and may necessitate extraordinary external aid.
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International transportation of personnel could be limited or otherwise disrupted. In particular, our crews generally work on a rotation basis, relying largely on international air transport for crew changes plan fulfillment. Any such disruptions could impact the cost of rotating our crew, and possibly impact our ability to maintain a full crew synthesis onboard all our vessels at any given time. It may also be difficult for our in-house technical teams to travel to ship yards to observe vessel maintenance, and we may need to hire local experts, which local experts may vary in skill and are difficult to supervise remotely, to conduct work we ordinarily address in-house.
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Governments impose new regulations, directives or practices, which we may be obligated to implement at our own expense.
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Any or all of the foregoing could lead our charterers to try to invoke force majeure clauses.
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Credit tightening or declines in global financial markets, including to the prices of our publicly traded securities and the securities of our peers, could make it more difficult for us to access capital, including to finance our existing debt obligations.
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Any of these public health threats and
related consequences could adversely affect our financial results.
It is too early to assess the full long-term
impact of the ongoing novel coronavirus pandemic on global markets, and particularly on the shipping industry. It may take some
time to materialize and may not be fully reflected in the results for the year ending December 31, 2020.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING
STATEMENTS
This prospectus and
the documents incorporated by reference into this prospectus contain certain forward-looking statements made pursuant to the safe
harbor provisions of the Private Securities Litigation Reform Act of 1995. Forward-looking statements include, but are not limited
to, statements regarding our or our management’s expectations, hopes, beliefs, intentions or strategies regarding the future
and other statements that are other than statements of historical fact. In addition, any statements that refer to projections,
forecasts or other characterizations of future events or circumstances, including any underlying assumptions, are forward-looking
statements. The words “anticipate”, “approximately”, “believe”, “continue”, “could”,
“estimate”, “expect”, “forecast”, “intend”, “may”, “might”,
“pending”, “perceive”, “plan”, “possible”, “potential”, “predict”,
“project”, “seek”, “should”, “would”, “view” and similar expressions
or the negatives of those words or phrases, or statements that events, conditions or results “can,” “will,”
“may,” “must,” “would,” “could” or “should” occur or be achieved and
similar expressions, may identify forward-looking statements, but the absence of these words does not mean that a statement is
not forward-looking.
The forward-looking
statements in this prospectus and the documents incorporated by reference into this prospectus are based upon various assumptions,
many of which are based, in turn, upon further assumptions, including without limitation, management’s examination of historical
operating trends, data contained in our records and other data available from third parties. Although we believe that these assumptions
were reasonable when made, because these assumptions are inherently subject to significant uncertainties and contingencies that
are difficult or impossible to predict and are beyond our control, we cannot assure you that we will achieve or accomplish these
expectations, beliefs or projections. As a result, you are cautioned not to rely on any forward-looking statements.
Many of these statements
are based on our assumptions about factors that are beyond our ability to control or predict and are subject to risks and uncertainties
that are described more fully in the section herein entitled “Risk Factors”. Any of these factors or a combination
of these factors could materially affect our future results of operations and the ultimate accuracy of the forward-looking statements.
In addition to these important factors and matters discussed elsewhere herein and in the documents incorporated by reference herein,
important factors that, in our view, could cause actual results to differ materially from those discussed in the forward-looking
statements include, among other things:
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changes in shipping industry trends, including charter rates, vessel values and factors affecting
vessel supply and demand;
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changes in seaborne and other transportation patterns;
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changes in the supply of or demand for dry bulk commodities, including dry bulk commodities carried
by sea, generally or in particular regions;
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changes in the number of newbuildings under construction in the dry bulk shipping industry;
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changes in the useful lives and the value of our vessels and the related impact on our compliance
with loan covenants;
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the aging of our fleet and increases in operating costs;
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changes in our ability to complete future, pending or recent acquisitions or dispositions;
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changes to our financial condition and liquidity, including our ability to pay amounts that we
owe and obtain additional financing to fund capital expenditures, acquisitions and other general corporate activities;
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risks related to our business strategy, areas of possible expansion or expected capital spending
or operating expenses;
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changes in our ability to leverage our relationships and reputation in the dry bulk shipping industry;
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changes in the availability of crew, number of off-hire days, classification survey requirements
and insurance costs for the vessels in our fleet;
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changes in our relationships with our contract counterparties, including the failure of any of
our contract counterparties to comply with their agreements with us;
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loss of our customers, charters or vessels;
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potential liability from future litigation and incidents involving our vessels;
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our future operating or financial results;
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acts of terrorism, other hostilities, pandemics or other calamities;
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the effects of outbreaks of pandemic or contagious diseases, including the length and severity
of the recent worldwide outbreak of Coronavirus, now named as COVID-19, including its impact on our business;
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changes in global and regional economic and political conditions;
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changes in governmental rules and regulations or actions taken by regulatory authorities, particularly
with respect to the dry bulk shipping industry;
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our ability to continue as a going concern; and
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other factors listed from time to time in registration statements, reports or other materials that
we have filed with or furnished to the SEC, including our most recent annual report on Form 20-F, which is incorporated by reference
into this prospectus.
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Should one or more
of the foregoing risks or uncertainties materialize, or should any of our assumptions prove incorrect, actual results may vary
in material respects from those projected in these forward-looking statements. Consequently, there can be no assurance that actual
results or developments anticipated by us will be realized or, even if substantially realized, that they will have the expected
consequences to, or effects on, us. Given these uncertainties, prospective investors are cautioned not to place undue reliance
on such forward-looking statements.
We undertake no obligation
to publicly update or revise any forward-looking statements, whether as a result of new information, future events or otherwise,
except as may be required under applicable laws. If one or more forward-looking statements are updated, no inference should be
drawn that additional updates will be made with respect to those or other forward-looking statements.
USE OF PROCEEDS
We intend to use net
proceeds from the sale of the securities as set forth in the applicable prospectus supplement.
CAPITALIZATION
Each prospectus supplement
will include information on our consolidated capitalization.
DILUTION
Information about the
amount by which the offering price of our common shares issued pursuant to this prospectus exceeds the net tangible book value
per share of our common shares following such issuance will be included in a prospectus supplement.
PLAN OF DISTRIBUTION
We may sell or distribute
the securities included in this prospectus through underwriters, through agents, to dealers, in private transactions, at market
prices prevailing at the time of sale, at prices related to the prevailing market prices, or at negotiated prices.
In addition, we may
sell some or all of our securities included in this prospectus through:
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a block trade in which a broker-dealer may resell a portion of the block, as principal, in order
to facilitate the transaction;
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purchases by a broker-dealer, as principal, and resale by the broker-dealer for its account;
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ordinary brokerage transactions and transactions in which a broker solicits purchasers; or
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trading plans entered into by us pursuant to Rule 10b5-1 under the Securities Exchange Act of 1934,
as amended, or the Exchange Act, that are in place at the time of an offering pursuant to this prospectus and any applicable prospectus
supplement hereto that provide for periodic sales of our securities on the basis of parameters described in such trading plans.
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In addition, we may enter into
options or other types of transactions that require us to deliver our securities to a broker-dealer, who will then resell or transfer
the securities under this prospectus. We may enter into hedging transactions with respect to our securities. For example, we may:
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enter into transactions involving short sales of our common shares by broker-dealers;
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sell common shares short and deliver the shares to close out short positions;
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enter into option or other types of transactions that require us to deliver common shares to a
broker-dealer, who will then resell or transfer the common shares under this prospectus; or
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loan or pledge the common shares to a broker-dealer, who may sell the loaned shares or, in the
event of default, sell the pledged shares.
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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 in 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 may use securities received from us in settlement of those derivatives to close out any related open borrowings of
stock. The third party in such sale transactions will be an underwriter and, if not identified in this prospectus, will be identified
in the applicable prospectus supplement (or a post-effective amendment). 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. Such 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.
Any broker-dealers
or other persons acting on our behalf that participate with us in the distribution of the securities may be deemed to be underwriters
and any commissions received or profit realized by them on the resale of the securities may be deemed to be underwriting discounts
and commissions under the Securities Act of 1933, as amended, or the Securities Act. As of the date of this prospectus, we are
not a party to any agreement, arrangement or understanding between any broker or dealer and us with respect to the offer or sale
of the securities pursuant to this prospectus.
At the time that
any particular offering of securities is made, to the extent required by the Securities Act, a prospectus supplement will be
distributed, setting forth the terms of the offering, including the aggregate number of securities being offered, the
purchase price of the securities, the initial offering price of the securities, the names of any underwriters, dealers or
agents, any discounts, commissions and other items constituting compensation from us and any discounts, commissions or
concessions allowed or reallowed or paid to dealers. Furthermore, we, our executive officers, our directors and major
shareholders may agree, subject to certain exemptions, that for a certain period from the date of the prospectus supplement
under which the securities are offered, we and they will not, without the prior written consent of an underwriter, offer,
sell, contract to sell, pledge or otherwise dispose of any of our common shares or any securities convertible into or
exchangeable for common shares. However, an underwriter, in its sole discretion, may release any of the securities subject to
these lock-up agreements at any time without notice. We expect an underwriter to exclude from these lock-up agreements
securities exercised and/or sold pursuant to trading plans entered into by us pursuant to Rule 10b5-1 under the Exchange Act,
that are in place at the time of an offering pursuant to this prospectus and any applicable prospectus supplement hereto that
provide for periodic sales of our securities on the basis of parameters described in such trading plans.
Underwriters or agents
could make sales in privately negotiated transactions and/or any other method permitted by law, including sales deemed to be an
at-the-market offering as defined in Rule 415 promulgated under the Securities Act, which includes sales made directly on or through
the Nasdaq Capital Market, the existing trading market for our shares of common stock, or sales made to or through a market maker
other than on an exchange.
We will bear costs
relating to all of the securities offered and sold by us under this registration statement.
ENFORCEABILITY OF CIVIL LIABILITIES
We are a Marshall Islands
corporation, and our principal executive office is located outside of the United States in Greece. Certain of our directors and
all of our officers reside outside the United States. In addition, substantially all of our assets and the assets of certain of
our directors and all of our officers are located outside the United States. As a result, it may not be possible for you to serve
legal process within the United States upon us or any of these persons. It may also not be possible for you to enforce, both in
and outside the United States, judgments you may obtain in United States courts against us or these persons in any action, including
actions based upon the civil liability provisions of U.S. federal or state securities laws.
Furthermore, there
is substantial doubt that courts in the countries in which we or our subsidiaries are incorporated or where our assets or the assets
of our subsidiaries, directors or officers and such experts are located (i) would enforce judgments of U.S. courts obtained in
actions against us or our subsidiaries, directors or officers and such experts based upon the civil liability provisions of applicable
U.S. federal and state securities laws or (ii) would enforce, in original actions, liabilities against us or our subsidiaries,
directors or officers and such experts based on those laws.
DESCRIPTION OF CAPITAL STOCK
For the complete terms
of our capital stock, please refer to our articles of incorporation and our amended and restated bylaws, which are incorporated
by reference as exhibits to the registration statement of which this prospectus forms a part. The Business Corporations Act of
the Republic of the Marshall Islands, or the BCA, may also affect the terms of our capital stock.
For purposes of the
following description of capital stock, references to “us”, “we” and “our” refer only to Globus
Maritime Limited and not any of its subsidiaries.
Purpose
Our objects and purposes,
as provided in Section 1.3 of our articles of incorporation, are to engage in any lawful act or activity for which corporations
may now or hereafter be organized under the BCA.
Authorized Capitalization
The authorized number
of shares of us consist of (1) 500,000,000 common shares, par value $0.004 per share, (2) 100,000,000 Class B common shares, par
value $0.001 per share, which we refer to as the Class B shares, and (3) 100,000,000 preferred shares, par value $0.001 per share,
which we refer to as the preferred shares. No Class B shares have been issued. Our articles of incorporation require us at all
times to reserve and keep available, out of our authorized but unissued common shares, such number of common shares as would become
issuable upon the conversion of all Class B shares then authorized.
Two classes of preferred
shares have been designated, and 30,000 Series B preferred shares are outstanding on the date of this prospectus. There is no limitation
on the right to own securities or the rights of non-resident shareholders to hold or exercise voting rights on our securities under
Marshall Islands law or our articles of incorporation or bylaws. All of our shares are in registered form. Our articles of incorporation
do not permit the issuance of bearer shares. We had 175,593,007 common shares outstanding as of July
29, 2020, 30,000 Series B preferred shares, and no other shares. We do not hold any of our shares in treasury.
We have financed our
operations through funds raised in public and private placements of common shares and through debt. We also issued shares to our
directors, officers and employees.
Share History
On February 8, 2017,
we entered into a Share and Warrant Purchase Agreement pursuant to which we sold for $5 million an aggregate of 5 million of our
common shares and warrants to purchase 25 million of our common shares at a price of $1.60 per share (subject to adjustment) to
a number of investors in a private placement, one of whom was the daughter of our Chairman and the sister of our Chief Executive
Officer. (These figures do not reflect the 10-1 reverse stock split which occurred in October 2018.) These securities were issued
in transactions exempt from registration under the Securities Act. The following day, we entered into a registration rights agreement
with the purchasers providing them with certain rights relating to registration under the Securities Act of the Shares and the
common shares underlying the warrants.
In connection with
the closing of the February 2017 private placement, we also entered into two loan amendment agreements with existing lenders.
One loan amendment
agreement was entered into by the Company with Firment Trading Limited (“Firment”), a related party to the Company
and the lender under the Revolving Credit Facility dated December 16, 2014 (as amended, the “Firment Credit Facility”),
which then had an outstanding principal amount of $18,523,787. Firment released an amount equal to $16,885,000 (but left an amount
equal to $1,638,787 outstanding, which continued to accrue under the Firment Credit Facility as though it were principal) of the
Firment Credit Facility and the Company issued to Firment Shipping Inc., an affiliate of Firment, 16,885,000 common shares and
a warrant to purchase 6,230,580 common shares at a price of $1.60 per share (subject to adjustment), exercisable for 24 months
from the date of issuance. Subsequent to the closing of the February 2017 private placement, Globus repaid the outstanding amount
on the Firment Credit Facility in its entirety. (These figures do not reflect the 10-1 reverse stock split which occurred in October
2018.) The Firment Credit Facility subsequently expired, and no amounts are owed pursuant to the Firment Credit Facility.
The other loan
amendment agreement was entered into by the Company with Silaner Investments Limited, a related party to the Company and the
lender of the Silaner Credit Facility. Silaner released an amount equal to the outstanding principal of $3,115,000 (but left
an amount equal to $74,048 outstanding, which continued to accrue under the Silaner Credit Facility as though it were
principal) of the Silaner Credit Facility and the Company issued to Firment Shipping Inc., an affiliate of Silaner, 3,115,000
common shares and a warrant to purchase 1,149,437 common shares at a price of $1.60 per share (subject to adjustment),
exercisable for 24 months from the date of issuance. Subsequent to the closing of the February 2017 private placement, Globus
repaid the outstanding amount on the Silaner Credit Facility in its entirety. (These figures do not reflect the 10-1 reverse
stock split which occurred in October 2018.) The Silaner Credit Facility subsequently expired, and no amounts are owed
pursuant to the Silaner Credit Facility.
On October 19, 2017,
we entered into a Share and Warrant Purchase Agreement pursuant to which we sold for $2.5 million an aggregate of 2.5 million of
our common shares and a warrant to purchase 12.5 million of our common shares at a price of $1.60 per (subject to adjustment) share
to an investor in a private placement. These securities were issued in transactions exempt from registration under the Securities
Act of 1933, as amended. On that day, we also entered into a registration rights agreement with the purchaser providing it with
certain rights relating to registration under the Securities Act of the 2.5 million common shares issued in connection with the
October 2017 Private Placement and the common shares underlying the October 2017 warrant. (These figures do not reflect the 10-1
reverse stock split which occurred in October 2018.) The October 2017 warrant was exercisable for 24 months after its issuance.
On October 15, 2018,
we effected a ten-for-one reverse stock split which reduced the number of outstanding common shares from 32,065,077 to 3,206,495
shares (adjustments were made based on fractional shares).
In November 2018, we
entered into a credit facility for up to $15 million with Firment Shipping Inc., our largest shareholder and a related party to
us through our chairman, Mr. Georgios Feidakis, for the purpose of financing our general working capital needs. This credit facility
was amended and restated in May 2020. The Firment Shipping Credit Facility is unsecured and remains available until its final maturity
on October 31, 2021. We have the right to drawdown any amount up to $15 million or prepay any amount in multiples of $100,000.
Any prepaid amount cannot be re-borrowed. Interest on drawn and outstanding amounts is charged at 3.5% per annum until December
31, 2020 and thereafter at 7% per annum and no commitment fee was charged on the amounts remaining available and undrawn. Interest
is payable the last day of a period of three months after the drawdown date, after this period in case of failure to pay any sum
due a default interest of 2% per annum above the regular interest is charged. We have also the right, in our sole option, to convert
in whole or in part the outstanding unpaid principal amount and accrued but unpaid interest under this Agreement into common shares.
The conversion price shall equal the higher of (i) the average of the daily dollar volume-weighted average sale price for the common
shares on the principal market on any trading day during the period beginning at 9:30 a.m. New York City time and ending at 4.00
p.m. over the Pricing Period multiplied by 80%, where the “Pricing Period” equals the ten consecutive trading days
immediately preceding the date on which the conversion notice was executed or (ii) $2.80 (subject to proportional adjustment for
share splits, share combinations, share dividends and similar events).
On May 8, 2020, the
credit facility with Firment Shipping Inc. was amended and restated to provide for, among other things, an extension of the maturity
date by when the loan must be repaid to October 31, 2021, the conversion of the credit facility from a revolving credit facility
to a term credit facility, a reduction of the interest rate on the loan to 3.5% per annum until December 31, 2020, and that, unless
approved by Firment Shipping, Firment Shipping maintains at least a 40% shareholding in us, other than due to actions taken by
Firment Shipping, such as sales of shares. Waivers relating to the 40% shareholding requirement were obtained for the June and
July 2020 share and warrant issuances.
On March 13,
2019, the Company entered into a securities purchase agreement and issued a Convertible Note in a transaction exempt from
registration under the Securities Act with an unrelated investor. The Convertible Note, which was repaid in June 2020, was
originally issued for gross proceeds of $5 million and is convertible into our common shares, par value $0.004 per share. A
total of 2,035,410 common shares were issued pursuant to the Convertible Note. If not converted or redeemed beforehand
pursuant to the terms of the Convertible Note, the Convertible Note was scheduled to mature on March 13, 2020, the first
anniversary of its issue, but its holder waived the Convertible Note’s maturity until March 13, 2021.
On May 8, 2020,
the holder of our Convertible Note waived (the “May 8, 2020 Waiver”) its right to participate in (a) public
offerings which would have closed before August 31, 2020, and (b) issuances of shares and other securities (including common
shares, Class B common shares, and new or existing series of preferred shares) to directors, officers, their respective
affiliates, and to affiliates of the Company. The holder of our Convertible Note also consented to the amendment and
restatement of the Firment Shipping Credit Facility and waived (a) without the Company having admitted fault, certain
potential prior technical breaches of the Convertible Note; (b) the holder’s right to require the redemption of the
Convertible Note upon a change of control (as such term is used within the Convertible Note), but only if such change of
control results from certain underwritten offering or issuances of our securities to directors, officers, their respective
affiliates, and to affiliates of the Company; (c) temporarily reduced, until August 31, 2020, the amount the noteholder would
have received upon a redemption of the Convertible Note at the Company’s option, such that the Convertible Note could
be redeemed at the Company’s option by paying the greater of (i) the aggregate amounts then outstanding pursuant to the
Convertible Note (rather than 120% of such amounts) and (ii) the product of (x) the number of shares issuable upon a
conversion of the Convertible Note (with respect to the amount being redeemed at the time) multiplied by (y) the greatest
closing sale price of the Company’s common shares on any trading day between the date immediately preceding the first
such redemption at the Company’s option and the trading day immediately prior to the final Company payment under the
Convertible Note. All of the foregoing would be subject to the Company’s redemption of all or part of the Convertible
Note in cash with an amount equal to the lesser of (a) the aggregate amounts then outstanding pursuant to the Convertible
Note and (b) 25% of the net proceeds of any public offering of its securities that would have closed before August 31,
2020. The Convertible Note was repaid in June 2020.
On June 12, 2020, we
entered into a stock purchase agreement and issued 5,000 of our newly-designated Series B Preferred Shares, par value $0.001
per share, to Goldenmare Limited, a company controlled by our Chief Executive Officer, Athanasios Feidakis, in return for $150,000,
which amount was paid by reducing, on a dollar for dollar basis, the amount payable as executive compensation by the Company to
Goldenmare Limited pursuant to a consultancy agreement. The amount that remains owing to Goldemare Limited as of June 30, 2020
is approximately $465,000. The issuance of the Series B preferred shares to Goldenmare Limited
was approved by an independent committee of the Board of Directors of the Company, which received a fairness opinion from an independent
financial advisor that the transaction was for a fair value.
In
July 2020, we issued an additional 25,000 of our Series B preferred shares to Goldenmare Limited in return for $150,000. The $150,000
was paid by reducing, on a dollar for dollar basis, the amount payable as compensation by the Company to Goldenmare Limited pursuant
to a consultancy agreement. In addition, we increased the maximum voting rights under the Series B preferred shares from 49.0%
to 49.99%. The issuance of the Series B preferred shares to Goldenmare Limited was approved by an independent committee of the
Board of Directors of the Company, which received a fairness opinion from an independent financial advisor that the transaction
was for a fair value.
On June 22, 2020, the
Company completed its public offering of 34,285,714 units of the Company, each unit consisting of one common share and one Class
A Warrant to purchase one common share (a “Class A Warrant”), for $0.35 per unit. At the time of the closing, the underwriters
exercised and closed on part of their over-allotment option, and purchased an additional 5,139,286 Common Shares and 5,139,286
Class A Warrants.
On June 30, 2020, the
Company issued 45,850,000 of its common shares in a registered direct offering and 45,850,000 of its PP Warrants in a concurrent
private placement for a purchase price of $0.27 per common share and PP Warrant.
On July 21, 2020, the
Company issued 83,333,333 of its common shares in a registered direct offering and 83,333,333 of its PP Warrants to purchase common
shares in a concurrent private placement for a purchase price of $0.18 per common share and PP Warrant. From June 22, 2020 to July
29, 2020, the Company issued 555,000 common shares pursuant to exercises of outstanding Class A Warrants. As
of July 29, 2020, no PP Warrants had been exercised.
In 2019, 2018 and 2017,
non-executive directors (excluding our non-executive Chairman, Mr. Georgios Feidakis) received an aggregate of 17,998 common shares,
8,797 common shares and 2,094 common shares, respectively. During the current fiscal year, to date, we issued an aggregate of 34,748
common shares to our two independent directors.
Preferential Subscription Rights
We granted the
holder(s) of our Convertible Note an option to acquire up to 50% of the securities issued in certain placements of the
Company during the time that the Convertible Note is outstanding, and we are obligated the Company to notify the holder(s)
before consummating any subsequent placements. The holder of the Convertible Note is entitled to be noticed of, and to
acquire up to 50% of the securities issued in, most offerings (including the offering being registered in this prospectus).
If the holder does not exercise its participation right within five business days of being noticed of the terms of the offer,
we then have 10 business days to consummate the transaction on terms no more favorable than what was offered to the holder,
and if we fail to close a transaction within such period, we must notice the holder again and offer another opportunity to
participate. We also agreed not to issue more than one offer notice to the holder within 60 days, unless the terms have
changed within five business days of our giving notice to the holder.
Common Shares, Class B Shares, and
Series B Preferred Shares
Generally, Marshall
Islands law provides that the holders of a class of stock of a Marshall Islands corporation are entitled to a separate class vote
on any proposed amendment to the relevant articles of incorporation that would change the aggregate number of authorized shares
or the par value of that class of shares or alter or change the powers, preferences or special rights of that class so as to affect
the class adversely. Except as described below, holders of our common shares, Series B preferred shares, and Class B shares will
have equivalent economic rights, but holders of our common shares are entitled to one vote per share while holders of our Class
B shares are entitled to 20 votes per share and the holder of our Series B preferred shares is entitled to 25,000 votes per share
(subject to the limitation described in “Preferred Shares” below). Each holder of Class B shares (not including the
Company and the Company’s subsidiaries) may convert, at its option, any or all of the Class B shares held by such holder
into an equal number of common shares.
Except as otherwise
provided by the BCA, holders of our common shares, Class B shares, and Series B preferred shares will vote together as a single
class on all matters submitted to a vote of shareholders, including the election of directors.
The rights, preferences
and privileges of holders of our shares are subject to the rights of the holders of our Series B preferred shares and any preferred
shares which we may issue in the future.
Holders of our common
shares do not have conversion, redemption or pre-emptive rights to subscribe to any of our securities.
There is no limitation
on the right to own securities or the rights of non-resident shareholders to hold or exercise voting rights on our securities under
Marshall Islands law or our articles of incorporation or bylaws.
Preferred Shares
Our articles of incorporation
authorize our board of directors to establish and issue up to 100 million preferred shares and to determine, with respect to any
series of preferred shares, the rights and preferences of that series, including:
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the designation of the series;
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the number of preferred shares in the series;
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the preferences and relative participating option or other special rights, if any, and any qualifications,
limitations or restrictions of such series; and
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the voting rights, if any, of the holders of the series (subject to terms set forth below with
regard to the policy of our board of directors regarding preferred shares).
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In April 2012 we
issued an aggregate of 3,347 Series A Preferred Shares to two persons who were then executive officers, but as of December
31, 2016 and as of the date hereof no Series A Preferred Shares were outstanding. The holders of our Series A Preferred
Shares will be entitled to receive, if funds are legally available, dividends payable in cash in an amount per share to be
determined by unanimous resolution of our Remuneration Committee, in its sole discretion. Our board of directors or
Remuneration Committee will determine whether funds are legally available under the BCA for such dividend. Any accrued but
unpaid dividends will not bear interest. Except as may be provided in the BCA, holders of our Series A Preferred Shares do
not have any voting rights. Upon our liquidation, dissolution or winding up, the holders of our Series A Preferred Shares
will be entitled to a preference in the amount of the declared and unpaid dividends, if any, as of the date of liquidation,
dissolution or winding up. Our Series A Preferred Shares are not convertible into any of our other capital stock. The Series
A Preferred Shares are redeemable at the written request of the Remuneration Committee, at par value plus all declared and
unpaid dividends as of the date of redemption plus any additional consideration determined by a unanimous resolution of the
Remuneration Committee. We redeemed and cancelled 780 Series A Preferred Shares in January 2013 and the remaining 2,567 were
redeemed and cancelled in July 2016.
On
June 12, 2020, we entered into a stock purchase agreement and issued 5,000 of our newly-designated Series B Preferred Shares, par
value $0.001 per share, to Goldenmare Limited, a company controlled by our Chief Executive Officer, Athanasios Feidakis, in return
for $150,000, which amount was paid by reducing, on a dollar for dollar basis, the amount payable as executive compensation by
the Company to Goldenmare Limited pursuant to a consultancy agreement. In July 2020, we issued an additional 25,000 of our Series
B preferred shares to Goldenmare Limited in return for $150,000. The $150,000 was paid by reducing, on a dollar for dollar basis,
the amount payable as compensation by the Company to Goldenmare Limited pursuant to a consultancy agreement. In addition, we increased
the maximum voting rights under the Series B preferred shares from 49.0% to 49.99%.
The issuances of the
Series B preferred shares to Goldenmare Limited were each approved by an independent committee of the Board of Directors of the
Company, which in each case received a fairness opinion from an independent financial advisor that the transaction was for a fair
value.
The Series B preferred
shares have the following characteristics:
Voting.
To the fullest extent permitted by law, each Series B preferred share entitles the holder hereof to 25,000 votes per share on all
matters submitted to a vote of the shareholders of the Company, provided however, that no holder of Series B preferred shares
may exercise voting rights pursuant to Series B preferred shares that would result in the aggregate voting power of any beneficial
owner of such shares and its affiliates (whether pursuant to ownership of Series B preferred shares, common shares or otherwise)
to exceed 49.99% of the total number of votes eligible to be cast on any matter submitted to a vote of shareholders of the Company.
To the fullest extent permitted by law, the holders of Series B preferred shares shall have no special voting or consent rights
and shall vote together as one class with the holders of the common shares on all matters put before the shareholders.
Conversion. The
Series B preferred shares are not convertible into common shares or any other security.
Redemption.
The Series B preferred shares are not redeemable.
Dividends. The
Series B preferred shares have no dividend rights.
Liquidation Preference. Upon
any liquidation, dissolution or winding up of the Company, the Series B preferred shares are entitled to receive a payment with
priority over the common shareholders equal to the par value of $0.001 per share. The Series B preferred shareholder has no other
rights to distributions upon any liquidation, dissolution or winding up of the Company.
Transferability.
All issued and outstanding Series B preferred shares must be held of record by one holder, and the Series B preferred shares
shall not be transferred without the prior approval of our Board of Directors.
Proportional
Adjustment. In the event the Company (i) declares any dividend on its common shares, payable in common shares, (ii) subdivides
the outstanding common shares or (iii) combines the outstanding common shares into a smaller number of shares, there shall be a
proportional adjustment to the number of outstanding Series B preferred shares.
Liquidation
In the event of our
dissolution, liquidation or winding up, whether voluntary or involuntary, after payment in full of the amounts, if any, required
to be paid to our creditors, the payment of the par value of $0.001 per share to the holder of our Series B Preferred Shares, and
the holders of preferred shares, our remaining assets and funds shall be distributed pro rata to the holders of our common shares
and Class B shares, and the holders of common shares and the holders of Class B shares shall be entitled to receive the same amount
per share in respect thereof. Other than their receipt of the par value of $0.001 per Series B preferred share, the holder of our
Series B Preferred Shares do not participate in distributions upon liquidation.
Dividends
Declaration and
payment of any dividend is subject to the discretion of our board of directors. The timing and amount of dividend payments to
holders of our shares will depend on a series of factors and risks described under “Risk Factors” in this
prospectus, and includes risks relating to earnings, financial condition, cash requirements and availability, restrictions in
our current and future loan arrangements, the provisions of the Marshall Islands law affecting the payment of dividends and
other factors. The BCA generally prohibits the payment of dividends other than from surplus or while we are insolvent or if
we would be rendered insolvent upon paying the dividend.
Subject to preferences
that may apply to any shares of preferred stock outstanding at the time, the holders of our common shares and Class B shares will
be entitled to share equally (pro rata based on the number of shares held) in any dividends that our board of directors may declare
from time to time out of funds legally available for dividends. Series B preferred shares do not participate in dividends.
Conversion
Our common shares are
not convertible into any other shares of our capital stock. Each of our Class B shares is convertible at any time at the election
of the holder thereof into one of our common shares. We will not reissue or resell any Class B shares that shall have been converted
into common shares.
Directors
Our directors are elected
by the vote of the plurality of the votes cast by holders with voting power of our voting shares. Our articles of incorporation
provide that our board of directors must consist of at least three members. Shareholders may change the number of directors only
by the affirmative vote of holders of a majority of the total voting power of our outstanding capital stock (subject to the rights
of any holders of preferred shares). The board of directors may change the number of directors by a majority vote of the entire
board of directors.
No contract or transaction
between us and one or more of our directors or officers will be void or voidable solely for the following reason, or solely because
the director or officer is present at or participates in the meeting of our board of directors or committee thereof which authorizes
the contract or transaction, or solely because his or her or their votes are counted for such purpose, if (1) the material facts
as to such director’s interest in such contract or transaction and as to any such common directorship, officership or financial
interest are disclosed in good faith or known to the board of directors or committee, and the board of directors or committee approves
such contract or transaction by a vote sufficient for such purpose without counting the vote of such interested director, or, if
the votes of the disinterested directors are insufficient to constitute an act of the board, by unanimous vote of the disinterested
directors; or (2) the material facts as to such director’s interest in such contract or transaction and as to any such common
directorship, officership or financial interest are disclosed in good faith or known to the shareholders entitled to vote thereon,
and such contract or transaction is approved by vote of such shareholders.
Our board of directors
has the authority to fix the compensation of directors for their services.
Classified Board of Directors
Our articles of incorporation
provide for a board of directors serving staggered, three-year terms. Approximately one-third of our board of directors will be
elected each year.
Removal of Directors; Vacancies
Our articles of incorporation
provide that directors may be removed with or without cause upon the affirmative vote of holders of a majority of the total voting
power of our outstanding capital stock. Our articles of incorporation also permit the removal of directors for cause upon the affirmative
vote of 66-2/3% of the members of the board of directors then in office. Our bylaws require parties to provide advance written
notice of nominations for the election of directors other than the board of directors and shareholders holding 30% or more of the
voting power of the aggregate number of our shares issued and outstanding and entitled to vote.
No Cumulative Voting
Our articles of incorporation
prohibit cumulative voting.
Shareholder Meetings
Under our bylaws, annual
shareholder meetings will be held at a time and place selected by our board of directors. The meetings may be held in or outside
of the Marshall Islands. Special meetings may be called by the chairman of our board of directors, by resolution of our board of
directors or by holders of 30% or more of the voting power of the aggregate number of our shares issued and outstanding and entitled
to vote at such meeting. Our board of directors may set a record date between 15 and 60 days before the date of any meeting to
determine the shareholders that will be eligible to receive notice and vote at the meeting.
Dissenters’ Right of Appraisal
and Payment
Under the BCA, our
shareholders have the right to dissent from various corporate actions, including certain amendments to our articles of incorporation
and certain mergers or consolidations or the sale or exchange of all or substantially all of our assets not made in the usual course
of our business, and receive payment of the fair value of their shares, subject to exceptions. For example, the right of a dissenting
shareholder to receive payment of the fair value of his shares is not available if for the shares of any class or series of stock,
which shares at the record date fixed to determine the shareholders entitled to receive notice of and vote at the meeting of shareholders
to act upon the agreement of merger or consolidation or any sale or exchange of all or substantially all of the property and assets
of the corporation not made in the usual course of its business, were either (1) listed on a securities exchange or admitted for
trading on an interdealer quotation system or (2) held of record by more than 2,000 holders. In the event of any further amendment
of our articles of incorporation, a shareholder also has the right to dissent and receive payment for his or her shares if the
amendment alters certain rights in respect of those shares. The dissenting shareholder must follow the procedures set forth in
the BCA to receive payment. In the event that we and any dissenting shareholder fail to agree on a price for the shares, the BCA
procedures involve, among other things, the institution of proceedings in the high court of the Republic of the Marshall Islands
or in any appropriate court in any jurisdiction in which our shares are primarily traded on a local or national securities exchange
to fix the value of the shares.
Shareholders’ Derivative Actions
Under the BCA, any
of our shareholders may bring an action in our name to procure a judgment in our favor, also known as a derivative action, provided
that the shareholder bringing the action is a holder of common shares or a beneficial interest therein both at the time the derivative
action is commenced and at the time of the transaction to which the action relates or that the shares devolved upon the shareholder
by operation of law.
Amendment to our Articles of Incorporation
Except as otherwise
provided by law, any provision in our articles of incorporation requiring a vote of shareholders may only be amended by such a
vote. Further, certain sections may only be amended by affirmative vote of the holders of at least a majority of the voting power
of the voting shares. In October 2016 we amended our articles of incorporation in order to enable us to immediately effect a four-for-one
one reverse stock split, reducing the number of outstanding common shares from 10,510,741 to 2,627,674 shares (adjustments were
made based on fractional shares). In October 2018 we amended our articles of incorporation in order to enable us to immediately
effect a ten-for-one one reverse stock split, reducing the number of outstanding common shares from 32,065,077 to 3,206,495 shares
(adjustments were made based on fractional shares).
Anti-Takeover Effects of Certain Provisions
of our Articles of Incorporation and Bylaws
Several provisions
of our articles of incorporation and bylaws, which are summarized below, may have anti-takeover effects. These provisions are intended
to avoid costly takeover battles, lessen our vulnerability to a hostile change of control and enhance the ability of our board
of directors to maximize shareholder value in connection with any unsolicited offer to acquire our company. However, these anti-takeover
provisions could also discourage, delay or prevent the merger or acquisition of our company by means of a tender offer, a proxy
contest or otherwise that a shareholder may consider in its best interest and the removal of incumbent officers and directors,
which could affect the desirability of our shares and, consequently, our share price.
Multi Class Stock.
Our multi-class stock structure, which consists of common shares, Class B common shares, and preferred shares, can provide holders
of our Class B common shares or preferred shares a significant degree of control over all matters requiring shareholder approval,
including the election of directors and significant corporate transactions, such as a merger or other sale of our company or its
assets, because our different classes of shares can have different numbers of votes.
For instance, while
our common shares have one vote on matters before the shareholders, each of our 30,000 outstanding Series B preferred shares has
25,000 votes on matters before the shareholders; provided however, that no holder of Series B preferred shares may exercise
voting rights pursuant to any Series B preferred shares that would result in the total number of votes a holder is entitled to
vote on any matter submitted to a vote of shareholders of the Company to exceed 49.99% of the total number of votes eligible to
be cast on such matter. No Class B common shares are presently outstanding, but if and when we issue any, each Class B common share
will have 20 votes on matters before the shareholders.
At present, and until
a substantial number of additional securities are issued, our holder of Series B preferred shares exerts substantial control of
the Company’s votes and is able to exert substantial control over our management and all matters requiring shareholder approval,
including electing directors and significant corporate transactions, such as a merger. Such holder’s interest could differ
from yours.
Blank Check Preferred
Shares. Under the terms of our articles of incorporation, our board of directors has authority, without any further vote or
action by our shareholders, to issue up to 100 million “blank check” preferred shares, almost all of which currently
remain available for issuance. Our board could authorize the issuance of preferred shares with voting or conversion rights that
could dilute the voting power or rights of the holders of common shares, in addition to preferred shares that are already outstanding.
The issuance of preferred shares, 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 or the removal of our
management and may harm the market price of our common shares.
Classified Board
of Directors. Our articles of incorporation provide for the division of our board of directors into three classes of directors,
with each class as nearly equal in number as possible, serving staggered, three-year terms beginning upon the expiration of the
initial term for each class. Approximately one-third of our board of directors is elected each year. This classified board provision
could discourage a third party from making a tender offer for our shares or attempting to obtain control of us. It could also delay
shareholders who do not agree with the policies of our board of directors from removing a majority of our board of directors for
up to two years.
Election of Directors.
Our articles of incorporation do not provide for cumulative voting in the election of directors. Our bylaws require parties, other
than the chairman of the board of directors, board of directors and shareholders holding 30% or more of the voting power of the
aggregate number of our shares issued and outstanding and entitled to vote, to provide advance written notice of nominations for
the election of directors. These provisions may discourage, delay or prevent the removal of incumbent officers and directors.
Advance Notice Requirements
for Shareholder Proposals and Director Nominations.
Our bylaws provide
that shareholders, other than shareholders holding 30% or more of the voting power of the aggregate number of our shares issued
and outstanding and entitled to vote, seeking to nominate candidates for election as directors or to bring business before an annual
meeting of shareholders must provide timely notice of their proposal in writing to the corporate secretary.
Generally, to be timely,
a shareholder’s notice must be received at our principal executive offices not less than 150 days or more than 180 days prior
to the first anniversary date of the immediately preceding annual meeting of shareholders. Our bylaws also specify requirements
as to the form and content of a shareholder’s notice. These provisions may impede a shareholder’s ability to bring
matters before an annual meeting of shareholders or make nominations for directors at an annual meeting of shareholders.
Calling of Special
Meetings of Shareholders
Our bylaws provide
that special meetings of our shareholders may be called only by the chairman of our board of directors, by resolution of our board
of directors or by holders of 30% or more of the voting power of the aggregate number of our shares issued and outstanding and
entitled to vote at such meeting.
Business Combinations
Although the BCA does
not contain specific provisions regarding “business combinations” between corporations incorporated under or redomiciled
pursuant to the laws of the Marshall Islands and “interested shareholders,” our articles of incorporation prohibit
us from engaging in a business combination with an interested shareholder for a period of three years following the date of the
transaction in which the person became an interested shareholder, unless, in addition to any other approval that may be required
by applicable law:
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prior to the date of the transaction that resulted in the shareholder becoming an interested shareholder,
our board of directors approved either the business combination or the transaction that resulted in the shareholder becoming an
interested shareholder;
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upon consummation of the transaction that resulted in the shareholder becoming an interested shareholder,
the interested shareholder owned at least 85.0% of our voting shares outstanding at the time the transaction commenced, excluding
for purposes of determining the number of shares outstanding those shares owned by (1) persons
who are directors and officers and (2) 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; or
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at or after the date of the transaction that resulted in the shareholder becoming an interested
shareholder, the business combination is approved by our board of directors and authorized at an annual or special meeting of shareholders,
and not by written consent, by the affirmative vote of at least 66-2/3% of the voting power of the voting shares that are not owned
by the interested shareholder.
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Among other transactions,
a “business combination” includes any merger or consolidation of us or any directly or indirectly majority-owned subsidiary
of ours with (1) the interested shareholder or any of its affiliates or (2) with any corporation, partnership, unincorporated association
or other entity if the merger or consolidation is caused by the interested shareholder. Generally, an “interested shareholder”
is any person or entity (other than us and any direct or indirect majority-owned subsidiary of ours) that:
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owns 15.0% or more of our outstanding voting shares;
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is an affiliate or associate of ours and was the owner of 15.0% or more of our outstanding voting
shares at any time within the three-year period immediately prior to the date on which it is sought to be determined whether such
person is an interested shareholder; or
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is an affiliate or associate of any person listed in the first two bullets, except that any person
who owns 15.0% or more of our outstanding voting shares, as a result of action taken solely by us will not be an interested shareholder
unless such person acquires additional voting shares, except as a result of further action by us and not caused, directly or indirectly,
by such person.
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Additionally, the restrictions
regarding business combinations do not apply to persons that became interested shareholders prior to the effectiveness of our articles
of incorporation.
Limitations on Liability and Indemnification
of Directors and Officers
The BCA authorizes
corporations to limit or eliminate the personal liability of directors to corporations and their shareholders for monetary damages
for breaches of certain directors’ fiduciary duties. Our articles of incorporation include a provision that eliminates the
personal liability of directors for monetary damages for breach of fiduciary duty as a director to the fullest extent permitted
by law (i.e., other than breach of duty of loyalty, acts not taken in good faith or which involve intentional misconduct or a knowing
violation of law or transactions for which the director derived an improper personal benefit) and provides that we must indemnify
our directors and officers to the fullest extent authorized by law. We are also expressly authorized to advance certain expenses
to our directors and officers and expect to carry directors’ and officers’ insurance providing indemnification for
our directors and officers for some liabilities. We believe that these indemnification provisions and the directors’ and
officers’ insurance are useful to attract and retain qualified directors and executive officers.
The limitation of liability
and indemnification provisions in our articles of incorporation may discourage shareholders from bringing a lawsuit against our
directors for breach of their fiduciary duty. These provisions may also have the effect of reducing the likelihood of derivative
litigation against directors and officers, even though such an action, if successful, may otherwise benefit us and our shareholders.
In addition, an investor in our common shares may be adversely affected to the extent we pay the costs of settlement and damage
awards against directors and officers pursuant to these indemnification provisions.
There is no pending
material litigation or proceeding involving any of our directors, officers or employees for which indemnification is sought.
Description of our Warrants
The following summary
of certain terms and provisions of the Class A Warrants is not complete and is subject to, and qualified in its entirety by the
provisions of the form of Class A Warrant, which are incorporated by reference as an exhibit to the registration statement of which
this prospectus forms a part.
Exercisability.
The Class A Warrants are exercisable at any time after their original issuance up to the date that is five years after their
original issuance. Each of the Class A Warrants is exercisable, in whole or in part by delivering to us a duly executed
exercise notice and, at any time a registration statement registering the issuance of the common shares underlying the Class
A Warrants under the Securities Act is effective and available for the issuance of such shares, by payment in full in
immediately available funds for the number of common shares purchased upon such exercise. If a registration statement
registering the issuance of the common shares underlying the Class A Warrants under the Securities Act is not effective or
available, the holder may, in its sole discretion, elect to exercise the Class A Warrant through a cashless exercise, in
which case the holder would receive upon such exercise the net number of common shares determined according to the formula
set forth in the Class A Warrant. We may be required to pay certain amounts as liquidated damages as specified in the Class A
Warrants in the event we do not deliver common shares upon exercise of the Class A Warrants within the time periods specified
in the Class A Warrants. No fractional common shares will be issued in connection with the exercise of a Class A Warrant.
Exercise Limitation.
A holder does not have the right to exercise any portion of a Class A Warrant if the holder (together with its affiliates) would
beneficially own in excess of 4.99% (or, upon election by a holder prior to the issuance
of any Class A Warrants, 9.99%) of the number of shares of our common shares
outstanding immediately after giving effect to the exercise, as such percentage ownership is determined in accordance with the
terms of such Class A Warrants. However, any holder may increase or decrease such percentage
to any other percentage not in excess of 9.99%, upon at least 61 days’ prior notice from the holder to us with respect to
any increase in such percentage.
Exercise Price. The
exercise price per whole common share purchasable upon exercise of the Class A Warrants is $0.35 per share. The exercise price
of the Class A Warrants and number of common shares issuable on exercise of the Class A Warrants are subject to adjustment in the
event of certain stock dividends and distributions, stock splits, stock combinations, reclassifications or similar events affecting
our common shares. The exercise price of the Class A Warrants may also be reduced to any amount and for any period of time
at the sole discretion of our board of directors. The exercise price of the Class A Warrants is subject to adjustment in the event
of dividends and certain distributions as specified in the Class A Warrant.
Transferability. Subject
to applicable laws, the Class A Warrants may be offered for sale, sold, transferred or assigned without our consent.
Exchange Listing. We
do not intend to apply for the listing of the Class A Warrants on any stock exchange. Without an active trading market, the liquidity
of the Class A Warrants will be limited.
Warrant Agent.
The Class A Warrants are issued in registered form under a warrant agreement among Computershare Inc., Computershare Trust
Company, N.A., as warrant agent, and us. The Class A Warrants were initially be represented only by one or more global warrants
deposited with the warrant agent, as custodian on behalf of The Depository Trust Company (DTC) and registered in the name of Cede &
Co., a nominee of DTC, or as otherwise directed by DTC.
Rights as a Shareholder. Except
as otherwise provided in the Class A Warrants or by virtue of such holder’s ownership of our common shares, the holder of
a Class A Warrant does not have the rights or privileges of a holder of our common shares, including any voting rights, until the
holder exercises the Class A Warrant.
Fundamental Transactions. In
the event of a fundamental transaction, as described in the Class A Warrants and generally including, with certain exceptions,
any reorganization, recapitalization or reclassification of our common shares, the sale, transfer or other disposition of all or
substantially all of our properties or assets, our consolidation or merger with or into another person, the acquisition of more
than 50% of our outstanding common shares, or any person or group becoming the beneficial owner of 50% of the voting power represented
by our outstanding common shares, the holders of the Class A Warrants will be entitled to receive upon exercise of the Class A
Warrants the kind and amount of securities, cash or other property that the holders would have received had they exercised the
Class A Warrants immediately prior to such fundamental transaction. In addition, we or the successor entity, at the request of
Class A Warrant holders, will be obligated to purchase any unexercised portion of the Class A Warrants in accordance with the terms
of such Class A Warrants.
Governing Law.
The Class A Warrants and the warrant agreement are governed by New York law.
The following summary
of certain terms and provisions of the warrants issued on June 30, 2020 and July 21, 2020, which we refer to as the PP Warrants,
is not complete and is subject to, and qualified in its entirety by the provisions of the form PP Warrants, which are incorporated
by reference as an exhibit to the registration statement of which this prospectus forms a part.
Exercisability. Each
PP Warrant has a term of 5.5 years from the date of its issuance. The PP Warrants are exercisable,
at the option of each holder, in whole or in part by delivering to us a duly executed exercise notice with payment in
full in immediately available funds for the number of common shares purchased upon such exercise. If a registration statement
registering the resale of the Common Shares underlying the PP Warrants under the Securities Act of 1933 is not effective or
available at any time after the six month anniversary of the date of issuance of the PP Warrants, the holder may, in its sole
discretion, elect to exercise the PP Warrant through a cashless exercise, in which case the holder would receive upon such
exercise the net number of common shares determined according to the formula set forth in the PP Warrant. If we do not issue
the shares in a timely fashion, the PP Warrant contains certain damages provisions. No fractional common shares will be
issued in connection with the exercise of a PP Warrant.
Exercise Limitation.
A holder will not have the right to exercise any portion of the PP Warrant if the holder (together with its affiliates) would beneficially
own in excess of 4.99% (or, upon election of the holder, 9.99%) of the number of our Common Shares outstanding immediately after
giving effect to the exercise, as such percentage of beneficial ownership is determined in accordance with the terms of the PP
Warrants. However, any holder may increase or decrease such percentage, but not in excess of 9.99%, provided that any increase
will not be effective until the 61st day after such election.
Exercise Price. The
exercise price per whole common share purchasable upon exercise of the PP Warrants is $0.18 per share. The exercise price of the
PP Warrants is subject to appropriate adjustment in the event of certain stock dividends and distributions, stock splits, stock
combinations, reclassifications or similar events affecting our common shares and also upon any distributions of assets, including
cash, stock or other property to our shareholders. The exercise price may also be reduced to any amount
and for any period of time deemed appropriate at the sole discretion of our board of directors.
Exchange Listing.
There is no established trading market for the PP Warrants and we do not expect a market to develop. In addition, we do not intend
to apply for the listing of the PP Warrants on any national securities exchange or other trading market.
Fundamental Transactions.
If a fundamental transaction occurs, then the successor entity will succeed to, and be substituted for us, and may exercise every
right and power that we may exercise and will assume all of our obligations under the PP Warrants with the same effect as if such
successor entity had been named in the PP Warrant itself. If holders of our common shares are given a choice as to the securities,
cash or property to be received in a fundamental transaction, then the holder shall be given the same choice as to the consideration
it receives upon any exercise of the PP Warrant following such fundamental transaction. In addition, we or the successor entity,
at the request of PP Warrant holders, will be obligated to purchase any unexercised portion of the PP Warrants in accordance with
the terms of such PP Warrants.
Rights as a Shareholder.
Except as otherwise provided in the PP Warrants or by virtue of such holder’s ownership of our common shares, the holder
of Warrants will not have the rights or privileges of a holder of our common shares, including any voting rights, until the holder
exercises the PP Warrants.
Transferability. Subject
to applicable laws, the PP Warrants may be offered for sale, sold, transferred or assigned without our consent.
Resale/Registration
Rights. Pursuant to the relevant securities purchase agreement for each PP Warrant, we are required to file a registration
statement providing for the resale of the common shares issued and issuable upon the exercise of the PP Warrants. Subject to certain
exceptions, we are required to use commercially reasonable efforts to cause such registration to become effective and to keep such
registration statement effective at all times until no investor owns any PP Warrants or common shares issuable upon exercise thereof.
Governing Law.
The PP Warrants are governed by New York law.
Transfer Agent
The registrar and transfer
agent for our common shares is Computershare Inc. Its address is Computershare Investor Services, 462 South 4th Street, Suite 1600,
Louisville, KY, 40202, and its telephone number is +1 (781) 575 4223 or +1 (800) 368 5948.
Listing
Our common shares trade
on the Nasdaq Capital Market under the symbol “GLBS”.
CERTAIN MARSHALL ISLANDS COMPANY CONSIDERATIONS
Our corporate affairs
are governed by our articles of incorporation, amended and restated bylaws and the BCA. The provisions of the BCA resemble provisions
of the corporation laws of a number of states in the United States, including Delaware. While the BCA also provides that it is
to be interpreted according to the laws of the State of Delaware and other states with substantially similar legislative provisions,
there have been few court cases interpreting the BCA in the Marshall Islands, and we cannot predict whether Marshall Islands courts
would reach the same conclusions as Delaware or other courts in the United States. Accordingly, you may have more difficulty in
protecting your interests under Marshall Islands law in the face of actions by our management, directors or controlling shareholders
than would shareholders of a corporation incorporated in a U.S. jurisdiction that has developed a substantial body of case law.
Furthermore, the Marshall Islands lacks a bankruptcy statute, and in the event of any bankruptcy, insolvency, liquidation, dissolution,
reorganization or similar proceeding involving the Company, the bankruptcy laws of the United States or of another country having
jurisdiction over the Company would apply. The following table provides a comparison between certain statutory provisions of the
BCA and the Delaware General Corporation Law relating to shareholders’ rights.
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Marshall Islands
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Delaware
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Shareholder Meetings
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Held at a time and place as designated in the bylaws.
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May be held at such time or place as designated in the certificate of incorporation or the bylaws, or if not so designated, as determined by the board of directors.
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Special meetings of the shareholders may be called by the board of directors or by such person or persons as may be authorized by the articles of incorporation or by the bylaws.
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Special meetings of the shareholders may be called by the board of directors or by such person or persons as may be authorized by the certificate of incorporation or by the bylaws.
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May be held in or outside of the Marshall Islands.
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May be held in or outside of Delaware.
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Notice:
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Notice:
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Whenever shareholders are required to take any action at a meeting, a written notice of the meeting shall be given which shall state the place, date and hour of the meeting and, unless it is an annual meeting, indicate that it is being issued by or at the direction of the person calling the meeting.
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Whenever shareholders are required to take any action at a meeting, a written notice of the meeting shall be given which shall state the place, if any, date and hour of the meeting, and the means of remote communication, if any.
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A copy of the notice of any meeting shall be given personally or sent by mail or electronically not less than 15 nor more than 60 days before the meeting.
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Written notice shall be given not less than 10 nor more than 60 days before the meeting.
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Shareholders’ Voting Rights
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Unless otherwise provided in the articles of incorporation, any action required by the BCA to be taken at a meeting of shareholders may be taken without a meeting if a consent or consents in writing, setting forth the action so taken, shall be signed by all the shareholders entitled to vote with respect to the subject matter thereof, or if the articles of incorporation so provide, by the holders of outstanding shares having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.
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Any action required to be taken by a meeting of shareholders may be taken without a meeting if a consent for such action is in writing and is signed by shareholders having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.
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Any person authorized to vote may authorize another person or persons to act for him by proxy.
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Any person authorized to vote may authorize another person or persons to act for him by proxy.
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Unless otherwise provided in the articles of incorporation or the bylaws, a majority of shares entitled to vote constitutes a quorum. In no event shall a quorum consist of fewer than one-third of the shares entitled to vote at a meeting. (If the articles of incorporation provide for more or less than one vote for any share, on any matter, every reference in BCA to a majority or other proportion of stock or shares shall refer to such majority or other proportion of the votes of such stock or shares.)
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For stock corporations, the certificate of incorporation or bylaws may specify the number of shares required to constitute a quorum but in no event shall a quorum consist of less than one-third of shares entitled to vote at a meeting. In the absence of such specifications, a majority of shares entitled to vote shall constitute a quorum. (If the certificate of incorporation provides for more or less than one vote for any share, on any matter, every reference in the Delaware General Corporation Law to a majority or other proportion of stock, voting stock or shares shall refer to such majority or other proportion of the votes of such stock, voting stock or shares.)
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When a quorum is once present to organize a meeting, it is not broken by the subsequent withdrawal of any shareholders.
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When a quorum is once present to organize a meeting, it is not broken by the subsequent withdrawal of any shareholders.
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The articles of incorporation may provide for cumulative voting in the election of directors.
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The certificate of incorporation may provide for cumulative voting in the election of directors.
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Removal:
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Removal:
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The articles of incorporation
or the specific provisions of a bylaw may provide for such removal by action of the board, except in the case of any director elected
by cumulative voting, or by the holders of the shares of any class or series when so entitled by the provisions of the articles
of incorporation.
Any or all of the directors may
be removed for cause by vote of the shareholders.
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Any or all of the directors may be removed, with or without cause, by the holders of a majority of the shares entitled to vote except: (1) unless the certificate of incorporation otherwise provides, in the case of a corporation whose board is classified, shareholders may effect such removal only for cause, or (2) if the corporation has cumulative voting, if less than the entire board is to be removed, no director may be removed without cause if the votes cast against such director’s removal would be sufficient to elect such director if then cumulatively voted at an election of the entire board of directors, or, if there be classes of directors, at an election of the class of directors of which such director is a part.
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Directors
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Number of board members can be changed by an amendment to the bylaws, by the shareholders, or by action of the board under the specific provisions of a bylaw.
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Number of board members shall be fixed by, or in a manner provided by, the bylaws, unless the certificate of incorporation fixes the number of directors, in which case a change in the number shall be made only by amendment to the certificate of incorporation.
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The board of directors must consist of at least one member.
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The board of directors must consist of at least one member.
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If the board of directors is authorized to change the number of directors, it can only do so by a majority of the entire board of directors and so long as no decrease in the number shortens the term of any incumbent director.
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Dissenter’s Rights of Appraisal
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Shareholders have a right to dissent from any plan of merger, consolidation or sale of all or substantially all assets not made in the usual course of business, and receive payment of the fair value of their shares. However, the right of a dissenting shareholder under the BCA to receive payment of the appraised fair value of his shares is not available for the shares of any class or series of stock, which shares or depository receipts in respect thereof, at the record date fixed to determine the shareholders entitled to receive notice of and vote at the meeting of shareholders to act upon the agreement of merger or consolidation or any sale or exchange of all or substantially all of the property and assets of the corporation not made in the usual course of its business, were either (i) listed on a securities exchange or admitted for trading on an interdealer quotation system or (ii) held of record by more than 2,000 holders.
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Appraisal rights shall be available for the shares of any class or series of stock of a corporation in a merger or consolidation, subject to limited exceptions, such as a merger or consolidation of corporations listed on a national securities exchange in which listed shares are the offered consideration or if such shares are held of record by more than 2,000 holders.
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A holder of any adversely affected shares who does not vote on or consent in writing to an amendment to the articles of incorporation has the right to dissent and to receive payment for such shares if the amendment:
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Alters or abolishes any preferential right of any outstanding shares having preference; or
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Creates, alters or abolishes any provision or right in respect to the redemption of any outstanding shares.
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Alters or abolishes any preemptive right of such holder to acquire shares or other securities; or
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Excludes or limits the right of such holder to vote on any matter, except as such right may be limited by the voting rights given to new shares then being authorized of any existing or new class.
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Shareholders’ Derivative Actions
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An action may be brought in the right of a corporation to procure a judgment in its favor, by a holder of shares or of voting trust certificates or of a beneficial interest in such shares or certificates. It shall be made to appear that the plaintiff is such a holder at the time the action is brought and that he was such a holder at the time of the transaction of which he complains, or that his shares or his interest therein devolved upon him by operation of law.
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In any derivative suit instituted by a shareholder or a corporation, it shall be averred in the complaint that the plaintiff was a shareholder of the corporation at the time of the transaction of which he complains or that such shareholder’s stock thereafter devolved upon such shareholder by operation of law.
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A complaint shall set forth with particularity the efforts of the plaintiff to secure the initiation of such action by the board of directors or the reasons for not making such effort. Such action shall not be discontinued, compromised or settled without the approval of the High Court of the Republic of the Marshall Islands.
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Reasonable expenses including attorney’s fees may be awarded if the action is successful.
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A corporation may require a plaintiff bringing a derivative suit to give security for reasonable expenses if the plaintiff owns less than 5% of any class of stock and the shares have a value of $50,000 or less.
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DESCRIPTION OF DEBT SECURITIES
We may issue debt securities
from time to time in one or more series, under one or more indentures, each dated as of a date on or prior to the issuance of the
debt securities to which it relates, and pursuant to an applicable prospectus supplement. We may issue senior debt securities and
subordinated debt securities pursuant to separate indentures, a senior indenture and a subordinated indenture, respectively, in
each case between us and the trustee named in the indenture. These indentures will be filed either as exhibits to an amendment
to the registration statement of which this prospectus forms a part or as an exhibit to a report under the Exchange Act, that will
be incorporated by reference into the registration statement of which this prospectus forms a part or a prospectus supplement.
We refer to any applicable prospectus supplement, amendment to the registration statement and/or Exchange Act report as “subsequent
filings”. The senior indenture and the subordinated indenture, as amended or supplemented from time to time, are each referred
to individually as an “indenture” and collectively as the “indentures”. Each indenture will be subject
to and governed by the Trust Indenture Act of 1939, as amended, and will be construed in accordance with and governed by the laws
of the State of New York (without giving effect to any principles thereof relating to conflicts of law that would result in the
application of the laws of any other jurisdiction) unless otherwise stated in the applicable prospectus supplement and indenture
(or post-effective amendment hereto). Each indenture will contain the specific terms of any series of debt securities or
provide that those terms must be set forth in or determined pursuant to, an authorizing resolution, as defined in the applicable
prospectus supplement or a supplemental indenture, if any, relating to such series.
The following description
sets forth certain general terms and provisions of the debt securities. The particular terms and provisions of the debt securities
offered by any prospectus supplement, and the extent to which the general terms and provisions described below may apply to the
offered debt securities, will be described in the applicable subsequent filings. The statements
below are not complete and are subject to, and are qualified in their entirety by reference to, all of the provisions of the applicable
indenture. The specific terms of any debt securities that we may offer, including any modifications of, or additions to, the general
terms described below as well as any applicable material U.S. federal income tax considerations concerning the ownership of such
debt securities will be described in the applicable prospectus supplement and indenture and, as applicable, supplemental indenture.
Accordingly, for a complete description of the terms of a particular issue of debt securities, the general description of the debt
securities set forth below should be read in conjunction with the applicable prospectus supplement and indenture, as amended or
supplemented from time to time.
General
We expect that neither
indenture will limit the amount of debt securities which may be issued and that each indenture will provide that debt securities
may be issued in one or more series.
We expect that the
subsequent filings related to a series of offered debt securities will describe the following terms of the series:
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the designation, aggregate principal amount and authorized denominations;
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the issue price, expressed as a percentage of the aggregate principal amount;
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the interest rate per annum, if any;
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if the debt securities provide for interest payments, the date from which interest will accrue,
the dates on which interest will be payable, the date on which payment of interest will commence and the regular record dates for
interest payment dates;
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whether the debt securities will be our senior or subordinated securities;
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whether the debt securities will be our secured or unsecured obligations;
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the applicability of and terms of any guarantees;
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any period or periods during which, and the price or prices at which, we will have the option to
or be required to redeem or repurchase the debt securities of the series and the other material terms and provisions applicable
to such redemption or repurchase;
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any optional or mandatory sinking fund provisions;
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any conversion or exchangeability provisions;
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if other than denominations of $1,000 and any integral multiple thereof, the denominations in which
debt securities of the series will be issuable;
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if other than the full principal amount, the portion of the principal amount of the debt securities
of the series which will be payable upon acceleration or provable in bankruptcy;
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any events of default not set forth in this prospectus;
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the currency or currencies, including composite currencies, in which principal, premium and interest
will be payable, if other than the currency of the United States of America;
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if principal, premium or interest is payable, at our election or at the election of any holder,
in a currency other than that in which the debt securities of the series are stated to be payable, the period or periods within
which, and the terms and conditions upon which, the election may be made;
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whether interest will be payable in cash or additional securities at our or the holder’s
option and the terms and conditions upon which the election may be made;
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if denominated in a currency or currencies other than the currency of the United States of America,
the equivalent price in the currency of the United States of America for purposes of determining the voting rights of holders of
those debt securities under the applicable indenture;
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if the amount of payments of principal, premium or interest may be determined with reference to
an index, formula or other method based on a coin or currency other than that in which the debt securities of the series are stated
to be payable, the manner in which the amounts will be determined;
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any covenants or other material terms relating to the debt securities, which may not be inconsistent
with the applicable indenture;
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whether the debt securities will be issued in the form of global securities or certificates in
registered form;
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any listing on any securities exchange or quotation system;
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additional provisions, if any, related to defeasance and discharge of the debt securities; and
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any other special features of the debt securities.
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Subsequent filings
may include additional terms not listed above. Unless otherwise indicated in subsequent filings with the SEC relating to the indenture,
principal, premium and interest will be payable and the debt securities will be transferable at the corporate trust office of the
applicable trustee. Unless other arrangements are made or set forth in subsequent filings or a supplemental indenture, principal,
premium and interest will be paid by checks mailed to the registered holders at their registered addresses.
Unless otherwise indicated
in subsequent filings with the SEC, the debt securities will be issued only in fully registered form without coupons, in denominations
of $1,000 or any integral multiple thereof. No service charge will be made for any transfer or exchange of the debt securities,
but we may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with these debt
securities.
Some or all of the
debt securities may be issued as discounted debt securities, bearing no interest or interest at a rate which at the time of issuance
is below market rates, to be sold at a substantial discount below the stated principal amount. United States federal income tax
consequences and other special considerations applicable to any discounted securities will be described in subsequent filings with
the SEC relating to those securities.
We refer you to the
applicable subsequent filings for the particular terms and provisions of the debt securities offered by any prospectus supplement.
Senior Debt Securities
We may issue senior
debt securities under a senior debt indenture. These senior debt securities would rank on an equal basis with all our other unsubordinated
debt.
Subordinated Debt Securities
We may issue subordinated
debt securities under a subordinated debt indenture. These subordinated debt securities would rank subordinate and junior in priority
of payment to certain of our other indebtedness to the extent described in the applicable prospectus supplement.
Covenants
Any series of offered
debt securities may have covenants in addition to or differing from those included in the applicable indenture which will be described
in subsequent filings prepared in connection with the offering of such securities, limiting or restricting, among other things:
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our ability to incur either secured or unsecured debt, or both;
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our ability to make certain payments, dividends, redemptions or repurchases;
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our ability to create dividend and other payment restrictions affecting our subsidiaries;
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our ability to make investments;
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mergers and consolidations by us;
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our ability to enter into transactions with affiliates;
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our ability to incur liens; and
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sale and leaseback transactions.
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Modification of the Indentures
We expect that each
indenture and the rights of the respective holders generally may be modified by us only with the consent of holders of not less
than a majority in aggregate principal amount of the outstanding debt securities of all series under the respective indenture affected
by the modification, taken together as a class. But we expect that no modification that:
(1) changes the
amount of securities whose holders must consent to an amendment, supplement or waiver;
(2) reduces the
rate of or changes the interest payment time on any security or alters its redemption provisions (other than any alteration to
any such section which would not materially adversely affect the legal rights of any holder under the indenture) or the price at
which we are required to offer to purchase the securities;
(3) reduces the
principal or changes the maturity of any security or reduces the amount of, or postpones the date fixed for, the payment of any
sinking fund or analogous obligation;
(4) waives a
default or event of default in the payment of the principal of or interest, if any, on any security (except a rescission of acceleration
of the securities of any series by the holders of at least a majority in principal amount of the outstanding securities of that
series and a waiver of the payment default that resulted from such acceleration);
(5) makes the
principal of or interest, if any, on any security payable in any currency other than that stated in the security;
(6) makes any
change with respect to holders’ rights to receive principal and interest, the terms pursuant to which defaults can be waived,
certain modifications affecting shareholders or certain currency-related issues; or
(7) waives a
redemption payment with respect to any security or changes any of the provisions with respect to the redemption of any securities;
will be effective against
any holder without his consent.
Additionally, certain
changes under each indenture will not require the consent of any holders. These types of changes are generally limited to
clarifications of ambiguities, omissions, defects and inconsistencies in each indenture and amendments, supplements and other changes
that would not adversely affect the holders of outstanding debt securities under each indenture, such as adding security, covenants,
additional events of default or successor trustees.
Events of Default
We expect that each
indenture will define an event of default for the debt securities of any series as being any one of the following events:
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default in any payment of interest when due which continues for 30 days;
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default in any payment of principal or premium when due;
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default in the deposit of any sinking fund payment when due;
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default in the performance of any covenant in the debt securities or the applicable indenture which
continues for 60 days after we receive notice of the default;
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default under a bond, debenture, note or other evidence of indebtedness for borrowed money by us
or our subsidiaries (to the extent we are directly responsible or liable therefor) having a principal amount in excess of a minimum
amount set forth in the applicable subsequent filings, whether such indebtedness now exists or is hereafter created, which default
shall have resulted in such indebtedness becoming or being declared due and payable prior to the date on which it would otherwise
have become due and payable, without such acceleration having been rescinded or annulled or cured within 30 days after we receive
notice of the default; and
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events of bankruptcy, insolvency or reorganization.
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An event of default
of one series of debt securities will not necessarily constitute an event of default with respect to any other series of debt securities.
There may be such other
or different events of default as described in an applicable subsequent filing with respect to any class or series of offered debt
securities.
We expect that under
each indenture, in case an event of default occurs and continues for the debt securities of any series, the applicable trustee
or the holders of not less than 25% in aggregate principal amount of the debt securities then outstanding of that series may declare
the principal and accrued but unpaid interest of the debt securities of that series to be due and payable. Further, any event of
default for the debt securities of any series which has been cured is expected to be permitted to be waived by the holders of a
majority in aggregate principal amount of the debt securities of that series then outstanding.
We expect that each
indenture will require us to file annually, after debt securities are issued under that indenture, with the applicable trustee
a written statement signed by two of our officers as to the absence of material defaults under the terms of that indenture. We
also expect that each indenture will provide that the applicable trustee may withhold notice to the holders of any default if it
considers it in the interest of the holders to do so, except notice of a default in payment of principal, premium or interest.
Subject to the duties
of the trustee in case an event of default occurs and continues, we expect that each indenture will provide that the trustee is
under no obligation to exercise any of its rights or powers under that indenture at the request, order or direction of holders
unless the holders have offered to the trustee reasonable indemnity. Subject to these provisions for indemnification and the rights
of the trustee, each indenture is expected to provide that the holders of a majority in principal amount of the debt securities
of any series then outstanding 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 as long as the exercise of that right does not
conflict with any law or the indenture.
Defeasance and Discharge
The terms of each
indenture are expected to provide us with the option to be discharged from any and all obligations in respect of the debt
securities issued thereunder upon the deposit with the trustee, in trust, of money or U.S. government obligations, or both,
which through the payment of interest and principal will provide money in an amount sufficient to pay any installment of
principal, premium and interest on, and any mandatory sinking fund payments in respect of, the debt securities on the stated
maturity of the payments in accordance with the terms of the debt securities and the indenture governing the debt
securities.
We expect that this
right may only be exercised if, among other things, we have received from, or there has been published by, the United States Internal
Revenue Service a ruling to the effect that such a discharge will not be deemed, or result in, a taxable event with respect to
holders. This discharge would not apply to our obligations to register the transfer or exchange of debt securities, to replace
stolen, lost or mutilated debt securities, to maintain paying agencies and hold moneys for payment in trust.
Defeasance of Certain Covenants
We expect that the
terms of each indenture will provide us with the right to omit complying with specified covenants and specified events of default
described in a subsequent filing upon the deposit with the trustee, in trust, of money or U.S. government obligations, or both,
which through the payment of interest and principal will provide money in an amount sufficient to pay any installment of principal,
premium and interest on, and any mandatory sinking fund payments in respect of, the debt securities on the stated maturity of the
payments in accordance with the terms of the debt securities and the indenture governing the debt securities.
We expect that to exercise
this right we will also be required to deliver to the trustee an opinion of counsel to the effect that we have received from, or
there has been published by, the United States Internal Revenue Service a ruling to the effect that the deposit and related covenant
defeasance will not cause the holders of such series to recognize income, gain or loss for United States federal income tax purposes.
A subsequent filing
may further describe the provisions, if any, of any particular series of offered debt securities permitting a discharge defeasance.
Form of Debt Securities
Each debt security
will be represented either by a certificate issued in definitive form to a particular investor or by one or more global securities
representing the entire issuance of securities. Both certificated securities in definitive form and global securities may be issued
either in registered form, where our obligation runs to the holder of the security named on the face of the security, or in bearer
form, where our obligation runs to the bearer of the security.
Definitive securities
name you or your nominee as the owner of the security, other than definitive bearer securities, which name the bearer as owner,
and in order to transfer or exchange these securities or to receive payments other than interest or other interim payments, you
or your nominee must physically deliver the securities to the trustee, registrar, paying agent or other agent, as applicable.
Global securities name
a depositary or its nominee as the owner of the debt securities represented by these global securities, other than global bearer
securities, which name the bearer as owner. The depositary maintains a computerized system that will reflect each investor’s
beneficial ownership of the securities through an account maintained by the investor with its broker/dealer, bank, trust company
or other representative, as we explain more fully below.
Global Securities
We may issue the debt
securities in the form of one or more fully registered global securities that will be deposited with a depositary or its nominee
identified in the applicable prospectus supplement and registered in the name of that depositary or nominee. In those cases, one
or more registered global securities will be issued in a denomination or aggregate denominations equal to the portion of the aggregate
principal or face amount of the securities to be represented by registered global securities. Unless and until it is exchanged
in whole for securities in definitive registered form, a registered global security may not be transferred except as a whole by
and among the depositary for the registered global security, the nominees of the depositary or any successors of the depositary
or those nominees. If not described below, any specific terms of the depositary arrangement with respect to any debt securities
to be represented by a registered global security will be described in the prospectus supplement relating to those debt securities.
We anticipate that the following provisions will apply to all depositary arrangements:
Ownership of
beneficial interests in a registered global security will be limited to persons, called participants, that have accounts with
the depositary or persons that may hold interests through participants. Upon the issuance of a registered global security,
the depositary will credit, on its book-entry registration and transfer system, the participants’ accounts with the
respective principal or face amounts of the securities beneficially owned by the participants. Any dealers, underwriters or
selling agents participating in the distribution of the securities will designate the accounts to be credited. Ownership of
beneficial interests in a registered global security will be shown on, and the transfer of ownership interests will be
effected only through, records maintained by the depositary, with respect to interests of participants, and on the records of
participants, with respect to interests of persons holding through participants. The laws of some jurisdictions may require
that some purchasers of securities take physical delivery of these securities in definitive form. These laws may impair your
ability to own, transfer or pledge beneficial interests in registered global securities. So long as the depositary, or its
nominee, is the registered owner of a registered global security, that depositary or its nominee, as the case may be, will be
considered the sole owner or holder of the securities represented by the registered global security for all purposes under
the indenture.
Except as described
below, owners of beneficial interests in a registered global security will not be entitled to have the securities represented by
the registered global security registered in their names, will not receive or be entitled to receive physical delivery of the securities
in definitive form and will not be considered the owners or holders of the securities under the indenture. Accordingly, each person
owning a beneficial interest in a registered global security must rely on the procedures of the depositary for that registered
global security and, if that person is not a participant, on the procedures of the participant through which the person owns its
interest in that registered global security, to exercise any rights of a holder under the indenture. We understand that under existing
industry practices, if we request any action of holders of a registered global security or if an owner of a beneficial interest
in a registered global security desires to give or take any action that a holder is entitled to give or take under the indenture,
the depositary for the registered global security would authorize the participants holding the relevant beneficial interests to
give or take that action, and the participants would authorize beneficial owners owning through them to give or take that action
or would otherwise act upon the instructions of beneficial owners holding through them.
Principal, premium,
if any, and interest payments on debt securities represented by a registered global security registered in the name of a depositary
or its nominee will be made to the depositary or its nominee, as the case may be, as the registered owner of the registered global
security. None of us, the trustee or any other agent of us or agent of the trustee will have any responsibility or liability to
owners of beneficial interests for any aspect of the records relating to payments made on account of beneficial ownership interests
in the registered global security or for maintaining, supervising or reviewing any records relating to those beneficial ownership
interests. We expect that the depositary for any of the securities represented by a registered global security, upon receipt of
any payment of principal, premium, interest or other distribution of underlying securities or other property to holders on that
registered global security, will immediately credit participants’ accounts in amounts proportionate to their respective beneficial
interests in that registered global security as shown on the records of the depositary. We also expect that payments by participants
to owners of beneficial interests in a registered global security held through participants will be governed by standing customer
instructions and customary practices, as is now the case with the securities held for the accounts of customers in bearer form
or registered in “street name,” and will be the responsibility of those participants.
We expect that the
indenture will provide that if the depositary for any of these securities represented by a registered global security is at any
time unwilling or unable to continue as depositary or ceases to be a clearing agency registered under the Exchange Act, and a successor
depositary registered as a clearing agency under the Exchange Act is not appointed by us within 90 days, we will be required to
issue securities in definitive form in exchange for the registered global security that had been held by the depositary. In addition,
the indenture is expected to allow us to decide, at any time and in our sole discretion, to not have any of the securities represented
by one or more registered global securities. If we make that decision, we will issue securities in definitive form in exchange
for all of the registered global security or securities representing those securities. Any securities issued in definitive form
in exchange for a registered global security will be registered in the name or names that the depositary gives to the relevant
trustee or other relevant agent of ours or theirs. It is expected that the depositary’s instructions will be based upon directions
received by the depositary from participants with respect to ownership of beneficial interests in the registered global security
that had been held by the depositary.
If we issue registered
global securities, we expect that the Depository Trust Company, or DTC, will act as depository and the securities will be registered
in the name of Cede & Co., as DTC’s nominee.
DESCRIPTION OF WARRANTS
We may issue warrants
to purchase our debt or equity securities or securities of third parties or other rights, including rights to receive payment in
cash or securities based on the value, rate or price of one or more specified currencies, securities or indices, or any combination
of the foregoing. Warrants may be issued independently or together with any other securities and may be attached to, or separate
from, such securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between us
and a warrant agent. The terms of any warrants to be issued and a description of the material provisions of the applicable warrant
agreement will be set forth in the applicable prospectus supplement. We expect that such terms will include, among others:
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the title of such warrants;
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the aggregate number of such warrants;
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the price or prices at which such warrants will be issued;
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the currency or currencies in which the price of such warrants will be payable;
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the securities or other rights, including rights to receive payment in cash or securities based
on the value, rate or price of one or more specified currencies, securities or indices, or any combination of the foregoing, purchasable
upon exercise of such warrants;
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the price at which, and the currency or currencies in which, the securities or other rights purchasable
upon exercise of such warrants may be purchased;
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the date on which the right to exercise such warrants shall commence and the date on which such
right shall expire;
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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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if applicable, the designation and terms of the securities with which such warrants are issued
and the number of such warrants issued with each such security;
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if applicable, the date on and after which such warrants and the related securities will be separately
transferable;
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information with respect to book-entry procedures, if any;
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if applicable, a discussion of any material U.S. federal income tax considerations; and
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any other terms of such warrants, including terms, procedures and limitations relating to the exchange
and exercise of such warrants.
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DESCRIPTION OF PURCHASE CONTRACTS
We may issue purchase
contracts for the purchase or sale of:
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debt or equity securities issued by us, a basket of such securities, an index or indices of such
securities, or any combination of the above as specified in the applicable prospectus supplement; or
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Each purchase contract
will entitle the holder thereof to purchase or sell, and obligate us to sell or purchase, on specified dates, such securities or
currencies at a specified purchase price, which may be based on a formula, all as set forth in the applicable prospectus supplement.
We may, however, satisfy our obligations, if any, with respect to any purchase contract by delivering the cash value of such purchase
contract or the cash value of the property otherwise deliverable or, in the case of purchase contracts on underlying currencies,
by delivering the underlying currencies, as set forth in the applicable prospectus supplement. The applicable prospectus supplement
will also specify the methods by which the holders may purchase or sell such securities or currencies and any acceleration, cancellation
or termination provisions, provisions relating to U.S. federal income tax considerations, if any, or other provisions relating
to the settlement of a purchase contract.
The purchase contracts
may require us to make periodic payments to the holders thereof or vice versa, which payments may be deferred to the extent set
forth in the applicable prospectus supplement, and those payments may be unsecured or pre-funded on some basis. The purchase contracts
may require the holders thereof to secure their obligations in a specified manner to be described in the applicable prospectus
supplement. Alternatively, purchase contracts may require holders to satisfy their obligations thereunder when the purchase contracts
are issued. Our obligation to settle such pre-paid purchase contracts on the relevant settlement date may constitute indebtedness.
Accordingly, pre-paid purchase contracts will be issued under either a senior indenture or subordinated indenture.
DESCRIPTION OF RIGHTS
We may issue rights
to purchase our equity securities. These rights may be issued independently or together with any other security offered by this
prospectus and may or may not be transferable by the shareholder receiving the rights in the rights offering. In connection with
any rights offering, we may enter into a standby underwriting agreement with one or more underwriters pursuant to which the underwriter
will purchase any securities that remain unsubscribed for upon completion of the rights offering.
The applicable prospectus
supplement relating to any rights will describe the terms of the offered rights, including, where applicable, the following:
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the exercise price for the rights;
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the number of rights issued to each shareholder;
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the extent to which the rights are transferable;
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any other terms of the rights, including terms, procedures and limitations relating to the exchange
and exercise of the rights;
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the date on which the right to exercise the rights will commence and the date on which the right
will expire;
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the amount of rights outstanding;
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the extent to which the rights include an over-subscription privilege with respect to unsubscribed
securities; and
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the material terms of any standby underwriting arrangement entered into by us in connection with
the rights offering.
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The description in
the applicable prospectus supplement of any rights we offer will not necessarily be complete and will be qualified in its entirety
by reference to the applicable rights certificate or rights agreement, which will be filed with the SEC if we offer rights. For
more information on how you can obtain copies of any rights certificate or rights agreement if we offer rights, see “Where
You Can Find Additional Information” of this prospectus. We urge you to read the applicable rights certificate, the applicable
rights agreement and any applicable prospectus supplement in their entirety.
DESCRIPTION OF UNITS
As specified in the
applicable prospectus supplement, we may issue units consisting of one or more of our rights, purchase contracts, warrants, debt
securities, shares of preferred stock, shares of common stock or any combination of such securities. The applicable prospectus
supplement will describe:
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the terms of the units and of the rights, purchase contracts, warrants, debt securities, preferred
stock and common stock comprising the units, including whether and under what circumstances the securities comprising the units
may be traded separately;
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a description of the terms of any unit agreement governing the units;
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if applicable, a discussion of any material U.S. federal income tax considerations; and
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a description of the provisions for the payment, settlement, transfer or exchange or the units.
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EXPENSES
The following are the
estimated expenses of the issuance and distribution of the securities being registered under the registration statement of which
this prospectus forms a part, all of which will be paid by us.
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SEC registration fee
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$
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36,003.86
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FINRA filing fee
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$
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*
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Nasdaq listing fee
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$
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*
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Legal fees and expenses
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$
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*
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Accounting fees and expenses
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$
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*
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Printing and engraving expenses
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$
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*
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Transfer agent and registrar fees
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$
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*
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Indenture trustee fees and expenses
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$
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*
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Blue sky fees and expenses
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$
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*
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Miscellaneous
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$
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*
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Total
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$
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*
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* To be provided by a prospectus supplement
or as an exhibit to Report on Form 6-K that is incorporated by reference into this registration statement.
Legal Matters
The validity of the
securities offered by this prospectus will be passed upon for us by Watson Farley & Williams LLP, New York, New York with respect
to matters of United States and Marshall Islands law.
Experts
The consolidated financial
statements of Globus Maritime Limited appearing in Globus Maritime Limited’s Annual Report (Form 20-F) for the year ended
December 31, 2019, have been audited by Ernst & Young (Hellas) Certified Auditors Accountants S.A., independent registered
public accounting firm, as set forth in their report thereon (which contains an explanatory paragraph describing conditions that
raise substantial doubt about the Company's ability to continue as a going concern as described in Note 2 to the consolidated financial
statements), included therein, and incorporated herein by reference. Such consolidated financial statements are incorporated herein
by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing. Ernst &
Young (Hellas) Certified Auditors Accountants S.A. is located at 8B Chimarras street, 15125, Maroussi, Greece and is registered
as a corporate body with the public register for company auditors-accountants kept with the Body of Certified-Auditors-Accountants
(“SOEL”), Greece with registration number 107.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
As required by the
Securities Act of 1933, as amended, we filed a registration statement relating to the securities offered by this prospectus with
the SEC. This prospectus is a part of that registration statement, which includes additional information.
Government Filings
We file annual and
other reports with the SEC. You may read and copy any document that we file and obtain copies at prescribed rates from the SEC’s
Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. You may obtain information on the operation of the Public
Reference Room by calling 1 (800) SEC-0330. The SEC maintains a website (http://www.sec.gov) that contains reports, proxy and information
statements and other information regarding us and other issuers that file electronically with the SEC. Further information about
our company is available on our website at http://www.globusmaritime.gr. The information on our website, however, is not, and should
not be, deemed to be a part of this prospectus.
Information Incorporated by Reference
The SEC allows us to
“incorporate by reference” information that we file with it. This means that we can disclose important information
to you by referring you to those filed documents. The information incorporated by reference is considered to be a part of this
prospectus and any accompanying prospectus supplement, and information that we file later with the SEC prior to the termination
of this offering will also be considered to be part of this prospectus and the accompanying prospectus supplement and will automatically
update and supersede previously filed information, including information contained in this prospectus. In all cases, you should
rely on the later information over different information included in this prospectus or any prospectus supplement.
We incorporate by
reference the documents listed below and any future filings made with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act:
We are also incorporating
by reference any documents that we file with the SEC after the date of the
filing of the initial registration statement of which the prospectus forms a part and prior to the effectiveness of that registration
statement, all subsequent annual reports on Form 20-F that we file with the SEC and reports on Form 6-K that we furnish
to the SEC after the date of this prospectus that state they are incorporated by reference into this prospectus until we file a
post-effective amendment indicating that the offering of the securities made by this prospectus has been terminated. In all cases,
you should rely on the later information over different information included in this prospectus or the prospectus supplement.
You should rely only
on the information contained in or incorporated by reference in this prospectus, the accompanying prospectus and any free writing
prospectus. We have not authorized anyone to provide you with information that is different. If anyone provides you with different
or inconsistent information, you should not rely on it. We are offering to sell our common shares only in jurisdictions where offers
and sales are permitted. The information contained in or incorporated by reference in this document is accurate only as of the
date such information was issued, regardless of the time of delivery of this prospectus or any sale of our common shares.
Upon written or oral
request, we will provide to each person, including any beneficial owner, to whom a prospectus is delivered, a copy of any or all
of the information that has been incorporated by reference in the prospectus but not delivered with the prospectus at no cost to
the requester. You may request a free copy of the above mentioned filings or any subsequent filing we incorporate by reference
into this prospectus supplement by contacting us at the following address:
Globus Maritime Limited
c/o Globus Shipmanagement Corp.
128 Vouliagmenis Avenue
3rd Floor
166 74 Glyfada
Athens, Greece
+30 210 960 8300
Information Provided by the Company
We will furnish holders
of our common shares with annual reports containing audited financial statements and a report by our independent registered public
accounting firm. The audited financial statements will be prepared in accordance with IFRS. As a “foreign private issuer”,
we are exempt from the rules under the Securities and Exchange Act of 1934, as amended, or the Exchange Act, prescribing the furnishing
and content of proxy statements to shareholders. While we furnish proxy statements to shareholders in accordance with the rules
of Nasdaq, those proxy statements do not conform to Schedule 14A of the proxy rules promulgated under the Exchange Act. In addition,
as a “foreign private issuer”, our officers and directors are exempt from the rules under the Exchange Act relating
to short swing profit reporting and liability.
Disclosure of SEC Position on Indemnification
for Securities Act Liabilities
Insofar as indemnification
for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers or persons controlling the registrant
pursuant to the foregoing provisions, the registrant has been informed that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is therefore unenforceable.
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Item 8.
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Indemnification of Directors and Officers
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Under Section 60
of the BCA, we have the power to indemnify anyone who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding (other than an action by or in the right of the corporation) whether civil, criminal,
administrative or investigative, by reason of the fact that he is or was a director or officer of the corporation, or is or was
serving at the request of the corporation as a director or officer of another corporation, partnership, joint venture, trust or
other enterprise. However, such person must have acted in good faith and in a manner reasonably believed to be in or not opposed
to the best interests of the corporation, and, with respect to any criminal action or proceeding, such person had no reasonable
cause to believe that his conduct was unlawful. Under Section 60 of the BCA and our bylaws, the termination of any action,
suit or proceeding by judgment, order, settlement, conviction, or upon a plea of no contest, or its equivalent, does not, of itself,
create a presumption that the person did not act in good faith and in a manner which such person reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause
to believe that his conduct was unlawful.
In addition, under
Section 60 of the BCA we have the power to indemnify any person who was or is a party, or is threatened to be made a party,
to any threatened, pending, or completed action or suit by or in the right of the corporation to procure judgment in its favor
by reason of the fact that such person is or was a director or officer of the corporation, or is or was serving at the request
of the corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise. Such
indemnification may be made against expenses (including attorneys’ fees) actually and reasonably incurred by such person
or in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation. Again, this is provided that no indemnification may
be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the corporation unless and only to the extent that the court in which such action
or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper.
Furthermore, and as
provided by Section 60 of the BCA, when a director or officer of a corporation has been successful on the merits or otherwise
in defense of any action, suit or proceeding referred to in the foregoing instances, or in the defense of a related claim, issue
or matter, such person will be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred
in connection with such matter.
Our articles of incorporation
provide that we shall indemnify any person who was or is a party or is threatened to be made a party 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 the corporation) by reason of the fact he or she is or was a director or officer of the corporation or is or was
serving at the request of the corporation, a director or officer of another corporation, partnership, joint venture, trust or other
enterprise (the “Indemnitee”), against expenses (including attorneys’ fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him or her in connection with such action, suit or proceeding unless a final
and unappealable determination by a court of competent jurisdiction has been made that he or she did not act in good faith or in
a manner he or she did not reasonably believe to be in or not opposed to the best interest of the corporation, and, with respect
to any criminal action or proceeding, had reasonable cause to believe that his or her conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of no contest, or its equivalent, shall
not, of itself, create a presumption that the person did not act in good faith and in a manner which he or she reasonably believed
to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable
cause to believe that his or her conduct was unlawful.
Pursuant to Section 60
of the BCA, expenses incurred in defending a civil or criminal action, suit or proceeding by an officer or director may be paid
in advance of the final disposition of the action, suit or proceeding upon receipt of an undertaking by or on behalf of the director
or officer to repay such amount if it is ultimately determined that such person is not entitled to indemnification.
Both Section 60 of
the BCA and our articles of incorporation further provide that the foregoing indemnification and advancement of expenses are not
exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled.
Under both Section 60
of the BCA and our articles of incorporation, we also have the power to purchase and maintain insurance on behalf of any person
who is or was a director or officer of the corporation or is or was serving at the request of the corporation as a director or
officer against any liability asserted against such person and incurred by such person in such capacity regardless of whether the
corporation would have the power to indemnify such person against such liability under the foregoing.
Under Section 60
of the BCA, the indemnification and advancement of expenses provided by, or granted under the foregoing continue with regard to
a person who has ceased to be a director, officer, employee or agent and inure to the benefit of such person’s heirs, executors
and administrators unless otherwise provided when authorized or ratified. Additionally, under our articles of incorporation, any
repeal or modification of Article VII of our articles of incorporation shall not adversely affect any rights to indemnification
of a director or officer of the corporation existing at the time of such repeal or modification with respect to any acts or omissions
occurring prior to such repeal or modification.
Such limitation of
liability and indemnification does not affect the availability of equitable remedies. In addition, we have been advised that in
the opinion of the SEC, indemnification for liabilities arising under the Securities Act is against public policy as expressed
in the Securities Act and is therefore unenforceable.
The BCA authorizes
corporations to limit or eliminate the personal liability of directors and officers to corporations and their shareholders for
monetary damages for breaches of directors’ fiduciary duties other than (i) for any breach of the director’s duty of
loyalty to the corporation or its stockholders, (ii) for acts or omissions not undertaken in good faith or which involve intentional
misconduct or a knowing violation of law; or (iii) for any transaction from which a director derived an improper personal benefit.
Our articles of incorporation include a provision that eliminates the personal liability of directors for monetary damages for
breach of fiduciary duty as a director to the fullest extent permitted by law (i.e., other than breach of duty of loyalty, acts
not taken in good faith or which involve intentional misconduct or a knowing violation of law or transactions for which the director
derived an improper personal benefit) and provides that we must indemnify our directors and officers for certain lawsuits. The
limitation of liability and indemnification provisions in our articles of incorporation may discourage shareholders from bringing
a lawsuit against our directors for breach of their fiduciary duty. These provisions may also have the effect of reducing the likelihood
of derivative litigation against directors and officers, even though such an action, if successful, may otherwise benefit us and
our shareholders. In addition, an investor in our common shares may be adversely affected to the extent we pay the costs of settlement
and damage awards against directors and officers pursuant to these indemnification provisions.
Item 9. Exhibits
The exhibit index at
the end of this registration statement identifies the exhibits which are included in this registration statement and are incorporated
herein by reference (the “Exhibit Index”).
Item 10. Undertakings
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(a)
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The
undersigned registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment
to this registration statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
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(ii)
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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 a 20 percent change in the
maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration
statement.
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(iii)
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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.
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Provided, however, that paragraphs
(a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the registration statement is on Form S-3 or Form F-3 and
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 Securities Exchange Act of 1934 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.
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(2)
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That, for the purpose of determining any liability under the Securities Act of 1933, as amended,
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.
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(3)
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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.
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(4)
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To file a post-effective amendment to the registration statement to include any financial statements
required by Item 8.A. of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements
and information otherwise required by Section 10(a)(3) of the Act need not be furnished, provided, that the registrant includes
in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (a)(4) and
other information necessary to ensure that all other information in the prospectus is at least as current as the date of those
financial statements. Notwithstanding the foregoing, with respect to registration statements on Form F-3, a post-effective amendment
need not be filed to include financial statements and information required by Section 10(a)(3) of the Securities Act of 1933 or
Rule 3-19 of Regulation S-X if such financial statements and information are contained in periodic reports filed with or furnished
to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the Form F-3.
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(5)
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That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
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(i)
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If the registrant is relying on Rule 430B:
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(A)
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Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of
this registration statement as of the date the filed prospectus was deemed part of and included in this registration statement;
and
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(B)
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Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a
registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the
purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and
included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness
or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B,
for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new
effective date of the registration statement relating to the securities in the registration statement to which that prospectus
relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided,
however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in
a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement
that was made in the registration statement or prospectus that was part of the registration statement or made in any such document
immediately prior to such effective date.
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(6)
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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:
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(i)
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Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering
required to be filed pursuant to Rule 424;
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(ii)
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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;
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(iii)
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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
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(iv)
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Any other communication that is an offer in the offering made by the undersigned registrant to
the purchaser.
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(b)
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The undersigned registrant hereby undertakes that, for purposes of determining any liability under
the Securities Act of 1933, each filing of the registrant’s Annual Report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s Annual Report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
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(c)– (f)
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Reserved.
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(g)
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Not
applicable.
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(h)
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Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted
to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person
of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such
issue.
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(j)
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The undersigned registrant hereby undertakes to file an application for the purpose of determining
the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules
and regulations prescribed by the SEC under Section 305(b)(2) of the Trust Indenture Act.
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(k)
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Not
applicable.
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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 F-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Glyfada, Country of Greece, on July 31, 2020.
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GLOBUS MARITIME LIMITED
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By:
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/s/ Athanasios Feidakis
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Name:
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Athanasios Feidakis
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Title:
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Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Athanasios Feidakis and Steven Hollander his or her true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and any and all additional registration statements pursuant to Rule 462(b) of the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or either of them or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons on July 31, 2020 in the capacities indicated.
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Signature
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Title
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/s/ Athanasios Feidakis
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Director, President, Chief Executive
Officer
(Principal Executive Officer),
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Athanasios Feidakis
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Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer)
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/s/ Georgios Feidakis
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Director; Chairman of the Board of Directors
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Georgios Feidakis
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/s/ Jeffrey O. Parry
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Director
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Jeffrey O. Parry
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/s/ Ioannis Kazantzidis
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Director
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Ioannis Kazantzidis
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AUTHORIZED REPRESENTATIVE
Pursuant to the Securities
Act of 1933, the undersigned, the duly authorized representative in the United States of Globus Maritime Limited, has signed this
registration statement in the City of Newark, State of Delaware on July 31, 2020.
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PUGLISI & ASSOCIATES
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/s/
Donald J. Puglisi
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Name:
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Donald J. Puglisi
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Title:
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Managing Director
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Exhibit Index
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*
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To be filed either as an amendment or as an exhibit to a report filed pursuant to the Securities Exchange Act of 1934 of the Registrant and incorporated by reference into this registration statement.
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**
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To be filed in accordance with Section 305(b)(2) of the Trust Indenture Act of 1939, as amended.
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Exhibit 4.6
GLOBUS MARITIME LIMITED
FORM OF
SENIOR INDENTURE
Dated as of [
], 20[ ]
[
]
Trustee
TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE
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1
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SECTION 1.01. Definitions.
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1
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SECTION 1.02. Other Definitions.
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4
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SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
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4
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SECTION 1.04. Rules of Construction.
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4
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ARTICLE II. THE SECURITIES
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5
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SECTION 2.01. Issuable in Series.
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5
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SECTION 2.02. Establishment of Terms of Series of Securities.
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5
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SECTION 2.03. Execution and Authentication.
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7
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SECTION 2.04. Registrar and Paying Agent.
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7
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SECTION 2.05. Paying Agent to Hold Money in Trust.
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8
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SECTION 2.06. Securityholder Lists.
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8
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SECTION 2.07. Transfer and Exchange.
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8
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SECTION 2.08. Mutilated, Destroyed, Lost and Stolen Securities.
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9
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SECTION 2.09. Outstanding Securities.
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9
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SECTION 2.10. Treasury Securities.
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10
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SECTION 2.11. Temporary Securities.
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10
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SECTION 2.12. Cancellation.
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10
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SECTION 2.13. Defaulted Interest.
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10
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SECTION 2.14. Global Securities.
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10
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SECTION 2.15. CUSIP Numbers.
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12
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ARTICLE III. REDEMPTION
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12
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SECTION 3.01. Notice to Trustee.
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12
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SECTION 3.02. Selection of Securities to be Redeemed.
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12
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SECTION 3.03. Notice of Redemption.
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13
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SECTION 3.04. Effect of Notice of Redemption.
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13
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SECTION 3.05. Deposit of Redemption Price.
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13
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SECTION 3.06. Securities Redeemed in Part.
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13
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ARTICLE IV. COVENANTS
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13
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SECTION 4.01. Payment of Principal and Interest.
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13
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SECTION 4.02. SEC Reports.
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14
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SECTION 4.03. Compliance Certificate.
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14
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SECTION 4.04. Stay, Extension and Usury Laws.
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15
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SECTION 4.05. Corporate Existence.
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15
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SECTION 4.06. Taxes.
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15
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SECTION 4.07. Additional Interest Notice.
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15
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SECTION 4.08. Further Instruments and Acts.
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15
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ARTICLE V. SUCCESSORS
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15
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SECTION 5.01. When Company May Merge, etc.
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15
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SECTION 5.02. Successor Corporation Substituted.
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16
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ARTICLE VI. DEFAULTS AND REMEDIES
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16
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SECTION 6.01. Events of Default.
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16
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SECTION 6.02. Acceleration of Maturity; Rescission and Annulment.
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18
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SECTION 6.03. Collection of Indebtedness and Suits for Enforcement by Trustee.
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18
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SECTION 6.04. Trustee May File Proofs of Claim.
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19
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SECTION 6.05. Trustee May Enforce Claims Without Possession of Securities.
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19
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SECTION 6.06. Application of Money Collected.
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19
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SECTION 6.07. Limitation on Suits.
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20
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SECTION 6.08. Unconditional Right of Holders to Receive Principal and Interest.
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20
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SECTION 6.09. Restoration of Rights and Remedies.
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20
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SECTION 6.10. Rights and Remedies Cumulative.
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20
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SECTION 6.11. Delay or Omission Not Waiver.
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21
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SECTION 6.12. Control by Holders.
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21
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SECTION 6.13. Waiver of Past Defaults.
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21
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SECTION 6.14. Undertaking for Costs.
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21
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ARTICLE VII. TRUSTEE
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22
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SECTION 7.01. Duties of Trustee.
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22
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SECTION 7.02. Rights of Trustee.
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23
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SECTION 7.03. Individual Rights of Trustee.
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23
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SECTION 7.04. Trustee's Disclaimer.
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23
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SECTION 7.05. Notice of Defaults.
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23
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SECTION 7.06. Reports by Trustee to Holders.
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24
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SECTION 7.07. Compensation and Indemnity.
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24
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SECTION 7.08. Replacement of Trustee.
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25
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SECTION 7.09. Successor Trustee by Merger, etc.
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25
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SECTION 7.10. Eligibility; Disqualification.
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25
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SECTION 7.11. Preferential Collection of Claims Against Company.
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25
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ARTICLE VIII. SATISFACTION AND DISCHARGE; DEFEASANCE
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26
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SECTION 8.01. Satisfaction and Discharge of Indenture.
|
26
|
|
SECTION 8.02. Application of Trust Funds; Indemnification.
|
26
|
|
SECTION 8.03. Legal Defeasance of Securities of any Series.
|
27
|
|
SECTION 8.04. Covenant Defeasance.
|
28
|
|
SECTION 8.05. Repayment to Company.
|
29
|
|
ARTICLE IX. AMENDMENTS AND WAIVERS
|
29
|
|
SECTION 9.01. Without Consent of Holders.
|
29
|
|
SECTION 9.02. With Consent of Holders.
|
30
|
|
SECTION 9.03. Limitations.
|
30
|
|
SECTION 9.04. Compliance with Trust Indenture Act.
|
31
|
|
SECTION 9.05. Revocation and Effect of Consents.
|
31
|
|
SECTION 9.06. Notation on or Exchange of Securities.
|
31
|
|
SECTION 9.07. Trustee Protected.
|
31
|
|
SECTION 9.08. Effect of Supplemental Indenture.
|
31
|
|
ARTICLE X. MISCELLANEOUS
|
31
|
|
SECTION 10.01. Trust Indenture Act Controls.
|
31
|
|
SECTION 10.02. Notices.
|
32
|
|
SECTION 10.03. Communication by Holders with Other Holders.
|
33
|
|
SECTION 10.04. Certificate and Opinion as to Conditions Precedent.
|
33
|
|
SECTION 10.05. Statements Required in Certificate or Opinion.
|
33
|
|
SECTION 10.06. Record Date for Vote or Consent of Holders.
|
33
|
|
SECTION 10.07. Rules by Trustee and Agents.
|
33
|
|
SECTION 10.08. Legal Holidays.
|
34
|
|
SECTION 10.09. No Recourse Against Others.
|
34
|
|
SECTION 10.10. Counterparts.
|
34
|
|
SECTION 10.11. Governing Laws and Submission to Jurisdiction.
|
34
|
|
SECTION 10.12. No Adverse Interpretation of Other Agreements.
|
34
|
|
SECTION 10.13. Successors.
|
34
|
|
SECTION 10.14. Severability.
|
34
|
|
SECTION 10.15. Table of Contents, Headings, etc.
|
35
|
|
SECTION 10.16. Securities in a Foreign Currency or in ECU.
|
35
|
|
SECTION 10.17. Judgment Currency.
|
35
|
|
SECTION 10.18. Compliance with Applicable Anti-Terrorism and Money Laundering Regulations.
|
36
|
|
ARTICLE XI. SINKING FUNDS
|
36
|
|
SECTION 11.01. Applicability of Article.
|
36
|
|
SECTION 11.02. Satisfaction of Sinking Fund Payments with Securities.
|
36
|
|
SECTION 11.03. Redemption of Securities for Sinking Fund.
|
37
|
Reconciliation and tie between Trust Indenture
Act of 1939 and Indenture,
Dated as of [
], 20[ ]
|
|
|
|
Section 310(a)(1)
|
7.10
|
|
(a)(2)
|
7.10
|
|
(a)(3)
|
Not Applicable
|
|
(a)(4)
|
Not Applicable
|
|
(a)(5)
|
7.10
|
|
(b)
|
7.10
|
|
(c)
|
Not Applicable
|
|
Section 311(a)
|
7.11
|
|
(b)
|
7.11
|
|
(c)
|
Not Applicable
|
|
Section 312(a)
|
2.06
|
|
(b)
|
10.03
|
|
(c)
|
10.03
|
|
Section 313(a)
|
7.06
|
|
(b)(1)
|
7.06
|
|
(b)(2)
|
7.06
|
|
(c)(1)
|
7.06
|
|
(d)
|
7.06
|
|
Section 314(a)
|
4.02, 10.05
|
|
(b)
|
Not Applicable
|
|
(c)(1)
|
10.04
|
|
(c)(2)
|
10.04
|
|
(c)(3)
|
Not Applicable
|
|
(d)
|
Not Applicable
|
|
(e)
|
10.05
|
|
(f)
|
Not Applicable
|
|
Section 315(a)
|
7.01
|
|
(b)
|
7.05
|
|
(c)
|
7.01
|
|
(d)
|
7.01
|
|
(e)
|
6.14
|
|
Section 316(a)(1)(A)
|
6.12
|
|
(a)(1)(B)
|
6.13
|
|
(a)(2)
|
Not Applicable
|
|
(b)
|
6.13
|
|
(c)
|
10.06
|
|
Section 317(a)(1)
|
6.03
|
|
(a)(2)
|
6.04
|
|
(b)
|
2.05
|
|
Section 318(a)
|
10.01
|
Note: This reconciliation and tie shall not,
for any purpose, be deemed to be part of the Indenture.
Indenture dated as
of [ ],
20[ ] between GLOBUS MARITIME LIMITED, a Marshall Islands corporation (the “Company”),
and [ ]
(the “Trustee”).
Each party agrees as
follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Securities issued under
this Indenture.
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
“Additional
Amounts” means any additional amounts which are required hereby or by any Security, under circumstances specified herein
or therein, to be paid by the Company in respect of certain taxes imposed on Holders specified therein and which are owing to such
Holders.
“Affiliate”
of any specified person means any other person directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified person. For the purposes of this definition, “control” (including, with correlative
meanings, the terms “controlled by” and “under common control with”), as used with respect to any person,
shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies
of such person, whether through the ownership of voting securities or by agreement or otherwise.
“Agent”
means any Registrar or Paying Agent.
“Bankruptcy
Law” means Title 11 of the United States Code (or any successor thereto) 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 thereof.
“Board Resolution”
means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been adopted by the Board
of Directors or pursuant to authorization by the Board of Directors and to be in full force and effect on the date of the certificate
and delivered to the Trustee.
“Business
Day” means any day other than a (x) Saturday, (y) Sunday or (z) day on which state or federally chartered
banking institutions in New York, New York are not required to be open.
“Capital Stock”
of any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of
or interests in (however designated) equity of such Person, but excluding any debt securities convertible into such equity.
“Certificated
Securities” means Securities in the form of physical, certificated Securities in registered form.
“Company”
means the party named as such above until a successor replaces it in accordance with the terms of this Indenture and thereafter
means the successor.
“Company Order”
means a written order signed in the name of the Company by two Officers, one of whom must be the Company's principal executive
officer, principal financial officer or principal accounting officer.
“Company Request”
means a written request signed in the name of the Company by its Chairman of the Board, a President or a Vice President, and by
its Chief Financial Officer, its Secretary or an Assistant Secretary, and delivered to the Trustee.
“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 of the execution of this Indenture is [ ],
Attention: [ ],
or at such other address as the Trustee may designate from time to time.
“Custodian”
means any receiver, trustee, assignee, liquidator, sequestrator or similar official under any Bankruptcy Law.
“Default”
or “default” means any event which is, or after notice or passage of time or both would be, an Event of Default.
“Default Rate”
means the default rate of interest specified in the Securities.
“Depository”
means, with respect to the Securities of any Series issuable or issued in whole or in part in the form of one or more Global Securities,
the person designated as Depository for such Series by the Company, which Depository shall be a clearing agency registered under
the Exchange Act; and if at any time there is more than one such person, “Depository” as used with respect to the Securities
of any Series shall mean the Depository with respect to the Securities of such Series.
“Discount
Security” means any Security that provides for an amount less than the stated principal amount thereof to be due and
payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.02.
“Dollars”
means the currency of The United States of America.
“ECU”
means the European Currency Unit as determined by the Commission of the European Union.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Foreign Currency”
means any currency or currency unit issued by a government other than the government of The United States of America.
“Foreign Government
Obligations” means with respect to Securities of any Series that are denominated in a Foreign Currency, (i) direct
obligations of the government that issued or caused to be issued such currency for the payment of which obligations its full faith
and credit is pledged or (ii) obligations of a person controlled or supervised by or acting as an agency or instrumentality
of such government the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by such government,
which, in either case under clauses (i) or (ii), are not callable or redeemable at the option of the issuer thereof.
“Global Security”
or “Global Securities” means a Security or Securities, as the case may be, in the form established pursuant
to Section 2.02 evidencing all or part of a Series of Securities, issued to the Depository for such Series or its nominee,
and registered in the name of such Depository or nominee.
“Holder”
or “Securityholder” means a person in whose name a Security is registered.
“Indenture”
means this Indenture as amended and supplemented from time to time and shall include the form and terms of particular Series of
Securities established as contemplated hereunder.
“Interest,”
in respect of the Securities, unless the context otherwise requires, refers to interest payable on the Securities, including any
additional interest that may become payable pursuant to Section 6.02(b).
“Maturity,”
when used with respect to any Security or installment of principal thereof, means the date on which the principal of such Security
or such installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration
of acceleration, call for redemption, notice of option to elect repayment or otherwise.
“Officer”
means the Chairman of the Board, the President, any Vice-President, the Treasurer, the Secretary, any Assistant Treasurer or any
Assistant Secretary of the Company.
“Officers'
Certificate” means a certificate signed by two Officers, one of whom must be the Company's principal executive officer,
principal financial officer or principal accounting officer.
“Opinion of
Counsel” means a written opinion of legal counsel who is, and which opinion is, acceptable to the Trustee and its counsel.
Such legal counsel may be an employee of or counsel to the Company or the Trustee.
“Person”
means any individual, corporation, partnership, joint venture, association, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision thereof.
“Principal”
or “principal” of a Security means the principal of the Security plus, when appropriate, the premium, if any,
on, and any Additional Amounts in respect of, the Security.
“Responsible
Officer” means any officer of the Trustee in its Corporate Trust Office and also means, any vice president, managing
director, director, associate, assistant vice president, or any other officer of the Trustee customarily performing functions similar
to those performed by any of the above designated officers and also, with respect to a particular corporate trust matter, any other
officer to whom any corporate trust matter is referred because of his or her knowledge of and familiarity with a particular subject.
“SEC”
means the Securities and Exchange Commission.
“Security”
or “Securities” means the debentures, notes or other debt instruments of the Company of any Series authenticated
and delivered under this Indenture.
“Series”
or “Series of Securities” means each series of debentures, notes or other debt instruments of the Company created
pursuant to Sections 2.01 and 2.02 hereof.
“Stated Maturity”
when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in
such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and
payable.
“Subordinated
Indebtedness” means any indebtedness which is expressly subordinated to the indebtedness evidenced by Securities.
“Subsidiary”
means, in respect of any Person, any corporation, association, partnership or other business entity of which more than 50% of the
total voting power of shares of Capital Stock or other interests (including partnership interests) entitled (without regard to
the occurrence of any contingency) to vote in the election of directors, managers, general partners or trustees thereof is at the
time owned or controlled, directly or indirectly, by (i) such Person; (ii) such Person and one or more Subsidiaries of
such Person; or (iii) one or more Subsidiaries of such Person.
“TIA”
means the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) as in effect on the date of this Indenture; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such date, “TIA” means, to the extent required
by any such amendment, the Trust Indenture Act as so amended.
“Trustee”
means the person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include
each person who is then a Trustee hereunder, and if at any time there is more than one such person, “Trustee” as used
with respect to the Securities of any Series shall mean the Trustee with respect to Securities of that Series.
“U.S.
Government Obligations” means securities which are (i) direct obligations of The United States of America for
the payment of which its full faith and credit is pledged or (ii) 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, and which in the case of (i) and (ii) are not
callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank or
trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depository
receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government
Obligation evidenced by such depository receipt.
SECTION 1.02. Other
Definitions.
|
TERM
|
|
DEFINED IN
SECTION
|
|
|
“Applicable Law”
|
|
|
10.18
|
|
|
“Event of Default”
|
|
|
6.01
|
|
|
“Instrument”
|
|
|
6.01
|
|
|
“Journal”
|
|
|
10.16
|
|
|
“Judgment Currency”
|
|
|
10.17
|
|
|
“Legal Holiday”
|
|
|
10.08
|
|
|
“mandatory sinking fund payment”
|
|
|
11.01
|
|
|
“Market Exchange Rate”
|
|
|
10.16
|
|
|
“New York Banking Day”
|
|
|
10.17
|
|
|
“optional sinking fund payment”
|
|
|
11.01
|
|
|
“Paying Agent”
|
|
|
2.04
|
|
|
“Registrar”
|
|
|
2.04
|
|
|
“Required Currency”
|
|
|
10.17
|
|
|
“successor person”
|
|
|
5.01
|
|
|
“Temporary Securities”
|
|
|
2.11
|
|
|
|
|
|
|
|
SECTION 1.03. Incorporation
by Reference of Trust Indenture Act.
Whenever this Indenture
refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. This Indenture
shall also include those provisions of the TIA required to be included herein by the provisions of the Trust Indenture Reform Act
of 1990. The following TIA terms used in this Indenture have the following meanings:
“indenture
securities” means the Securities.
“indenture
security holder” means a Securityholder.
“indenture
to be qualified” means this Indenture.
“indenture
trustee” or “institutional trustee” means the Trustee.
“obligor”
on the indenture securities means the Company and any successor obligor upon the Securities.
All other terms used
in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA
and not otherwise defined herein are used herein as so defined.
SECTION 1.04. Rules
of Construction.
Unless the context
otherwise requires:
(a)
a term has the meaning assigned to it;
(b)
an accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted accounting
principles;
(c)
references to “generally accepted accounting principles” shall mean generally accepted accounting principles
in effect as of the time when and for the period as to which such accounting principles are to be applied;
(d)
“or” is not exclusive;
(e)
words in the singular include the plural, and in the plural include the singular;
(f)
provisions apply to successive events and transactions;
(g)
references to agreements and other instruments include subsequent amendments thereto;
(h)
the term “merger” includes a statutory share exchange, and the term “merged” has a correlative meaning;
and
(i)
“herein,” “hereof” and other words of similar import refer to this Indenture as a whole and not
to any particular Article, Section or other subdivision.
ARTICLE II.
THE SECURITIES
SECTION 2.01. Issuable
in Series.
The aggregate principal
amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in
one or more Series. All Securities of a Series shall be identical except as may be set forth in a Board Resolution, a supplemental
indenture or an Officers' Certificate detailing the adoption of the terms thereof pursuant to the authority granted under a Board
Resolution. In the case of Securities of a Series to be issued from time to time, the Board Resolution, Officers' Certificate or
supplemental indenture may provide for the method by which specified terms (such as interest rate, maturity date, record date or
date from which interest shall accrue) are to be determined. Securities may differ between Series in respect of any matters, provided
that all Series of Securities shall be equally and ratably entitled to the benefits of the Indenture.
SECTION 2.02. Establishment
of Terms of Series of Securities.
At or prior to the
issuance of any Securities within a Series, the following shall be established (as to the Series generally, in the case of Subsection
(a), and either as to such Securities within the Series or as to the Series generally in the case of Subsections (b) through
(t) by a Board Resolution, a supplemental indenture or an Officers' Certificate pursuant to authority granted under a Board
Resolution:
(a)
the title, designation, aggregate principal amount and authorized denominations of the Securities of the Series;
(b)
the price or prices, (expressed as a percentage of the aggregate principal amount thereof) at which the Securities of the
Series will be issued;
(c)
the date or dates on which the principal of the Securities of the Series is payable;
(d)
the rate or rates (which may be fixed or variable) per annum or, if applicable, the method used to determine such rate or
rates (including, but not limited to, any commodity, commodity index, stock exchange index or financial index) at which the Securities
of the Series shall bear interest, if any, the date or dates from which such interest, if any, shall commence and be payable and
any regular record date for the interest payable on any interest payment date;
(e)
any optional or mandatory sinking fund provisions or conversion or exchangeability provisions upon which Securities of
the Series shall be redeemed, purchased, converted or exchanged;
(f)
the date, if any, after which and the price or prices at which the Securities of the Series may be optionally redeemed or
must be mandatorily redeemed and any other terms and provisions of optional or mandatory provisions;
(g)
if other than denominations of $1,000 and any integral multiple thereof, the denominations in which the Securities of the
Series shall be issuable;
(h)
if other than the full principal amount, the portion of the principal amount of the Securities of the Series that shall
be payable upon declaration of acceleration pursuant to Section 6.02 or provable in bankruptcy;
(i)
any addition to or change in the Events of Default which applies to any Securities of the Series and any change in the right
of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to
Section 6.02;
(j)
the currency or currencies, including composite currencies, in which payments of principal of, premium or interest, if any,
on the Securities of the Series will be payable, if other than the currency of the United States of America;
(k)
if payments of principal of, premium or interest, if any, on the Securities of the Series will be payable, at the Company's
election or at the election of any Holder, in a currency other than that in which the Securities of the Series are stated to be
payable, the period or periods within which, and the terms and conditions upon which, the election may be made;
(l)
if payments of interest, if any, on the Securities of the Series will be payable, at the Company's election or at the election
of any Holder, in cash or additional securities, and the terms and conditions upon which the election may be made;
(m)
if denominated in a currency or currencies other than the currency of the United States of America, the equivalent price
of the Securities of the Series in the currency of the United States of America for purposes of determining the voting rights of
Holders of the Securities of the Series;
(n)
if the amount of payments of principal, premium or interest may be determined with reference to an index, formula or other
method based on a coin or currency other than that in which the Securities of the Series are stated to be payable, the manner in
which the amounts will be determined;
(o)
any restrictive covenants or other material terms relating to the Securities of the Series;
(p)
whether the Securities of the Series will be issued in the form of global securities or certificates in registered form;
(q)
any terms with respect to subordination;
(r)
any listing on any securities exchange or quotation system;
(s)
additional provisions, if any, related to defeasance and discharge of the offered debt securities; and
(t)
the applicability of any guarantees, which would be governed by New York law.
All Securities of
any one Series need not be issued at the same time and may be issued from time to time, consistent with the terms of this
Indenture, if so provided by or pursuant to the Board Resolution, supplemental indenture or Officers' Certificate referred to
above, and the authorized principal amount of any Series may not be increased to provide for issuance of additional
Securities of such Series, unless otherwise provided in such Board Resolution, supplemental Indenture or Officers'
Certificate.
SECTION 2.03. Execution
and Authentication.
Two Officers shall
sign the Securities for the Company by manual or facsimile signature.
If an Officer whose
signature is on a Security no longer holds that office at the time the Security is authenticated, the Security shall nevertheless
be valid.
A Security shall not
be valid until authenticated by the manual signature of the Trustee or an authenticating agent. The signature shall be conclusive
evidence that the Security has been authenticated under this Indenture.
The Trustee shall at
any time, and from time to time, authenticate Securities for original issue in the principal amount provided in the Board Resolution,
supplemental indenture hereto or Officers' Certificate, upon receipt by the Trustee of a Company Order. Such Company Order may
authorize authentication and delivery pursuant to oral or electronic instructions from the Company or its duly authorized agent
or agents, which oral instructions shall be promptly confirmed in writing. Each Security shall be dated the date of its authentication
unless otherwise provided by a Board Resolution, a supplemental indenture hereto or an Officers' Certificate.
The aggregate principal
amount of Securities of any Series outstanding at any time may not exceed any limit upon the maximum principal amount for such
Series set forth in the Board Resolution, supplemental indenture hereto or Officers' Certificate delivered pursuant to Section 2.02,
except as provided in Section 2.08.
Prior to the issuance
of Securities of any Series, the Trustee shall have received and (subject to Section 7.02) shall be fully protected in relying
on: (a) the Board Resolution, supplemental indenture hereto or Officers Certificate establishing the form of the Securities
of that Series or of Securities within that Series and the terms of the Securities of that Series or of Securities within that
Series, (b) an Officers' Certificate complying with Section 10.04, and (c) an Opinion of Counsel complying with
Section 10.04.
The Trustee shall have
the right to decline to authenticate and deliver any Securities of such Series: (a) if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken; or (b) if a Responsible Officer of the Trustee in good faith shall
determine that such action would expose the Trustee to personal liability to Holders of any then outstanding Series of Securities.
The Trustee may appoint
an authenticating agent acceptable to the Company to authenticate Securities. An authenticating agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with the Company or an Affiliate.
If any successor that
has replaced the Company in accordance with Article 5 has executed an indenture supplemental hereto with the Trustee pursuant
to Section 5.01, any of the Securities authenticated or delivered prior to such transaction may, from time to time, at the
request of such successor, be exchanged for other Securities executed in the name of the such successor with such changes in phraseology
and form as may be appropriate, but otherwise identical to the Securities surrendered for such exchange and of like principal amount;
and the Trustee, upon receipt of a Company Order of such successor, shall authenticate and deliver Securities as specified in such
order for the purpose of such exchange. If Securities shall at any time be authenticated and delivered in any new name of
such successor pursuant to this provision of Section 2.03 in exchange or substitution for or upon registration of transfer
of any Securities, such successor, at the option of the Holders but without expense to them, shall provide for the exchange of
all Securities then outstanding for Securities authenticated and delivered in such new name.
SECTION 2.04. Registrar
and Paying Agent.
The Company shall
maintain, with respect to each Series of Securities, at the place or places specified with respect to such Series pursuant to
Section 2.02, an office or agency where Securities of such Series may be presented or surrendered for payment
(“Paying Agent”) and where Securities of such Series may be surrendered for registration of transfer or exchange
(“Registrar”). The Registrar shall keep a register with respect to each Series of Securities and to their
transfer and exchange. The Company will give prompt written notice to the Trustee of the name and address, and any change in
the name or address, of each Registrar and Paying Agent. If at any time the Company shall fail to maintain any such required
Registrar or Paying Agent or shall fail to furnish the Trustee with the name and address thereof, such presentations and
surrenders 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 and surrenders.
The Company may also
from time to time designate one or more co-registrars or additional paying agents and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligations to maintain
a Registrar or Paying Agent in each place so specified pursuant to Section 2.02 for Securities of any Series for such purposes.
The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the name
or address of any such co-registrar or additional paying agent. The term “Registrar” includes any co-registrar; and
the term “Paying Agent” includes any additional paying agent.
The Company hereby
appoints [ ]
as the initial Registrar and Paying Agent for each Series unless another Registrar or Paying Agent as the case may be, is appointed
prior to the time Securities of that Series are first issued. Each Registrar and Paying Agent shall be entitled to all of the rights,
protections, exculpations and indemnities afforded to the Trustee in connection with its roles as Registrar and Paying Agent.
SECTION 2.05. Paying
Agent to Hold Money in Trust.
The Company shall require
each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust, for the benefit of Securityholders
of any Series of Securities, or the Trustee, all money held by the Paying Agent for the payment of principal of or interest on
the Series of Securities, and will notify the Trustee of any default by the Company in making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other
than the Company or a Subsidiary) shall have no further liability for the money. If the Company or a Subsidiary acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the benefit of Securityholders of any Series of Securities all
money held by it as Paying Agent.
SECTION 2.06. Securityholder
Lists.
The Trustee shall preserve
in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Securityholders
of each Series of Securities and shall otherwise comply with TIA Section 312(a). If the Trustee is not the Registrar, the
Company shall furnish to the Trustee at least [ ] days before each interest payment date and at such other
times as the Trustee may request in writing a list, in such form and as of such date as the Trustee may reasonably require, of
the names and addresses of Securityholders of each Series of Securities.
SECTION 2.07. Transfer
and Exchange.
Where Securities of
a Series are presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal
principal amount of Securities of the same Series, the Registrar shall register the transfer or make the exchange if its requirements
for such transactions are met. To permit registrations of transfers and exchanges, the Trustee shall authenticate Securities at
the Registrar's request. Any exchange or transfer shall be without charge, except that the Company or the Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge required by law; provided that this sentence shall not
apply to any exchange pursuant to Section 2.11, 2.08, 3.06 or 9.06.
Neither the
Company nor the Registrar shall be required (a) to issue, register the transfer of, or exchange Securities of any Series
for the period beginning at the opening of business [ ] days immediately preceding the mailing of a
notice of redemption of Securities of that Series selected for redemption and ending at the close of business on the day of
such mailing, or (b) to register the transfer of or exchange Securities of any Series selected, called or being called
for redemption as a whole or the portion being redeemed of any such Securities selected, called or being called for
redemption in part.
All Securities issued
upon any transfer or exchange of Securities shall be valid obligations of the Company, evidencing the same debt and entitled to
the same benefits under this Indenture, as the Securities surrendered upon such transfer or exchange. Any Registrar appointed pursuant
to Section 2.04 shall provide to the Trustee such information as the Trustee may reasonably require in connection with the
delivery by such Registrar of Securities upon transfer or exchange of Securities. Each Holder of a Security agrees to indemnify
the Company and the Trustee against any liability that may result from the transfer, exchange or assignment of such Holder's Security
in violation of any provision of this Indenture and/or applicable U.S. federal or state securities law.
SECTION 2.08. Mutilated,
Destroyed, Lost and Stolen Securities.
If any mutilated Security
is surrendered to the Registrar, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor
a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered
to the Company and the Registrar (i) evidence to their satisfaction of the destruction, loss or theft of any Security and
(ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Registrar that such Security has been acquired by a bona fide purchaser, the
Company shall execute and upon its request the Trustee shall authenticate and make available for delivery, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same Series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead
of issuing a new Security, pay such Security.
Upon the issuance of
any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security
of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities
of that Series duly issued hereunder.
The provisions of this
Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.09. Outstanding
Securities.
The Securities outstanding
at any time are all the Securities authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation,
those reductions in the interest on a Global Security effected by the Trustee in accordance with the provisions hereof and those
described in this Section as not outstanding.
If a Security is replaced
pursuant to Section 2.08, it ceases to be outstanding until the Trustee receives proof satisfactory to it that the replaced
Security is held by a bona fide purchaser.
If the Paying Agent
(other than the Company, a Subsidiary or an Affiliate of any thereof) holds on the Maturity of Securities of a Series money sufficient
to pay such Securities payable on that date, then on and after that date such Securities of the Series cease to be outstanding
and interest on them ceases to accrue.
A Security does not
cease to be outstanding because the Company or an Affiliate holds the Security.
In determining whether
the Holders of the requisite principal amount of outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, the principal amount of a Discount Security that shall be deemed to be outstanding for such
purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a
declaration of acceleration of the Maturity thereof pursuant to Section 6.02.
SECTION 2.10. Treasury
Securities.
In determining whether
the Holders of the required principal amount of Securities of a Series have concurred in any request, demand, authorization, direction,
notice, consent or waiver Securities of a Series owned by the Company or an Affiliate shall be disregarded, except that for the
purposes of determining whether the Trustee shall be protected in relying on any such request, demand, authorization, direction,
notice, consent or waiver only Securities of a Series that a Responsible Officer of the Trustee actually knows are so owned shall
be so disregarded.
SECTION 2.11. Temporary
Securities.
Until definitive Securities
are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary securities upon a Company Order (“Temporary
Securities”). Temporary Securities shall be substantially in the form of definitive Securities but may have variations that
the Company considers appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee
upon written request shall authenticate definitive Securities of the same Series and date of maturity in exchange for temporary
Securities. Until so exchanged, temporary securities shall have the same rights under this Indenture as the definitive Securities.
SECTION 2.12. Cancellation.
The Company at any
time may deliver Securities to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee
or its agent any Securities surrendered to them for transfer, exchange, payment or conversion. The Trustee and no one else
shall cancel, in accordance with its standard procedures, all Securities surrendered for transfer, exchange, payment, conversion
or cancellation and shall deliver the cancelled Securities to the Company. No Security shall be authenticated in exchange
for any Security cancelled pursuant to this Section 2.12.
The Company may, to
the extent permitted by law, purchase Securities in the open market or by tender offer at any price or by private agreement. Any
Securities purchased or otherwise acquired by the Company or any of its Subsidiaries prior to the final maturity of such Securities
may, to the extent permitted by law, be reissued or resold or may, at the option of the Company, be surrendered to the Trustee
for cancellation. Any Securities surrendered for cancellation may not be reissued or resold and shall be promptly cancelled
by the Trustee, and the Company may not hold or resell such Securities or issue any new Securities to replace any such Securities.
SECTION 2.13. Defaulted
Interest.
If the Company defaults
in a payment of interest on a Series of Securities, it shall pay defaulted interest, plus, to the extent permitted by law, any
interest payable on the defaulted interest at the Default Rate, to the persons who are Security holders of the Series on a subsequent
special record date. The Company shall fix the record date and payment date. At least [ ] days before the
record date, the Company shall mail to the Trustee and the Paying Agent and to each Securityholder of the Series a notice that
states the record date, the payment date and the amount of interest to be paid. The Company may pay defaulted interest in any other
lawful manner.
SECTION 2.14. Global
Securities.
(a)
A Board Resolution, a supplemental indenture hereto or an Officers' Certificate shall establish whether the Securities of
a Series shall be issued in whole or in part in the form of one or more Global Securities and the Depository for such Global Security
or Securities.
(b) (i) Notwithstanding
any provisions to the contrary contained in Section 2.07 of the Indenture and in addition thereto, any Global Security
shall be exchangeable pursuant to Section 2.07 of the Indenture for Securities registered in the names of Holders other
than the Depository for such Security or its nominee only if (A) such Depository notifies the Company that it is
unwilling or unable to continue as Depository for such Global Security or if at any time such Depository ceases to be a
clearing agency registered under the Exchange Act, and, in either case, the Company fails to appoint a successor Depository
within 90 days of such event, (B) the Company executes and delivers to the Trustee an Officers' Certificate to the
effect that such Global Security shall be so exchangeable or (C) an Event of Default with respect to the Securities
represented by such Global Security shall have happened and be continuing.
(ii)
Except as provided in this Section 2.14(b), a Global Security may not be transferred except as a whole by the Depository
with respect to such Global Security to a nominee of such Depository, by a nominee of such Depository to such Depository or another
nominee of such Depository or by the Depository or any such nominee to a successor Depository or a nominee of such a successor
Depository.
(iii)
Securities issued in exchange for a Global Security or any portion thereof shall be issued in definitive, fully registered
form, without interest coupons, shall have an aggregate principal amount equal to that of such Global Security or portion thereof
to be so exchanged, shall be registered in such names and be in such authorized denominations as the Depository shall designate
and shall bear the applicable legends provided for herein. Any Global Security to be exchanged in whole shall be surrendered
by the Depository to the Trustee, as Registrar. With regard to any Global Security to be exchanged in part, either such Global
Security shall be so surrendered for exchange or, if the Registrar is acting as custodian for the Depository or its nominee with
respect to such Global Security, the principal amount thereof shall be reduced by an amount equal to the portion thereof to be
so exchanged, by means of an appropriate adjustment made on the records of the Trustee. Upon any such surrender or adjustment,
the Trustee shall authenticate and deliver the Security issuable on such exchange to or upon the order of the Depository or an
authorized representative thereof.
(iv)
The registered Holder may grant proxies and otherwise authorize any Person, including participants in the Depository and
persons that may hold interests through participants in the Depository, to take any action which a Holder is entitled to take under
this Indenture or the Securities.
(v)
In the event of the occurrence of any of the events specified in 2.14(b)(i), the Company will promptly make available to
the Trustee a reasonable supply of Certificated Securities in definitive, fully registered form, without interest coupons. If
(A) an event described in Section 2.14(b)(i)(A) or (B) occurs and definitive Certificated Securities are not
issued promptly to all beneficial owners or (B) the Registrar receives from a beneficial owner instructions to obtain definitive
Certificated Securities due to an event described in Section 2.14(b)(i)(C) and definitive Certificated Securities are
not issued promptly to any such beneficial owner, the Company expressly acknowledges, with respect to the right of any Holder to
pursue a remedy pursuant to Section 6.07 hereof, the right of any beneficial owner of Securities to pursue such remedy with
respect to the portion of the Global Security that represents such beneficial owner's Securities as if such definitive certificated
Securities had been issued.
(vi)
Notwithstanding any provision to the contrary in this Indenture, so long as a Global Security remains outstanding and is
held by or on behalf of the Depository, transfers of a Global Security, in whole or in part, or of any beneficial interest therein,
shall only be made in accordance with Section 2.07, this Section 2.14(b) and the rules and procedures of the Depository
for such Global Security to the extent applicable to such transaction and as in effect from time to time.
(c)
Any Global Security issued hereunder shall bear a legend in substantially the following form:
“This Security
is a Global Security within the meaning of the Indenture hereinafter referred to and is registered in the name of the Depository
or a nominee of the Depository. This Security is exchangeable for Securities registered in the name of a person other than the
Depository or its nominee only in the limited circumstances described in the Indenture, and may not be transferred except as a
whole by the Depository to a nominee of the Depository, by a nominee of the Depository to the Depository or another nominee of
the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such a successor Depository.”
(d)
The Depository, as a Holder, may appoint agents and otherwise authorize participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a Holder is entitled to give or take under the Indenture.
(e)
Notwithstanding the other provisions of this Indenture, unless otherwise specified as contemplated by Section 2.02,
payment of the principal of and interest, if any, on any Global Security shall be made to the Holder thereof at their registered
office.
(f)
At all times the Securities are held in book-entry form with a Depository, (i) the Trustee may deal with such Depository
as the authorized representative of the Holders, (ii) the rights of the Holders shall be exercised only through the Depository
and shall be limited to those established by law and agreement between the Holders and the Depository and/or direct participants
of the Depository, (iii) the Depository will make book-entry transfers among the direct participants of the Depository and
will receive and transmit distributions of principal and interest on the Securities to such direct participants; and (iv) the
direct participants of the Depository shall have no rights under this Indenture, or any supplement hereto, under or with respect
to any of the Securities held on their behalf by the Depository, and the Depository may be treated by the Trustee and its agents,
employees, officers and directors as the absolute owner of the Securities for all purposes whatsoever.
SECTION 2.15. CUSIP
Numbers.
The Company in issuing
the Securities may use “CUSIP”, “CCN”, “ISIN” or other identification numbers (if then generally
in use), and, if so, the Trustee shall use “CUSIP”, “CCN”, “ISIN” or such other identification
numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and
that reliance may be placed only on the other elements of identification printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers.
ARTICLE III.
REDEMPTION
SECTION 3.01. Notice
to Trustee.
The Company may, with
respect to any series of Securities, reserve the right to redeem and pay the Series of Securities or may covenant to redeem and
pay the Series of Securities or any part thereof prior to the Stated Maturity thereof at such time and on such terms as provided
for in such Securities. If a Series of Securities is redeemable and the Company wants or is obligated to redeem prior to the Stated
Maturity thereof all or part of the Series of Securities pursuant to the terms of such Securities, it shall notify the Trustee
and Registrar in writing of the redemption date and the principal amount of Series of Securities to be redeemed. The Company shall
give the notice at least [ ] days before the redemption date (or such shorter notice as may be acceptable
to the Trustee and Registrar).
SECTION 3.02. Selection
of Securities to be Redeemed.
Unless otherwise indicated
for a particular Series by a Board Resolution, a supplemental indenture or an Officers' Certificate, if less than all the Securities
of a Series are to be redeemed, the Registrar shall select the Securities of the Series to be redeemed in accordance with its customary
procedures. The Registrar shall make the selection from Securities of the Series outstanding not previously called for redemption.
The Registrar may select for redemption portions of the principal of Securities of the Series that have denominations larger than
$1,000. Securities of the Series and portions of them it selects shall be in amounts of $1,000 or whole multiples of $1,000 or,
with respect to Securities of any Series issuable in other denominations pursuant to Section 2.02(g), the minimum principal
denomination for each Series and integral multiples thereof. Provisions of this Indenture that apply to Securities of a Series
called for redemption also apply to portions of Securities of that Series called for redemption.
SECTION 3.03. Notice
of Redemption.
Unless otherwise indicated
for a particular Series by Board Resolution, a supplemental indenture hereto or an Officers' Certificate, at least [ ]
days but not more than [ ] days before a redemption date, the Company shall mail a notice of redemption
by first-class mail to each Holder whose Securities are to be redeemed.
The notice shall identify
the Securities of the Series to be redeemed and shall state:
(a)
the redemption date;
(b)
the redemption price;
(c)
the name and address of the Paying Agent;
(d)
that Securities of the Series called for redemption must be surrendered to the Paying Agent to collect the redemption price;
(e)
that interest on Securities of the Series called for redemption ceases to accrue on and after the redemption date; and
(f)
any other information as may be required by the terms of the particular Series or the Securities of a Series being redeemed.
At the Company's written
request, the Trustee shall distribute the notice of redemption prepared by the Company in the Company's name and at its expense.
SECTION 3.04. Effect
of Notice of Redemption.
Once notice of redemption
is mailed or published as provided in Section 3.03, Securities of a Series called for redemption become due and payable on
the redemption date and at the redemption price. A notice of redemption may not be conditional. Upon surrender to the Paying Agent,
such Securities shall be paid at the redemption price plus accrued interest to the redemption date.
SECTION 3.05. Deposit
of Redemption Price.
On or before the redemption
date, the Company shall deposit with the Paying Agent money sufficient to pay the redemption price of and accrued interest, if
any, on all Securities to be redeemed on that date.
SECTION 3.06. Securities
Redeemed in Part.
Upon surrender of a
Security that is redeemed in part, the Trustee shall authenticate for the Holder a new Security of the same Series and the same
maturity equal in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE IV.
COVENANTS
SECTION 4.01. Payment
of Principal and Interest.
The Company covenants
and agrees for the benefit of the Holders of each Series of Securities that it will duly and punctually pay the principal of and
interest, if any, on the Securities of that Series in accordance with the terms of such Securities and this Indenture.
Unless otherwise provided
under the terms of a particular Series of Securities:
(a)
an installment of principal or interest shall be considered paid on the date it is due if the Paying Agent (other than
the Company) holds by [ ] [a].m.,
New York City time, on that date money, deposited by the Company or an Affiliate thereof, sufficient to pay such installment. The
Company shall (in immediately available funds), to the fullest extent permitted by law, pay interest on overdue principal and overdue
installments of interest at the rate borne by the Securities per annum; and
(b)
payment of the principal of and interest on the Securities shall be made at the office or agency of the Company maintained
for that purpose in [ ] (which shall
initially be [ ], the Paying Agent)
in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private
debts; provided, however, that at the option of the Company payment of interest may be made by check mailed to the address
of the Person entitled thereto as such address appears in the register; provided, further, that a Holder with an aggregate
principal amount in excess of $[ ] will be paid by wire transfer in immediately
available funds at the election of such Holder if such Holder has provided wire transfer instructions to the Company at least [ ]
Business Days prior to the payment date.
SECTION 4.02. SEC
Reports.
So long as any Securities
are outstanding, the Company shall (i) file with the SEC within the time periods prescribed by its rules and regulations
and (ii) furnish to the Trustee and the Holders of the Securities within [ ] days after the date on
which the Company would be required to file the same with the SEC pursuant to its rules and regulations (giving effect to
any grace period provided by Rule 12b-25 under the Exchange Act), all quarterly and annual financial information required
to be furnished or filed with the SEC pursuant to Section 13 and Section 15(d) of the Exchange Act and, with respect
to the annual consolidated financial statements only, a report thereon by the Company's independent auditors. The Company also
shall comply with the other provisions of TIA Section 314(a).
Delivery of such reports,
information and documents to the Trustee is for informational purposes only, and the Trustee's receipt of such shall not constitute
constructive notice of any information contained therein or determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers' Certificates). The
Company shall not be required to file any report or other information with the SEC if the SEC does not permit such filing, although
such reports shall be furnished to the Trustee. Documents filed by the Company with the SEC via the SEC's EDGAR system (or
any successor thereto) will be deemed furnished to the Trustee and the Holders of the Securities as of the time such documents
are filed via EDGAR (or such successor).
SECTION 4.03. Compliance
Certificate.
The Company shall deliver
to the Trustee, within [ ] days after the end of each fiscal year of the Company, an officers certificate
signed by two of the Company's officers stating that a review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Company
has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his knowledge the Company has kept, observed, performed and fulfilled each and every
covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and
conditions hereof (or, if a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default
of which he may have knowledge in reasonable detail and the efforts to remedy the same). For purposes of this Section 4.03,
compliance shall be determined without regard to any grace period or requirement of notice provided pursuant to the terms of this
Indenture.
The Company shall deliver
to the Trustee, within [ ] days after the occurrence thereof, written notice in the form of an Officers'
Certificate of any Event of Default described in Section 6.01(e), (f), (g) or (h) and any event of which it becomes
aware that with the giving of notice or the lapse of time would become such an Event of Default, its status and what action the
Company is taking or proposes to take with respect thereto. For the avoidance of doubt, a breach of a covenant under an Instrument
that is not a payment default and that has not given rise to a right of acceleration under such Instrument shall not trigger the
requirement to provide notice under this paragraph.
SECTION 4.04. Stay,
Extension and Usury Laws.
The Company covenants
(to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture or the Securities; and the Company (to the extent it may lawfully
do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not, by resort to any such law,
hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law has been enacted.
SECTION 4.05. Corporate
Existence.
Subject to Article
V, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence
and the corporate, partnership or other existence of each Subsidiary in accordance with the respective organizational documents
of each Subsidiary and the rights (charter and statutory), licenses and franchises of the Company and its Subsidiaries; provided,
however, that the Company shall not be required to preserve any such right, license or franchise, or the corporate, partnership
or other existence of any Subsidiary, if the Board of Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and its Subsidiaries taken as a whole and that the loss thereof is not adverse in
any material respect to the Holders.
SECTION 4.06. Taxes.
The Company shall,
and shall cause each of its Subsidiaries to, pay prior to delinquency all taxes, assessments and governmental levies, except as
contested in good faith and by appropriate proceedings.
SECTION 4.07. Additional
Interest Notice.
In the event that the
Company is required to pay additional interest to Holders of Securities pursuant to Section 6.02(b) hereof, the Company
shall provide a direction or order in the form of a written notice to the Trustee (and if the Trustee is not the Paying Agent,
the Paying Agent) of the Company's obligation to pay such additional interest no later than [ ] Business
Days prior to date on which any such additional interest is scheduled to be paid. Such notice shall set forth the amount of
additional interest to be paid by the Company on such payment date and direct the Trustee (or, if the Trustee is not the Paying
Agent, the Paying Agent) to make payment to the extent it receives funds from the Company to do so. The Trustee shall not
at any time be under any duty or responsibility to any Holder to determine whether additional interest is payable, or with respect
to the nature, extent, or calculation of the amount of additional interest owed, or with respect to the method employed in such
calculation of additional interest.
SECTION 4.08. Further
Instruments and Acts.
The Company will execute
and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively
the purposes of this Indenture.
ARTICLE V.
SUCCESSORS
SECTION 5.01. When
Company May Merge, etc.
The Company shall not
consolidate with, enter into a binding share exchange, or merge into any other Person in a transaction in which it is not the surviving
entity, or sell, assign, convey, transfer or lease or otherwise dispose of all or substantially all of its properties and assets
to any Person (a “successor person”), unless:
(a) the
successor person (if any) is a corporation, partnership, trust or other entity organized and validly existing under the laws
of the Republic of the Marshall Islands,
[ ],
the United States, any state of the United States or the District of Columbia and expressly assumes by a supplemental
indenture executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the
principal of, and any interest on, all Securities and the performance or observance of every covenant of this Indenture on
the part of the Company to be performed or observed;
(b)
immediately after giving effect to the transaction, no Default or Event of Default, shall have occurred and be continuing;
and
(c)
the Company shall have delivered to the Trustee, prior to the consummation of the proposed transaction, an Officers' Certificate
to the foregoing effect and an Opinion of Counsel stating that the proposed transaction and such supplemental indenture comply
with this Indenture.
SECTION 5.02. Successor
Corporation Substituted.
Upon any consolidation
or merger, or any sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company in accordance
with Section 5.01, the successor person formed by such consolidation or into or with which the Company is merged or to which
such sale, lease, conveyance or other disposition is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such successor person has been named as the Company herein;
provided, however, that the predecessor company in the case of a sale, lease, conveyance or other disposition of all or substantially
all of the assets of the Company shall not be released from the obligation to pay the principal of and interest, if any, on the
Securities.
ARTICLE VI.
DEFAULTS AND REMEDIES
SECTION 6.01. Events
of Default.
“Event of Default,”
wherever used herein with respect to securities of any Series, means any one of the following events, unless in the establishing
Board Resolution, supplemental indenture or Officers' Certificate, it is provided that such Series shall not have the benefit of
said Event of Default:
(a)
default in the payment of any interest on any Security of that Series when it becomes due and payable, and continuance of
such default for a period of 30 days (unless the entire amount of such payment is deposited by the Company with the Trustee or
with a Paying Agent prior to the expiration of such period of 30 days); or
(b)
default in the payment of any principal of any Security of that Series at its Maturity; or
(c)
default in the deposit of any sinking fund payment, when and as due in respect of any Security of that Series; or
(d)
the Company fails to perform or comply with any of its other covenants or agreements contained in the Securities or in this
Indenture (other than a covenant or agreement a default in whose performance or whose breach is specifically dealt with in clauses
(a), (b) or (c) of this Section 6.01) and the default continues for 60 days after notice is given as specified below;
(e) any
indebtedness under any bond, debenture, note or other evidence of indebtedness for money borrowed by the Company or any
Subsidiary or under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or
evidenced any indebtedness for money borrowed by, or any other payment obligation of, the Company or any Subsidiary (an
“Instrument”) with a principal amount then, individually or in the aggregate, outstanding in excess of
$[ ], whether such indebtedness now exists or shall hereafter be created, is
not paid at Maturity or when otherwise due or is accelerated, and such indebtedness is not discharged, or such default in
payment or acceleration is not cured or rescinded, within a period of 30 days after there shall have been given, by
registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least [ ]%
in aggregate principal amount of the outstanding Securities of that Series a written notice specifying such default and
requiring the Company to cause such indebtedness to be discharged or cause such default to be cured or waived or such
acceleration to be rescinded or annulled and stating that such notice is a “Notice of Default” hereunder. A
payment obligation (other than indebtedness under any bond, debenture, note or other evidence of indebtedness for money
borrowed by the Company or any Subsidiary or under any mortgage, indenture or instrument under which there may be issued or
by which there may be secured or evidenced any indebtedness for money borrowed by the Company or any Subsidiary) shall not be
deemed to have matured, come due, or been accelerated to the extent that it is being disputed by the relevant obligor or
obligors in good faith. For the avoidance of doubt, the Maturity of an Instrument is the Maturity as set forth in that
Instrument, as it may be amended from time to time in accordance with the terms of that Instrument;
(f)
the Company or any Subsidiary fails to pay one or more final and non-appealable judgments entered by a court or courts of
competent jurisdiction, the aggregate uninsured or unbonded portion of which is in excess of $[ ],
if the judgments are not paid, discharged, waived or stayed within [ ] days;
(g)
the Company or any Subsidiary of the Company, pursuant to or within the meaning of any Bankruptcy Law:
(i)
commences a voluntary case or proceeding;
(ii)
consents to the entry of an order for relief against it in an involuntary case or proceeding;
(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
(v)
or generally is unable to pay its debts as the same become due; or
(h)
a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i)
is for relief against the Company or any of its Subsidiaries in an involuntary case or proceeding;
(i)
appoints a Custodian of the Company or any of its Subsidiaries for all or substantially all of the property of the Company
or any such Subsidiary; or
(ii)
orders the liquidation of the Company or any of its Subsidiaries;
and the case of each of clause
(i), (ii) and (iii), the order or decree remains unstayed and in effect for [ ] consecutive days; or
(iii) any
other Event of Default provided with respect to Securities of that Series, which is specified in a Board Resolution, a supplemental
indenture hereto or an Officers' Certificate, in accordance with Section 2.02(i).
A default under clause
(d) above is not an Event of Default until the Trustee notifies the Company, or the Holders of at least [ ]%
in aggregate principal amount of the Securities then outstanding notify the Company and the Trustee, in writing of the default,
and the Company does not cure the default within 60 days after receipt of such notice. The notice given pursuant to this Section 6.01
must specify the default, demand that it be remedied and state that the notice is a “Notice of Default.” When
any default under this Section 6.01 is cured, it ceases.
The Trustee shall not
be charged with knowledge of any Event of Default unless written notice thereof shall have been given to a Trust Officer at the
Corporate Trust Office of the Trustee by the Company, a Paying Agent, any Holder or any agent of any Holder.
SECTION 6.02. Acceleration
of Maturity; Rescission and Annulment.
(a)
If an Event of Default (other than an Event of Default specified in clause (g) or (h) of Section 6.01) occurs
and is continuing with respect to any Securities of any Series, then in every such case, the Trustee may, by notice to the Company,
or the Holders of at least 25% in aggregate principal amount of the Securities of that Series (or, if any Securities of that Series
are Discount Securities, such portion of the principal amount as may be specified in the terms of such Securities) then outstanding
may, by notice to the Company and the Trustee, declare all unpaid principal of, and accrued and unpaid interest on to the date
of acceleration, the Securities of that Series then outstanding (if not then due and payable) to be due and payable upon any such
declaration, and the same shall become and be immediately due and payable. If an Event of Default specified in clause (g) or
(h) of Section 6.01 occurs, all unpaid principal of the Securities then outstanding, and all accrued and unpaid interest
thereon to the date of acceleration, shall ipso facto become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any Holder. The Holders of a majority in aggregate principal amount of the Securities of
that Series then outstanding by notice to the Trustee may rescind an acceleration of such Securities of that Series and its consequences
if (a) all existing Events of Default, other than the nonpayment of the principal of the Securities which has become due solely
by such declaration of acceleration, have been cured or waived; (b) to the extent the payment of such interest is lawful,
interest (calculated at the Default Rate) on overdue installments of interest and overdue principal, which has become due otherwise
than by such declaration of acceleration, has been paid; (c) the rescission would not conflict with any judgment or decree
of a court of competent jurisdiction; and (d) all payments due to the Trustee and any predecessor Trustee under Section 7.07
have been made. No such rescission shall affect any subsequent default or impair any right consequent thereto.
(b)
Notwithstanding any of provision of this Article 6, at the election of the Company in its sole discretion, the sole
remedy under this Indenture for an Event of Default relating to the failure to comply with Section 4.02, and for any failure
to comply with the requirements of Section 314(a)(1) of the TIA, will consist, for the 180 days after the occurrence
of such an Event of Default, exclusively of the right to receive additional interest on the Securities at a rate equal to 0.50% per
annum of the aggregate principal amount of the Securities then outstanding up to, but not including, the 181st day thereafter (or,
if applicable, the earlier date on which the Event of Default relating to Section 4.02 is cured or waived). Any such
additional interest will be payable in the same manner and on the same dates as the stated interest payable on the Securities. In
no event shall additional interest accrue under the terms of this Indenture at a rate in excess of 0.50% per annum, in the
aggregate, for any violation or default caused by the failure of the Company to be current in respect of its Exchange Act reporting
obligations. If the Event of Default is continuing on the 181st day after an Event of Default relating to a failure to comply
with Section 4.02, the Securities will be subject to acceleration as provided in this Section 6.02. The provisions
of this Section 6.02(b) will not affect the rights of Holders in the event of the occurrence of any other Events of Default.
In order to elect to
pay additional interest as the sole remedy during the first 180 days after the occurrence of an Event of Default relating to the
failure to comply with Section 4.02 in accordance with the immediately preceding paragraph, the Company shall notify all Holders
and the Trustee and Paying Agent of such election on or before the close of business on the fifth Business Day after the date on
which such Event of Default otherwise would occur. Upon a failure by the Company to timely give such notice or pay additional
interest, the Securities will be immediately subject to acceleration as otherwise provided in this Section 6.02.
SECTION 6.03. Collection
of Indebtedness and Suits for Enforcement by Trustee.
If an Event of Default
with respect to any Securities of any Series occurs and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such Series by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
If an Event of
Default in the payment of principal, interest, if any, specified in clause (a) or (b) of Section 6.01 occurs
and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Company or
another obligor on the Securities for the whole amount of principal, and accrued interest remaining unpaid, if any, together
with, to the extent that payment of such interest is lawful, interest on overdue principal, on overdue installments of
interest, if any, in each case at the Default Rate, and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.
SECTION 6.04. Trustee
May File Proofs of Claim.
In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor
or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for
the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(a)
to file and prove a claim for the whole amount of principal and interest owing and unpaid in respect of the Securities and
to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the
Holders allowed in such judicial proceeding, and
(b)
to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding
is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07.
Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.05. Trustee
May Enforce Claims Without Possession of Securities.
All rights of action
and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment
of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable
benefit of the Holders of the Securities in respect of which such judgment has been recovered.
SECTION 6.06. Application
of Money Collected.
Any money collected
by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if fully paid: and
First: To the
payment of all amounts due the Trustee under Section 7.07;
Second: To the
payment of the amounts then due and unpaid for principal of and interest on the Securities in respect of which or for the benefit
of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable
on such Securities for principal and interest, respectively; and
Third: To the
Company.
SECTION 6.07. Limitation
on Suits.
No Holder of any Security
of any Series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder (except actions for payment of overdue principal and interest),
unless:
(a)
such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities
of that Series;
(b)
the Holders of not less than [ ]% in principal amount of the outstanding Securities of that Series
shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(c)
such Holder or Holders have offered to the Trustee indemnity satisfactory to it against the costs, expenses and liabilities
to be incurred in compliance with such request;
(d)
the Trustee for [ ] days after its receipt of such notice, request and offer of indemnity has failed
to institute any such proceeding; and
(e)
no direction inconsistent with such written request has been given to the Trustee during such [ ]-day
period by the Holders of a majority in principal amount of the outstanding Securities of that Series; it being understood and intended
that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority
or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all such Holders.
SECTION 6.08. Unconditional
Right of Holders to Receive Principal and Interest.
Notwithstanding any
other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and interest, if any, on such Security on the Stated Maturity or Stated Maturities expressed in such
Security (or, in the case of redemption, on the redemption date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
SECTION 6.09. Restoration
of Rights and Remedies.
If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject
to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively
to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 6.10. Rights
and Remedies Cumulative.
Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in Section 2.08, no
right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right
or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
SECTION 6.11. Delay
or Omission Not Waiver.
No delay or omission
of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy
given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 6.12. Control
by Holders.
The Holders of a majority
in principal amount of the outstanding Securities of any Series shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect
to the Securities of such Series, provided that
(a)
such direction shall not be in conflict with any rule of law or with this Indenture,
(b)
the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction; and
(c)
subject to the provisions of Section 6.01, the Trustee shall have the right to decline to follow any such direction
if the Trustee in good faith shall, by a Responsible Officer of the Trustee, determine that the proceeding so directed would involve
the Trustee in personal liability or would be unduly prejudicial to the rights of another Holder or the Trustee.
SECTION 6.13. Waiver
of Past Defaults.
Subject to Section 9.02,
the Holders of not less than a majority in principal amount of the outstanding Securities of any Series may on behalf of the Holders
of all the Securities of such Series waive any past Default hereunder with respect to such Series and its consequences, except
a Default in the payment of the principal of or interest on any Security of such Series (provided, however, that the Holders of
a majority in principal amount of the outstanding Securities of any Series may rescind an acceleration and its consequences, including
any related payment default that resulted from such acceleration). Upon any such waiver, such Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver
shall extend to any subsequent or other Default or impair any right consequent thereon.
SECTION 6.14. Undertaking
for Costs.
All parties to this
Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the
Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking
to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Company, to any suit instituted
by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than [ ]%
in principal amount of the outstanding Securities of any Series, or to any suit instituted by any Holder for the enforcement of
the payment of the principal of or interest on any Security on or after the Stated Maturity or Stated Maturities expressed in such
Security (or, in the case of redemption, on the redemption date).
ARTICLE VII.
TRUSTEE
SECTION 7.01. Duties
of Trustee.
(a)
If an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by
this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs.
(b)
Except during the continuance of an Event of Default:
(i)
The Trustee need perform only those duties that are specifically set forth in this Indenture and no implied duties, covenants
or obligations shall be deemed to be imposed upon the Trustee.
(ii)
in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon Officers' Certificates or Opinions of Counsel furnished to the Trustee and conforming to
the requirements of this Indenture; however, in the case of any such Officers' Certificates or Opinions of Counsel which by any
provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such Officers' Certificates
and Opinions of Counsel to determine whether or not they conform on their face to the requirements of this Indenture.
(c)
The Trustee may not be relieved from liability for its own its own negligent action, its own negligent failure to act or
willful misconduct, except that:
(i)
This paragraph does not limit the effect of paragraph (b) of Section 7.01 herein.
(ii)
The Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer.
(iii)
The Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it with respect to
Securities of any Series in good faith in accordance with the direction of the Holders of a majority in principal amount of the
outstanding Securities of such Series relating to the time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities
of such Series.
(d)
Every provision of this Indenture that in any way relates to the Trustee is subject to paragraph (a), (b) and (c) of
this Section.
(e) The Trustee may refuse to perform any duty or exercise any right or power unless it receives an indemnity satisfactory to
it against any loss, liability or expense.
(f) The
Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
(g)
No provision of this Indenture shall require the Trustee to risk or expend its own funds or otherwise incur liability, financial
or otherwise, in the performance of any of its duties, or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk is not reasonably assured
to it.
(h)
The Paying Agent, the Registrar and any authenticating agent shall be entitled to the same rights, indemnities, protections
and immunities afforded to the Trustee.
(i) The
Trustee shall have no duty to monitor the performance or compliance of the Company with its obligations hereunder or any
under supplement hereto, nor shall it have any liability in connection with the malfeasance or nonfeasance by the Company.
The Trustee shall have no liability in connection with compliance by the Company with statutory or regulatory requirements
related to this Indenture, any supplement or any Securities issued pursuant hereto or thereto.
SECTION 7.02. Rights
of Trustee.
(a)
The Trustee may conclusively rely on and shall be fully protected in acting or refraining from acting as a result of its
reasonable belief that any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, direction,
approval or other paper or document was genuine and had been signed or presented by the proper person. The Trustee need not investigate
any fact or matter stated in the document, but the Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it sees fit.
(b)
Before the Trustee acts or refrains from acting, it may require an Officers' Certificate or an Opinion of Counsel or both.
The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers' Certificate
or Opinion of Counsel.
(c)
The Trustee may act through agents and shall not be responsible for the misconduct or negligence of, or for the supervision
of, any agent appointed with due care. No Depository shall be deemed an agent of the Trustee and the Trustee shall not be responsible
for any act or omission by any Depository.
(d)
The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized
or within its rights or powers.
(e)
The Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon.
(f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by or pursuant to this Indenture
at the request, order or direction of any of the Holders of Securities, unless such Holders shall have offered to the Trustee reasonable
security or indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction.
SECTION 7.03. Individual
Rights of Trustee.
The Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities and may otherwise deal with the Company or an Affiliate
with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. The Trustee is also subject
to Sections 7.10 and 7.11.
SECTION 7.04. Trustee's
Disclaimer.
The Trustee makes no
representation as to the validity or adequacy of this Indenture or the Securities and the recitals contained herein and in the
Securities shall be taken as statements of the Company and not of the Trustee, and the Trustee has no responsibility for such recitals.
The Trustee shall not be accountable for the Company's use or application of the proceeds from the Securities or for monies paid
over to the Company pursuant to this Indenture, and it shall not be responsible for any statement in the Securities other than
its authentication.
SECTION 7.05. Notice
of Defaults.
If a Default or
Event of Default occurs and is continuing with respect to the Securities of any Series and if a Responsible Officer of the
Trustee has knowledge or receives written notice of such event, the Trustee shall mail to each Securityholder of the
Securities of that Series, notice of a Default or Event of Default within [ ] days after it occurs or,
if later, after a Responsible Officer of the Trustee has actual knowledge of such Default or Event of Default. Except in the
case of a Default or Event of Default in payment of principal of or interest on any Security of any Series, including any
additional interest that may become payable pursuant to Section 6.02(b), the Trustee may withhold the notice so long as
the Trustee in good faith determines that withholding the notice is in the interests of Securityholders of that Series.
SECTION 7.06. Reports
by Trustee to Holders.
Within [ ]
days after [ ] in each year, the Trustee shall transmit
by mail to all Securityholders, as their names and addresses appear on the register kept by the Registrar, a brief report dated
as of such [ ], in accordance with, and to the extent required
under, TIA Section 313.
A copy of each report
at the time of its mailing to Securityholders of any Series shall be filed with the SEC and each stock exchange on which the Securities
of that Series are listed. The Company shall promptly notify the Trustee when Securities of any Series are listed on any stock
exchange.
SECTION 7.07. Compensation
and Indemnity.
The Company shall pay
to the Trustee from time to time such compensation for its services as shall be agreed upon in writing. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses, disbursements and advances incurred by it. Such expenses shall include the reasonable
compensation and expenses of the Trustee's agents, counsel and other persons not regularly in its employ.
The Company shall indemnify,
defend and hold harmless the Trustee and its officers, directors, employees, representatives and agents, from and against and reimburse
the Trustee for any and all claims, expenses, obligations, liabilities, losses, damages, injuries (to person, property, or natural
resources), penalties, stamp or other similar taxes, actions, suits, judgments, reasonable costs and expenses (including reasonable
attorney's and agent's fees and expenses) of whatever kind or nature regardless of their merit, demanded, asserted or claimed against
the Trustee directly or indirectly relating to, or arising from, claims against the Trustee by reason of its participation in the
transactions contemplated hereby, including without limitation all reasonable costs required to be associated with claims for damages
to persons or property, and reasonable attorneys' and consultants' fees and expenses and court costs except to the extent caused
by the Trustee's negligence or willful misconduct. The provisions of this Section 7.07 shall survive the termination of this
Agreement or the earlier resignation or removal of the Trustee. The Company shall defend any claim and the Trustee shall cooperate
in the defense. The Trustee may have separate counsel and the Company shall pay the reasonable fees and expenses of such counsel.
The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld or delayed.
This indemnification shall apply to officers, directors, employees, shareholders and agents of the Trustee.
The Company need not
reimburse any expense or indemnify against any loss liability incurred by the Trustee or by any officer, director, employee, shareholder
or agent of the Trustee through negligence or bad faith.
To secure the Company's
payment obligations in this Section, the Trustee shall have a lien prior to the Securities of any Series on all money or property
held or collected by the Trustee, except that held in trust to pay principal and interest on particular Securities of that Series.
When the Trustee incurs
expenses or renders services after an Event of Default specified in Section 6.01(f) or (g) occurs, the expenses and the
compensation for the services are intended to constitute expenses of administration under any Bankruptcy Law.
SECTION 7.08. Replacement
of Trustee.
A resignation or removal
of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee's acceptance of appointment
as provided in this Section.
The Trustee may
resign with respect to the Securities of one or more Series by so notifying the Company. The Holders of a majority in
principal amount of the Securities of any Series may remove the Trustee with respect to that Series by so notifying the
Trustee and the Company. The Company may remove the Trustee with respect to Securities of one or more Series if:
(a)
the Trustee fails to comply with Section 7.10;
(b)
the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c)
(c) a Custodian or public officer takes charge of the Trustee or its property; or
(d)
the Trustee becomes incapable of acting.
If the Trustee resigns
or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee.
Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding
Securities may appoint a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee
with respect to the Securities of any one or more Series does not take office within [ ] days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of at least [ ]%
in principal amount of the Securities of the applicable Series may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
A successor Trustee
shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Immediately after that, the retiring
Trustee shall transfer all property held by it as Trustee to the successor Trustee subject to the lien provided for in Section 7.07,
and subject to the payment of any and all amounts then due and owing to the retiring Trustee, the resignation or removal of the
retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee
with respect to each Series of Securities for which it is acting as Trustee under this Indenture. A successor Trustee shall mail
a notice of its succession to each Securityholder of each such Series. Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.07 hereof shall continue for the benefit of the retiring trustee
with respect to expenses and liabilities incurred by it prior to such replacement.
SECTION 7.09. Successor
Trustee by Merger, etc.
If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act shall be the successor Trustee with the same effect as if the successor Trustee had
been named as the Trustee herein.
SECTION 7.10. Eligibility;
Disqualification.
This Indenture shall
always have a Trustee who satisfies the requirements of TIA Section 310(a)(1), (2) and (5). The Trustee shall always
have a combined capital and surplus of at least $25,000,000 as set forth in its most recent published annual report of condition.
The Trustee shall comply with TIA Section 310(b).
SECTION 7.11. Preferential
Collection of Claims Against Company.
The Trustee is subject
to TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b). A Trustee who has resigned or
been removed shall be subject to TTA Section 311(a) to the extent indicated.
ARTICLE VIII.
SATISFACTION AND DISCHARGE; DEFEASANCE
SECTION 8.01. Satisfaction
and Discharge of Indenture.
This Indenture shall
upon Company Order cease to be of further effect (except as hereinafter provided in this Section 8.01), and the Trustee, on
the demand of and at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when
(a)
either
(i) all
Securities theretofore authenticated and delivered (other than Securities that have been destroyed, lost or stolen and that have
been replaced or paid) have been delivered to the Trustee for cancellation; or
(ii) all
such Securities not theretofore delivered to the Trustee for cancellation have become due and payable, or
(1)
have become due and payable, or
(2)
will become due and payable at their Stated Maturity within [
], or
(3)
are to be called for redemption within [ ] under
arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense,
of the Company, or
(4)
are deemed paid and discharged pursuant to section 8.03, as applicable; and the Company, in the case of (1), (2) or
(3) above, has deposited or caused to be deposited with the Trustee as trust funds in trust an amount sufficient for the purpose
of paying and discharging the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation,
for principal and interest to the date of such deposit (in the case of Securities which have become due and payable on or prior
to the date of such deposit) or to the Stated Maturity or redemption date, as the case may be;
(b)
the Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(c) the
Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each meeting the applicable requirements
of Sections 10.04 and 10.05 and each stating that all conditions precedent herein relating to the satisfaction and discharge of
this Indenture have been complied with and the Trustee receives written demand from the Company to discharge.
Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 7.07, and, if money
shall have been deposited with the Trustee pursuant to clause (a) of this Section, the provisions of Sections 2.04, 2.07,
2.08, 8.01 8.02 and 8.05 shall survive.
SECTION 8.02. Application
of Trust Funds; Indemnification.
(a) Subject
to the provisions of Section 8.05, all money deposited with the Trustee pursuant to Section 8.01, all money and
U.S. Government Obligations or Foreign Government Obligations deposited with the Trustee pursuant to Section 8.03 or
8.04 and all money received by the Trustee in respect of U.S. Government Obligations or Foreign Government Obligations
deposited with the Trustee pursuant to Section 8.03 or 8.04, shall be held in trust and applied by it, in accordance
with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may determine, to the persons entitled thereto, of the
principal and interest for whose payment such money has been deposited with or received by the Trustee or to make mandatory
sinking fund payments or analogous payments as contemplated by Sections 8.03 or 8.04.
(b) The
Company shall pay and shall indemnify the Trustee and the Agents against any tax, fee or other charge imposed on or assessed against
U.S. Government Obligations or Foreign Government Obligations deposited pursuant to Sections 8.03 or 8.04 or the interest and
principal received in respect of such obligations other than any payable by or on behalf of Holders.
(c) The
Trustee shall, in accordance with the terms of this Indenture, deliver or pay to the Company from time to time, upon Company Request
and at the expense of the Company any U.S. Government Obligations or Foreign Government Obligations or money held by it pursuant
to this Indenture as provided in Sections 8.03 or 8.04 which, in the opinion of a nationally recognized firm of independent certified
public accountants, expressed in a written certification thereof and delivered to the Trustee together with such Company Request,
are then in excess of the amount thereof which then would have been required to be deposited for the purpose for which such U.S.
Government Obligations or Foreign Government Obligations or money were deposited or received. This provision shall not authorize
the sale by the Trustee of any U.S. Government Obligations or Foreign Government Obligations held under this Indenture.
SECTION 8.03. Legal
Defeasance of Securities of any Series.
Unless this Section 8.03
is otherwise specified, pursuant to Section 2.02(s), to be inapplicable to Securities of any Series, the Company shall be
deemed to have paid and discharged the entire indebtedness on all the outstanding Securities of such Series on the [ ]
day after the date of the deposit referred to in subparagraph (d) hereof, and the provisions of this Indenture, as it relates
to such outstanding Securities of such Series, shall no longer be in effect (and the Trustee, at the expense of the company, shall,
at Company Request, execute proper instruments acknowledging the same), except as to:
(a) the
rights of Holders of Securities of such Series to receive, from the trust funds described in subparagraph (d) hereof, (i) payment
of the principal of and each installment of principal of and interest on the outstanding Securities of such Series on the Stated
Maturity of such principal or installment of principal or interest and (ii) the benefit of any mandatory sinking fund payments
applicable to the Securities of such Series on the day on which such payments are due and payable in accordance with the terms
of this Indenture and the Securities of such Series;
(b)
the provisions of Sections 2.04, 2.07, 2.08, 2.14, 8.02, 8.03 and 8.05; and
(c)
the rights, powers, trust and immunities of the Trustee hereunder; provided that, the following conditions shall have been
satisfied:
(d) the
Company shall have deposited or caused to be deposited irrevocably with the Paying Agent as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for and dedicated solely to the benefit of the Holders of such
Securities in the case of Securities of such Series denominated in Dollars, cash in Dollars (or such other money or currencies
as shall then be legal tender in the United States) and/or U.S. Government Obligations, or (ii) in the case of Securities
of such Series denominated in a Foreign Currency (other than a composite currency), money and/or Foreign Government Obligations,
which through the payment of interest and principal in respect thereof, in accordance with their terms, will provide (and without
reinvestment and assuming no tax liability will be imposed on such Paying Agent), not later than [ ] day
before the due date of any payment of money, an amount in cash, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof delivered to the Trustee and the Paying Agent, to
pay and discharge each installment of principal (including mandatory sinking fund or analogous payments) of and interest, if any,
on all the Securities of such Series on the dates such installments of interest or principal are due;
(e) such
deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound;
(f)
no Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the
date of such deposit or during the period ending on the [ ] day after such date;
(g)
the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel to the effect that (i) the
Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii) since the date of
execution of this Indenture, there has been a change in the applicable Federal income tax law, in either case to the effect that,
and based thereon such Opinion of Counsel shall confirm that, the Holders of the Securities of such Series will not recognize income,
gain or loss for Federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to Federal
income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit, defeasance
and discharge had not occurred;
(h)
the Company shall have delivered to the Trustee an Officers' Certificate stating that the deposit was not made by the Company
with the intent of preferring the Holders of the Securities of such Series over any other creditors of the company or with the
intent of defeating, hindering, delaying or defrauding any other creditors of the Company;
(i) such
deposit shall not result in the trust arising from such deposit constituting an investment company (as defined in the Investment
Company Act of 1940, as amended), or such trust shall be qualified under such Act or exempt from regulation thereunder; and
(j) the
Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this Section have been complied with.
SECTION 8.04. Covenant
Defeasance.
Unless this Section 8.04
is otherwise specified pursuant to Section 2.02(s) to be inapplicable to Securities of any Series, on and after the [ ]
day after the date of the deposit referred to in subparagraph (a) hereof, the Company may omit to comply with any term, provision
or condition set forth under Sections 4.02, 4.03, 4.04, 4.05, 4.06, and 5.01 as well as any additional covenants contained in a
supplemental indenture hereto for a particular Series of Securities or a Board Resolution or an Officers' Certificate delivered
pursuant to Section 2.02(s) (and the failure to comply with any such covenants shall not constitute a Default or Event of
Default under Section 6.01) and the occurrence of any event described in clause (e) of Section 6.01 shall not constitute
a Default or Event of Default hereunder, with respect to the Securities of such Series, provided that the following conditions
shall have been satisfied:
(a) With
reference to this Section 8.04, the Company has deposited or caused to be irrevocably deposited (except as provided in Section 8.02(c))
with the Paying Agent as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities (i) in the case of Securities of such Series denominated in Dollars, cash in Dollars (or such
other money or currencies as shall then be legal tender in the United States) and/or U.S. Government Obligations, or (ii) in
the case of Securities of such Series denominated in a Foreign Currency (other than a composite currency), money and/or Foreign
Government Obligations, which through the payment of interest and principal in respect thereof, in accordance with their terms,
will provide (and without reinvestment and assuming no tax liability will be imposed on such Paying Agent), not later than [ ]
day before the due date of any payment of money, an amount in cash, sufficient, in the opinion of a nationally recognized firm
of independent certified public accountants expressed in a written certification thereof delivered to the Paying Agent, to pay
principal and interest, if any, on and any mandatory sinking fund in respect of the Securities of such Series on the dates such
installments of interest or principal are due;
(b) Such
deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound;
(c) No
Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of
such deposit or during the period ending on the [ ] day after such date;
(d) the company shall have delivered to the Trustee an Opinion of Counsel confirming that Holders of the Securities of such
Series will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and defeasance and
will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case
if such deposit and defeasance had not occurred;
(e) the
Company shall have delivered to the Trustee an Officers' Certificate stating the deposit was not made by the Company with the
intent of preferring the Holders of the Securities of such Series over any other creditors of the Company or with the intent of
defeating, hindering, delaying or defrauding any other creditors of the Company; and
(f) The
Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the defeasance contemplated by this Section have been complied with.
SECTION 8.05. Repayment
to Company.
The Paying Agent shall
pay to the Company upon request any money held by them for the payment of principal and interest that remains unclaimed for two
years. After that, Securityholders entitled to the money must look to the Company for payment as general creditors unless an applicable
abandoned property law designates another person and all liability of the Paying Agent with respect to that money shall cease.
ARTICLE IX.
AMENDMENTS AND WAIVERS
SECTION 9.01. Without
Consent of Holders.
The Company and the
Trustee may amend or supplement this Indenture or the Securities of one or more Series without the consent of any Securityholder:
(a) to
cure any ambiguity, defect or inconsistency;
(b) to
comply with Article V;
(c) to
provide for uncertificated Securities in addition to or in place of certificated Securities;
(d) to
make any change that does not adversely affect the rights of any Securityholder;
(e) to
provide for the issuance of and establish the form and terms and conditions of Securities of any Series as permitted by this Indenture;
(f)
to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities
of one or more Series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee;
(g)
to comply with requirements of the TIA and any rules promulgated under the TIA; and
(h) to
add to the covenants of the Company for the equal and ratable benefit of the Holders or to surrender any right, power or option
conferred upon the Company.
Any amendment or supplement
made solely to conform the provisions of this Indenture or the Securities of any Series to the description thereof contained in
the final prospectus relating to such Series will be deemed not to adversely affect the rights of any Holder.
SECTION 9.02. With
Consent of Holders.
The Company and the
Trustee may enter into a supplemental indenture with the written consent of the Holders of at least a majority in principal amount
of the outstanding Securities of all Series affected by such supplemental indenture, taken together as one class (including consents
obtained in connection with a tender offer or exchange offer for the Securities of such Series), for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture
or of modifying in any manner the rights of the Securityholders of each such Series. Except as provided in Section 6.13, the
Holders of at least a majority in principal amount of the outstanding Securities of all Series affected by such waiver by notice
to the Trustee, taken together as one class (including consents obtained in connection with a tender offer or exchange offer for
the Securities of such Series) may waive compliance by the Company with any provision of this Indenture or the Securities with
respect to such Series.
It shall not be necessary
for the consent of the Holders of Securities under this Section 9.02 to approve the particular form of any proposed supplemental
indenture or waiver, but it shall be sufficient if such consent approves the substance thereof. After a supplemental indenture
or waiver under this section becomes effective, the Company shall mail to the Holders of Securities affected thereby a notice briefly
describing the supplemental indenture or waiver. Any failure by the Company to mail or publish such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such supplemental indenture or waiver.
SECTION 9.03. Limitations.
Without the consent
of each Securityholder affected, an amendment or waiver may not:
(a) change
the amount of Securities whose Holders must consent to an amendment, supplement or waiver, except to increase any such amount
or to provide that certain provisions of this Indenture cannot be modified, amended or waived without the consent of the Holder
of each outstanding Security affected thereby;
(b) reduce
the amount of interest, or change the interest payment time, on any Security;
(c) waive
a redemption payment or alter the redemption provisions (other than any alteration that would not materially adversely affect
the legal rights of any Holder under this Indenture) or the price at which the Company is required to offer to purchase the Securities;
(d) reduce
the principal or change the Stated Maturity of any Security or reduce the amount of, or postpone the date fixed for, the payment
of any sinking fund or analogous obligation;
(e) reduce
the principal amount payable of any Security upon Maturity;
(f) waive
a Default or Event of Default in the payment of the principal of or interest, if any, on any Security (except a rescission of
acceleration of the Securities of any Series by the Holders of at least a majority in principal amount of the outstanding Securities
of such Series and a waiver of the payment default that resulted from such acceleration);
(g) change
the place or currency of payment of principal of or interest, if any, on any Security other than that stated in the Security;
(h) impair
the right of any Holder to receive payment of principal or, or interest on, the Securities of such Holder on or after the due
dates therefor;
(i) impair
the right to institute suit for the enforcement of any payment on, or with respect to, any Security;
(j) make
any change in Sections 10.15 or 10.16;
(k) change the ranking of the Securities; or
(l)
make any other change which is specified in a Board Resolution, a supplemental indenture hereto or an Officers' Certificate
as a limitation under this Section.
SECTION 9.04. Compliance
with Trust Indenture Act.
Every amendment to
this Indenture or the Securities of one or more Series shall be set forth in a supplemental indenture hereto that complies with
the TIA as then in effect.
SECTION 9.05. Revocation
and Effect of Consents.
Until an amendment
or waiver becomes effective, a consent to it by a Holder of a Security is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder's Security, even if notation
of the consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent as to his Security
or portion of a Security if the Trustee receives the notice of revocation before the date the amendment or waiver becomes effective.
Any amendment or waiver
once effective shall bind every Securityholder of each Series affected by such amendment or waiver unless it is of the type described
in any of clauses (a) through (g) of Section 9.03 in that case, the amendment or waiver shall bind each Holder of
a Security who has consented to it and every subsequent Holder of a Security or portion of a Security that evidences the same debt
as the consenting Holder's Security.
SECTION 9.06. Notation
on or Exchange of Securities.
If an amendment, supplement
or waiver changes the terms of a Security, the Trustee may require the Holder of the Security to deliver it to the Trustee and
the Trustee may place an appropriate notation on the Security about the changed terms and return it to the Holder. Alternatively,
if the Company or the Trustee so determines, the Company shall issue and the Trustee shall authenticate upon request new Securities
of that Series that reflect the changed terms.
SECTION 9.07. Trustee
Protected.
In executing, or accepting
the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 7.01) shall be fully protected
in relying upon, an Opinion of Counsel or an Officer's Certificate, or both stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee shall sign all supplemental indentures, except that the Trustee need
not sign any supplemental indenture that adversely affects its rights, duties or indemnities.
SECTION 9.08. Effect
of Supplemental Indenture.
Upon the execution
of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and each such supplemental
indenture shall form part of this Indenture for all purposes with respect to the relevant Series; and every Holder of Securities
of the relevant Series theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
ARTICLE X.
MISCELLANEOUS
SECTION 10.01. Trust
Indenture Act Controls.
If any provision of
this Indenture limits, qualifies, or conflicts with another provision which is required or deemed to be included in this Indenture
by the TIA, such required or deemed provision shall control.
SECTION 10.02. Notices.
Any notice or communication
by the Company, the Trustee, the Paying Agent or the Registrar to another is duly given if in writing and delivered in person or
mailed by first-class mail:
if to the Company:
[ ]
[ ]
[ ]
Attn.: [ ]
Fax: [ ]
if to the Trustee:
[ ]
[ ]
[ ]
Attn.: [ ]
Fax: [ ]
if to the Registrar or Paying Agent:
[ ]
[ ]
[ ]
Attn.: [ ]
Fax: [ ]
with copy to:
[ ]
[ ]
[ ]
Attn.: [ ]
Fax: [ ]
The Company, the Trustee
and each Agent by notice to each other may designate additional or different addresses for subsequent notices or communications.
Any notice or communication
to a Securityholder shall be mailed by first-class mail to his address shown on the register kept by the Registrar. Failure to
mail a notice or communication to a Securityholder of any Series or any defect in it shall not affect its sufficiency with respect
to other Securityholders of that or any other Series.
If a notice or communication
is mailed or published in the manner provided above, within the time prescribed, it is duly given, whether or not the Securityholder
receives it.
If the company mails
a notice or communication to Securityholders, it will mail a copy to the Trustee and each Agent at the same time.
Whenever a notice is
required to be given by the Company, such notice may be given by the Trustee or Registrar on the Company's behalf (and the Company
will make any notice it is required to give to Holders available on its website).
SECTION 10.03. Communication
by Holders with Other Holders.
Securityholders of
any Series may communicate pursuant to TIA Section 312(b) with other Securityholders of that Series or any other Series with
respect to their rights under this Indenture or the Securities of that Series or all Series. The Company, the Trustee, the Registrar
and anyone else shall have the protection of TIA Section 312(c).
SECTION 10.04. Certificate
and Opinion as to Conditions Precedent.
Upon any request or
application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:
(a) an
Officers' Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an
Opinion of Counsel stating that, in the opinion of counsel, all such conditions precedent (including any covenants, compliance
with which constitutes a condition precedent) have been complied with.
SECTION 10.05. Statements
Required in Certificate or Opinion.
Each certificate or
opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA Section 314(a)(4)) shall comply with the provisions of TIA Section 314(e) and shall include:
(a) a statement that the person making such certificate or opinion has read such covenant or condition;
(b) (b)
a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(c)
a statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d)
a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
provided, however, that with respect
to matters of fact an Opinion of Counsel may rely on an Officers' Certificate or certificates of public officials.
SECTION 10.06. Record
Date for Vote or Consent of Holders.
The Company (or, in
the event deposits have been made pursuant to Section 11.02, the Trustee) may set a record date for purposes of determining
the identity of Holders entitled to vote or consent to any action by vote or consent authorized or permitted under this Indenture,
which record date shall not be more than [ ] days prior to the date of the commencement of solicitation
of such action. Notwithstanding the provisions of Section 9.05, if a record date is fixed, those persons who were Holders
of Securities at the close of business on such record date (or their duly designated proxies), and only those persons, shall be
entitled to take such action by vote or consent or to revoke any vote or consent previously given, whether or not such persons
continue to be Holders after such record date.
SECTION 10.07. Rules
by Trustee and Agents.
The Trustee may make
reasonable rules for action by or a meeting of Securityholders of one or more Series. Any Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 10.08. Legal
Holidays.
Unless otherwise provided
by Board Resolution, Officers' Certificate or supplemental indenture for a particular Series, a “Legal Holiday” is
any day that is not a Business Day. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place
on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period.
SECTION 10.09. No
Recourse Against Others.
A director, officer,
employee or stockholder, as such, of the Company shall not have any liability for any obligations of the Company under the Securities
or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Securityholder
by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration for the issue
of the Securities.
SECTION 10.10. Counterparts.
This Indenture may
be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall
be deemed to be an original and all of which taken together shall constitute one and the same agreement.
SECTION 10.11. Governing
Laws and Submission to Jurisdiction.
THIS INDENTURE AND
THE SECURITIES SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK EXCLUDING ANY RULE OF LAW THAT WOULD CAUSE THE APPLICATION
OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
The Company agrees
that any legal suit, action or proceeding arising out of or based upon this Indenture may be instituted in any federal or state
court sitting in New York City, and, to the fullest extent permitted by law, waives any objection which it may now or hereafter
have to the laying of venue of any such proceeding, and irrevocably submits to the non-exclusive jurisdiction of such court in
any suit, action or proceeding. The Company, as long as any Securities remain outstanding or the parties hereto have any obligation
under this Indenture, shall have an authorized agent in the United States upon whom process may be served in any such legal action
or proceeding. Service of process upon such agent and written notice of such service mailed or delivered to it shall to the extent
permitted by law be deemed in every respect effective service of process upon it in any such legal action or proceeding and, if
it fails to maintain such agent, any such process or summons may be served by mailing a copy thereof by registered mail, or a form
of mail substantially equivalent thereto, addressed to it at its address as provided for notices hereunder. The Company hereby
appoints Seward & Kissel LLP, One Battery Park Plaza, New York, NY, 10004, as its agent for such purposes, and covenants
and agrees that service of process in any legal action or proceeding may be made upon it at such office of such agent.
SECTION 10.12. No
Adverse Interpretation of Other Agreements.
This Indenture may
not be used to interpret another indenture, loan or debt agreement of the Company or a Subsidiary. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
SECTION 10.13. Successors.
All agreements of the
Company in this Indenture and the Securities shall bind its successor. All agreements of the Trustee in this Indenture shall bind
its successor.
SECTION 10.14. Severability.
In case any provision
in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 10.15. Table
of Contents, Headings, etc.
The Table of Contents,
Cross Reference Table, and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
SECTION 10.16. Securities
in a Foreign Currency or in ECU.
Unless otherwise specified
in a Board Resolution, a supplemental indenture hereto or an Officers' Certificate delivered pursuant to Section 2.02 of this
Indenture with respect to a particular Series of Securities, whenever for purposes of this Indenture any action may be taken by
the Holders of a specified percentage in aggregate principal amount of Securities of all Series or all Series affected by a particular
action at the time outstanding and, at such time, there are outstanding Securities of any Series which are denominated in a coin
or currency other than Dollars (including ECUs), then the principal amount of Securities of such Series which shall be deemed to
be outstanding for the purpose of taking such action shall be that amount of Dollars that could be obtained for such amount at
the Market Exchange Rate at such time. For purposes of this Section 10.16, “Market Exchange Rate” shall mean the
noon Dollar buying rate in New York City for cable transfers of that currency as published by the Federal Reserve Bank of New York;
provided, however, in the case of ECUs, Market Exchange Rate shall mean the rate of exchange determined by the Commission of the
European Union (or any successor thereto) as published in the Official Journal of the European Union (such publication or any successor
publication, the “Journal”). If such Market Exchange Rate is not available for any reason with respect to such currency,
the Trustee shall use, without liability on its part, such quotation of the Federal Reserve Bank of New York or, in the case of
ECUs, the rate of exchange as published in the Journal, as of the most recent available date, or quotations or, in the case of
ECUs, rates of exchange from one or more major banks in The City of New York or in the country of issue of the currency in question
or, in the case of ECUs, in Luxembourg or such other quotations or, in the case of ECUs, rates of exchange as the Trustee, upon
consultation with the Company, shall deem appropriate. The provisions of this paragraph shall apply in determining the equivalent
principal amount in respect of Securities of a Series denominated in currency other than Dollars in connection with any action
taken by Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations
of the Trustee regarding the Market Exchange Rate or any alternative determination provided for in the preceding paragraph shall
be in its sole discretion and shall, in the absence of manifest error, be conclusive to the extent permitted by law for all purposes
and irrevocably binding upon the Company and all Holders.
SECTION 10.17. Judgment
Currency.
The Company agrees,
to the fullest extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment
in any court it is necessary to convert the sum due in respect of the principal of or interest or other amount on the Securities
of any Series (the “Required Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”),
the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in
The City of New York the Required Currency with the Judgment Currency on the day on which final unappealable judgment is entered,
unless such day is not a New York Banking Day, then, the rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the New
York Banking Day preceding the day on which final unappealable judgment is entered and (b) its obligations under this Indenture
to make payments in the Required Currency (i) shall not be discharged or satisfied by any tender, any recovery pursuant to
any judgment (whether or not entered in accordance with subsection (a)), in any currency other than the Required Currency, except
to the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required
Currency expressed to be payable in respect of such payments, (ii) shall be enforceable as an alternative or additional cause
of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short
of the full amount of the Required Currency so expressed to be payable, and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the foregoing, “New York Banking Day” means any
day except a Saturday, Sunday or a legal holiday in The City of New York on which banking institutions are authorized or required
by law, regulation or executive order to close.
SECTION 10.18. Compliance
with Applicable Anti-Terrorism and Money Laundering Regulations.
In order to comply
with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including
those relating to the funding of terrorist activities and money laundering (“Applicable Law”), the Trustee is required
to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with
the Trustee. Accordingly, each of the parties agree to provide to the Trustee, upon its request from time to time such identifying
information and documentation as may be available for such party in order to enable the Trustee to comply with the Applicable Law.
ARTICLE XI.
SINKING FUNDS
SECTION 11.01. Applicability
of Article.
The provisions of this
Article shall be applicable to any sinking fund for the retirement of the Securities of a Series, except as otherwise permitted
or required by any form of Security of such Series issued pursuant to this Indenture.
The minimum amount
of any sinking fund payment provided for by the terms of the Securities of any Series is herein referred to as a “mandatory
sinking fund payment” and any other amount provided for by the terms of Securities of such Series is herein referred to as
an “optional sinking fund payment.” If provided for by the terms of Securities of any Series, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 11.02. Each sinking fund payment shall be applied
to the redemption of Securities of any Series as provided for by the terms of the securities of such Series.
SECTION 11.02. Satisfaction
of Sinking Fund Payments with Securities.
The Company may, in
satisfaction of all or any part of any sinking fund payment with respect to the Securities of any Series to be made pursuant to
the terms of such Securities (1) deliver outstanding Securities of such Series to which such sinking fund payment is applicable
(other than any of such Securities previously called for mandatory sinking fund redemption) and (2) apply as credit Securities
of such Series to which such sinking fund payment is applicable and which have been redeemed either at the election of the Company
pursuant to the terms of such Series of Securities (except pursuant to any mandatory sinking fund) or through the application of
permitted optional sinking fund payments or other optional redemptions pursuant to the terms of such Securities, provided that
such Securities have not been previously so credited. Such Securities shall be received by the Registrar, together with an Officers'
Certificate with respect thereto, not later than [ ] days prior to the date on which the Registrar begins
the process of selecting Securities for redemption, and shall be credited for such purpose by the Registrar at the price specified
in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly. If as a result of the delivery or credit of Securities in lieu of cash payments pursuant to this Section 11.02,
the principal amount of Securities of such Series to be redeemed in order to exhaust the aforesaid cash payment shall be less than
$[ ], the Registrar need not call Securities of such Series for redemption, except
upon receipt of a Company Order that such action be taken, and such cash payment shall be held by the Paying Agent and applied
to the next succeeding sinking fund payment, provided, however, that the Paying Agent shall from time to time upon receipt of a
Company Order pay over and deliver to the Company any cash payment so being held by the Paying Agent upon delivery by the Company
to the Registrar of Securities of that Series purchased by the Company having an unpaid principal amount equal to the cash payment
required to be released to the Company.
SECTION 11.03. Redemption
of Securities for Sinking Fund.
Not less than
[ ] days (unless otherwise indicated in the Board Resolution, supplemental indenture hereto or
Officers' Certificate in respect of a particular Series of Securities) prior to each sinking fund payment date for any Series
of Securities, the Company will deliver to the Trustee and the Paying Agent an Officers' Certificate specifying the amount of
the next ensuing mandatory sinking fund payment for that Series pursuant to the terms of that Series, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and
crediting of Securities of that Series pursuant to Section 11.02., and the optional amount, if any, to be added in cash
to the next ensuing mandatory sinking fund payment, and the Company shall thereupon be obligated to pay the amount therein
specified. Not less than [ ] days (unless otherwise indicated in the Board Resolution, Officers'
Certificate or supplemental indenture in respect of a particular Series of Securities) 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 3.03. Such notice having been duly given, the redemption of such Securities shall stated
in Sections 3.04, 3.05 and 3.06.
[The remainder of this page is intentionally
left blank]
IN WITNESS WHEREOF,
the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.
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GLOBUS MARITIME LIMITED
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By:
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Name:
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Its:
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[ ]
as Trustee
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By:
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Name:
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Its:
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By:
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Name:
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Its:
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[ ]
as Registrar and Paying Agent
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By:
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Name:
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Its:
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By:
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Name:
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Its:
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Exhibit 4.7
GLOBUS MARITIME LIMITED
FORM OF
SUBORDINATED INDENTURE
Dated as of [
], 20[ ]
[
]
Trustee
TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE
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1
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SECTION 1.01. Definitions.
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1
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SECTION 1.02. Other Definitions.
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4
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SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
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4
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SECTION 1.04. Rules of Construction.
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4
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ARTICLE II. THE SECURITIES
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5
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SECTION 2.01. Issuable in Series.
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5
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SECTION 2.02. Establishment of Terms of Series of Securities.
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5
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SECTION 2.03. Execution and Authentication.
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7
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SECTION 2.04. Registrar and Paying Agent.
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8
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SECTION 2.05. Paying Agent to Hold Money in Trust.
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8
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SECTION 2.06. Securityholder Lists.
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8
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SECTION 2.07. Transfer and Exchange.
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8
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SECTION 2.08. Mutilated, Destroyed, Lost and Stolen Securities.
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9
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SECTION 2.09. Outstanding Securities.
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9
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SECTION 2.10. Treasury Securities.
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10
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SECTION 2.11. Temporary Securities.
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10
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SECTION 2.12. Cancellation.
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10
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SECTION 2.13. Defaulted Interest.
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10
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SECTION 2.14. Global Securities.
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10
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SECTION 2.15. CUSIP Numbers.
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12
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ARTICLE III. REDEMPTION
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12
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SECTION 3.01. Notice to Trustee.
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12
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SECTION 3.02. Selection of Securities to be Redeemed.
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12
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SECTION 3.03. Notice of Redemption.
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13
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SECTION 3.04. Effect of Notice of Redemption.
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13
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SECTION 3.05. Deposit of Redemption Price.
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13
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SECTION 3.06. Securities Redeemed in Part.
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13
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ARTICLE IV. COVENANTS
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14
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SECTION 4.01. Payment of Principal and Interest.
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14
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SECTION 4.02. SEC Reports.
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14
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SECTION 4.03. Compliance Certificate.
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14
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SECTION 4.04. Stay, Extension and Usury Laws.
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15
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SECTION 4.05. Corporate Existence.
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15
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SECTION 4.06. Taxes.
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15
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SECTION 4.07. Additional Interest Notice.
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15
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SECTION 4.08. Further Instruments and Acts.
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15
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ARTICLE V. SUCCESSORS
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15
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SECTION 5.01. When Company May Merge, etc.
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15
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SECTION 5.02. Successor Corporation Substituted.
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16
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ARTICLE VI. DEFAULTS AND REMEDIES
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16
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SECTION 6.01. Events of Default.
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16
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SECTION 6.02. Acceleration of Maturity; Rescission and Annulment.
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18
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SECTION 6.03. Collection of Indebtedness and Suits for Enforcement by Trustee.
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18
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SECTION 6.04. Trustee May File Proofs of Claim.
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19
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SECTION 6.05. Trustee May Enforce Claims Without Possession of Securities.
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19
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SECTION 6.06. Application of Money Collected.
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19
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SECTION 6.07. Limitation on Suits.
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20
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SECTION 6.08. Unconditional Right of Holders to Receive Principal and Interest.
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20
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SECTION 6.09. Restoration of Rights and Remedies.
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20
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SECTION 6.10. Rights and Remedies Cumulative.
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20
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SECTION 6.11. Delay or Omission Not Waiver.
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21
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SECTION 6.12. Control by Holders.
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21
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SECTION 6.13. Waiver of Past Defaults.
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21
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SECTION 6.14. Undertaking for Costs.
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21
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ARTICLE VII. TRUSTEE
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22
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SECTION 7.01. Duties of Trustee.
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22
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SECTION 7.02. Rights of Trustee.
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23
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SECTION 7.03. Individual Rights of Trustee.
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23
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SECTION 7.04. Trustee’s Disclaimer.
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23
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SECTION 7.05. Notice of Defaults.
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23
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SECTION 7.06. Reports by Trustee to Holders.
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24
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SECTION 7.07. Compensation and Indemnity.
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24
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SECTION 7.08. Replacement of Trustee.
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24
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SECTION 7.09. Successor Trustee by Merger, etc.
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25
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SECTION 7.10. Eligibility; Disqualification.
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25
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SECTION 7.11. Preferential Collection of Claims Against Company.
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25
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ARTICLE VIII. SATISFACTION AND DISCHARGE; DEFEASANCE
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26
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SECTION 8.01. Satisfaction and Discharge of Indenture.
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26
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SECTION 8.02. Application of Trust Funds; Indemnification.
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26
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SECTION 8.03. Legal Defeasance of Securities of any Series.
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27
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SECTION 8.04. Covenant Defeasance.
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28
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SECTION 8.05. Repayment to Company.
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29
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ARTICLE IX. AMENDMENTS AND WAIVERS
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29
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SECTION 9.01. Without Consent of Holders.
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29
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SECTION 9.02. With Consent of Holders.
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30
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SECTION 9.03. Limitations.
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30
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SECTION 9.04. Compliance with Trust Indenture Act.
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31
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SECTION 9.05. Revocation and Effect of Consents.
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31
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SECTION 9.06. Notation on or Exchange of Securities.
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31
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SECTION 9.07. Trustee Protected.
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31
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SECTION 9.08. Effect of Supplemental Indenture.
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31
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ARTICLE X. MISCELLANEOUS
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32
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SECTION 10.01. Trust Indenture Act Controls.
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32
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SECTION 10.02. Notices.
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32
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SECTION 10.03. Communication by Holders with Other Holders.
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33
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SECTION 10.04. Certificate and Opinion as to Conditions Precedent.
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33
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SECTION 10.05. Statements Required in Certificate or Opinion.
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33
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SECTION 10.06. Record Date for Vote or Consent of Holders.
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33
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SECTION 10.07. Rules by Trustee and Agents.
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33
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SECTION 10.08. Legal Holidays.
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34
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SECTION 10.09. No Recourse Against Others.
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34
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SECTION 10.10. Counterparts.
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34
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SECTION 10.11. Governing Laws and Submission to Jurisdiction.
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34
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SECTION 10.12. No Adverse Interpretation of Other Agreements.
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34
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SECTION 10.13. Successors.
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34
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SECTION 10.14. Severability.
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34
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SECTION 10.15. Table of Contents, Headings, etc.
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35
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SECTION 10.16. Securities in a Foreign Currency or in ECU.
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35
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SECTION 10.17. Judgment Currency.
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35
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SECTION 10.18. Compliance with Applicable Anti-Terrorism and Money Laundering Regulations.
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36
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ARTICLE XI. SINKING FUNDS
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36
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SECTION 11.01. Applicability of Article.
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36
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SECTION 11.02. Satisfaction of Sinking Fund Payments with Securities.
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36
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SECTION 11.03. Redemption of Securities for Sinking Fund.
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36
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Reconciliation and tie between Trust Indenture
Act of 1939 and Indenture,
Dated as of [
], 20[ ]
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Section 310(a)(1)
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7.10
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(a)(2)
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7.10
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(a)(3)
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Not Applicable
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(a)(4)
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Not Applicable
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(a)(5)
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7.10
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(b)
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7.10
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(c)
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Not Applicable
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Section 311(a)
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7.11
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(b)
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7.11
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(c)
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Not Applicable
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Section 312(a)
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2.06
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(b)
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10.03
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(c)
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10.03
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Section 313(a)
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7.06
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(b)(1)
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7.06
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(b)(2)
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7.06
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(c)(1)
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7.06
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(d)
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7.06
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Section 314(a)
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4.02, 10.05
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(b)
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Not Applicable
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(c)(1)
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10.04
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(c)(2)
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10.04
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(c)(3)
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Not Applicable
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(d)
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Not Applicable
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(e)
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10.05
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(f)
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Not Applicable
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Section 315(a)
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7.01
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(b)
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7.05
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(c)
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7.01
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(d)
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7.01
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(e)
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6.14
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Section 316(a)(1)(A)
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6.12
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(a)(1)(B)
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6.13
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(a)(2)
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Not Applicable
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(b)
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6.13
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(c)
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10.06
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Section 317(a)(1)
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6.03
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(a)(2)
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6.04
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(b)
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2.05
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Section 318(a)
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10.01
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Note: This reconciliation and tie shall not,
for any purpose, be deemed to be part of the Indenture.
Indenture dated as
of [ ],
20[ ] between GLOBUS MARITIME LIMITED, a Marshall Islands corporation (the “Company”),
and [ ] (the “Trustee”).
Each party agrees as
follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Securities issued under
this Indenture.
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
“Additional
Amounts” means any additional amounts which are required hereby or by any Security, under circumstances specified herein
or therein, to be paid by the Company in respect of certain taxes imposed on Holders specified therein and which are owing to such
Holders.
“Affiliate”
of any specified person means any other person directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified person. For the purposes of this definition, “control” (including, with correlative
meanings, the terms “controlled by” and “under common control with”), as used with respect to any person,
shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies
of such person, whether through the ownership of voting securities or by agreement or otherwise.
“Agent”
means any Registrar or Paying Agent.
“Bankruptcy
Law” means Title 11 of the United States Code (or any successor thereto) 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 thereof.
“Board Resolution”
means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been adopted by the Board
of Directors or pursuant to authorization by the Board of Directors and to be in full force and effect on the date of the certificate
and delivered to the Trustee.
“Business
Day” means any day other than a (x) Saturday, (y) Sunday or (z) day on which state or federally chartered
banking institutions in New York, New York are not required to be open.
“Capital Stock”
of any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of
or interests in (however designated) equity of such Person, but excluding any debt securities convertible into such equity.
“Certificated
Securities” means Securities in the form of physical, certificated Securities in registered form.
“Company”
means the party named as such above until a successor replaces it in accordance with the terms of this Indenture and thereafter
means the successor.
“Company Order”
means a written order signed in the name of the Company by two Officers, one of whom must be the Company’s principal executive
officer, principal financial officer or principal accounting officer.
“Company Request”
means a written request signed in the name of the Company by its Chairman of the Board, a President or a Vice President, and by
its Chief Financial Officer, its Secretary or an Assistant Secretary, and delivered to the Trustee.
“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 of the execution of this Indenture is [
], Attention: [ ],
or at such other address as the Trustee may designate from time to time.
“Custodian”
means any receiver, trustee, assignee, liquidator, sequestrator or similar official under any Bankruptcy Law.
“Default”
or “default” means any event which is, or after notice or passage of time or both would be, an Event of Default.
“Default Rate”
means the default rate of interest specified in the Securities.
“Depository”
means, with respect to the Securities of any Series issuable or issued in whole or in part in the form of one or more Global Securities,
the person designated as Depository for such Series by the Company, which Depository shall be a clearing agency registered under
the Exchange Act; and if at any time there is more than one such person, “Depository” as used with respect to the Securities
of any Series shall mean the Depository with respect to the Securities of such Series.
“Discount
Security” means any Security that provides for an amount less than the stated principal amount thereof to be due and
payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.02.
“Dollars”
means the currency of The United States of America.
“ECU”
means the European Currency Unit as determined by the Commission of the European Union.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Foreign Currency”
means any currency or currency unit issued by a government other than the government of The United States of America.
“Foreign Government
Obligations” means with respect to Securities of any Series that are denominated in a Foreign Currency, (i) direct
obligations of the government that issued or caused to be issued such currency for the payment of which obligations its full faith
and credit is pledged or (ii) obligations of a person controlled or supervised by or acting as an agency or instrumentality
of such government the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by such government,
which, in either case under clauses (i) or (ii), are not callable or redeemable at the option of the issuer thereof.
“Global Security”
or “Global Securities” means a Security or Securities, as the case may be, in the form established pursuant
to Section 2.02 evidencing all or part of a Series of Securities, issued to the Depository for such Series or its nominee,
and registered in the name of such Depository or nominee.
“Holder”
or “Securityholder” means a person in whose name a Security is registered.
“Indenture”
means this Indenture as amended and supplemented from time to time and shall include the form and terms of particular Series of
Securities established as contemplated hereunder.
“Interest,”
in respect of the Securities, unless the context otherwise requires, refers to interest payable on the Securities, including any
additional interest that may become payable pursuant to Section 6.02(b).
“Maturity,”
when used with respect to any Security or installment of principal thereof, means the date on which the principal of such Security
or such installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration
of acceleration, call for redemption, notice of option to elect repayment or otherwise.
“Officer”
means the Chairman of the Board, the President, any Vice-President, the Treasurer, the Secretary, any Assistant Treasurer or any
Assistant Secretary of the Company.
“Officers’
Certificate” means a certificate signed by two Officers, one of whom must be the Company’s principal executive
officer, principal financial officer or principal accounting officer.
“Opinion of
Counsel” means a written opinion of legal counsel who is, and which opinion is, acceptable to the Trustee and its counsel.
Such legal counsel may be an employee of or counsel to the Company or the Trustee.
“Person”
means any individual, corporation, partnership, joint venture, association, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision thereof.
“Principal”
or “principal” of a Security means the principal of the Security plus, when appropriate, the premium, if any,
on, and any Additional Amounts in respect of, the Security.
“Responsible
Officer” means any officer of the Trustee in its Corporate Trust Office and also means, any vice president, managing
director, director, associate, assistant vice president, or any other officer of the Trustee customarily performing functions similar
to those performed by any of the above designated officers and also, with respect to a particular corporate trust matter, any other
officer to whom any corporate trust matter is referred because of his or her knowledge of and familiarity with a particular subject.
“SEC”
means the Securities and Exchange Commission.
“Security”
or “Securities” means the debentures, notes or other debt instruments of the Company of any Series authenticated
and delivered under this Indenture.
“Series”
or “Series of Securities” means each series of debentures, notes or other debt instruments of the Company created
pursuant to Sections 2.01 and 2.02 hereof.
“Stated Maturity”
when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in
such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and
payable.
“Subordinated
Indebtedness” means any indebtedness which is expressly subordinated to the indebtedness evidenced by Securities.
“Subsidiary”
means, in respect of any Person, any corporation, association, partnership or other business entity of which more than 50% of the
total voting power of shares of Capital Stock or other interests (including partnership interests) entitled (without regard to
the occurrence of any contingency) to vote in the election of directors, managers, general partners or trustees thereof is at the
time owned or controlled, directly or indirectly, by (i) such Person; (ii) such Person and one or more Subsidiaries of
such Person; or (iii) one or more Subsidiaries of such Person.
“TIA”
means the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) as in effect on the date of this Indenture; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such date, “TIA” means, to the extent required
by any such amendment, the Trust Indenture Act as so amended.
“Trustee”
means the person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include
each person who is then a Trustee hereunder, and if at any time there is more than one such person, “Trustee” as used
with respect to the Securities of any Series shall mean the Trustee with respect to Securities of that Series.
“U.S.
Government Obligations” means securities which are (i) direct obligations of The United States of America for
the payment of which its full faith and credit is pledged or (ii) 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, and which in the case of (i) and (ii) are not
callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank or
trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depository
receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government
Obligation evidenced by such depository receipt.
SECTION 1.02. Other
Definitions.
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TERM
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DEFINED IN SECTION
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“Applicable Law”
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10.18
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“Event of Default”
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6.01
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“Instrument”
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6.01
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“Journal”
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10.16
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“Judgment Currency”
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10.17
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“Legal Holiday”
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10.08
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“mandatory sinking fund payment”
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11.01
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“Market Exchange Rate”
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10.16
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“New York Banking Day”
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10.17
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“optional sinking fund payment”
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11.01
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“Paying Agent”
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2.04
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“Registrar”
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2.04
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“Required Currency”
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10.17
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“successor person”
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5.01
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“Temporary Securities”
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2.11
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SECTION 1.03. Incorporation
by Reference of Trust Indenture Act.
Whenever this Indenture
refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. This Indenture
shall also include those provisions of the TIA required to be included herein by the provisions of the Trust Indenture Reform Act
of 1990. The following TIA terms used in this Indenture have the following meanings:
“indenture
securities” means the Securities.
“indenture
security holder” means a Securityholder.
“indenture
to be qualified” means this Indenture.
“indenture
trustee” or “institutional trustee” means the Trustee.
“obligor”
on the indenture securities means the Company and any successor obligor upon the Securities.
All other terms used
in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA
and not otherwise defined herein are used herein as so defined.
SECTION 1.04. Rules
of Construction.
Unless the context
otherwise requires:
(a)
a term has the meaning assigned to it;
(b)
an accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted accounting
principles;
(c)
references to “generally accepted accounting principles” shall mean generally accepted accounting principles
in effect as of the time when and for the period as to which such accounting principles are to be applied;
(d)
“or” is not exclusive;
(e)
words in the singular include the plural, and in the plural include the singular;
(f)
provisions apply to successive events and transactions;
(g)
references to agreements and other instruments include subsequent amendments thereto;
(h)
the term “merger” includes a statutory share exchange, and the term “merged” has a correlative meaning;
and
(i)
“herein,” “hereof” and other words of similar import refer to this Indenture as a whole and not
to any particular Article, Section or other subdivision.
ARTICLE II.
THE SECURITIES
SECTION 2.01. Issuable
in Series.
The aggregate principal
amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in
one or more Series. All Securities of a Series shall be identical except as may be set forth in a Board Resolution, a supplemental
indenture or an Officers’ Certificate detailing the adoption of the terms thereof pursuant to the authority granted under
a Board Resolution. In the case of Securities of a Series to be issued from time to time, the Board Resolution, Officers’
Certificate or supplemental indenture may provide for the method by which specified terms (such as interest rate, maturity date,
record date or date from which interest shall accrue) are to be determined. Securities may differ between Series in respect of
any matters, provided that all Series of Securities shall be equally and ratably entitled to the benefits of the Indenture.
SECTION 2.02. Establishment
of Terms of Series of Securities.
At or prior to the
issuance of any Securities within a Series, the following shall be established (as to the Series generally, in the case of Subsection
(a), and either as to such Securities within the Series or as to the Series generally in the case of Subsections (b) through
(t) by a Board Resolution, a supplemental indenture or an Officers’ Certificate pursuant to authority granted under
a Board Resolution:
(a)
the title, designation, aggregate principal amount and authorized denominations of the Securities of the Series;
(b)
the price or prices, (expressed as a percentage of the aggregate principal amount thereof) at which the Securities of the
Series will be issued;
(c)
the date or dates on which the principal of the Securities of the Series is payable;
(d)
the rate or rates (which may be fixed or variable) per annum or, if applicable, the method used to determine such rate or
rates (including, but not limited to, any commodity, commodity index, stock exchange index or financial index) at which the Securities
of the Series shall bear interest, if any, the date or dates from which such interest, if any, shall commence and be payable and
any regular record date for the interest payable on any interest payment date;
(e)
any optional or mandatory sinking fund provisions or conversion or exchangeability provisions upon which Securities of
the Series shall be redeemed, purchased, converted or exchanged;
(f)
the date, if any, after which and the price or prices at which the Securities of the Series may be optionally redeemed or
must be mandatorily redeemed and any other terms and provisions of optional or mandatory provisions;
(g)
if other than denominations of $1,000 and any integral multiple thereof, the denominations in which the Securities of the
Series shall be issuable;
(h)
if other than the full principal amount, the portion of the principal amount of the Securities of the Series that shall
be payable upon declaration of acceleration pursuant to Section 6.02 or provable in bankruptcy;
(i)
any addition to or change in the Events of Default which applies to any Securities of the Series and any change in the right
of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to
Section 6.02;
(j)
the currency or currencies, including composite currencies, in which payments of principal of, premium or interest, if any,
on the Securities of the Series will be payable, if other than the currency of the United States of America;
(k)
if payments of principal of, premium or interest, if any, on the Securities of the Series will be payable, at the Company’s
election or at the election of any Holder, in a currency other than that in which the Securities of the Series are stated to be
payable, the period or periods within which, and the terms and conditions upon which, the election may be made;
(l)
if payments of interest, if any, on the Securities of the Series will be payable, at the Company’s election or at
the election of any Holder, in cash or additional securities, and the terms and conditions upon which the election may be made;
(m)
if denominated in a currency or currencies other than the currency of the United States of America, the equivalent price
of the Securities of the Series in the currency of the United States of America for purposes of determining the voting rights of
Holders of the Securities of the Series;
(n)
if the amount of payments of principal, premium or interest may be determined with reference to an index, formula or other
method based on a coin or currency other than that in which the Securities of the Series are stated to be payable, the manner in
which the amounts will be determined;
(o)
any restrictive covenants or other material terms relating to the Securities of the Series;
(p)
whether the Securities of the Series will be issued in the form of global securities or certificates in registered form;
(q)
any terms with respect to subordination;
(r)
any listing on any securities exchange or quotation system;
(s)
additional provisions, if any, related to defeasance and discharge of the offered debt securities; and
(t)
the applicability of any guarantees, which would be governed by New York law.
All Securities of
any one Series need not be issued at the same time and may be issued from time to time, consistent with the terms of this
Indenture, if so provided by or pursuant to the Board Resolution, supplemental indenture or Officers’ Certificate
referred to above, and the authorized principal amount of any Series may not be increased to provide for issuance of
additional Securities of such Series, unless otherwise provided in such Board Resolution, supplemental Indenture or
Officers’ Certificate.
SECTION 2.03. Execution
and Authentication.
Two Officers shall
sign the Securities for the Company by manual or facsimile signature.
If an Officer whose
signature is on a Security no longer holds that office at the time the Security is authenticated, the Security shall nevertheless
be valid.
A Security shall not
be valid until authenticated by the manual signature of the Trustee or an authenticating agent. The signature shall be conclusive
evidence that the Security has been authenticated under this Indenture.
The Trustee shall at
any time, and from time to time, authenticate Securities for original issue in the principal amount provided in the Board Resolution,
supplemental indenture hereto or Officers’ Certificate, upon receipt by the Trustee of a Company Order. Such Company Order
may authorize authentication and delivery pursuant to oral or electronic instructions from the Company or its duly authorized agent
or agents, which oral instructions shall be promptly confirmed in writing. Each Security shall be dated the date of its authentication
unless otherwise provided by a Board Resolution, a supplemental indenture hereto or an Officers’ Certificate.
The aggregate principal
amount of Securities of any Series outstanding at any time may not exceed any limit upon the maximum principal amount for such
Series set forth in the Board Resolution, supplemental indenture hereto or Officers’ Certificate delivered pursuant to Section 2.02,
except as provided in Section 2.08.
Prior to the issuance
of Securities of any Series, the Trustee shall have received and (subject to Section 7.02) shall be fully protected in relying
on: (a) the Board Resolution, supplemental indenture hereto or Officers Certificate establishing the form of the Securities
of that Series or of Securities within that Series and the terms of the Securities of that Series or of Securities within that
Series, (b) an Officers’ Certificate complying with Section 10.04, and (c) an Opinion of Counsel complying
with Section 10.04.
The Trustee shall have
the right to decline to authenticate and deliver any Securities of such Series: (a) if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken; or (b) if a Responsible Officer of the Trustee in good faith shall
determine that such action would expose the Trustee to personal liability to Holders of any then outstanding Series of Securities.
The Trustee may appoint
an authenticating agent acceptable to the Company to authenticate Securities. An authenticating agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with the Company or an Affiliate.
If any successor that
has replaced the Company in accordance with Article 5 has executed an indenture supplemental hereto with the Trustee pursuant
to Section 5.01, any of the Securities authenticated or delivered prior to such transaction may, from time to time, at the
request of such successor, be exchanged for other Securities executed in the name of the such successor with such changes in phraseology
and form as may be appropriate, but otherwise identical to the Securities surrendered for such exchange and of like principal amount;
and the Trustee, upon receipt of a Company Order of such successor, shall authenticate and deliver Securities as specified in such
order for the purpose of such exchange. If Securities shall at any time be authenticated and delivered in any new name of
such successor pursuant to this provision of Section 2.03 in exchange or substitution for or upon registration of transfer
of any Securities, such successor, at the option of the Holders but without expense to them, shall provide for the exchange of
all Securities then outstanding for Securities authenticated and delivered in such new name.
SECTION 2.04. Registrar
and Paying Agent.
The Company shall
maintain, with respect to each Series of Securities, at the place or places specified with respect to such Series pursuant to
Section 2.02, an office or agency where Securities of such Series may be presented or surrendered for payment
(“Paying Agent”) and where Securities of such Series may be surrendered for registration of transfer or exchange
(“Registrar”). The Registrar shall keep a register with respect to each Series of Securities and to their
transfer and exchange. The Company will give prompt written notice to the Trustee of the name and address, and any change in
the name or address, of each Registrar and Paying Agent. If at any time the Company shall fail to maintain any such required
Registrar or Paying Agent or shall fail to furnish the Trustee with the name and address thereof, such presentations and
surrenders 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 and surrenders.
The Company may also
from time to time designate one or more co-registrars or additional paying agents and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligations to maintain
a Registrar or Paying Agent in each place so specified pursuant to Section 2.02 for Securities of any Series for such purposes.
The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the name
or address of any such co-registrar or additional paying agent. The term “Registrar” includes any co-registrar; and
the term “Paying Agent” includes any additional paying agent.
The Company hereby
appoints [ ] as the initial Registrar and Paying Agent
for each Series unless another Registrar or Paying Agent as the case may be, is appointed prior to the time Securities of that
Series are first issued. Each Registrar and Paying Agent shall be entitled to all of the rights, protections, exculpations and
indemnities afforded to the Trustee in connection with its roles as Registrar and Paying Agent.
SECTION 2.05. Paying
Agent to Hold Money in Trust.
The Company shall require
each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust, for the benefit of Securityholders
of any Series of Securities, or the Trustee, all money held by the Paying Agent for the payment of principal of or interest on
the Series of Securities, and will notify the Trustee of any default by the Company in making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other
than the Company or a Subsidiary) shall have no further liability for the money. If the Company or a Subsidiary acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the benefit of Securityholders of any Series of Securities all
money held by it as Paying Agent.
SECTION 2.06. Securityholder
Lists.
The Trustee shall preserve
in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Securityholders
of each Series of Securities and shall otherwise comply with TIA Section 312(a). If the Trustee is not the Registrar, the
Company shall furnish to the Trustee at least [ ] days before each interest payment date and at such other times as the Trustee
may request in writing a list, in such form and as of such date as the Trustee may reasonably require, of the names and addresses
of Securityholders of each Series of Securities.
SECTION 2.07. Transfer
and Exchange.
Where Securities of
a Series are presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal
principal amount of Securities of the same Series, the Registrar shall register the transfer or make the exchange if its requirements
for such transactions are met. To permit registrations of transfers and exchanges, the Trustee shall authenticate Securities at
the Registrar’s request. Any exchange or transfer shall be without charge, except that the Company or the Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge required by law; provided that this sentence shall not
apply to any exchange pursuant to Section 2.11, 2.08, 3.06 or 9.06.
Neither the
Company nor the Registrar shall be required (a) to issue, register the transfer of, or exchange Securities of any Series
for the period beginning at the opening of business [ ] days immediately preceding the mailing of a
notice of redemption of Securities of that Series selected for redemption and ending at the close of business on the day of
such mailing, or (b) to register the transfer of or exchange Securities of any Series selected, called or being called
for redemption as a whole or the portion being redeemed of any such Securities selected, called or being called for
redemption in part.
All Securities issued
upon any transfer or exchange of Securities shall be valid obligations of the Company, evidencing the same debt and entitled to
the same benefits under this Indenture, as the Securities surrendered upon such transfer or exchange. Any Registrar appointed pursuant
to Section 2.04 shall provide to the Trustee such information as the Trustee may reasonably require in connection with the
delivery by such Registrar of Securities upon transfer or exchange of Securities. Each Holder of a Security agrees to indemnify
the Company and the Trustee against any liability that may result from the transfer, exchange or assignment of such Holder’s
Security in violation of any provision of this Indenture and/or applicable U.S. federal or state securities law.
SECTION 2.08. Mutilated,
Destroyed, Lost and Stolen Securities.
If any mutilated Security
is surrendered to the Registrar, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor
a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered
to the Company and the Registrar (i) evidence to their satisfaction of the destruction, loss or theft of any Security and
(ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Registrar that such Security has been acquired by a bona fide purchaser, the
Company shall execute and upon its request the Trustee shall authenticate and make available for delivery, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same Series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead
of issuing a new Security, pay such Security.
Upon the issuance of
any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security
of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities
of that Series duly issued hereunder.
The provisions of this
Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.09. Outstanding
Securities.
The Securities outstanding
at any time are all the Securities authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation,
those reductions in the interest on a Global Security effected by the Trustee in accordance with the provisions hereof and those
described in this Section as not outstanding.
If a Security is replaced
pursuant to Section 2.08, it ceases to be outstanding until the Trustee receives proof satisfactory to it that the replaced
Security is held by a bona fide purchaser.
If the Paying Agent
(other than the Company, a Subsidiary or an Affiliate of any thereof) holds on the Maturity of Securities of a Series money sufficient
to pay such Securities payable on that date, then on and after that date such Securities of the Series cease to be outstanding
and interest on them ceases to accrue.
A Security does not
cease to be outstanding because the Company or an Affiliate holds the Security.
In determining whether
the Holders of the requisite principal amount of outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, the principal amount of a Discount Security that shall be deemed to be outstanding for such
purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a
declaration of acceleration of the Maturity thereof pursuant to Section 6.02.
SECTION 2.10. Treasury
Securities.
In determining whether
the Holders of the required principal amount of Securities of a Series have concurred in any request, demand, authorization, direction,
notice, consent or waiver Securities of a Series owned by the Company or an Affiliate shall be disregarded, except that for the
purposes of determining whether the Trustee shall be protected in relying on any such request, demand, authorization, direction,
notice, consent or waiver only Securities of a Series that a Responsible Officer of the Trustee actually knows are so owned shall
be so disregarded.
SECTION 2.11. Temporary
Securities.
Until definitive Securities
are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary securities upon a Company Order (“Temporary
Securities”). Temporary Securities shall be substantially in the form of definitive Securities but may have variations that
the Company considers appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee
upon written request shall authenticate definitive Securities of the same Series and date of maturity in exchange for temporary
Securities. Until so exchanged, temporary securities shall have the same rights under this Indenture as the definitive Securities.
SECTION 2.12. Cancellation.
The Company at any
time may deliver Securities to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee
or its agent any Securities surrendered to them for transfer, exchange, payment or conversion. The Trustee and no one else
shall cancel, in accordance with its standard procedures, all Securities surrendered for transfer, exchange, payment, conversion
or cancellation and shall deliver the cancelled Securities to the Company. No Security shall be authenticated in exchange
for any Security cancelled pursuant to this Section 2.12.
The Company may, to
the extent permitted by law, purchase Securities in the open market or by tender offer at any price or by private agreement. Any
Securities purchased or otherwise acquired by the Company or any of its Subsidiaries prior to the final maturity of such Securities
may, to the extent permitted by law, be reissued or resold or may, at the option of the Company, be surrendered to the Trustee
for cancellation. Any Securities surrendered for cancellation may not be reissued or resold and shall be promptly cancelled
by the Trustee, and the Company may not hold or resell such Securities or issue any new Securities to replace any such Securities.
SECTION 2.13. Defaulted
Interest.
If the Company defaults
in a payment of interest on a Series of Securities, it shall pay defaulted interest, plus, to the extent permitted by law, any
interest payable on the defaulted interest at the Default Rate, to the persons who are Security holders of the Series on a subsequent
special record date. The Company shall fix the record date and payment date. At least [ ] days before the
record date, the Company shall mail to the Trustee and the Paying Agent and to each Securityholder of the Series a notice that
states the record date, the payment date and the amount of interest to be paid. The Company may pay defaulted interest in any other
lawful manner.
SECTION 2.14. Global
Securities.
(a)
A Board Resolution, a supplemental indenture hereto or an Officers’ Certificate shall establish whether the Securities
of a Series shall be issued in whole or in part in the form of one or more Global Securities and the Depository for such Global
Security or Securities.
(b) (i) Notwithstanding
any provisions to the contrary contained in Section 2.07 of the Indenture and in addition thereto, any Global Security
shall be exchangeable pursuant to Section 2.07 of the Indenture for Securities registered in the names of Holders other
than the Depository for such Security or its nominee only if (A) such Depository notifies the Company that it is
unwilling or unable to continue as Depository for such Global Security or if at any time such Depository ceases to be a
clearing agency registered under the Exchange Act, and, in either case, the Company fails to appoint a successor Depository
within 90 days of such event, (B) the Company executes and delivers to the Trustee an Officers’ Certificate to the
effect that such Global Security shall be so exchangeable or (C) an Event of Default with respect to the Securities
represented by such Global Security shall have happened and be continuing.
(ii)
Except as provided in this Section 2.14(b), a Global Security may not be transferred except as a whole by the Depository
with respect to such Global Security to a nominee of such Depository, by a nominee of such Depository to such Depository or another
nominee of such Depository or by the Depository or any such nominee to a successor Depository or a nominee of such a successor
Depository.
(iii)
Securities issued in exchange for a Global Security or any portion thereof shall be issued in definitive, fully registered
form, without interest coupons, shall have an aggregate principal amount equal to that of such Global Security or portion thereof
to be so exchanged, shall be registered in such names and be in such authorized denominations as the Depository shall designate
and shall bear the applicable legends provided for herein. Any Global Security to be exchanged in whole shall be surrendered
by the Depository to the Trustee, as Registrar. With regard to any Global Security to be exchanged in part, either such Global
Security shall be so surrendered for exchange or, if the Registrar is acting as custodian for the Depository or its nominee with
respect to such Global Security, the principal amount thereof shall be reduced by an amount equal to the portion thereof to be
so exchanged, by means of an appropriate adjustment made on the records of the Trustee. Upon any such surrender or adjustment,
the Trustee shall authenticate and deliver the Security issuable on such exchange to or upon the order of the Depository or an
authorized representative thereof.
(iv)
The registered Holder may grant proxies and otherwise authorize any Person, including participants in the Depository and
persons that may hold interests through participants in the Depository, to take any action which a Holder is entitled to take under
this Indenture or the Securities.
(v)
In the event of the occurrence of any of the events specified in 2.14(b)(i), the Company will promptly make available to
the Trustee a reasonable supply of Certificated Securities in definitive, fully registered form, without interest coupons. If
(A) an event described in Section 2.14(b)(i)(A) or (B) occurs and definitive Certificated Securities are not
issued promptly to all beneficial owners or (B) the Registrar receives from a beneficial owner instructions to obtain definitive
Certificated Securities due to an event described in Section 2.14(b)(i)(C) and definitive Certificated Securities are
not issued promptly to any such beneficial owner, the Company expressly acknowledges, with respect to the right of any Holder to
pursue a remedy pursuant to Section 6.07 hereof, the right of any beneficial owner of Securities to pursue such remedy with
respect to the portion of the Global Security that represents such beneficial owner’s Securities as if such definitive certificated
Securities had been issued.
(vi)
Notwithstanding any provision to the contrary in this Indenture, so long as a Global Security remains outstanding and is
held by or on behalf of the Depository, transfers of a Global Security, in whole or in part, or of any beneficial interest therein,
shall only be made in accordance with Section 2.07, this Section 2.14(b) and the rules and procedures of the Depository
for such Global Security to the extent applicable to such transaction and as in effect from time to time.
(c)
Any Global Security issued hereunder shall bear a legend in substantially the following form:
“This Security
is a Global Security within the meaning of the Indenture hereinafter referred to and is registered in the name of the Depository
or a nominee of the Depository. This Security is exchangeable for Securities registered in the name of a person other than the
Depository or its nominee only in the limited circumstances described in the Indenture, and may not be transferred except as a
whole by the Depository to a nominee of the Depository, by a nominee of the Depository to the Depository or another nominee of
the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such a successor Depository.”
(d)
The Depository, as a Holder, may appoint agents and otherwise authorize participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a Holder is entitled to give or take under the Indenture.
(e)
Notwithstanding the other provisions of this Indenture, unless otherwise specified as contemplated by Section 2.02,
payment of the principal of and interest, if any, on any Global Security shall be made to the Holder thereof at their registered
office.
(f)
At all times the Securities are held in book-entry form with a Depository, (i) the Trustee may deal with such Depository
as the authorized representative of the Holders, (ii) the rights of the Holders shall be exercised only through the Depository
and shall be limited to those established by law and agreement between the Holders and the Depository and/or direct participants
of the Depository, (iii) the Depository will make book-entry transfers among the direct participants of the Depository and
will receive and transmit distributions of principal and interest on the Securities to such direct participants; and (iv) the
direct participants of the Depository shall have no rights under this Indenture, or any supplement hereto, under or with respect
to any of the Securities held on their behalf by the Depository, and the Depository may be treated by the Trustee and its agents,
employees, officers and directors as the absolute owner of the Securities for all purposes whatsoever.
SECTION 2.15. CUSIP
Numbers.
The Company in issuing
the Securities may use “CUSIP”, “CCN”, “ISIN” or other identification numbers (if then generally
in use), and, if so, the Trustee shall use “CUSIP”, “CCN”, “ISIN” or such other identification
numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and
that reliance may be placed only on the other elements of identification printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers.
ARTICLE III.
REDEMPTION
SECTION 3.01. Notice
to Trustee.
The Company may, with
respect to any series of Securities, reserve the right to redeem and pay the Series of Securities or may covenant to redeem and
pay the Series of Securities or any part thereof prior to the Stated Maturity thereof at such time and on such terms as provided
for in such Securities. If a Series of Securities is redeemable and the Company wants or is obligated to redeem prior to the Stated
Maturity thereof all or part of the Series of Securities pursuant to the terms of such Securities, it shall notify the Trustee
and Registrar in writing of the redemption date and the principal amount of Series of Securities to be redeemed. The Company shall
give the notice at least [ ] days before the redemption date (or such shorter notice as may be acceptable
to the Trustee and Registrar).
SECTION 3.02. Selection
of Securities to be Redeemed.
Unless otherwise indicated
for a particular Series by a Board Resolution, a supplemental indenture or an Officers’ Certificate, if less than all the
Securities of a Series are to be redeemed, the Registrar shall select the Securities of the Series to be redeemed in accordance
with its customary procedures. The Registrar shall make the selection from Securities of the Series outstanding not previously
called for redemption. The Registrar may select for redemption portions of the principal of Securities of the Series that have
denominations larger than $1,000. Securities of the Series and portions of them it selects shall be in amounts of $1,000 or whole
multiples of $1,000 or, with respect to Securities of any Series issuable in other denominations pursuant to Section 2.02(g),
the minimum principal denomination for each Series and integral multiples thereof. Provisions of this Indenture that apply to Securities
of a Series called for redemption also apply to portions of Securities of that Series called for redemption.
SECTION 3.03. Notice
of Redemption.
Unless otherwise indicated
for a particular Series by Board Resolution, a supplemental indenture hereto or an Officers’ Certificate, at least [ ]
days but not more than [ ] days before a redemption date, the Company shall mail a notice of redemption
by first-class mail to each Holder whose Securities are to be redeemed.
The notice shall identify
the Securities of the Series to be redeemed and shall state:
(a)
the redemption date;
(b)
the redemption price;
(c)
the name and address of the Paying Agent;
(d)
that Securities of the Series called for redemption must be surrendered to the Paying Agent to collect the redemption price;
(e)
that interest on Securities of the Series called for redemption ceases to accrue on and after the redemption date; and
(f)
any other information as may be required by the terms of the particular Series or the Securities of a Series being redeemed.
At the Company’s
written request, the Trustee shall distribute the notice of redemption prepared by the Company in the Company’s name and
at its expense.
SECTION 3.04. Effect
of Notice of Redemption.
Once notice of redemption
is mailed or published as provided in Section 3.03, Securities of a Series called for redemption become due and payable on
the redemption date and at the redemption price. A notice of redemption may not be conditional. Upon surrender to the Paying Agent,
such Securities shall be paid at the redemption price plus accrued interest to the redemption date.
SECTION 3.05. Deposit
of Redemption Price.
On or before the redemption
date, the Company shall deposit with the Paying Agent money sufficient to pay the redemption price of and accrued interest, if
any, on all Securities to be redeemed on that date.
SECTION 3.06. Securities
Redeemed in Part.
Upon surrender of a
Security that is redeemed in part, the Trustee shall authenticate for the Holder a new Security of the same Series and the same
maturity equal in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE IV.
COVENANTS
SECTION 4.01. Payment
of Principal and Interest.
The Company covenants
and agrees for the benefit of the Holders of each Series of Securities that it will duly and punctually pay the principal of and
interest, if any, on the Securities of that Series in accordance with the terms of such Securities and this Indenture.
Unless otherwise provided
under the terms of a particular Series of Securities:
(a)
an installment of principal or interest shall be considered paid on the date it is due if the Paying Agent (other than
the Company) holds by [ ] [a].m., New York City time,
on that date money, deposited by the Company or an Affiliate thereof, sufficient to pay such installment. The Company shall
(in immediately available funds), to the fullest extent permitted by law, pay interest on overdue principal and overdue installments
of interest at the rate borne by the Securities per annum; and
(b)
payment of the principal of and interest on the Securities shall be made at the office or agency of the Company maintained
for that purpose in [ ] (which shall initially be [ ],
the Paying Agent) in such coin or currency of the United States of America as at the time of payment is legal tender for payment
of public and private debts; provided, however, that at the option of the Company payment of interest may be made by check
mailed to the address of the Person entitled thereto as such address appears in the register; provided, further, that a
Holder with an aggregate principal amount in excess of $[ ] will be paid by wire
transfer in immediately available funds at the election of such Holder if such Holder has provided wire transfer instructions to
the Company at least [ ] Business Days prior to the payment date.
SECTION 4.02. SEC
Reports.
So long as any Securities
are outstanding, the Company shall (i) file with the SEC within the time periods prescribed by its rules and regulations
and (ii) furnish to the Trustee and the Holders of the Securities within [ ] days after the date on
which the Company would be required to file the same with the SEC pursuant to its rules and regulations (giving effect to
any grace period provided by Rule 12b-25 under the Exchange Act), all quarterly and annual financial information required
to be furnished or filed with the SEC pursuant to Section 13 and Section 15(d) of the Exchange Act and, with respect
to the annual consolidated financial statements only, a report thereon by the Company’s independent auditors. The Company
also shall comply with the other provisions of TIA Section 314(a).
Delivery of such reports,
information and documents to the Trustee is for informational purposes only, and the Trustee’s receipt of such shall not
constitute constructive notice of any information contained therein or determinable from information contained therein, including
the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on
Officers’ Certificates). The Company shall not be required to file any report or other information with the SEC if the
SEC does not permit such filing, although such reports shall be furnished to the Trustee. Documents filed by the Company with
the SEC via the SEC’s EDGAR system (or any successor thereto) will be deemed furnished to the Trustee and the Holders of
the Securities as of the time such documents are filed via EDGAR (or such successor).
SECTION 4.03. Compliance
Certificate.
The Company shall deliver
to the Trustee, within [ ] days after the end of each fiscal year of the Company, an officers certificate
signed by two of the Company’s officers stating that a review of the activities of the Company and its Subsidiaries during
the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Company
has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his knowledge the Company has kept, observed, performed and fulfilled each and every
covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and
conditions hereof (or, if a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default
of which he may have knowledge in reasonable detail and the efforts to remedy the same). For purposes of this Section 4.03,
compliance shall be determined without regard to any grace period or requirement of notice provided pursuant to the terms of this
Indenture.
The Company shall deliver
to the Trustee, within [ ] days after the occurrence thereof, written notice in the form of an Officers’
Certificate of any Event of Default described in Section 6.01(e), (f), (g) or (h) and any event of which it becomes
aware that with the giving of notice or the lapse of time would become such an Event of Default, its status and what action the
Company is taking or proposes to take with respect thereto. For the avoidance of doubt, a breach of a covenant under an Instrument
that is not a payment default and that has not given rise to a right of acceleration under such Instrument shall not trigger the
requirement to provide notice under this paragraph.
SECTION 4.04. Stay,
Extension and Usury Laws.
The Company covenants
(to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture or the Securities; and the Company (to the extent it may lawfully
do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not, by resort to any such law,
hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law has been enacted.
SECTION 4.05. Corporate
Existence.
Subject to Article
V, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence
and the corporate, partnership or other existence of each Subsidiary in accordance with the respective organizational documents
of each Subsidiary and the rights (charter and statutory), licenses and franchises of the Company and its Subsidiaries; provided,
however, that the Company shall not be required to preserve any such right, license or franchise, or the corporate, partnership
or other existence of any Subsidiary, if the Board of Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and its Subsidiaries taken as a whole and that the loss thereof is not adverse in
any material respect to the Holders.
SECTION 4.06. Taxes.
The Company shall,
and shall cause each of its Subsidiaries to, pay prior to delinquency all taxes, assessments and governmental levies, except as
contested in good faith and by appropriate proceedings.
SECTION 4.07. Additional
Interest Notice.
In the event that the
Company is required to pay additional interest to Holders of Securities pursuant to Section 6.02(b) hereof, the Company
shall provide a direction or order in the form of a written notice to the Trustee (and if the Trustee is not the Paying Agent,
the Paying Agent) of the Company’s obligation to pay such additional interest no later than [ ] Business
Days prior to date on which any such additional interest is scheduled to be paid. Such notice shall set forth the amount of
additional interest to be paid by the Company on such payment date and direct the Trustee (or, if the Trustee is not the Paying
Agent, the Paying Agent) to make payment to the extent it receives funds from the Company to do so. The Trustee shall not
at any time be under any duty or responsibility to any Holder to determine whether additional interest is payable, or with respect
to the nature, extent, or calculation of the amount of additional interest owed, or with respect to the method employed in such
calculation of additional interest.
SECTION 4.08. Further
Instruments and Acts.
The Company will execute
and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively
the purposes of this Indenture.
ARTICLE V.
SUCCESSORS
SECTION 5.01. When
Company May Merge, etc.
The Company shall not
consolidate with, enter into a binding share exchange, or merge into any other Person in a transaction in which it is not the surviving
entity, or sell, assign, convey, transfer or lease or otherwise dispose of all or substantially all of its properties and assets
to any Person (a “successor person”), unless:
(a) the
successor person (if any) is a corporation, partnership, trust or other entity organized and validly existing under the laws
of the Republic of the Marshall Islands, [ ], the
United States, any state of the United States or the District of Columbia and expressly assumes by a supplemental indenture
executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of,
and any interest on, all Securities and the performance or observance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(b)
immediately after giving effect to the transaction, no Default or Event of Default, shall have occurred and be continuing;
and
(c)
the Company shall have delivered to the Trustee, prior to the consummation of the proposed transaction, an Officers’
Certificate to the foregoing effect and an Opinion of Counsel stating that the proposed transaction and such supplemental indenture
comply with this Indenture.
SECTION 5.02. Successor
Corporation Substituted.
Upon any consolidation
or merger, or any sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company in accordance
with Section 5.01, the successor person formed by such consolidation or into or with which the Company is merged or to which
such sale, lease, conveyance or other disposition is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such successor person has been named as the Company herein;
provided, however, that the predecessor company in the case of a sale, lease, conveyance or other disposition of all or substantially
all of the assets of the Company shall not be released from the obligation to pay the principal of and interest, if any, on the
Securities.
ARTICLE VI.
DEFAULTS AND REMEDIES
SECTION 6.01. Events
of Default.
“Event of Default,”
wherever used herein with respect to securities of any Series, means any one of the following events, unless in the establishing
Board Resolution, supplemental indenture or Officers’ Certificate, it is provided that such Series shall not have the benefit
of said Event of Default:
(a)
default in the payment of any interest on any Security of that Series when it becomes due and payable, and continuance of
such default for a period of 30 days (unless the entire amount of such payment is deposited by the Company with the Trustee or
with a Paying Agent prior to the expiration of such period of 30 days); or
(b)
default in the payment of any principal of any Security of that Series at its Maturity; or
(c)
default in the deposit of any sinking fund payment, when and as due in respect of any Security of that Series; or
(d)
the Company fails to perform or comply with any of its other covenants or agreements contained in the Securities or in this
Indenture (other than a covenant or agreement a default in whose performance or whose breach is specifically dealt with in clauses
(a), (b) or (c) of this Section 6.01) and the default continues for 60 days after notice is given as specified below;
(e) any
indebtedness under any bond, debenture, note or other evidence of indebtedness for money borrowed by the Company or any
Subsidiary or under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or
evidenced any indebtedness for money borrowed by, or any other payment obligation of, the Company or any Subsidiary (an
“Instrument”) with a principal amount then, individually or in the aggregate, outstanding in excess of
$[ ], whether such indebtedness now exists or shall hereafter be created, is
not paid at Maturity or when otherwise due or is accelerated, and such indebtedness is not discharged, or such default in
payment or acceleration is not cured or rescinded, within a period of 30 days after there shall have been given, by
registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least
[ ]% in aggregate principal amount of the outstanding Securities of that Series a written notice
specifying such default and requiring the Company to cause such indebtedness to be discharged or cause such default to be
cured or waived or such acceleration to be rescinded or annulled and stating that such notice is a “Notice of
Default” hereunder. A payment obligation (other than indebtedness under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company or any Subsidiary or under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any indebtedness for money borrowed by the Company or any
Subsidiary) shall not be deemed to have matured, come due, or been accelerated to the extent that it is being disputed by the
relevant obligor or obligors in good faith. For the avoidance of doubt, the Maturity of an Instrument is the Maturity as set
forth in that Instrument, as it may be amended from time to time in accordance with the terms of that Instrument;
(f)
the Company or any Subsidiary fails to pay one or more final and non-appealable judgments entered by a court or courts of
competent jurisdiction, the aggregate uninsured or unbonded portion of which is in excess of $[ ],
if the judgments are not paid, discharged, waived or stayed within [ ] days;
(g)
the Company or any Subsidiary of the Company, pursuant to or within the meaning of any Bankruptcy Law:
(i)
commences a voluntary case or proceeding;
(ii)
consents to the entry of an order for relief against it in an involuntary case or proceeding;
(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
(v)
or generally is unable to pay its debts as the same become due; or
(h)
a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i)
is for relief against the Company or any of its Subsidiaries in an involuntary case or proceeding;
(i)
appoints a Custodian of the Company or any of its Subsidiaries for all or substantially all of the property of the Company
or any such Subsidiary; or
(ii)
orders the liquidation of the Company or any of its Subsidiaries;
and the case of each of clause
(i), (ii) and (iii), the order or decree remains unstayed and in effect for [ ] consecutive days; or
(iii)
any other Event of Default provided with respect to Securities of that Series, which is specified in a Board Resolution,
a supplemental indenture hereto or an Officers’ Certificate, in accordance with Section 2.02(i).
A default under clause
(d) above is not an Event of Default until the Trustee notifies the Company, or the Holders of at least [ ]%
in aggregate principal amount of the Securities then outstanding notify the Company and the Trustee, in writing of the default,
and the Company does not cure the default within 60 days after receipt of such notice. The notice given pursuant to this Section 6.01
must specify the default, demand that it be remedied and state that the notice is a “Notice of Default.” When
any default under this Section 6.01 is cured, it ceases.
The Trustee shall not
be charged with knowledge of any Event of Default unless written notice thereof shall have been given to a Trust Officer at the
Corporate Trust Office of the Trustee by the Company, a Paying Agent, any Holder or any agent of any Holder.
SECTION 6.02. Acceleration
of Maturity; Rescission and Annulment.
(a)
If an Event of Default (other than an Event of Default specified in clause (g) or (h) of Section 6.01) occurs
and is continuing with respect to any Securities of any Series, then in every such case, the Trustee may, by notice to the Company,
or the Holders of at least 25% in aggregate principal amount of the Securities of that Series (or, if any Securities of that Series
are Discount Securities, such portion of the principal amount as may be specified in the terms of such Securities) then outstanding
may, by notice to the Company and the Trustee, declare all unpaid principal of, and accrued and unpaid interest on to the date
of acceleration, the Securities of that Series then outstanding (if not then due and payable) to be due and payable upon any such
declaration, and the same shall become and be immediately due and payable. If an Event of Default specified in clause (g) or
(h) of Section 6.01 occurs, all unpaid principal of the Securities then outstanding, and all accrued and unpaid interest
thereon to the date of acceleration, shall ipso facto become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any Holder. The Holders of a majority in aggregate principal amount of the Securities of
that Series then outstanding by notice to the Trustee may rescind an acceleration of such Securities of that Series and its consequences
if (a) all existing Events of Default, other than the nonpayment of the principal of the Securities which has become due solely
by such declaration of acceleration, have been cured or waived; (b) to the extent the payment of such interest is lawful,
interest (calculated at the Default Rate) on overdue installments of interest and overdue principal, which has become due otherwise
than by such declaration of acceleration, has been paid; (c) the rescission would not conflict with any judgment or decree
of a court of competent jurisdiction; and (d) all payments due to the Trustee and any predecessor Trustee under Section 7.07
have been made. No such rescission shall affect any subsequent default or impair any right consequent thereto.
(b)
Notwithstanding any of provision of this Article 6, at the election of the Company in its sole discretion, the sole
remedy under this Indenture for an Event of Default relating to the failure to comply with Section 4.02, and for any failure
to comply with the requirements of Section 314(a)(1) of the TIA, will consist, for the 180 days after the occurrence
of such an Event of Default, exclusively of the right to receive additional interest on the Securities at a rate equal to 0.50% per
annum of the aggregate principal amount of the Securities then outstanding up to, but not including, the 181st day thereafter (or,
if applicable, the earlier date on which the Event of Default relating to Section 4.02 is cured or waived). Any such
additional interest will be payable in the same manner and on the same dates as the stated interest payable on the Securities. In
no event shall additional interest accrue under the terms of this Indenture at a rate in excess of 0.50% per annum, in the
aggregate, for any violation or default caused by the failure of the Company to be current in respect of its Exchange Act reporting
obligations. If the Event of Default is continuing on the 181st day after an Event of Default relating to a failure to comply
with Section 4.02, the Securities will be subject to acceleration as provided in this Section 6.02. The provisions
of this Section 6.02(b) will not affect the rights of Holders in the event of the occurrence of any other Events of Default.
In order to elect to
pay additional interest as the sole remedy during the first 180 days after the occurrence of an Event of Default relating to the
failure to comply with Section 4.02 in accordance with the immediately preceding paragraph, the Company shall notify all Holders
and the Trustee and Paying Agent of such election on or before the close of business on the fifth Business Day after the date on
which such Event of Default otherwise would occur. Upon a failure by the Company to timely give such notice or pay additional
interest, the Securities will be immediately subject to acceleration as otherwise provided in this Section 6.02.
SECTION 6.03. Collection
of Indebtedness and Suits for Enforcement by Trustee.
If an Event of Default
with respect to any Securities of any Series occurs and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such Series by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
If an Event of
Default in the payment of principal, interest, if any, specified in clause (a) or (b) of Section 6.01 occurs
and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Company or
another obligor on the Securities for the whole amount of principal, and accrued interest remaining unpaid, if any, together
with, to the extent that payment of such interest is lawful, interest on overdue principal, on overdue installments of
interest, if any, in each case at the Default Rate, and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.
SECTION 6.04. Trustee
May File Proofs of Claim.
In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor
or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for
the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(a)
to file and prove a claim for the whole amount of principal and interest owing and unpaid in respect of the Securities and
to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the
Holders allowed in such judicial proceeding, and
(b)
to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding
is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07.
Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.05. Trustee
May Enforce Claims Without Possession of Securities.
All rights of action
and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment
of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable
benefit of the Holders of the Securities in respect of which such judgment has been recovered.
SECTION 6.06. Application
of Money Collected.
Any money collected
by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if fully paid: and
First: To the
payment of all amounts due the Trustee under Section 7.07;
Second: To the
payment of the amounts then due and unpaid for principal of and interest on the Securities in respect of which or for the benefit
of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable
on such Securities for principal and interest, respectively; and
Third: To the
Company.
SECTION 6.07. Limitation
on Suits.
No Holder of any Security
of any Series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder (except actions for payment of overdue principal and interest),
unless:
(a)
such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities
of that Series;
(b)
the Holders of not less than [ ]% in principal amount of the outstanding Securities of that Series
shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(c)
such Holder or Holders have offered to the Trustee indemnity satisfactory to it against the costs, expenses and liabilities
to be incurred in compliance with such request;
(d)
the Trustee for [ ] days after its receipt of such notice, request and offer of indemnity has failed
to institute any such proceeding; and
(e)
no direction inconsistent with such written request has been given to the Trustee during such [ ]-day
period by the Holders of a majority in principal amount of the outstanding Securities of that Series; it being understood and intended
that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority
or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all such Holders.
SECTION 6.08. Unconditional
Right of Holders to Receive Principal and Interest.
Notwithstanding any
other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and interest, if any, on such Security on the Stated Maturity or Stated Maturities expressed in such
Security (or, in the case of redemption, on the redemption date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
SECTION 6.09. Restoration
of Rights and Remedies.
If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject
to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively
to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 6.10. Rights
and Remedies Cumulative.
Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in Section 2.08, no
right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right
or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
SECTION 6.11. Delay
or Omission Not Waiver.
No delay or omission
of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy
given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 6.12. Control
by Holders.
The Holders of a majority
in principal amount of the outstanding Securities of any Series shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect
to the Securities of such Series, provided that
(a)
such direction shall not be in conflict with any rule of law or with this Indenture,
(b)
the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction; and
(c)
subject to the provisions of Section 6.01, the Trustee shall have the right to decline to follow any such direction
if the Trustee in good faith shall, by a Responsible Officer of the Trustee, determine that the proceeding so directed would involve
the Trustee in personal liability or would be unduly prejudicial to the rights of another Holder or the Trustee.
SECTION 6.13. Waiver
of Past Defaults.
Subject to Section 9.02,
the Holders of not less than a majority in principal amount of the outstanding Securities of any Series may on behalf of the Holders
of all the Securities of such Series waive any past Default hereunder with respect to such Series and its consequences, except
a Default in the payment of the principal of or interest on any Security of such Series (provided, however, that the Holders of
a majority in principal amount of the outstanding Securities of any Series may rescind an acceleration and its consequences, including
any related payment default that resulted from such acceleration). Upon any such waiver, such Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver
shall extend to any subsequent or other Default or impair any right consequent thereon.
SECTION 6.14. Undertaking
for Costs.
All parties to this
Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the
Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking
to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Company, to any suit instituted
by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than [ ]%
in principal amount of the outstanding Securities of any Series, or to any suit instituted by any Holder for the enforcement of
the payment of the principal of or interest on any Security on or after the Stated Maturity or Stated Maturities expressed in such
Security (or, in the case of redemption, on the redemption date).
ARTICLE VII.
TRUSTEE
SECTION 7.01. Duties
of Trustee.
(a)
If an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by
this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs.
(b)
Except during the continuance of an Event of Default:
(i)
The Trustee need perform only those duties that are specifically set forth in this Indenture and no implied duties, covenants
or obligations shall be deemed to be imposed upon the Trustee.
(ii)
in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon Officers’ Certificates or Opinions of Counsel furnished to the Trustee and conforming
to the requirements of this Indenture; however, in the case of any such Officers’ Certificates or Opinions of Counsel which
by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such Officers’
Certificates and Opinions of Counsel to determine whether or not they conform on their face to the requirements of this Indenture.
(c)
The Trustee may not be relieved from liability for its own its own negligent action, its own negligent failure to act or
willful misconduct, except that:
(i)
This paragraph does not limit the effect of paragraph (b) of Section 7.01 herein.
(ii)
The Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer.
(iii)
The Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it with respect to
Securities of any Series in good faith in accordance with the direction of the Holders of a majority in principal amount of the
outstanding Securities of such Series relating to the time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities
of such Series.
(d)
Every provision of this Indenture that in any way relates to the Trustee is subject to paragraph (a), (b) and (c) of
this Section.
(e)
The Trustee may refuse to perform any duty or exercise any right or power unless it receives an indemnity satisfactory to
it against any loss, liability or expense.
(f)
The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with
the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
(g)
No provision of this Indenture shall require the Trustee to risk or expend its own funds or otherwise incur liability, financial
or otherwise, in the performance of any of its duties, or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk is not reasonably assured
to it.
(h)
The Paying Agent, the Registrar and any authenticating agent shall be entitled to the same rights, indemnities, protections
and immunities afforded to the Trustee.
(i) The
Trustee shall have no duty to monitor the performance or compliance of the Company with its obligations hereunder or any
under supplement hereto, nor shall it have any liability in connection with the malfeasance or nonfeasance by the Company.
The Trustee shall have no liability in connection with compliance by the Company with statutory or regulatory requirements
related to this Indenture, any supplement or any Securities issued pursuant hereto or thereto.
SECTION 7.02. Rights
of Trustee.
(a)
The Trustee may conclusively rely on and shall be fully protected in acting or refraining from acting as a result of its
reasonable belief that any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, direction,
approval or other paper or document was genuine and had been signed or presented by the proper person. The Trustee need not investigate
any fact or matter stated in the document, but the Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it sees fit.
(b)
Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel
or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’
Certificate or Opinion of Counsel.
(c)
The Trustee may act through agents and shall not be responsible for the misconduct or negligence of, or for the supervision
of, any agent appointed with due care. No Depository shall be deemed an agent of the Trustee and the Trustee shall not be responsible
for any act or omission by any Depository.
(d)
The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized
or within its rights or powers.
(e)
The Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon.
(f)
The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by or pursuant to this Indenture
at the request, order or direction of any of the Holders of Securities, unless such Holders shall have offered to the Trustee reasonable
security or indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction.
SECTION 7.03. Individual
Rights of Trustee.
The Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities and may otherwise deal with the Company or an Affiliate
with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. The Trustee is also subject
to Sections 7.10 and 7.11.
SECTION 7.04. Trustee’s
Disclaimer.
The Trustee makes no
representation as to the validity or adequacy of this Indenture or the Securities and the recitals contained herein and in the
Securities shall be taken as statements of the Company and not of the Trustee, and the Trustee has no responsibility for such recitals.
The Trustee shall not be accountable for the Company’s use or application of the proceeds from the Securities or for monies
paid over to the Company pursuant to this Indenture, and it shall not be responsible for any statement in the Securities other
than its authentication.
SECTION 7.05. Notice
of Defaults.
If a Default or
Event of Default occurs and is continuing with respect to the Securities of any Series and if a Responsible Officer of the
Trustee has knowledge or receives written notice of such event, the Trustee shall mail to each Securityholder of the
Securities of that Series, notice of a Default or Event of Default within [ ] days after it occurs or,
if later, after a Responsible Officer of the Trustee has actual knowledge of such Default or Event of Default. Except in the
case of a Default or Event of Default in payment of principal of or interest on any Security of any Series, including any
additional interest that may become payable pursuant to Section 6.02(b), the Trustee may withhold the notice so long as
the Trustee in good faith determines that withholding the notice is in the interests of Securityholders of that Series.
SECTION 7.06. Reports
by Trustee to Holders.
Within [ ]
days after [ ] in each year, the Trustee shall transmit
by mail to all Securityholders, as their names and addresses appear on the register kept by the Registrar, a brief report dated
as of such [ ], in accordance with, and to the extent required
under, TIA Section 313.
A copy of each report
at the time of its mailing to Securityholders of any Series shall be filed with the SEC and each stock exchange on which the Securities
of that Series are listed. The Company shall promptly notify the Trustee when Securities of any Series are listed on any stock
exchange.
SECTION 7.07. Compensation
and Indemnity.
The Company shall pay
to the Trustee from time to time such compensation for its services as shall be agreed upon in writing. The Trustee’s compensation
shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses, disbursements and advances incurred by it. Such expenses shall include the reasonable
compensation and expenses of the Trustee’s agents, counsel and other persons not regularly in its employ.
The Company shall indemnify,
defend and hold harmless the Trustee and its officers, directors, employees, representatives and agents, from and against and reimburse
the Trustee for any and all claims, expenses, obligations, liabilities, losses, damages, injuries (to person, property, or natural
resources), penalties, stamp or other similar taxes, actions, suits, judgments, reasonable costs and expenses (including reasonable
attorney’s and agent’s fees and expenses) of whatever kind or nature regardless of their merit, demanded, asserted
or claimed against the Trustee directly or indirectly relating to, or arising from, claims against the Trustee by reason of its
participation in the transactions contemplated hereby, including without limitation all reasonable costs required to be associated
with claims for damages to persons or property, and reasonable attorneys’ and consultants’ fees and expenses and court
costs except to the extent caused by the Trustee’s negligence or willful misconduct. The provisions of this Section 7.07
shall survive the termination of this Agreement or the earlier resignation or removal of the Trustee. The Company shall defend
any claim and the Trustee shall cooperate in the defense. The Trustee may have separate counsel and the Company shall pay the reasonable
fees and expenses of such counsel. The Company need not pay for any settlement made without its consent, which consent shall not
be unreasonably withheld or delayed. This indemnification shall apply to officers, directors, employees, shareholders and agents
of the Trustee.
The Company need not
reimburse any expense or indemnify against any loss liability incurred by the Trustee or by any officer, director, employee, shareholder
or agent of the Trustee through negligence or bad faith.
To secure the Company’s
payment obligations in this Section, the Trustee shall have a lien prior to the Securities of any Series on all money or property
held or collected by the Trustee, except that held in trust to pay principal and interest on particular Securities of that Series.
When the Trustee incurs
expenses or renders services after an Event of Default specified in Section 6.01(f) or (g) occurs, the expenses and the
compensation for the services are intended to constitute expenses of administration under any Bankruptcy Law.
SECTION 7.08. Replacement
of Trustee.
A resignation or removal
of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance
of appointment as provided in this Section.
The Trustee may
resign with respect to the Securities of one or more Series by so notifying the Company. The Holders of a majority in
principal amount of the Securities of any Series may remove the Trustee with respect to that Series by so notifying the
Trustee and the Company. The Company may remove the Trustee with respect to Securities of one or more Series if:
(a)
the Trustee fails to comply with Section 7.10;
(b)
the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c)
a Custodian or public officer takes charge of the Trustee or its property; or
(d)
the Trustee becomes incapable of acting.
If the Trustee resigns
or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee.
Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding
Securities may appoint a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee
with respect to the Securities of any one or more Series does not take office within [ ] days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of at least [ ]%
in principal amount of the Securities of the applicable Series may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
A successor Trustee
shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Immediately after that, the retiring
Trustee shall transfer all property held by it as Trustee to the successor Trustee subject to the lien provided for in Section 7.07,
and subject to the payment of any and all amounts then due and owing to the retiring Trustee, the resignation or removal of the
retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee
with respect to each Series of Securities for which it is acting as Trustee under this Indenture. A successor Trustee shall mail
a notice of its succession to each Securityholder of each such Series. Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company’s obligations under Section 7.07 hereof shall continue for the benefit of the retiring
trustee with respect to expenses and liabilities incurred by it prior to such replacement.
SECTION 7.09. Successor
Trustee by Merger, etc.
If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act shall be the successor Trustee with the same effect as if the successor Trustee had
been named as the Trustee herein.
SECTION 7.10. Eligibility;
Disqualification.
This Indenture shall
always have a Trustee who satisfies the requirements of TIA Section 310(a)(1), (2) and (5). The Trustee shall always
have a combined capital and surplus of at least $25,000,000 as set forth in its most recent published annual report of condition.
The Trustee shall comply with TIA Section 310(b).
SECTION 7.11. Preferential
Collection of Claims Against Company.
The Trustee is subject
to TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b). A Trustee who has resigned or
been removed shall be subject to TTA Section 311(a) to the extent indicated.
ARTICLE VIII.
SATISFACTION AND DISCHARGE; DEFEASANCE
SECTION 8.01. Satisfaction
and Discharge of Indenture.
This Indenture shall
upon Company Order cease to be of further effect (except as hereinafter provided in this Section 8.01), and the Trustee, on
the demand of and at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when
(a)
either
(i)
all Securities theretofore authenticated and delivered (other than Securities that have been destroyed, lost or stolen and
that have been replaced or paid) have been delivered to the Trustee for cancellation; or
(ii)
all such Securities not theretofore delivered to the Trustee for cancellation have become due and payable, or
(1)
have become due and payable, or
(2)
will become due and payable at their Stated Maturity within [ ],
or
(3)
are to be called for redemption within [ ]
under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense,
of the Company, or
(4) are
deemed paid and discharged pursuant to section 8.03, as applicable; and the Company, in the case of (1), (2) or (3) above,
has deposited or caused to be deposited with the Trustee as trust funds in trust an amount sufficient for the purpose of paying
and discharging the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal
and interest to the date of such deposit (in the case of Securities which have become due and payable on or prior to the date
of such deposit) or to the Stated Maturity or redemption date, as the case may be;
(b)
the Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(c)
the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each meeting the applicable
requirements of Sections 10.04 and 10.05 and each stating that all conditions precedent herein relating to the satisfaction and
discharge of this Indenture have been complied with and the Trustee receives written demand from the Company to discharge.
Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 7.07, and, if money
shall have been deposited with the Trustee pursuant to clause (a) of this Section, the provisions of Sections 2.04, 2.07,
2.08, 8.01 8.02 and 8.05 shall survive.
SECTION 8.02. Application
of Trust Funds; Indemnification.
(a) Subject
to the provisions of Section 8.05, all money deposited with the Trustee pursuant to Section 8.01, all money and
U.S. Government Obligations or Foreign Government Obligations deposited with the Trustee pursuant to Section 8.03 or
8.04 and all money received by the Trustee in respect of U.S. Government Obligations or Foreign Government Obligations
deposited with the Trustee pursuant to Section 8.03 or 8.04, shall be held in trust and applied by it, in accordance
with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may determine, to the persons entitled thereto, of the
principal and interest for whose payment such money has been deposited with or received by the Trustee or to make mandatory
sinking fund payments or analogous payments as contemplated by Sections 8.03 or 8.04.
(b)
The Company shall pay and shall indemnify the Trustee and the Agents against any tax, fee or other charge imposed on or
assessed against U.S. Government Obligations or Foreign Government Obligations deposited pursuant to Sections 8.03 or 8.04 or the
interest and principal received in respect of such obligations other than any payable by or on behalf of Holders.
(c)
The Trustee shall, in accordance with the terms of this Indenture, deliver or pay to the Company from time to time, upon
Company Request and at the expense of the Company any U.S. Government Obligations or Foreign Government Obligations or money held
by it pursuant to this Indenture as provided in Sections 8.03 or 8.04 which, in the opinion of a nationally recognized firm of
independent certified public accountants, expressed in a written certification thereof and delivered to the Trustee together with
such Company Request, are then in excess of the amount thereof which then would have been required to be deposited for the purpose
for which such U.S. Government Obligations or Foreign Government Obligations or money were deposited or received. This provision
shall not authorize the sale by the Trustee of any U.S. Government Obligations or Foreign Government Obligations held under this
Indenture.
SECTION 8.03. Legal
Defeasance of Securities of any Series.
Unless this Section 8.03
is otherwise specified, pursuant to Section 2.02(s), to be inapplicable to Securities of any Series, the Company shall be
deemed to have paid and discharged the entire indebtedness on all the outstanding Securities of such Series on the [ ]
day after the date of the deposit referred to in subparagraph (d) hereof, and the provisions of this Indenture, as it relates
to such outstanding Securities of such Series, shall no longer be in effect (and the Trustee, at the expense of the company, shall,
at Company Request, execute proper instruments acknowledging the same), except as to:
(a)
the rights of Holders of Securities of such Series to receive, from the trust funds described in subparagraph (d) hereof,
(i) payment of the principal of and each installment of principal of and interest on the outstanding Securities of such Series
on the Stated Maturity of such principal or installment of principal or interest and (ii) the benefit of any mandatory sinking
fund payments applicable to the Securities of such Series on the day on which such payments are due and payable in accordance with
the terms of this Indenture and the Securities of such Series;
(b)
the provisions of Sections 2.04, 2.07, 2.08, 2.14, 8.02, 8.03 and 8.05; and
(c)
the rights, powers, trust and immunities of the Trustee hereunder; provided that, the following conditions shall have been
satisfied:
(d)
the Company shall have deposited or caused to be deposited irrevocably with the Paying Agent as trust funds in trust for
the purpose of making the following payments, specifically pledged as security for and dedicated solely to the benefit of the Holders
of such Securities in the case of Securities of such Series denominated in Dollars, cash in Dollars (or such other money or currencies
as shall then be legal tender in the United States) and/or U.S. Government Obligations, or (ii) in the case of Securities
of such Series denominated in a Foreign Currency (other than a composite currency), money and/or Foreign Government Obligations,
which through the payment of interest and principal in respect thereof, in accordance with their terms, will provide (and without
reinvestment and assuming no tax liability will be imposed on such Paying Agent), not later than [ ] day
before the due date of any payment of money, an amount in cash, sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the Trustee and the Paying Agent, to pay and discharge
each installment of principal (including mandatory sinking fund or analogous payments) of and interest, if any, on all the Securities
of such Series on the dates such installments of interest or principal are due;
(e)
such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement
or instrument to which the Company is a party or by which it is bound;
(f)
no Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the
date of such deposit or during the period ending on the [ ] day after such date;
(g)
the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel to the effect that
(i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii) since
the date of execution of this Indenture, there has been a change in the applicable Federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the Securities of such Series will not
recognize income, gain or loss for Federal income tax purposes as a result of such deposit, defeasance and discharge and will be
subject to Federal income tax on the same amount and in the same manner and at the same times as would have been the case if such
deposit, defeasance and discharge had not occurred;
(h)
the Company shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by
the Company with the intent of preferring the Holders of the Securities of such Series over any other creditors of the company
or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company;
(i)
such deposit shall not result in the trust arising from such deposit constituting an investment company (as defined in the
Investment Company Act of 1940, as amended), or such trust shall be qualified under such Act or exempt from regulation thereunder;
and
(j)
the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that
all conditions precedent provided for relating to the defeasance contemplated by this Section have been complied with.
SECTION 8.04. Covenant
Defeasance.
Unless this Section 8.04
is otherwise specified pursuant to Section 2.02(s) to be inapplicable to Securities of any Series, on and after the [ ]
day after the date of the deposit referred to in subparagraph (a) hereof, the Company may omit to comply with any term, provision
or condition set forth under Sections 4.02, 4.03, 4.04, 4.05, 4.06, and 5.01 as well as any additional covenants contained in a
supplemental indenture hereto for a particular Series of Securities or a Board Resolution or an Officers’ Certificate delivered
pursuant to Section 2.02(s) (and the failure to comply with any such covenants shall not constitute a Default or Event of
Default under Section 6.01) and the occurrence of any event described in clause (e) of Section 6.01 shall not constitute
a Default or Event of Default hereunder, with respect to the Securities of such Series, provided that the following conditions
shall have been satisfied:
(a)
With reference to this Section 8.04, the Company has deposited or caused to be irrevocably deposited (except as provided
in Section 8.02(c)) with the Paying Agent as trust funds in trust, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities (i) in the case of Securities of such Series denominated in Dollars, cash
in Dollars (or such other money or currencies as shall then be legal tender in the United States) and/or U.S. Government Obligations,
or (ii) in the case of Securities of such Series denominated in a Foreign Currency (other than a composite currency), money
and/or Foreign Government Obligations, which through the payment of interest and principal in respect thereof, in accordance with
their terms, will provide (and without reinvestment and assuming no tax liability will be imposed on such Paying Agent), not later
than [ ] day before the due date of any payment of money, an amount in cash, sufficient, in the opinion
of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered
to the Paying Agent, to pay principal and interest, if any, on and any mandatory sinking fund in respect of the Securities of such
Series on the dates such installments of interest or principal are due;
(b)
Such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement
or instrument to which the Company is a party or by which it is bound;
(c)
No Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the
date of such deposit or during the period ending on the [ ] day after such date;
(d)
the company shall have delivered to the Trustee an Opinion of Counsel confirming that Holders of the Securities of such
Series will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and defeasance and will
be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such
deposit and defeasance had not occurred;
(e)
the Company shall have delivered to the Trustee an Officers’ Certificate stating the deposit was not made by the Company
with the intent of preferring the Holders of the Securities of such Series over any other creditors of the Company or with the
intent of defeating, hindering, delaying or defrauding any other creditors of the Company; and
(f)
The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that
all conditions precedent herein provided for relating to the defeasance contemplated by this Section have been complied with.
SECTION 8.05. Repayment
to Company.
The Paying Agent shall
pay to the Company upon request any money held by them for the payment of principal and interest that remains unclaimed for two
years. After that, Securityholders entitled to the money must look to the Company for payment as general creditors unless an applicable
abandoned property law designates another person and all liability of the Paying Agent with respect to that money shall cease.
ARTICLE IX.
AMENDMENTS AND WAIVERS
SECTION 9.01. Without
Consent of Holders.
The Company and the
Trustee may amend or supplement this Indenture or the Securities of one or more Series without the consent of any Securityholder:
(a)
to cure any ambiguity, defect or inconsistency;
(b)
to comply with Article V;
(c)
to provide for uncertificated Securities in addition to or in place of certificated Securities;
(d)
to make any change that does not adversely affect the rights of any Securityholder;
(e)
to provide for the issuance of and establish the form and terms and conditions of Securities of any Series as permitted
by this Indenture;
(f)
to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities
of one or more Series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee;
(g)
to comply with requirements of the TIA and any rules promulgated under the TIA; and
(h)
to add to the covenants of the Company for the equal and ratable benefit of the Holders or to surrender any right, power
or option conferred upon the Company.
Any amendment or supplement
made solely to conform the provisions of this Indenture or the Securities of any Series to the description thereof contained in
the final prospectus relating to such Series will be deemed not to adversely affect the rights of any Holder.
SECTION 9.02. With
Consent of Holders.
The Company and the
Trustee may enter into a supplemental indenture with the written consent of the Holders of at least a majority in principal amount
of the outstanding Securities of all Series affected by such supplemental indenture, taken together as one class (including consents
obtained in connection with a tender offer or exchange offer for the Securities of such Series), for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture
or of modifying in any manner the rights of the Securityholders of each such Series. Except as provided in Section 6.13, the
Holders of at least a majority in principal amount of the outstanding Securities of all Series affected by such waiver by notice
to the Trustee, taken together as one class (including consents obtained in connection with a tender offer or exchange offer for
the Securities of such Series) may waive compliance by the Company with any provision of this Indenture or the Securities with
respect to such Series.
It shall not be necessary
for the consent of the Holders of Securities under this Section 9.02 to approve the particular form of any proposed supplemental
indenture or waiver, but it shall be sufficient if such consent approves the substance thereof. After a supplemental indenture
or waiver under this section becomes effective, the Company shall mail to the Holders of Securities affected thereby a notice briefly
describing the supplemental indenture or waiver. Any failure by the Company to mail or publish such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such supplemental indenture or waiver.
SECTION 9.03. Limitations.
Without the consent
of each Securityholder affected, an amendment or waiver may not:
(a)
change the amount of Securities whose Holders must consent to an amendment, supplement or waiver, except to increase any
such amount or to provide that certain provisions of this Indenture cannot be modified, amended or waived without the consent of
the Holder of each outstanding Security affected thereby;
(b)
reduce the amount of interest, or change the interest payment time, on any Security;
(c)
waive a redemption payment or alter the redemption provisions (other than any alteration that would not materially adversely
affect the legal rights of any Holder under this Indenture) or the price at which the Company is required to offer to purchase
the Securities;
(d)
reduce the principal or change the Stated Maturity of any Security or reduce the amount of, or postpone the date fixed for,
the payment of any sinking fund or analogous obligation;
(e)
reduce the principal amount payable of any Security upon Maturity;
(f)
waive a Default or Event of Default in the payment of the principal of or interest, if any, on any Security (except a rescission
of acceleration of the Securities of any Series by the Holders of at least a majority in principal amount of the outstanding Securities
of such Series and a waiver of the payment default that resulted from such acceleration);
(g)
change the place or currency of payment of principal of or interest, if any, on any Security other than that stated in the
Security;
(h)
impair the right of any Holder to receive payment of principal or, or interest on, the Securities of such Holder on or after
the due dates therefor;
(i)
impair the right to institute suit for the enforcement of any payment on, or with respect to, any Security;
(j)
make any change in Sections 10.15 or 10.16;
(k)
change the ranking of the Securities; or
(l)
make any other change which is specified in a Board Resolution, a supplemental indenture hereto or an Officers’ Certificate
as a limitation under this Section.
SECTION 9.04. Compliance
with Trust Indenture Act.
Every amendment to
this Indenture or the Securities of one or more Series shall be set forth in a supplemental indenture hereto that complies with
the TIA as then in effect.
SECTION 9.05. Revocation
and Effect of Consents.
Until an amendment
or waiver becomes effective, a consent to it by a Holder of a Security is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security, even if notation
of the consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent as to his Security
or portion of a Security if the Trustee receives the notice of revocation before the date the amendment or waiver becomes effective.
Any amendment or waiver
once effective shall bind every Securityholder of each Series affected by such amendment or waiver unless it is of the type described
in any of clauses (a) through (g) of Section 9.03 in that case, the amendment or waiver shall bind each Holder of
a Security who has consented to it and every subsequent Holder of a Security or portion of a Security that evidences the same debt
as the consenting Holder’s Security.
SECTION 9.06. Notation
on or Exchange of Securities.
If an amendment, supplement
or waiver changes the terms of a Security, the Trustee may require the Holder of the Security to deliver it to the Trustee and
the Trustee may place an appropriate notation on the Security about the changed terms and return it to the Holder. Alternatively,
if the Company or the Trustee so determines, the Company shall issue and the Trustee shall authenticate upon request new Securities
of that Series that reflect the changed terms.
SECTION 9.07. Trustee
Protected.
In executing, or accepting
the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 7.01) shall be fully protected
in relying upon, an Opinion of Counsel or an Officer’s Certificate, or both stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee shall sign all supplemental indentures, except that the Trustee
need not sign any supplemental indenture that adversely affects its rights, duties or indemnities.
SECTION 9.08. Effect
of Supplemental Indenture.
Upon the execution
of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and each such supplemental
indenture shall form part of this Indenture for all purposes with respect to the relevant Series; and every Holder of Securities
of the relevant Series theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
ARTICLE X.
MISCELLANEOUS
SECTION 10.01. Trust
Indenture Act Controls.
If any provision of
this Indenture limits, qualifies, or conflicts with another provision which is required or deemed to be included in this Indenture
by the TIA, such required or deemed provision shall control.
SECTION 10.02.
Notices.
Any notice or communication
by the Company, the Trustee, the Paying Agent or the Registrar to another is duly given if in writing and delivered in person or
mailed by first-class mail:
if to the Company:
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The Company, the Trustee
and each Agent by notice to each other may designate additional or different addresses for subsequent notices or communications.
Any notice or communication
to a Securityholder shall be mailed by first-class mail to his address shown on the register kept by the Registrar. Failure to
mail a notice or communication to a Securityholder of any Series or any defect in it shall not affect its sufficiency with respect
to other Securityholders of that or any other Series.
If a notice or communication
is mailed or published in the manner provided above, within the time prescribed, it is duly given, whether or not the Securityholder
receives it.
If the company mails
a notice or communication to Securityholders, it will mail a copy to the Trustee and each Agent at the same time.
Whenever a notice is
required to be given by the Company, such notice may be given by the Trustee or Registrar on the Company’s behalf (and the
Company will make any notice it is required to give to Holders available on its website).
SECTION 10.03. Communication
by Holders with Other Holders.
Securityholders of
any Series may communicate pursuant to TIA Section 312(b) with other Securityholders of that Series or any other Series with
respect to their rights under this Indenture or the Securities of that Series or all Series. The Company, the Trustee, the Registrar
and anyone else shall have the protection of TIA Section 312(c).
SECTION 10.04. Certificate
and Opinion as to Conditions Precedent.
Upon any request or
application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:
(a)
an Officers’ Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for
in this Indenture relating to the proposed action have been complied with; and
(b)
an Opinion of Counsel stating that, in the opinion of counsel, all such conditions precedent (including any covenants, compliance
with which constitutes a condition precedent) have been complied with.
SECTION 10.05. Statements
Required in Certificate or Opinion.
Each certificate or
opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA Section 314(a)(4)) shall comply with the provisions of TIA Section 314(e) and shall include:
(a)
a statement that the person making such certificate or opinion has read such covenant or condition;
(b)
a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(c)
a statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d)
a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
provided, however, that with respect
to matters of fact an Opinion of Counsel may rely on an Officers’ Certificate or certificates of public officials.
SECTION 10.06. Record
Date for Vote or Consent of Holders.
The Company (or, in
the event deposits have been made pursuant to Section 11.02, the Trustee) may set a record date for purposes of determining
the identity of Holders entitled to vote or consent to any action by vote or consent authorized or permitted under this Indenture,
which record date shall not be more than [ ] days prior to the date of the commencement of solicitation of such action. Notwithstanding
the provisions of Section 9.05, if a record date is fixed, those persons who were Holders of Securities at the close of business
on such record date (or their duly designated proxies), and only those persons, shall be entitled to take such action by vote or
consent or to revoke any vote or consent previously given, whether or not such persons continue to be Holders after such record
date.
SECTION 10.07. Rules
by Trustee and Agents.
The Trustee may make
reasonable rules for action by or a meeting of Securityholders of one or more Series. Any Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 10.08. Legal
Holidays.
Unless otherwise provided
by Board Resolution, Officers’ Certificate or supplemental indenture for a particular Series, a “Legal Holiday”
is any day that is not a Business Day. If a payment date is a Legal Holiday at a place of payment, payment may be made at that
place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period.
SECTION 10.09. No
Recourse Against Others.
A director, officer,
employee or stockholder, as such, of the Company shall not have any liability for any obligations of the Company under the Securities
or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Securityholder
by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration for the issue
of the Securities.
SECTION 10.10. Counterparts.
This Indenture may
be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall
be deemed to be an original and all of which taken together shall constitute one and the same agreement.
SECTION 10.11. Governing
Laws and Submission to Jurisdiction.
THIS INDENTURE AND
THE SECURITIES SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK EXCLUDING ANY RULE OF LAW THAT WOULD CAUSE THE APPLICATION
OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
The Company agrees
that any legal suit, action or proceeding arising out of or based upon this Indenture may be instituted in any federal or state
court sitting in New York City, and, to the fullest extent permitted by law, waives any objection which it may now or hereafter
have to the laying of venue of any such proceeding, and irrevocably submits to the non-exclusive jurisdiction of such court in
any suit, action or proceeding. The Company, as long as any Securities remain outstanding or the parties hereto have any obligation
under this Indenture, shall have an authorized agent in the United States upon whom process may be served in any such legal action
or proceeding. Service of process upon such agent and written notice of such service mailed or delivered to it shall to the extent
permitted by law be deemed in every respect effective service of process upon it in any such legal action or proceeding and, if
it fails to maintain such agent, any such process or summons may be served by mailing a copy thereof by registered mail, or a form
of mail substantially equivalent thereto, addressed to it at its address as provided for notices hereunder. The Company hereby
appoints Seward & Kissel LLP, One Battery Park Plaza, New York, NY, 10004, as its agent for such purposes, and covenants
and agrees that service of process in any legal action or proceeding may be made upon it at such office of such agent.
SECTION 10.12. No
Adverse Interpretation of Other Agreements.
This Indenture may
not be used to interpret another indenture, loan or debt agreement of the Company or a Subsidiary. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
SECTION 10.13. Successors.
All agreements of the
Company in this Indenture and the Securities shall bind its successor. All agreements of the Trustee in this Indenture shall bind
its successor.
SECTION 10.14. Severability.
In case any provision
in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 10.15. Table
of Contents, Headings, etc.
The Table of Contents,
Cross Reference Table, and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
SECTION 10.16. Securities
in a Foreign Currency or in ECU.
Unless otherwise specified
in a Board Resolution, a supplemental indenture hereto or an Officers’ Certificate delivered pursuant to Section 2.02
of this Indenture with respect to a particular Series of Securities, whenever for purposes of this Indenture any action may be
taken by the Holders of a specified percentage in aggregate principal amount of Securities of all Series or all Series affected
by a particular action at the time outstanding and, at such time, there are outstanding Securities of any Series which are denominated
in a coin or currency other than Dollars (including ECUs), then the principal amount of Securities of such Series which shall be
deemed to be outstanding for the purpose of taking such action shall be that amount of Dollars that could be obtained for such
amount at the Market Exchange Rate at such time. For purposes of this Section 10.16, “Market Exchange Rate” shall
mean the noon Dollar buying rate in New York City for cable transfers of that currency as published by the Federal Reserve Bank
of New York; provided, however, in the case of ECUs, Market Exchange Rate shall mean the rate of exchange determined by the Commission
of the European Union (or any successor thereto) as published in the Official Journal of the European Union (such publication or
any successor publication, the “Journal”). If such Market Exchange Rate is not available for any reason with respect
to such currency, the Trustee shall use, without liability on its part, such quotation of the Federal Reserve Bank of New York
or, in the case of ECUs, the rate of exchange as published in the Journal, as of the most recent available date, or quotations
or, in the case of ECUs, rates of exchange from one or more major banks in The City of New York or in the country of issue of the
currency in question or, in the case of ECUs, in Luxembourg or such other quotations or, in the case of ECUs, rates of exchange
as the Trustee, upon consultation with the Company, shall deem appropriate. The provisions of this paragraph shall apply in determining
the equivalent principal amount in respect of Securities of a Series denominated in currency other than Dollars in connection with
any action taken by Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations
of the Trustee regarding the Market Exchange Rate or any alternative determination provided for in the preceding paragraph shall
be in its sole discretion and shall, in the absence of manifest error, be conclusive to the extent permitted by law for all purposes
and irrevocably binding upon the Company and all Holders.
SECTION 10.17. Judgment
Currency.
The Company agrees,
to the fullest extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment
in any court it is necessary to convert the sum due in respect of the principal of or interest or other amount on the Securities
of any Series (the “Required Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”),
the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in
The City of New York the Required Currency with the Judgment Currency on the day on which final unappealable judgment is entered,
unless such day is not a New York Banking Day, then, the rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the New
York Banking Day preceding the day on which final unappealable judgment is entered and (b) its obligations under this Indenture
to make payments in the Required Currency (i) shall not be discharged or satisfied by any tender, any recovery pursuant to
any judgment (whether or not entered in accordance with subsection (a)), in any currency other than the Required Currency, except
to the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required
Currency expressed to be payable in respect of such payments, (ii) shall be enforceable as an alternative or additional cause
of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short
of the full amount of the Required Currency so expressed to be payable, and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the foregoing, “New York Banking Day” means any
day except a Saturday, Sunday or a legal holiday in The City of New York on which banking institutions are authorized or required
by law, regulation or executive order to close.
SECTION 10.18. Compliance
with Applicable Anti-Terrorism and Money Laundering Regulations.
In order to comply
with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including
those relating to the funding of terrorist activities and money laundering (“Applicable Law”), the Trustee is required
to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with
the Trustee. Accordingly, each of the parties agree to provide to the Trustee, upon its request from time to time such identifying
information and documentation as may be available for such party in order to enable the Trustee to comply with the Applicable Law.
ARTICLE XI.
SINKING FUNDS
SECTION 11.01. Applicability
of Article.
The provisions of this
Article shall be applicable to any sinking fund for the retirement of the Securities of a Series, except as otherwise permitted
or required by any form of Security of such Series issued pursuant to this Indenture.
The minimum amount
of any sinking fund payment provided for by the terms of the Securities of any Series is herein referred to as a “mandatory
sinking fund payment” and any other amount provided for by the terms of Securities of such Series is herein referred to as
an “optional sinking fund payment.” If provided for by the terms of Securities of any Series, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 11.02. Each sinking fund payment shall be applied
to the redemption of Securities of any Series as provided for by the terms of the securities of such Series.
SECTION 11.02. Satisfaction
of Sinking Fund Payments with Securities.
The Company may, in
satisfaction of all or any part of any sinking fund payment with respect to the Securities of any Series to be made pursuant to
the terms of such Securities (1) deliver outstanding Securities of such Series to which such sinking fund payment is applicable
(other than any of such Securities previously called for mandatory sinking fund redemption) and (2) apply as credit Securities
of such Series to which such sinking fund payment is applicable and which have been redeemed either at the election of the Company
pursuant to the terms of such Series of Securities (except pursuant to any mandatory sinking fund) or through the application of
permitted optional sinking fund payments or other optional redemptions pursuant to the terms of such Securities, provided that
such Securities have not been previously so credited. Such Securities shall be received by the Registrar, together with an Officers’
Certificate with respect thereto, not later than [ ] days prior to the date on which the Registrar begins
the process of selecting Securities for redemption, and shall be credited for such purpose by the Registrar at the price specified
in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly. If as a result of the delivery or credit of Securities in lieu of cash payments pursuant to this Section 11.02,
the principal amount of Securities of such Series to be redeemed in order to exhaust the aforesaid cash payment shall be less than
$[ ], the Registrar need not call Securities of such Series for redemption, except
upon receipt of a Company Order that such action be taken, and such cash payment shall be held by the Paying Agent and applied
to the next succeeding sinking fund payment, provided, however, that the Paying Agent shall from time to time upon receipt of a
Company Order pay over and deliver to the Company any cash payment so being held by the Paying Agent upon delivery by the Company
to the Registrar of Securities of that Series purchased by the Company having an unpaid principal amount equal to the cash payment
required to be released to the Company.
SECTION 11.03. Redemption
of Securities for Sinking Fund.
Not less than
[ ] days (unless otherwise indicated in the Board Resolution, supplemental indenture hereto or
Officers’ Certificate in respect of a particular Series of Securities) prior to each sinking fund payment date for any
Series of Securities, the Company will deliver to the Trustee and the Paying Agent an Officers’ Certificate specifying
the amount of the next ensuing mandatory sinking fund payment for that Series pursuant to the terms of that Series, the
portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting of Securities of that Series pursuant to Section 11.02., and the optional amount,
if any, to be added in cash to the next ensuing mandatory sinking fund payment, and the Company shall thereupon be obligated
to pay the amount therein specified. Not less than [ ] days (unless otherwise indicated in the Board
Resolution, Officers’ Certificate or supplemental indenture in respect of a particular Series of Securities) 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 3.03. Such notice having been duly given, the redemption
of such Securities shall stated in Sections 3.04, 3.05 and 3.06.
[The remainder of this page is intentionally
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IN WITNESS WHEREOF,
the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.
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GLOBUS
MARITIME LIMITED
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By:
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Name:
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Its:
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[ ]
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as
Trustee
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By:
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Name:
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Its:
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By:
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Name:
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Its:
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[ ]
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as
Registrar and Paying Agent
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By:
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Name:
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By:
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Name:
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Its:
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Exhibit 5.1
Globus Maritime Limited
128 Vouliagmenis Avenue, 3rd Floor
166 74 Glyfada, Greece
Our
Reference HOLS1/25810.50004/US/80755285v2
July 31, 2020
Globus Maritime Limited: Exhibit 5.1
Opinion
Ladies and Gentlemen:
We have acted as special counsel as to
matters of the law of the Republic of the Marshall Islands and the State of New York for Globus Maritime Limited, a Marshall Islands
corporation (the “Corporation”), in connection with the preparation of a Registration Statement on Form F-3
(the “Registration Statement”) filed by the Corporation with the Securities and Exchange Commission pursuant
to the Securities Act of 1933, as amended, and the rules and regulations thereunder (the “Securities Act”),
with respect to the registration of the issuance and sale from time to time by the Corporation of:
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(a)
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common shares, par value $0.004 per share,
of the Corporation (“Common Shares”);
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(b)
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other classes of preferred stock, par value
$0.001 per share, of the Corporation (“Preferred Shares”);
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(c)
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warrants and rights (collectively, the “Option Securities”) to purchase Common
Shares or Preferred Shares;
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(d)
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purchase contracts (“Purchase Contracts”);
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(e)
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units (“Units”) consisting of one or more of our rights, purchase contracts,
warrants, debt securities, shares of preferred stock, shares of common stock or any combination of such securities; and
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(f)
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debt securities (the “Debt Securities”
and collectively with Common Shares, Preferred Shares, Option Securities, Purchase Contracts and Units, the “Securities”),
including convertible debt securities, which may be issued pursuant to one of
two forms of indenture for debt securities in the forms filed as Exhibits 4.6 and 4.7 to the Registration Statement (each, an “Indenture”).
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The Securities will be sold from time to
time as set forth in the Registration Statement, the prospectus contained therein (the “Prospectus”) and supplements
to the Prospectus (the “Prospectus Supplements”).
As such counsel, we have examined originals
or copies (certified or otherwise identified to our satisfaction) of the following documents:
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(i)
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the Registration Statement and Prospectus;
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(iii)
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the articles of incorporation and bylaws of the Corporation, each as amended (collectively, the
“Organizational Documents”, and together with the Registration Statement, Prospectus, and each Indenture, the
“Documents”); and
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(iv)
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such other papers, documents, agreements, certificates of public officials and certificates of
representatives of the Corporation as we have deemed relevant and necessary as the basis for the opinion hereafter expressed.
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In such examination, we have assumed (a)
the legal capacity of each natural person, (b) the genuineness of all signatures and the authenticity of all documents submitted
to us as originals, (c) the conformity to original documents of all documents submitted to us as conformed or photostatic copies,
(d) that the documents reviewed by us in connection with the rendering of the opinion set forth herein are true, correct and complete,
and (e) the truthfulness of each statement as to all factual matters contained in any document or certificate encompassed within
the due diligence review undertaken by us. We have also assumed the power and legal right of all parties (other than the Corporation)
to the Registration Statement and any amendments or supplements thereto (including any necessary post-effective amendments), and
all parties to the Indentures (other than the Corporation), to enter into and perform their respective obligations thereunder,
and the due authorization, execution and delivery of the Indentures by all parties thereto. We have further assumed the validity
and enforceability of all documents under all applicable laws other than Marshall Islands law. As to any questions of fact material
to our opinion, we have, when relevant facts were not independently established, relied upon the aforesaid certificates.
In rendering this opinion letter, we have
also assumed:
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(i)
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that the issuance and, if applicable, sale of the Securities complies in all respects with the
terms, conditions and restrictions set forth in the Documents and all of the instruments and other documents relating thereto or
executed in connection therewith;
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(ii)
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the filing by the Corporation of the Registration Statement and Prospectus substantially in the
form examined by us;
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(iii)
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a definitive purchase agreement, underwriting agreement or similar agreement with respect to any
Securities offered will have been duly authorized and validly executed and delivered by the applicable registrants and the other
parties thereto;
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(iv)
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any Securities, including Securities issuable upon conversion, exchange or exercise of any Security
being offered, will be duly authorized, created and, if appropriate, reserved for issuance upon such conversion, exchange or exercise,
and will be validly issued, and the certificates, if any, evidencing the same will be duly executed and delivered, against receipt
of the consideration approved by the board of directors of the Corporation; and
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(v)
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the definitive terms of any Security, other than Common Shares, offered pursuant to the Registration
Statement will have been established in accordance with resolutions of the board of directors of the Corporation, and the requisite
holders of any Preferred Shares (if applicable), the Organizational Documents and applicable law.
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With respect to the issuance and sale of
any series of Preferred Shares, we have further assumed that an appropriate certificate of designations or similar instrument setting
forth the preferential, deferred, qualified or special rights, powers, privileges, conditions or duties with respect to such series
of Preferred Shares, or an amendment to the Organizational Documents, will have been duly adopted and fixed by the board of directors
of the Corporation in a form to be described in a Prospectus Supplement, all in conformity with the requirements of the Organizational
Documents.
We have assumed that the Corporation will,
at the time of any issuance of Common Shares or Preferred Shares, have a sufficient number of authorized but unissued Common Shares
or Preferred Shares pursuant to its articles of incorporation to so issue the relevant number of shares, after taking into account
shares reserved for issuance required by the articles of incorporation of the Corporation.
With respect to the issuance and sale of
any Debt Securities, we have further assumed that (i) the relevant Indenture will be duly qualified under the Trust Indenture Act
of 1939, as amended, (ii) the relevant Indenture will have been duly executed and delivered by the Corporation and the trustee
named therein (the “Trustee”) substantially in the form examined by us and any applicable supplemental indenture
will have been duly executed and delivered by the Corporation and the Trustee in accordance with the terms and conditions of the
relevant Indenture regarding the creation, authentication and delivery of any supplemental indenture to such Indenture and (iii)
such Debt Securities when issued, will be executed, authenticated, issued and delivered (a) against receipt of the consideration
therefor approved by the Corporation and (b) as provided in the relevant Indenture with respect thereto.
As to matters of fact material to this
opinion that have not been independently established, we have relied upon the representations and certificates of officers or representatives
of the Corporation and of public officials, in each case as we have deemed relevant and appropriate. We have not independently
verified the facts so relied on.
This opinion letter is limited to Marshall
Islands law with respect to paragraphs 1-6 below, and New York law with respect to paragraph 7 below, and is as of the date hereof.
We expressly disclaim any responsibility to advise of any development or circumstance of any kind, including any change of law
or fact that may occur after the date of this opinion letter that might affect the opinion expressed herein.
Page 4
Based on the foregoing and having regard
to legal considerations which we deem relevant, we are of the opinion that:
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1.
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The Corporation is validly existing under Marshall Islands law.
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2.
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The Corporation has the corporate power to enter into each Indenture.
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3.
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When the terms of the issuance and sale thereof have been duly authorized and approved by the Corporation,
and when issued and delivered by the Corporation against payment therefor in accordance with the terms of the Organizational Documents,
the applicable purchase, underwriting or similar agreement and the Registration Statement, Prospectus and a Prospectus Supplement,
the Common Shares will be validly issued, fully paid and nonassessable.
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4.
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When the terms of the issuance and sale thereof have been duly authorized and approved by the Corporation,
and when issued and delivered by the Corporation against payment therefor in accordance with the terms of the Organizational Documents,
the applicable purchase, underwriting or similar agreement and the Registration Statement, Prospectus and a Prospectus Supplement,
the Preferred Shares will be validly issued, fully paid and nonassessable, and if the Preferred Shares are convertible into Common
Shares or other Preferred Shares, then such resulting Common Shares or Preferred Shares upon conversion will be (subject to compliance
with the requirements set forth in this Paragraph and Paragraph 3 above), validly issued, fully paid and nonassessable.
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5.
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Upon the due execution and delivery of an Indenture by the Corporation and the other parties thereto
substantially in the form examined by us, when (a) the specific terms of a particular Debt Security have been duly authorized by
the Corporation and established in accordance with the relevant Indenture, and (b) such Debt Security has been duly executed, authenticated,
issued for value by the Corporation and delivered in accordance with such Indenture, and if the Debt Securities issued by the Corporation
are convertible into Common Shares or Preferred Shares, then such resulting Common Shares or Preferred Shares will be (subject
to compliance with the requirements set forth in Paragraphs 3 and 4 above), validly issued, fully paid and nonassessable.
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6.
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When the terms of the issuance and sale thereof have been duly authorized and approved by the Corporation,
and when issued and delivered by the Corporation against payment therefor in accordance with the terms of the Organizational Documents,
the applicable purchase, underwriting or similar agreement and the Registration Statement, Prospectus and a Prospectus Supplement,
(i) the Securities will be validly issued, and (ii) if Common Shares or Preferred Shares are issuable under any Warrants, Purchase
Contracts, or Option Securities, or are part of a Unit, then such issuable Common Shares or Preferred Shares upon exercise, conversion
or otherwise a part thereof will be (subject to compliance with the requirements set forth in Paragraph 3 and Paragraph 4 above),
validly issued, fully paid and nonassessable.
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7.
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When the terms of the issuance and sale thereof have been duly authorized and approved by the Corporation,
and when issued and delivered by the Corporation against payment therefor in accordance with the terms of the Organizational Documents,
the applicable purchase, underwriting or similar agreement and the Registration Statement, Prospectus and a Prospectus Supplement,
the Debt Securities issued pursuant to an Indenture, the Warrants, the Purchase Contracts, the Rights and the Units, upon due execution
and delivery as contemplated in the Prospectus or any supplement thereto, will constitute valid and legally binding obligations
of the Corporation.
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Page 5
We consent to the filing of this
opinion as an exhibit to the Registration Statement, the discussion of this opinion in the Registration Statement, and the
references to our firm in the Prospectus. In giving this consent, we do not hereby admit that we are in the category of
persons whose consent is required under Section 7 of the Securities Act, nor do we admit that we are experts with respect to
any part of the Registration Statement within the meaning of the term “expert” as used in the Securities Act.
Very truly yours,
Watson Farley & Williams
LLP
/s/ Watson Farley & Williams
LLP
Exhibit 8.1
Globus Maritime Limited
128 Vouliagmenis Avenue, 3rd Floor
166 74 Glyfada, Greece
Our
Reference HOLS1/25810.50004/US/80755296v1
July 31, 2020
Globus Maritime Limited: Exhibit 8.1
Opinion
Ladies and Gentlemen:
We have acted as special counsel as to
matters of the law of the Republic of the Marshall Islands and the State of New York for Globus Maritime Limited, a Marshall Islands
corporation (the “Corporation”), in connection with the preparation of a Registration Statement on Form F-3
(the “Registration Statement”) filed by the Corporation with the Securities and Exchange Commission pursuant
to the Securities Act of 1933, as amended, and the rules and regulations thereunder (the “Securities Act”),
with respect to the registration of the issuance and sale from time to time by the Corporation of
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(a)
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common shares, par value $0.004 per share,
of the Corporation (“Common Shares”);
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(b)
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other classes of preferred stock, par value
$0.001 per share, of the Corporation;
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(c)
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warrants and rights to purchase Common Shares or Preferred Shares;
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(e)
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units consisting of one or more of our rights, purchase contracts, warrants, debt securities, shares
of preferred stock, shares of common stock or any combination of such securities; and
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Page 2
The Securities will be sold from time to
time as set forth in the Registration Statement, the prospectus contained therein (the “Prospectus”) and supplements
to the Prospectus.
As such counsel, we have examined originals
or copies (certified or otherwise identified to our satisfaction) of the following documents:
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(i)
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the Registration Statement and Prospectus; and
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(ii)
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such other papers, documents, agreements, certificates of public officials and certificates of
representatives of the Corporation as we have deemed relevant and necessary as the basis for the opinion hereafter expressed.
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In such examination, we have assumed (a)
the legal capacity of each natural person, (b) the genuineness of all signatures and the authenticity of all documents submitted
to us as originals, (c) the conformity to original documents of all documents submitted to us as conformed or photostatic copies,
(d) that the documents reviewed by us in connection with the rendering of the opinion set forth herein are true, correct and complete,
and (e) the truthfulness of each statement as to all factual matters contained in any document or certificate encompassed within
the due diligence review undertaken by us.
As to matters of fact material to this
opinion that have not been independently established, we have relied upon the representations and certificates of officers or representatives
of the Corporation and of public officials, in each case as we have deemed relevant and appropriate. We have not independently
verified the facts so relied on.
This opinion letter is limited to U.S.
federal tax law and Marshall Islands law, and is as of the date hereof. We expressly disclaim any responsibility to advise of any
development or circumstance of any kind, including any change of law or fact or the impact of any information, document, certificate,
record, statement, representation, covenant, or assumption relied upon herein that becomes incorrect or untrue, that may occur
after the date of this opinion letter that might affect the opinion expressed herein.
We have reviewed the discussion
descried under the caption under the caption “Item 10.E Taxation–United States Tax Considerations—United
States Federal Income Taxation of United States Holders” set forth in the Corporation’s annual report on Form
20-F for the year ended December 31, 2019 filed with the U.S. Securities and Exchange Commission on April 1, 2020 (the
“Annual Report”). Based on the representations, covenants, assumptions, conditions and qualifications
described in such section, and taking into account the fact that the discussions set forth in such section do not purport to
discuss all possible U.S. federal income tax consequences of the ownership and disposition of the Securities, and subject to
the qualifications, limitations and assumptions set forth herein, we confirm that the discussions set forth in such section,
to the extent they constitute summaries of law or legal conclusions, unless otherwise noted, constitute our opinion with
respect to the material U.S. federal income tax consequences of the ownership and disposition of the Common Shares as of the
date of the Registration Statement, and accurately state our views as to the tax matters discussed therein (except for the
representations and statements of fact of the Corporation included under such caption, as to which we express no opinion). We
express no opinion as to any U.S. federal income tax consequences other than the opinion set forth above. Except as set forth
in the paragraph below concerning Marshall Islands tax considerations, we express no opinion with respect to tax consequences
under any state, local, or non-U.S. tax law.
Page 3
We have reviewed the discussion set forth
in the Annual Report under the caption “Item 10.E Taxation—Marshall Islands Tax Considerations”. Based on the
facts as set forth in the Annual Report, and having regard to legal considerations which we deem relevant, and subject to the qualifications,
limitations and assumptions set forth herein, we confirm that the statements in such discussion, to the extent they constitute
legal conclusions, unless otherwise noted, are the opinion of Watson Farley & Williams LLP with respect to Marshall Islands
tax consequences as of the date of the Registration Statement (except for the representations and statements of fact of the Company
included under such caption, as to which we express no opinion).
Our opinions and the tax discussion as
set forth in the Registration Statement are based on the current provisions of the Internal Revenue Code of 1986, as amended, the
Treasury Regulations promulgated thereunder, published pronouncements of the Internal Revenue Service which may be cited or used
as precedents and case law, and the law of the Republic of the Marshall Islands as in effect on the date hereof, any of which may
be changed at any time with retroactive effect.
We consent to the filing of this opinion
as an exhibit to the Registration Statement, the discussion of this opinion in the Registration Statement, and the references to
our firm in the Prospectus. In giving this consent, we do not hereby admit that we are in the category of persons whose consent
is required under Section 7 of the Securities Act, nor do we admit that we are experts with respect to any part of the Registration
Statement within the meaning of the term “expert” as used in the Securities Act.
Very truly yours,
Watson Farley & Williams
LLP
/s/ Watson Farley & Williams
LLP
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm
under the caption “Experts” in the Registration Statement (Form F-3) and related Prospectus of Globus Maritime Limited
for the registration of up to $300,000,000 of shares of its common stock, shares of its preferred stock, its debt securities,
its warrants, its purchase contracts, its rights and its units and to the incorporation by reference therein of our report dated
March 31, 2020, with respect to the consolidated financial statements of Globus Maritime Limited included in its Annual Report
(Form 20-F) for the year ended December 31, 2019, filed with the Securities and Exchange Commission.
/s/ Ernst & Young (Hellas) Certified Auditors Accountants
S.A.
Athens, Greece
July 31, 2020