As
filed with the Securities and Exchange Commission on April 2, 2021
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 20549
FORM S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
Hepion
Pharmaceuticals, Inc.
(Exact
name of registrant as specified in its charter)
|
Delaware
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46-2783806
|
(State
or other jurisdiction
of incorporation or organization)
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|
(I.R.S.
Employer
Identification No.)
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399
Thornall Street, First Floor
Edison,
NJ 08837
(732)
902-4000
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Robert
Foster
Chief
Executive Officer
Hepion
Pharmaceuticals, Inc.
399
Thornall Street, First Floor
Edison,
NJ 08837
(732)
902-4000
(Name,
address including zip code, and telephone number, including area code, of agent for service)
With
copies to:
Jeffrey
J. Fessler
Sheppard,
Mullin, Richter & Hampton LLP
30
Rockefeller Plaza, 39th Floor
New
York, New York 10112
(212)
653-8900
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans,
please check the following box. o
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check
the following box x
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration statement number of the earlier effective registration statement
for the same offering. o
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. o
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following
box. o
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and "emerging growth company" in Rule 12b-2 of the Exchange Act.
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Large
accelerated filer o
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Accelerated
filer o
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Non-accelerated
filer x
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Smaller
reporting company x
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Emerging
growth company o
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If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities
Act. o
CALCULATION
OF REGISTRATION FEE
Title of each class of
securities to be registered
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Amount to be
Registered/Proposed
Maximum Offering
Price Per Unit/
Proposed Maximum
Aggregate Offering
Price
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Amount of
Registration Fee (2)
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Common Stock
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Preferred Stock
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Debt Securities
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Warrants
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Units
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Total
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$
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350,000,000
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(1)
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$
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38,185
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(1) An
indeterminate number of securities or aggregate principal amount, as the case may be, of common stock, preferred stock, debt securities
and warrants are being registered hereunder as may from time to time be offered at indeterminate prices as shall have an aggregate
offering price not to exceed $350,000,000. If any debt securities are issued at an original issue discount, then the offering
price of such debt securities shall be in such greater principal amount as shall result in an aggregate offering price not to
exceed $350,000,000, less the aggregate offering price of any securities previously issued hereunder. Any securities issued hereunder
may be sold separately or as units with other securities issued hereunder. The proposed maximum initial offering price per unit
will be determined, from time to time, by the registrant in connection with the issuance by the registrant of the securities registered
hereunder. The securities registered also include such indeterminate amounts and numbers of debt securities, common stock and
preferred stock as may be issuable upon conversion, redemption, exchange, exercise or settlement of any securities registered
hereunder, including under any applicable antidilution provisions. Pursuant to Rule 416(a) under the Securities
Act of 1933, as amended (the “Securities Act”), this Registration Statement shall be deemed to cover any additional
number of securities as may be offered or issued from time to time upon stock splits, stock dividends, recapitalizations or similar
transactions.
(2) The
registration fee has been calculated in accordance with Rule 457(o) under the Securities Act.
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 Commission, acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. We may not sell these securities or accept an offer to buy
these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus
is not an offer to sell these securities, and we are not soliciting an offer to buy these securities in any state where the offer
or sale is not permitted.
Subject
to completion, dated April 2, 2021
$350,000,000
Common
Stock
Preferred
Stock
Debt
Securities
Warrants
Units
We
may offer and sell, from time to time in one or more offerings, any combination of common stock, preferred stock, debt securities,
warrants to purchase common stock, preferred stock or debt securities, or any combination of the foregoing, either individually
or as units comprised of one or more of the other securities, having an aggregate initial offering price not exceeding $350,000,000.
This
prospectus provides a general description of the securities we may offer. Each time we sell a particular class or series
of securities, we will provide specific terms of the securities offered in a supplement to this prospectus. The prospectus
supplement and any related free writing prospectus may also add, update or change information contained in this prospectus. We
may also authorize one or more free writing prospectuses to be provided to you in connection with these offerings. You should
read carefully this prospectus, the applicable prospectus supplement and any related free writing prospectus, as well as any documents
incorporated by reference herein or therein before you invest in any of our securities.
The
specific terms of any securities to be offered, and the specific manner in which they may be offered, will be described in one
or more supplements to this prospectus. This prospectus may not be used to consummate sales of any of these securities unless
it is accompanied by a prospectus supplement. Before investing, you should carefully read this prospectus and any related prospectus
supplement.
Our
common stock is presently listed on the Nasdaq Capital Market under the symbol “HEPA.” On April 1, 2021, the last
reported sale price of our common stock was $1.99 per share. The applicable prospectus supplement will contain information,
where applicable, as to any other listing on the Nasdaq Capital Market or any securities market or other exchange of the securities,
if any, covered by the prospectus supplement.
These
securities may be sold directly by us, through dealers or agents designated from time to time, to or through underwriters, dealers
or through a combination of these methods on a continuous or delayed basis. See “Plan of Distribution” in this
prospectus. We may also describe the plan of distribution for any particular offering of our securities in a prospectus supplement.
If any agents, underwriters or dealers are involved in the sale of any securities in respect of which this prospectus is being
delivered, we will disclose their names and the nature of our arrangements with them in a prospectus supplement. The price to
the public of such securities and the net proceeds we expect to receive from any such sale will also be included in a prospectus
supplement.
Investing
in our securities involves various risks. See “Risk Factors” contained herein for more information on these
risks. Additional risks will be described in the related prospectus supplements under the heading “Risk Factors”.
You should review that section of the related prospectus supplements for a discussion of matters that investors in our securities
should consider.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities, or
passed upon the adequacy or accuracy of this prospectus or any accompanying prospectus supplement. Any representation to
the contrary is a criminal offense.
The
date of this prospectus is , 2021.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or SEC, using a “shelf”
registration process. Under this shelf registration statement, we may sell from time to time in one or more offerings of common
stock and preferred stock, various series of debt securities and/or warrants to purchase any of such securities, either individually
or as units comprised of a combination of one or more of the other securities in one or more offerings up to a total dollar amount
of $350,000,000. This prospectus provides you with a general description of the securities we may offer. Each time we sell any
type or series of securities under this prospectus, we will provide a prospectus supplement that will contain more specific information
about the terms of that offering. We may also authorize one or more free writing prospectuses to be provided to you that may contain
material information relating to these offerings. We may also add, update or change in a prospectus supplement or free writing
prospectus any of the information contained in this prospectus or in the documents we have incorporated by reference into this
prospectus. This prospectus, together with the applicable prospectus supplement, any related free writing prospectus and the documents
incorporated by reference into this prospectus and the applicable prospectus supplement, will include all material information
relating to the applicable offering. You should carefully read both this prospectus and the applicable prospectus supplement and
any related free writing prospectus, together with the additional information described under “Where You Can Find More Information,”
before buying any of the securities being offered.
We
have not authorized anyone to provide any information other than that contained in this prospectus or in any prospectus supplement
or free writing prospectus prepared by or on behalf of us or to which we may have referred you. We take no responsibility for,
and can provide no assurance as to the reliability of, any other information that others may give you. We have not authorized
anyone to provide you with different or additional information. This prospectus, any applicable supplement to this prospectus
or any related free writing prospectus do not constitute an offer to sell or the solicitation of an offer to buy any securities
other than the registered securities to which they relate, nor do this prospectus, any applicable supplement to this prospectus
or any related free writing prospectus constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction
to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction.
The
information appearing in this prospectus, any applicable prospectus supplement or any related free writing prospectus is accurate
only as of the date on the front of the document and any information we have incorporated by reference is accurate only as of
the date of the document incorporated by reference, regardless of the time of delivery of this prospectus, any applicable prospectus
supplement or any related free writing prospectus, or any sale of a security. Our business, financial condition, results of operations
and prospects may have changed since those dates.
This
prospectus contains and incorporates by reference market data and industry statistics and forecasts that are based on independent
industry publications and other publicly available information. Although we believe that these sources are reliable, we do not
guarantee the accuracy or completeness of this information and we have not independently verified this information. Although we
are not aware of any misstatements regarding the market and industry data presented in this prospectus and the documents incorporated
herein by reference, these estimates involve risks and uncertainties and are subject to change based on various factors, including
those discussed under the heading “Risk Factors” contained in the applicable prospectus supplement and any related
free writing prospectus, and under similar headings in the other documents that are incorporated by reference into this prospectus.
Accordingly, investors should not place undue reliance on this information.
This
prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made
to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents.
Copies of some of the documents referred to herein have been filed, will be filed or will be incorporated by reference as exhibits
to the registration statement of which this prospectus is a part, and you may obtain copies of those documents as described below
under the heading “Where You Can Find More Information.”
Company
References
In
this prospectus, “Hepion,” “the Company,” “we,” “us,” and “our” refer
to Hepion Pharmaceuticals, Inc., a Delaware corporation, and its subsidiaries, unless the context otherwise requires.
OUR
BUSINESS
Business
Overview
We
are a biopharmaceutical company headquartered in Edison, New Jersey, focused primarily on the development of drug therapy for treatment
of chronic liver diseases. This therapeutic approach targets fibrosis and possibly hepatocellular carcinoma (“HCC”) associated
with non-alcoholic steatohepatitis (“NASH”), viral hepatitis, and other liver diseases. Our cyclophilin inhibitor, CRV431,
is being developed to offer benefits to address these multiple complex pathologies. CRV431 is a pan cyclophilin inhibitor that targets
multiple pathologic pathways involved in the progression of liver disease. Preclinical studies with CRV431 in NASH models demonstrated
consistent reductions in liver fibrosis and additional reductions in inflammation and cancerous tumors in some studies. CRV431 additionally
showed in vitro antiviral activity towards hepatitis B, C, and D viruses which also trigger liver disease. Preclinical studies
also have shown potentially therapeutic activities of CRV431 in experimental models of acute lung injury, platelet activation, and SARS-CoV-2
replication.
We have completed a Phase 1 program with CRV431
demonstrating safety, tolerability, and pharmacokinetics (PK). Our program consisted of three different clinical trials with CRV431, administered
orally once daily, that included: 1) a Single Ascending Dose (SAD) study; 2) a Multiple Ascending Dose (MAD) study; and 3) a Drug-Drug
Interaction (DDI) study. The SAD, MAD, and DDI studies were comprised of 32, 25, and 18 healthy subjects, respectively. Additionally,
in the SAD study, 8 of the 32 subjects received placebo (24 received CRV431).
CRV431 appeared to be well-tolerated in the
Phase 1 program, and there were no serious adverse effects (SAEs). The few adverse effects (AEs) observed were mild to moderate and mostly
unrelated to study drug. The PK profile of each subject was characterized and CRV431 blood exposures were similar to those needed to elicit
efficacy in the preclinical studies.
We are currently conducting a Phase 2a study
in NASH patients with presumed fibrosis scores of F2 and F3, as characterized by the biomarkers indicative of advancing fibrosis. The
first dosing cohort of 75 mg CRV431 once daily orally has been completed and the second dosing cohort of 225 mg CRV431 is underway.
NASH is a severe form of non-alcoholic fatty liver
disease (NAFLD) characterized by inflammation and fibrosis (scarring) in the liver that can progress to cirrhosis, liver failure, and
liver cancer. The prevalence of NAFLD, which affects approximately 25% of the global population, and NASH, which develops in approximately
20% to 25% of NAFLD patients, is growing and is driven primarily by the worldwide obesity epidemic. Patients with NASH frequently have
other significant metabolic co-morbidities such as obesity, high blood sugar, elevated cholesterol and triglycerides, and systemic hypertension
(a constellation commonly referred to as metabolic syndrome), and these further contribute to the risk of cardiovascular disease. The
number of NASH cases in the US is projected to expand from 16.5 million in 2015 to 27 million in 2030, with similar prevalence growth
expected in Europe. Diet and exercise are currently the standard of care for NAFLD and NASH, but adherence is poor, and there remains
a high unmet need in the treatment of NASH.
NASH is the form of liver disease that is triggered
by what has come to be known as the “Western diet”, characterized especially by high-fat, high-sugar, and processed foods.
Among the effects of a prolonged Western diet is fat accumulation in liver cells (steatosis) which is described as NAFLD and can
predispose cells to injury. NAFLD may evolve into NASH when the fatty liver begins to progress through stages of cell injury, inflammation,
fibrosis, and carcinogenesis. People who develop NASH often have additional predisposing conditions such as diabetes and hypertension,
but the exact biochemical events that trigger and maintain the progression are not well known. Many people in the early stages of disease
do not have significant clinical symptoms and therefore do not know that they have it. NASH becomes evident and a major concern when the
liver becomes fibrotic and puts the individual at increased risk of developing cirrhosis and other complications. Individuals with advanced
liver fibrosis have significantly higher risk of developing liver cancer, although cancer may also arise in some patients before significant
hepatitis or fibrosis. NASH is increasing worldwide at an alarming rate due to the spread of the Western diet, obesity, and other related
conditions. Approximately 4-5% of the global population is estimated to have NASH, including the USA. NASH is the most common reason for
individuals requiring a liver transplant in the USA. Considering the serious outcomes linked to advancing NASH, the economic and social
burden of the disease is enormous. There are no simple blood tests to diagnose or track the progression of NASH, and no drugs are approved
to specifically treat the disease.
HCC is the major type of liver cancer, accounting
for 85-90% of all cases. NASH, hepatitis virus infection, and alcohol consumption all are major causes of HCC. Globally, over 700,000
people die each year from liver cancer which is second only to lung cancer among all cancer-related deaths. The high mortality
is due, in part, to the fact that only around half of all people who develop HCC (in developed countries) receive the diagnosis early
enough to have an opportunity for therapeutic intervention. Additionally, recurrence rates are high, and current treatment options remain
limited.
HCC is a type of cancer in which the tissue microenvironment
plays a major role in its development. In most cases, HCC is preceded by significant, long-term damage to liver cells, inflammation and
fibrosis. One-third of people with cirrhosis, a very advanced stage of liver disease, will eventually progress to HCC. The chronic injury
to the liver leads to many genetic mutations that eventually lead to transformation of cells and formation of tumors. The noxious tissue
microenvironment also promotes cancer by altering the function of immune cells and endothelial cells which form tumor-supporting blood
vessels. These various events underscore the importance of preventing or slowing liver injury and scarring as early and effectively as
possible in order to decrease the progression of liver cancer.
Viral hepatitis may be linked to one or more viruses
including hepatitis A, B, C, D, or E. Hepatitis B virus (“HBV”) is one of many hepatitis viruses that selectively infect human
liver cells and can establish persistent infections under certain conditions. Chronic infections, especially by HBV, HCV, and HDV, cause
progressive liver inflammation, fibrosis, cirrhosis, and cancer. Collectively, these infections represent one of the 3 major triggers
of progressive liver disease (NAFLD/NASH and alcohol being the others).
An HBV vaccine is available that, if administered prior
to HBV infection, assists the body in neutralizing the virus and blocking infection. However, vaccination is not efficacious
for people who are already infected with HBV, and the vaccine has not been historically available to everyone. As a result, an estimated
240 million people worldwide have chronic HBV infection. Anti-HBV medications are used widely by chronically infected individuals but
usually are only effective in decreasing viral replication and viremia (virus in the blood), and NOT in eradicating HBV from the liver.
This is because HBV, unlike HCV, has evolved clever ways of persisting in liver cells and evading the immune system. Thus, despite vaccines
and anti-viral medications, chronic HBV infection remains a huge global health problem. Chronic HBV infection results in the deaths of
approximately 350,000 people per year. A similar number of people die each year from cirrhosis and other complications arising
from HBV.
CRV431
We are developing CRV431 as our lead molecule.
CRV431 is a compound that binds and inhibits the function of a specific class of isomerase enzymes called cyclophilins that mainly regulate
protein folding. Many closely related isoforms of cyclophilins exist in humans. Cyclophilins A, B, and D are the best characterized cyclophilin
isoforms. Inhibition of cyclophilins has been shown in the scientific literature to have therapeutic effects in a variety of experimental
models, including liver disease models. In preclinical in vitro and/or in vivo experiments to date CRV431
decreased liver fibrosis, liver inflammation, liver tumors, and titers of HBV, HCV, HDV, and HIV-1. Importantly, reduction in liver fibrosis
by CRV431 was observed in vivo in several experimental models and studies of NASH and liver fibrosis. Findings to date suggest
that CRV431 might treat certain inciting agents of liver disease such as hepatitis viruses and also the ensuing disease processes resulting
from those agents such as fibrosis.
Cyclophilins are pleiotropic enzymes that play
a role in injury and steatosis through mechanisms including cell death occurring through mitochondrial pore permeability (cyclophilin
D). Inhibition of cyclophilin D, therefore, may play an important role in protection from cell death. Cyclophilin A binding to CD147 is
known to play a role in inflammation, cyclophilin B plays a role in fibrosis through collagen production, and cyclophilins also play a
role in cirrhosis and cancer (e.g., cell proliferation and metastasis). Cyclophilin inhibition with CRV431, therefore, may play an important
role in reducing liver disease.
To date, we have completed a number of separate
preclinical animal efficacy studies of CRV431 to assess antifibrotic activity. These studies were conducted by independent laboratory
collaborations at, for example, The Scripps Research Institute (San Diego, CA), SMC Corporation (Tokyo, Japan), and Physiogenex S.A.S.
(France), Each of these studies demonstrated consistent and significant reductions in fibrosis in mice and rats. CRV431 was also tested
in ex vivo Precision Cut Liver Slices and in Precision Cut Lung Slices obtained from human donors. Again, CRV431 demonstrated an
antifibrotic effect in the human tissue that was consistent with the animal study findings. These studies provide support of advancing
CRV431 into clinical trials for NASH, and potentially additional indications where fibrosis plays a role.
Many viruses have been shown to recruit cellular
(“host”) cyclophilins into the life cycles of the viruses and therefore assist in viral replication and evasion of host immunity.
These viruses include HBV, HCV, HDV, HIV-1 and several coronaviruses. CRV431 was found in in vitro experiments to decrease replication
of HBV, HCV, HDV, HIV-1, and the SARS-CoV-2 coronavirus responsible for the COVID-19 pandemic. SARS-CoV-2 infection may, in some instances,
be associated with acute lung injury and platelet-mediated thrombotic disorders. In experimental models, CRV431 decreased acute lung inflammation
and platelet activation, and therefore CRV431 may have therapeutic benefits in COVID-19 patients.
Data in various cell lines of either transfected
or infected HBV demonstrates nanomolar efficacy (EC50 values) and micromolar toxicity (CC50 values). The selective index (“SI”),
therefore, is wide and suggests that CRV431 presents a viable clinical drug candidate for the treatment of viral infections, including
HBV. Additional testing in a transgenic mouse model of HBV indicated that CRV431 reduced HBV DNA in the liver and HBsAg in serum. CRV431
is orally active and appears to be well tolerated.
On May 10, 2018, we submitted an Investigational
New Drug Application (“IND”) to the U.S. Food and Drug Administration (“FDA”) to support initiation of our CRV431
HBV clinical development program in the United States and received approval in June 2018. We completed the first segment of our Phase
1 clinical activities for CRV431 in October 2018 wherein we reached a major clinical milestone of positive data from a Phase I trial
of CRV431 in humans. This achievement triggered the first milestone payment, as stated in the Merger Agreement for the acquisition of
Ciclofilin Pharmaceuticals, Inc. (“Ciclofilin”) and we paid a related milestone payment of approximately $346,000 to
Aurinia Pharmaceuticals, Inc. ("Aurinia") and $654,000 to the former Ciclofilin shareholders along with the issuance of 1,439
shares of our common stock with a fair value of $55,398, representing 2.5% of our issued and outstanding common stock as of June, 2016,
to the former Ciclofilin shareholders. Our CEO is a former Ciclofilin shareholder and received approximately $274,000 and 603 shares of
common stock and Petrus Wijngaard, a director of our company, received $2,805 and 6 shares of common stock.
Additional milestone payments could potentially
be payable to the former Ciclofilin shareholders pursuant to the Ciclofilin Merger Agreement as follows: (i) upon receipt of Phase II
positive data from a proof of concept clinical trial of CRV431 in humans - 4,317 shares of common stock and $3,000,000, (ii) upon initiation
of a Phase III trial of CRV431 - $5,000,000, and (iii) upon acceptance by the FDA of a new drug application for CRV431 - $8,000,000. In
addition, on February 14, 2014, Ciclofilin had entered into a Purchase and Sale Agreement to acquire Aurinia’s entire interest in
CRV431. This agreement contains future milestone payments payable by us based on clinical and marketing milestones of up to CAD $2.45
million. The milestone payments payable to the former Ciclofilin shareholders will be subject to offset by certain of the clinical and
marketing milestone payments payable to Aurinia as follows: (a) the payments to the former Ciclofilin shareholders pursuant to (ii) above
would be offset by payment to Aurinia of CAD $450,000, and (b) the payments to the former Ciclofilin shareholders pursuant to (iii) above
would be subject to offset by payment to Aurinia of up to CAD $2,000,000. In addition to the above clinical and milestone payments, the
Aurinia Agreement provides for the following additional contingent payment obligations: (x) a royalty of 2.5% on net sales of CRV431 which
is uncapped, (y) a royalty of 5% on license revenue from CRV431 and (z) a payment equal to 30% of the proceeds from a Liquidity Event
(as defined in the Purchase and Sale Agreement) with respect to Ciclofilin, of which approximately $150,000 plus interest is owing. The
maximum obligation under both (y) and (z) is CAD $5,000,000.
On June 17, 2019, we submitted an IND to the FDA
to support initiation of our CRV431 NASH clinical development program in the United States and received approval in July 2019. We completed
dosing of CRV431 in our multiple ascending dose (“MAD”) clinical trial in September 2020.
On November 20, 2020, we submitted an IND to the
FDA to support initiation of a CRV431 clinical development program in the United States for COVID-19. We received approval December 17,
2020, to conduct a COVID-19 clinical trial and are investigating potential sources of collaboration and/or funding for the trial.
Artificial Intelligence (AI)
We have created a proprietary AI tool called, “AI-POWRTM to
optimize the outcomes of our current clinical programs and to potentially identify novel indications for CRV431 and possibly identify
new targets and new drug molecules to broaden our pipeline.
AI-POWR™ is our acronym for Artificial Intelligence
- Precision Medicine; Omics that include genomics, proteomics, metabolomics, transcriptomics, and
lipidomics; World database access; and Response and clinical outcomes. AI-POWR™ allows for
the selection of novel drug targets, biomarkers, and appropriate patient populations. AI-POWR™ is used to identify responders from
big data sources using our multi-omics approach, while modelling inputs and scenarios to increase response rates. The components of AI-POWR™
include access to publicly available databases, and in-house genomic and multi-omic big data, processed via machine learning algorithms.
We believe AI outputs will allow for improved response outcomes through enhanced patient selection, biomarker selection and drug target
selection. We believe AI outputs will help identify responders a priori and reduce the need for large sample sizes through
study design enrichment.
We intend to use AI-POWR™ to help identify
which NASH patients will best respond to CRV431. It is anticipated that applying this proprietary platform to our drug development program
will ultimately save time, resources and money. In so doing, we believe that AI-POWR™ is a risk-mitigation strategy that should
reap benefits all the way through from clinical trials to commercialization.
We believe that NASH is a heterogenous disease
and we need to have a better understanding of interactions among proteins, genes, lipids, metabolites, and other disease variables to
help predict disease progression, regression, and responses to CRV431. All of this is further complicated by variable drug concentrations,
patient traits and temporal factors. AI-POWR™ is designed to address many of the typical challenges in drug development, as we believe
we can use our proprietary platform to shorten development timelines and increase the delta between placebo and treatment groups. AI-POWR™
will be used to drive our ongoing Phase 2a NASH program and identify additional potential indications for CRV431 to expand our footprint
in the cyclophilin inhibition therapeutic space.
Recent Developments
Effective February 16, 2021
we appointed Todd M. Hobbs, M.D. to the newly created position of Chief Medical Officer (“CMO”). In this role, Dr. Hobbs
will help lead our engagement with the FDA, global and national thought leaders, key policymakers, and professional associations.
Dr. Hobbs
joins from Novo Nordisk Inc., one of the world’s leading healthcare companies. His 16 years of progressive experience at Novo Nordisk
includes positions ranging from field medical affairs leadership at the start of his corporate career through to his most recent role
as North American Chief Medical Officer and Vice President. Prior to working at Novo Nordisk, Dr. Hobbs had established a clinical
practice based in Louisville, Kentucky, focusing on the intensive management of patients with diabetes of all ages, and served as chairman
of the medicine department for a large regional medical center in Kentucky.
Dr. Hobbs
currently serves as a Member of the Board for the American Medical Group Association Foundation, the research foundation arm of the American
Medical Group Association, in which he provides oversight for multiple clinical research initiatives. Dr. Hobbs earned his medical
degree from the University of Louisville School of Medicine and has completed focused executive training at the University of Pennsylvania's
Wharton School of Business.
The
Securities We May Offer
We
may offer shares of our common stock and preferred stock, various series of debt securities and warrants to purchase any of such
securities, either individually or in units, from time to time under this prospectus, together with any applicable prospectus
supplement and related free writing prospectus, at prices and on terms to be determined by market conditions at the time of offering.
If we issue any debt securities at a discount from their original stated principal amount, then, for purposes of calculating the
total dollar amount of all securities issued under this prospectus, we will treat the initial offering price of the debt securities
as the total original principal amount of the debt securities. Each time we offer securities under this prospectus, we will provide
offerees with a prospectus supplement that will describe the specific amounts, prices and other important terms of the securities
being offered, including, to the extent applicable:
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designation
or classification;
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aggregate
principal amount or aggregate offering price;
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maturity,
if applicable;
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original
issue discount, if any;
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rates
and times of payment of interest or dividends, if any;
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redemption,
conversion, exchange or sinking fund terms, if any;
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conversion
or exchange prices or rates, if any, and, if applicable, any provisions for changes to
or adjustments in the conversion or exchange prices or rates and in the securities or
other property receivable upon conversion or exchange;
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restrictive
covenants, if any;
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voting
or other rights, if any; and
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important
United States federal income tax considerations.
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A
prospectus supplement and any related free writing prospectus that we may authorize to be provided to you may also add, update
or change information contained in this prospectus or in documents we have incorporated by reference. However, no prospectus supplement
or free writing prospectus will offer a security that is not registered and described in this prospectus at the time of the effectiveness
of the registration statement of which this prospectus is a part.
We
may sell the securities to or through underwriters, dealers or agents or directly to purchasers. We, as well as any agents acting
on our behalf, reserve the sole right to accept and to reject in whole or in part any proposed purchase of securities. Each prospectus
supplement will set forth the names of any underwriters, dealers or agents involved in the sale of securities described in that
prospectus supplement and any applicable fee, commission or discount arrangements with them, details regarding any over-allotment
option granted to them, and net proceeds to us. The following is a summary of the securities we may offer with this prospectus.
Common
Stock
We
currently have authorized 120,000,000 shares of common stock, par value $0.0001 per share. As of March 31, 2021, 76,225,245 shares
of common stock were issued and outstanding. We may offer shares of our common stock either alone or underlying other registered
securities convertible into or exercisable for our common stock. Holders of our common stock are entitled to such dividends as
our board of directors (the “Board of Directors” or “Board”) may declare from time to time out of legally
available funds, subject to the preferential rights of the holders of any shares of our preferred stock that are outstanding or
that we may issue in the future. Currently, we do not pay any dividends on our common stock. Each holder of our common stock is
entitled to one vote per share. In this prospectus, we provide a general description of, among other things, the rights and restrictions
that apply to holders of our common stock.
Preferred
Stock
We
currently have authorized 20,000,000 shares of preferred stock, par value $0.0001. 1,250,000 of such shares are designated as
Series A convertible preferred stock and 11,000 of such shares are designated as Series C convertible preferred stock.
As of March 31, 2021, there were 85,581 shares of Series A convertible preferred stock outstanding and 1,807 shares of Series C
convertible preferred stock outstanding. Any authorized and undesignated shares of preferred stock may be issued from time to
time in one or more additional series pursuant to a resolution or resolutions providing for such issue duly adopted by our Board
of Directors (authority to do so being hereby expressly vested in the Board of Directors). The Board of Directors is further authorized,
subject to limitations prescribed by law, to fix by resolution or resolutions the designations, powers, preferences and rights,
and the qualifications, limitations or restrictions thereof, of any wholly unissued series of preferred stock, including without
limitation authority to fix by resolution or resolutions the dividend rights, dividend rate, conversion rights, voting rights,
rights and terms of redemption (including sinking fund provisions), redemption price or prices, and liquidation preferences of
any such series, and the number of shares constituting any such series and the designation thereof, or any of the foregoing.
The
rights, preferences, privileges and restrictions granted to or imposed upon any series of preferred stock that we offer and sell
under this prospectus and applicable prospectus supplements will be set forth in a certificate of designation relating to the
series. We will incorporate by reference into the registration statement of which this prospectus is a part the form of any certificate
of designation that describes the terms of the series of preferred stock we are offering before the issuance of shares of that
series of preferred stock. You should read any prospectus supplement and any free writing prospectus that we may authorize to
be provided to you related to the series of preferred stock being offered, as well as the complete certificate of designation
that contains the terms of the applicable series of preferred stock.
Debt
Securities
We
may offer general debt obligations, which may be secured or unsecured, senior or subordinated and convertible into shares of our
common stock. In this prospectus, we refer to the senior debt securities and the subordinated debt securities together as the
“debt securities.” We may issue debt securities under a note purchase agreement or under an indenture to be entered
between us and a trustee; forms of the senior and subordinated indentures are included as an exhibit to the registration statement
of which this prospectus is a part. The indentures do not limit the amount of securities that may be issued under it and provides
that debt securities may be issued in one or more series. The senior debt securities will have the same rank as all of our other
indebtedness that is not subordinated. The subordinated debt securities will be subordinated to our senior debt on terms set forth
in the applicable prospectus supplement. In addition, the subordinated debt securities will be effectively subordinated to creditors
and preferred stockholders of our subsidiaries. Our Board of Directors will determine the terms of each series of debt securities
being offered. This prospectus contains only general terms and provisions of the debt securities. The applicable prospectus supplement
will describe the particular terms of the debt securities offered thereby. You should read any prospectus supplement and any free
writing prospectus that we may authorize to be provided to you related to the series of debt securities being offered, as well
as the complete note agreements and/or indentures that contain the terms of the debt securities. Forms of indentures have been
filed as exhibits to the registration statement of which this prospectus is a part, and supplemental indentures and forms of debt
securities containing the terms of debt securities being offered will be incorporated by reference into the registration statement
of which this prospectus is a part from reports we file with the SEC.
Warrants
We
may offer warrants for the purchase of shares of our common stock or preferred stock or of debt securities. We may issue the warrants
by themselves or together with common stock, preferred stock or debt securities, and the warrants may be attached to or separate
from any offered securities. Any warrants issued under this prospectus may be evidenced by warrant certificates. Warrants
may be issued under a separate warrant agreement to be entered into between us and the investors or a warrant agent. Our Board
of Directors will determine the terms of the warrants. This prospectus contains only general terms and provisions of the warrants.
The applicable prospectus supplement will describe the particular terms of the warrants being offered thereby. You should read
any prospectus supplement and any free writing prospectus that we may authorize to be provided to you related to the series of
warrants being offered, as well as the complete warrant agreements that contain the terms of the warrants. Specific warrant agreements
will contain additional important terms and provisions and will be incorporated by reference into the registration statement of
which this prospectus is a part from reports we file with the SEC.
Units
We
may offer units consisting of our common stock or preferred stock, debt securities and/or warrants to purchase any of these securities
in one or more series. We may evidence each series of units by unit certificates that we will issue under a separate agreement.
We may enter into unit agreements with a unit agent. Each unit agent will be a bank or trust company that we select. We will indicate
the name and address of the unit agent in the applicable prospectus supplement relating to a particular series of units. This
prospectus contains only a summary of certain general features of the units. The applicable prospectus supplement will describe
the particular features of the units being offered thereby. You should read any prospectus supplement and any free writing prospectus
that we may authorize to be provided to you related to the series of units being offered, as well as the complete unit agreements
that contain the terms of the units. Specific unit agreements will contain additional important terms and provisions and will
be incorporated by reference into the registration statement of which this prospectus is a part from reports we file with the
SEC.
Corporate
Information
We
were incorporated in the State of Delaware on May 15, 2013 for the purpose of holding certain FV-100 assets of Synergy Pharmaceuticals Inc.,
or Synergy. We were a majority-owned subsidiary of Synergy Pharmaceuticals Inc. (Synergy) until February 18, 2014, the
date Synergy completed the spinout of our shares of common stock. On July 18, 2019, we filed a certificate of amendment to our
certificate of incorporation to change the Company’s name from “ContraVir Pharmaceuticals, Inc.” to “Hepion
Pharmaceuticals, Inc.” The name change became effective as of July 18, 2019.
Our
principal executive offices are located at 399 Thornall Street, First Floor, Edison, New Jersey 08837. Our telephone number is
(732) 902-4000 and our website address is www.hepionpharma.com. The information on our website is not a part of, and should
not be construed as being incorporated by reference into, this registration statement or the accompanying prospectus.
RISK
FACTORS
An
investment in our securities involves a high degree of risk. This prospectus contains, and the prospectus supplement applicable
to each offering of our securities, will contain a discussion of the risks applicable to an investment in our securities. Prior
to making a decision about investing in our securities, you should carefully consider the specific factors discussed under the
heading “Risk Factors” in this prospectus and the applicable prospectus supplement, together with all of the other
information contained or incorporated by reference in the prospectus supplement or appearing or incorporated by reference in this
prospectus. You should also consider the risks, uncertainties and assumptions discussed under Item 1A, “Risk Factors,”
in our Annual Report on Form 10-K for the fiscal year ended December 31, 2020, filed with the SEC on March 31, 2021, and any updates described in our Quarterly Reports on Form 10-Q, all of which are incorporated herein by reference,
and may be amended, supplemented or superseded from time to time by other reports we file with the SEC in the future and any prospectus
supplement related to a particular offering. The risks and uncertainties we have described are not the only ones we face. Additional
risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our operations. The occurrence
of any of these known or unknown risks might cause you to lose all or part of your investment in the offered securities.
FORWARD-LOOKING
STATEMENTS
This
prospectus and any accompanying prospectus supplement, including the documents that we incorporate by reference, contains forward-looking
statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”)
and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Any statements in this
prospectus and any accompanying prospectus supplement about our expectations, beliefs, plans, objectives, assumptions or future
events or performance are not historical facts and are forward-looking statements. These statements are often, but not always,
made through the use of words or phrases such as “believe,” “will,” “expect,” “anticipate,”
“estimate,” “intend,” “plan” and “would.” For example, statements concerning financial
condition, possible or assumed future results of operations, growth opportunities, industry ranking, plans and objectives of management,
markets for our common stock and future management and organizational structure are all forward-looking statements. Forward-looking
statements are not guarantees of performance. They involve known and unknown risks, uncertainties and assumptions that may cause
actual results, levels of activity, performance or achievements to differ materially from any results, levels of activity, performance
or achievements expressed or implied by any forward-looking statement.
Any
forward-looking statements are qualified in their entirety by reference to the risk factors discussed throughout this prospectus
and any accompanying prospectus supplement. Some of the risks, uncertainties and assumptions that could cause actual results to
differ materially from estimates or projections contained in the forward-looking statements include, but are not limited to:
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Our
ability to compete with larger better financed pharmaceutical companies;
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Our
uncertainty of developing marketable products;
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Our
ability to develop and commercialize our products;
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Risks associated with delays, increased costs and funding shortages
caused by the COVID-19 pandemic;
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Our
ability to obtain regulatory approvals;
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Our
ability to maintain and protect intellectual property rights;
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The
inability to raise additional future financing and lack of financial and other resources;
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Our
ability to control product development costs;
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We
may not be able to attract and retain key employees;
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We
may not be able to compete effectively;
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We
may not be able enter into new strategic collaborations;
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Changes
in government regulation affecting product candidates could increase our development
costs;
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Our
involvement in patent and other intellectual property litigation could be expensive and
could divert management’s attention;
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The
possibility that there will be no market acceptance for our products; and
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Changes
in third-party reimbursement policies could adversely affect potential future sales of
any of our products that are approved for marketing.
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The
foregoing list sets forth some, but not all, of the factors that could affect our ability to achieve results described in any
forward-looking statements. You should read this prospectus and any accompanying prospectus supplement and the documents that
we reference herein and therein and have filed as exhibits to the registration statement, of which this prospectus is part, completely
and with the understanding that our actual future results may be materially different from what we expect. You should assume
that the information appearing in this prospectus and any accompanying prospectus supplement is accurate as of the date on the
front cover of this prospectus or such prospectus supplement only. Because the risk factors referred to on page 6 of
this prospectus and incorporated herein by reference, could cause actual results or outcomes to differ materially from those expressed
in any forward-looking statements made by us or on our behalf, you should not place undue reliance on any forward-looking statements.
Further, any forward-looking statement speaks only as of the date on which it is made, and we undertake no obligation to
update any forward-looking statement to reflect events or circumstances after the date on which the statement is made or to reflect
the occurrence of unanticipated events. New factors emerge from time to time, and it is not possible for us to predict which
factors will arise. In addition, we cannot assess the impact of each factor on our business or the extent to which any factor,
or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements.
We qualify all of the information presented in this prospectus and any accompanying prospectus supplement, and particularly our
forward-looking statements, by these cautionary statements.
USE
OF PROCEEDS
Except
as described in any prospectus supplement and any free writing prospectus in connection with a specific offering, we currently
intend to use the net proceeds from the sale of the securities offered under this prospectus for general corporate purposes, including
the development and commercialization of our products, research and development, general and administrative expenses, license
or technology acquisitions, and working capital and capital expenditures. We may also use the net proceeds to repay any debts
and/or invest in or acquire complementary businesses, products or technologies, although we have no current commitments or agreements
with respect to any such investments or acquisitions as of the date of this prospectus. We have not determined the amount of net
proceeds to be used specifically for the foregoing purposes. As a result, our management will have broad discretion in the allocation
of the net proceeds and investors will be relying on the judgment of our management regarding the application of the proceeds
of any sale of the securities. Pending use of the net proceeds, we intend to invest the proceeds in short-term, investment-grade,
interest-bearing instruments.
Each
time we offer securities under this prospectus, we will describe the intended use of the net proceeds from that offering in the
applicable prospectus supplement. The actual amount of net proceeds we spend on a particular use will depend on many factors,
including, our future capital expenditures, the amount of cash required by our operations, and our future revenue growth, if any.
Therefore, we will retain broad discretion in the use of the net proceeds.
DESCRIPTION
OF CAPITAL STOCK
General
The
following description of our capital stock, together with any additional information we include in any applicable prospectus supplement
or any related free writing prospectus, summarizes the material terms and provisions of our common stock and the preferred stock
that we may offer under this prospectus. While the terms we have summarized below will apply generally to any future common stock
or preferred stock that we may offer, we will describe the particular terms of any class or series of these securities in more
detail in the applicable prospectus supplement. For the complete terms of our common stock and preferred stock, please refer to
our Certificate of Incorporation, as amended (the “Certificate of Incorporation”), and our bylaws, as amended (the
“Bylaws”) that are incorporated by reference into the registration statement of which this prospectus is a part or
may be incorporated by reference in this prospectus or any applicable prospectus supplement. The terms of these securities may
also be affected by Delaware General Corporation Law (“DGCL”). The summary below and that contained in any applicable
prospectus supplement or any related free writing prospectus are qualified in their entirety by reference to our Certificate of
Incorporation and our amended and restated bylaws.
As
of the date of this prospectus, our authorized capital stock consisted of 120,000,000 shares of common stock, $0.0001 par
value per share, and 20,000,000 shares of preferred stock. Our Board may establish the rights and preferences of the preferred
stock from time to time. As of March 31, 2021, there were 76,225,245 shares of our common stock issued and outstanding, 85,581
shares of Series A convertible preferred stock outstanding and 1,807 shares of Series C convertible preferred stock
outstanding.
Common
Stock
Holders
of our common stock are entitled to one vote per share. Our Certificate of Incorporation, does not provide for cumulative voting.
Holders of our common stock are entitled to receive ratably such dividends, if any, as may be declared by our Board out of legally
available funds. However, the current policy of our Board is to retain earnings, if any, for the operation and expansion of our
company. Upon liquidation, dissolution or winding-up, the holders of our common stock are entitled to share ratably in all of
our assets which are legally available for distribution, after payment of or provision for all liabilities.
The
holders of our common stock have no preemptive, subscription, redemption or conversion rights.
Preferred
Stock
Our
Certificate of Incorporation provides that our Board may by resolution, without further vote or action by the stockholders, establish
one or more classes or series of preferred stock having the number of shares and relative voting rights, designation, dividend
rates, liquidation, and other rights, preferences, and limitations as may be fixed by them without further stockholder approval.
Once designated by our Board, each series of preferred stock will have specific financial and other terms that will be described
in a prospectus supplement. The description of the preferred stock that is set forth in any prospectus supplement is not complete
without reference to the documents that govern the preferred stock. These include our Certificate of Incorporation and any certificates
of designation that the Board may adopt. Prior to the issuance of shares of each series of preferred stock, the Board is
required by the DGCL and the Certificate of Incorporation to adopt resolutions and file a certificate of designation with the
Secretary of State of the State of Delaware. The certificate of designation fixes for each class or series the designations, powers,
preferences, rights, qualifications, limitations and restrictions, including, but not limited to, some or all of the following:
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the
distinctive designation of such series and the number of shares which shall constitute
such series, which number may be increased (except where otherwise provided by the Board
in creating such series) or decreased (but not below the number of shares thereof then
outstanding) from time to time by resolution of the Board;
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the
rate and manner of payment of dividends payable on shares of such series, including the
dividend rate, date of declaration and payment, whether dividends shall be cumulative,
and the conditions upon which and the date from which such dividends shall be cumulative;
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whether
shares of such series shall be redeemed, the time or times when, and the price or prices
at which, shares of such series shall be redeemable, the redemption price, the terms
and conditions of redemption, and the sinking fund provisions, if any, for the purchase
or redemption of such shares;
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the
amount payable on shares of such series and the rights of holders of such shares in the
event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs
of the Company;
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the
rights, if any, of the holders of shares of such series to convert such shares into,
or exchange such shares for, shares of common stock, other securities, or shares of any
other class or series of preferred stock and the terms and conditions of such conversion
or exchange;
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the
voting rights, if any, and whether full or limited, of the shares of such series, which
may include no voting rights, one vote per share, or such higher number of votes per
share as may be designated by the Board; and
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the
preemptive or preferential rights, if any, of the holders of shares of such series to
subscribe for, purchase, receive, or otherwise acquire any part of any new or additional
issue of stock of any class, whether now or hereafter authorized, or of any bonds, debentures,
notes, or other securities of the Company, whether or not convertible into shares of
stock with the Company.
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The
issuance of preferred stock may delay, deter or prevent a change in control.
The
description of preferred stock above and the description of the terms of a particular series of preferred stock in any applicable
prospectus supplement are not complete. You should refer to any applicable certificate of designation for complete information.
The
DGCL, the state of our incorporation, provides that the holders of preferred stock will have the right to vote separately as a
class on any proposal involving fundamental changes in the rights of holders of that preferred stock. This right is in addition
to any voting rights that may be provided for in the applicable certificate of designation.
All
shares of preferred stock offered hereby will, when issued, be fully paid and nonassessable, including shares of preferred stock
issued upon the exercise of preferred stock warrants or subscription rights, if any.
Although
our Board has no intention at the present time of doing so, it could authorize the issuance of a series of preferred stock that
could, depending on the terms of such series, impede the completion of a merger, tender offer or other takeover attempt.
Series A
Preferred Stock
On
October 14, 2014, we filed a Certificate of Designation, Preference and Rights of Series A Convertible Preferred Stock
(the “Series A Preferred Stock”) with the Secretary of State of the State of Delaware. The number of shares of
Series A Preferred Stock designated is 1,250,000 and each share of Series A Preferred Stock has a stated value equal
to $10.00 (the “Series A Stated Value”).
Voting
Rights. Except as otherwise provided therein and as otherwise prohibited by law, the Series A
Preferred Stock shall have voting rights on an as converted basis. So long as any shares of Series A Preferred Stock are
outstanding, the Company shall not, without the affirmative vote of the Holders of the shares of the Series A Preferred Stock
then outstanding, (a) alter or change adversely the powers, preferences or rights given to the Series A Preferred Stock
or alter or amend the Certificate of Designation, (b) authorize or create any class of stock ranking as to dividends, redemption
or distribution of assets upon a Series A Liquidation (as defined herein) senior to or otherwise pari passu with the Series A
Preferred Stock, or (c) enter into any agreement with respect to the foregoing.
Liquidation. Upon
any liquidation, dissolution or winding-up of the Company, whether voluntary or involuntary (a “Series A Liquidation”),
the holders shall be entitled to receive out of the assets of the Company, whether such assets are capital or surplus, for each
share of Series A Preferred Stock an amount equal to 100% of the Series A Stated Value per share plus any other fees
or liquidated damages owing thereon before any distribution or payment shall be made to the holders of any junior securities,
and if the assets of the Company shall be insufficient to pay in full such amounts, then the entire assets to be distributed to
the holders shall be distributed among the holders ratably in accordance with the respective amounts that would be payable on
such shares if all amounts payable thereon were paid in full.
Conversions
at Option of Holder. Each share of Series A Preferred Stock shall be convertible into that number
of shares of Common Stock determined by dividing the Series A Stated Value of such share of Series A Preferred Stock
by $268.80 (the “Series A Conversion Price”), at the option of the holder, at any time and from time to time from
and after October 14, 2014.
Subsequent
Equity Sales. If, at any time while this Series A Preferred Stock is outstanding, the Company
sells or grants any option to purchase or sells or grants any right to reprice its securities, or otherwise disposes of or issues
(or announces any sale, grant or any option to purchase or other disposition) any common stock or common stock equivalents entitling
any person to acquire shares of common stock (a “Series A Subsequent Financing”) at an effective price per share
that is lower than the then Series A Conversion Price (such lower price, the “Series A Base Conversion Price”
and such issuances collectively, a “Series A Dilutive Issuance”) (if the holder of the common stock or common
stock equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating
conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection
with such issuance, be entitled to receive shares of common stock at an effective price per share that is lower than the Series A
Conversion Price, such issuance shall be deemed to have occurred for less than the Series A Conversion Price on such date
of the Series A Dilutive Issuance), the Series A Conversion Price then in effect shall be reduced to the Series A
Base Conversion Price. The holder’s rights under this section shall terminate upon the Company completing a Series A
Subsequent Financing at an effective price per share equal to or greater than the Series A Conversion Price then in effect
which results in minimum gross proceeds to the Company of $20 million.
Registration
Rights. In the event we close a Series A Subsequent Financing of common or preferred stock, which
does not include any warrants or convertible securities, at an effective price per share that is lower than 160% (“Series A
Premium Price”) of the then Series A Conversion Price (the “Series A Registration Price”) and the
purchasers of the securities in the Series A Subsequent Financing are given registration rights for such securities or such
securities are issued on a registered basis, the holders shall receive at such time (i) equivalent registration rights for
the Series A Preferred Stock and the shares issuable upon conversion of the Series A Preferred Stock in the event purchasers
of the securities in the Series A Subsequent Financing receive registration rights or (ii) demand registration rights
in the event purchasers of the securities in the Series A Subsequent Financing receive registered shares. In the event, the
Series A Subsequent Financing includes warrants or other convertible securities, the Series A Premium Price shall increase
by 1% for every 1% of warrant or other convertible security coverage in the Subsequent Financing. The holder’s rights under
this section shall terminate upon us completing a Series A Subsequent Financing at an effective price per share equal to
or greater than the Series A Registration Price which results in minimum gross proceeds to us of $20 million.
Series C
Convertible Preferred Stock
On
July 2, 2018, we filed a Certificate of Designation, Preference and Rights of Series C Convertible Preferred Stock (the
“Series C Convertible Preferred Stock”) with the Secretary of State of the State of Delaware. The number of shares
of Series C Convertible Preferred Stock designated is 11,000.
Conversion. Each
share of Series C Convertible Preferred Stock is convertible at the option of the holder at any time, into the number of
shares of our common stock determined by dividing the $1,000 stated value per share of the Series C Convertible Preferred
Stock by a conversion price of $108.50 per share. In addition, the conversion price per share is subject to adjustment for stock
dividends, distributions, subdivisions, combinations or reclassifications. Subject to limited exceptions, a holder of the Series C
Convertible Preferred Stock does not have the right to convert any portion of the Series C Convertible Preferred Stock to
the extent that, after giving effect to the conversion, the holder, together with its affiliates, would beneficially own in excess
of 9.99% of the number of shares of our common stock outstanding immediately after giving effect to its conversion.
Fundamental
Transactions. In the event we effect certain mergers, consolidations, sales of substantially all of
our assets, tender or exchange offers, reclassifications or share exchanges in which our common stock is effectively converted
into or exchanged for other securities, cash or property, we consummate a business combination in which another person acquires
50% of the outstanding shares of our common stock, or any person or group becomes the beneficial owner of 50% of the aggregate
ordinary voting power represented by our issued and outstanding common stock, then, upon any subsequent conversion of the Series C
Convertible Preferred Stock, the holders of the Series C Convertible Preferred Stock will have the right to receive any shares
of the acquiring corporation or other consideration it would have been entitled to receive if it had been a holder of the number
of shares of common stock then issuable upon conversion in full of the Series C Convertible Preferred Stock.
Dividends. Holders
of Series C Convertible Preferred Stock shall be entitled to receive dividends (on an as-if-converted-to-common-stock basis)
in the same form as dividends actually paid on shares of the common stock when, as and if such dividends are paid on shares of
common stock.
Voting
Rights. Except as otherwise provided in the certificate of designation or as otherwise required by
law, the Series C Convertible Preferred Stock has no voting rights.
Liquidation
Preference. Upon our liquidation, dissolution or winding-up, whether voluntary or involuntary, holders
of Series C Convertible Preferred Stock will be entitled to receive out of our assets, whether capital or surplus, the same
amount that a holder of common stock would receive if the Series C Preferred Stock were fully converted.
Redemption
Rights. We are not obligated to redeem or repurchase any shares of Series C Convertible Preferred
Stock. Shares of Series C Convertible Preferred Stock are not otherwise entitled to any redemption rights, or mandatory sinking
fund or analogous provisions.
Anti-Takeover
Effects of Certain Provisions of our Certificate of Incorporation, Bylaws and the DGCL
Certain
provisions of our Certificate of Incorporation and amended and restated bylaws, which are summarized in the following paragraphs,
may have the effect of discouraging potential acquisition proposals or making a tender offer or delaying or preventing a change
in control, including changes a stockholder might consider favorable. Such provisions may also prevent or frustrate attempts by
our stockholders to replace or remove our management. In particular, the Certificate of Incorporation and amended and restated
bylaws and Delaware law, as applicable, among other things:
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provide
the board of directors with the ability to alter the bylaws without stockholder approval;
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place
limitations on the removal of directors; and
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provide
that vacancies on the board of directors may be filled by a majority of directors in
office, although less than a quorum.
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These
provisions are expected to discourage certain types of coercive takeover practices and inadequate takeover bids and to encourage
persons seeking to acquire control of us to first negotiate with its board. These provisions may delay or prevent someone from
acquiring or merging with us, which may cause our market price of our common stock to decline.
Blank
Check Preferred. Our Board is authorized to create and issue from time to time, without stockholder
approval, up to an aggregate of 20,000,000 shares of preferred stock in one or more series and to establish the number of shares
of any series of preferred stock and to fix the designations, powers, preferences and rights of the shares of each series and
any qualifications, limitations or restrictions of the shares of each series.
The
authority to designate preferred stock may be used to issue series of preferred stock, or rights to acquire preferred stock, that
could dilute the interest of, or impair the voting power of, holders of the common stock or could also be used as a method of
determining, delaying or preventing a change of control.
Advance
Notice Bylaws. The Bylaws contain an advance notice procedure for stockholder proposals to be
brought before any meeting of stockholders, including proposed nominations of persons for election to our Board of Directors.
Stockholders at any meeting will only be able to consider proposals or nominations specified in the notice of meeting or brought
before the meeting by or at the direction of our Board of Directors or by a stockholder who was a stockholder of record on the
record date for the meeting, who is entitled to vote at the meeting and who has given our corporate secretary timely written notice,
in proper form, of the stockholder’s intention to bring that business before the meeting. Although the Bylaws do not give
our Board of Directors the power to approve or disapprove stockholder nominations of candidates or proposals regarding other business
to be conducted at a special or annual meeting, the Bylaws may have the effect of precluding the conduct of certain business at
a meeting if the proper procedures are not followed or may discourage or deter a potential acquirer from conducting a solicitation
of proxies to elect its own slate of directors or otherwise attempting to obtain control of us.
Interested
Stockholder Transactions. We are subject to Section 203 of the DGCL which, subject to certain
exceptions, prohibits “business combinations” between a publicly-held Delaware corporation and an “interested
stockholder,” which is generally defined as a stockholder who becomes a beneficial owner of 15% or more of a Delaware corporation’s
voting stock for a three-year period following the date that such stockholder became an interested stockholder.
Limitations
on Liability, Indemnification of Officers and Directors and Insurance
The
DGCL authorizes corporations to limit or eliminate the personal liability of directors to corporations and their stockholders
for monetary damages for breaches of directors’ fiduciary duties as directors and our amended and restated certificate of
incorporation will include such an exculpation provision. Our certificate of incorporation and by-laws will include provisions
that indemnify, to the fullest extent allowable under the DGCL, the personal liability of directors or officers for monetary damages
for actions taken as a director or officer of us, or for serving at our request as a director or officer or another position at
another corporation or enterprise, as the case may be. Our certificate of incorporation and by-laws will also provide that we
must indemnify and advance reasonable expenses to our directors and officers, subject to our receipt of an undertaking from the
indemnified party as may be required under the DGCL. Our Certificate of Incorporation expressly authorizes us to carry directors’
and officers’ insurance to protect us, our directors, officers and certain employees for some liabilities. The limitation
of liability and indemnification provisions in our Certificate of Incorporation and by-laws may discourage stockholders from bringing
a lawsuit against directors for breach of their fiduciary duty. These provisions may also have the effect of reducing the likelihood
of derivative litigation against our directors and officers, even though such an action, if successful, might otherwise benefit
us and our stockholders. However, these provisions do not limit or eliminate our rights, or those of any stockholder, to seek
non-monetary relief such as injunction or rescission in the event of a breach of a director’s duty of care. The provisions
will not alter the liability of directors under the federal securities laws. In addition, your investment may be adversely affected
to the extent that, in a class action or direct suit, we pay the costs of settlement and damage awards against directors and officers
pursuant to these indemnification provisions. There is currently no pending material litigation or proceeding against any of our
directors, officers or employees for which indemnification is sought.
Authorized
but Unissued Shares
Our
authorized but unissued shares of common stock and preferred stock will be available for future issuance without your approval.
We may use additional shares for a variety of purposes, including future public offerings to raise additional capital, to fund
acquisitions and as employee compensation. The existence of authorized but unissued shares of common stock and preferred stock
could render more difficult or discourage an attempt to obtain control of us by means of a proxy contest, tender offer, merger
or otherwise.
Transfer
Agent and Registrar
The
Transfer Agent and Registrar for our common stock is Philadelphia Stock Transfer, Inc.
DESCRIPTION
OF DEBT SECURITIES
The
following description, together with the additional information we include in any applicable prospectus supplements or free writing
prospectuses, summarizes the material terms and provisions of the debt securities that we may offer under this prospectus. We
may issue debt securities, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible
debt. While the terms we have summarized below will apply generally to any future debt securities we may offer under this prospectus,
we will describe the particular terms of any debt securities that we may offer in more detail in the applicable prospectus supplement
or free writing prospectus. The terms of any debt securities we offer under a prospectus supplement may differ from the terms
we describe below. However, no prospectus supplement shall fundamentally change the terms that are set forth in this prospectus
or offer a security that is not registered and described in this prospectus at the time of its effectiveness. As of the date of
this prospectus, we have no outstanding registered debt securities. Unless the context requires otherwise, whenever we refer to
the “indentures,” we also are referring to any supplemental indentures that specify the terms of a particular series
of debt securities.
We
will issue any senior debt securities under the senior indenture that we will enter into with the trustee named in the senior
indenture. We will issue any subordinated debt securities under the subordinated indenture and any supplemental indentures that
we will enter into with the trustee named in the subordinated indenture. We have filed forms of these documents as exhibits to
the registration statement, of which this prospectus is a part, and supplemental indentures and forms of debt securities containing
the terms of the debt securities being offered will be filed as exhibits to the registration statement of which this prospectus
is a part or will be incorporated by reference from reports that we file with the SEC.
The
indentures will be qualified under the Trust Indenture Act of 1939, as amended, or the Trust Indenture Act. We use the term “trustee”
to refer to either the trustee under the senior indenture or the trustee under the subordinated indenture, as applicable.
The
following summaries of material provisions of the senior debt securities, the subordinated debt securities and the indentures
are subject to, and qualified in their entirety by reference to, all of the provisions of the indenture and any supplemental indentures
applicable to a particular series of debt securities. We urge you to read the applicable prospectus supplements and any related
free writing prospectuses related to the debt securities that we may offer under this prospectus, as well as the complete indentures
that contains the terms of the debt securities. Except as we may otherwise indicate, the terms of the senior indenture and the
subordinated indenture are identical.
General
The
terms of each series of debt securities will be established by or pursuant to a resolution of our Board of Directors and set forth
or determined in the manner provided in an officers’ certificate or by a supplemental indenture. Debt securities may be
issued in separate series without limitation as to aggregate principal amount. We may specify a maximum aggregate principal amount
for the debt securities of any series. We will describe in the applicable prospectus supplement the terms of the series of debt
securities being offered, including:
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the
principal amount being offered, and if a series, the total amount authorized and the
total amount outstanding;
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any
limit on the amount that may be issued;
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whether
or not we will issue the series of debt securities in global form, and, if so, the terms
and who the depositary will be;
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whether
and under what circumstances, if any, we will pay additional amounts on any debt securities
held by a person who is not a United States person for tax purposes, and whether we can
redeem the debt securities if we have to pay such additional amounts;
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the
annual interest rate, which may be fixed or variable, or the method for determining the
rate and the date interest will begin to accrue, the dates interest will be payable and
the regular record dates for interest payment dates or the method for determining such
dates;
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whether
or not the debt securities will be secured or unsecured, and the terms of any secured
debt;
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the
terms of the subordination of any series of subordinated debt;
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the
place where payments will be made;
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restrictions
on transfer, sale or other assignment, if any;
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our
right, if any, to defer payment of interest and the maximum length of any such deferral
period;
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the
date, if any, after which, and the price at which, we may, at our option, redeem the
series of debt securities pursuant to any optional or provisional redemption provisions
and the terms of those redemption provisions;
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provisions
for a sinking fund purchase or other analogous fund, if any, including the date, if any,
on which, and the price at which we are obligated, pursuant thereto or otherwise, to
redeem, or at the holder’s option, to purchase, the series of debt securities and
the currency or currency unit in which the debt securities are payable;
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whether
the indenture will restrict our ability or the ability of our subsidiaries to:
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incur
additional indebtedness;
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issue
additional securities;
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pay
dividends or make distributions in respect of our capital stock or the capital stock
of our subsidiaries;
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place
restrictions on our subsidiaries’ ability to pay dividends, make distributions
or transfer assets;
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make
investments or other restricted payments;
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sell
or otherwise dispose of assets;
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enter
into sale-leaseback transactions;
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engage
in transactions with stockholders or affiliates;
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issue
or sell stock of our subsidiaries; or
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effect
a consolidation or merger.
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whether
the indenture will require us to maintain any interest coverage, fixed charge, cash flow-based,
asset-based or other financial ratios;
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a
discussion of certain material or special United States federal income tax considerations
applicable to the debt securities;
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information
describing any book-entry features;
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the
applicability of the provisions in the indenture on discharge;
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whether
the debt securities are to be offered at a price such that they will be deemed to be
offered at an “original issue discount” as defined in paragraph (a) of
Section 1273 of the Internal Revenue Code of 1986, as amended;
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the
denominations in which we will issue the series of debt securities, if other than denominations
of $1,000 and any integral multiple thereof;
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the
currency of payment of debt securities if other than U.S. dollars and the manner of determining
the equivalent amount in U.S. dollars; and
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any
other specific terms, preferences, rights or limitations of, or restrictions on, the
debt securities, including any additional events of default or covenants provided with
respect to the debt securities, and any terms that may be required by us or advisable
under applicable laws or regulations.
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Conversion
or Exchange Rights
We
will set forth in the applicable prospectus supplement the terms under which a series of debt securities may be convertible into
or exchangeable for our common stock, our preferred stock or other securities (including securities of a third party). We will
include provisions as to whether conversion or exchange is mandatory, at the option of the holder or at our option. We may include
provisions pursuant to which the number of shares of our common stock, our preferred stock or other securities (including securities
of a third party) that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation,
Merger or Sale
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the indentures will not
contain any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of all
or substantially all of our assets. However, any successor to or acquirer of such assets must assume all of our obligations under
the indentures or the debt securities, as appropriate. If the debt securities are convertible into or exchangeable for our other
securities or securities of other entities, the person with whom we consolidate or merge or to whom we sell all of our property
must make provisions for the conversion of the debt securities into securities that the holders of the debt securities would have
received if they had converted the debt securities before the consolidation, merger or sale.
Events
of Default under the Indenture
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the following are events
of default under the indentures with respect to any series of debt securities that we may issue:
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if
we fail to pay interest when due and payable and our failure continues for 90 days and
the time for payment has not been extended;
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if
we fail to pay the principal, premium or sinking fund payment, if any, when due and payable
at maturity, upon redemption or repurchase or otherwise, and the time for payment has
not been extended;
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if
we fail to observe or perform any other covenant contained in the debt securities or
the indentures, other than a covenant specifically relating to another series of debt
securities, and our failure continues for 90 days after we receive notice from the trustee
or we and the trustee receive notice from the holders of at least 25% in aggregate principal
amount of the outstanding debt securities of the applicable series; and
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if
specified events of bankruptcy, insolvency or reorganization occur.
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We
will describe in each applicable prospectus supplement any additional events of default relating to the relevant series of debt
securities.
If
an event of default with respect to debt securities of any series occurs and is continuing, other than an event of default specified
in the last bullet point above, the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt
securities of that series, by notice to us in writing, and to the trustee if notice is given by such holders, may declare the
unpaid principal, premium, if any, and accrued interest, if any, due and payable immediately. If an event of default arises due
to the occurrence of certain specified bankruptcy, insolvency or reorganization events, the unpaid principal, premium, if any,
and accrued interest, if any, of each issue of debt securities then outstanding shall be due and payable without any notice or
other action on the part of the trustee or any holder.
The
holders of a majority in principal amount of the outstanding debt securities of an affected series may waive any default or event
of default with respect to the series and its consequences, except defaults or events of default regarding payment of principal,
premium, if any, or interest, unless we have cured the default or event of default in accordance with the indenture. Any waiver
shall cure the default or event of default.
Subject
to the terms of the indentures, if an event of default under an indenture shall occur and be continuing, the trustee will be under
no obligation to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of
the applicable series of debt securities, unless such holders have offered the trustee reasonable indemnity or security satisfactory
to it against any loss, liability or expense. The holders of a majority in principal amount of the outstanding debt securities
of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to
the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt securities of that series, provided
that:
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the
direction so given by the holder is not in conflict with any law or the applicable indenture;
and
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subject
to its duties under the Trust Indenture Act, the trustee need not take any action that
might involve it in personal liability or might be unduly prejudicial to the holders
not involved in the proceeding.
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The
indentures provide that if an event of default has occurred and is continuing, the trustee will be required in the exercise of
its powers to use the degree of care that a prudent person would use in the conduct of its own affairs. The trustee, however,
may refuse to follow any direction that conflicts with law or the indenture, or that the trustee determines is unduly prejudicial
to the rights of any other holder of the relevant series of debt securities, or that would involve the trustee in personal liability.
Prior to taking any action under the indentures, the trustee will be entitled to indemnification against all costs, expenses and
liabilities that would be incurred by taking or not taking such action.
A
holder of the debt securities of any series will have the right to institute a proceeding under the indentures or to appoint a
receiver or trustee, or to seek other remedies only if:
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the
holder has given written notice to the trustee of a continuing event of default with
respect to that series;
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the
holders of at least 25% in aggregate principal amount of the outstanding debt securities
of that series have made a written request and such holders have offered reasonable indemnity
to the trustee or security satisfactory to it against any loss, liability or expense
or to be incurred in compliance with instituting the proceeding as trustee; and
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the
trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount of
the outstanding debt securities of that series other conflicting directions within 90 days after the notice, request and offer.
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These
limitations do not apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium,
if any, or interest on, the debt securities, or other defaults that may be specified in the applicable prospectus supplement.
We
will periodically file statements with the trustee regarding our compliance with specified covenants in the indentures.
The
indentures provide that if a default occurs and is continuing and is actually known to a responsible officer of the trustee, the
trustee must mail to each holder notice of the default within the earlier of 90 days after it occurs and 30 days after it is known
by a responsible officer of the trustee or written notice of it is received by the trustee, unless such default has been cured
or waived. Except in the case of a default in the payment of principal or premium of, or interest on, any debt security or certain
other defaults specified in an indenture, the trustee shall be protected in withholding such notice if and so long as the Board
of Directors, the executive committee or a trust committee of directors, or responsible officers of the trustee, in good faith
determine that withholding notice is in the best interests of holders of the relevant series of debt securities.
Modification
of Indenture; Waiver
Subject
to the terms of the indenture for any series of debt securities that we may issue, we and the trustee may change an indenture
without the consent of any holders with respect to the following specific matters:
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to
fix any ambiguity, defect or inconsistency in the indenture;
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to
comply with the provisions described above under “Description of Debt Securities
— Consolidation, Merger or Sale;”
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to
comply with any requirements of the SEC in connection with the qualification of any indenture
under the Trust Indenture Act;
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to
add to, delete from or revise the conditions, limitations and restrictions on the authorized
amount, terms or purposes of issue, authentication and delivery of debt securities, as
set forth in the indenture;
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to
provide for the issuance of, and establish the form and terms and conditions of, the
debt securities of any series as provided under “Description of Debt Securities
— General,” to establish the form of any certifications required to be furnished
pursuant to the terms of the indenture or any series of debt securities, or to add to
the rights of the holders of any series of debt securities;
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to
evidence and provide for the acceptance of appointment hereunder by a successor trustee;
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to
provide for uncertificated debt securities and to make all appropriate changes for such
purpose;
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to
add such new covenants, restrictions, conditions or provisions for the benefit of the
holders, to make the occurrence, or the occurrence and the continuance, of a default
in any such additional covenants, restrictions, conditions or provisions an event of
default or to surrender any right or power conferred to us in the indenture; or
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to
change anything that does not adversely affect the interests of any holder of debt securities
of any series in any material respect.
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In
addition, under the indentures, the rights of holders of a series of debt securities may be changed by us and the trustee with
the written consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of
each series that is affected. However, subject to the terms of the indenture for any series of debt securities that we may issue
or otherwise provided in the prospectus supplement applicable to a particular series of debt securities, we and the trustee may
only make the following changes with the consent of each holder of any outstanding debt securities affected:
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extending
the stated maturity of the series of debt securities;
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reducing
the principal amount, reducing the rate of or extending the time of payment of interest,
or reducing any premium payable upon the redemption or repurchase of any debt securities;
or
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reducing
the percentage of debt securities, the holders of which are required to consent to any
amendment, supplement, modification or waiver.
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Discharge
Each
indenture provides that, subject to the terms of the indenture and any limitation otherwise provided in the prospectus supplement
applicable to a particular series of debt securities, we may elect to be discharged from our obligations with respect to one or
more series of debt securities, except for specified obligations, including obligations to:
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register
the transfer or exchange of debt securities of the series;
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replace
stolen, lost or mutilated debt securities of the series;
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maintain
paying agencies;
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hold
monies for payment in trust;
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recover
excess money held by the trustee;
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compensate
and indemnify the trustee; and
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appoint
any successor trustee.
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In
order to exercise our rights to be discharged, we must deposit with the trustee money or government obligations sufficient to
pay all the principal of, and any premium and interest on, the debt securities of the series on the dates payments are due.
Form,
Exchange and Transfer
We
will issue the debt securities of each series only in fully registered form without coupons and, unless we otherwise specify in
the applicable prospectus supplement, in denominations of $1,000 and any integral multiple thereof. The indentures provide that
we may issue debt securities of a series in temporary or permanent global form and as book-entry securities that will be deposited
with, or on behalf of, The Depository Trust Company or another depositary named by us and identified in a prospectus supplement
with respect to that series. See “Legal Ownership of Securities” below for a further description of the terms relating
to any book-entry securities.
At
the option of the holder, subject to the terms of the indentures and the limitations applicable to global securities described
in the applicable prospectus supplement, the holder of the debt securities of any series can exchange the debt securities for
other debt securities of the same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject
to the terms of the indentures and the limitations applicable to global securities set forth in the applicable prospectus supplement,
holders of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or
with the form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the
security registrar or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the
debt securities that the holder presents for transfer or exchange, we will make no service charge for any registration of transfer
or exchange, but we may require payment of any taxes or other governmental charges.
We
will name in the applicable prospectus supplement the security registrar, and any transfer agent in addition to the security registrar,
that we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation
of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required
to maintain a transfer agent in each place of payment for the debt securities of each series.
If
we elect to redeem the debt securities of any series, we will not be required to:
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issue,
register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business
15 days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption and ending
at the close of business on the day of the mailing; or
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register
the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion
of any debt securities we are redeeming in part.
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Information
Concerning the Trustee
The
trustee, other than during the occurrence and continuance of an event of default under an indenture, undertakes to perform only
those duties as are specifically set forth in the applicable indenture and is under no obligation to exercise any of the powers
given it by the indentures at the request of any holder of debt securities unless it is offered reasonable security and indemnity
against the costs, expenses and liabilities that it might incur. However, upon an event of default under an indenture, the trustee
must use the same degree of care as a prudent person would exercise or use in the conduct of his or her own affairs.
Payment
and Paying Agents
Unless
we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on
any interest payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered
at the close of business on the regular record date for the interest payment.
We
will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents
designated by us, except that unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments
by check that we will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable
prospectus supplement, we will designate the corporate trust office of the trustee as our sole paying agent for payments with
respect to debt securities of each series. We will name in the applicable prospectus supplement any other paying agents that we
initially designate for the debt securities of a particular series. We will maintain a paying agent in each place of payment for
the debt securities of a particular series.
All
money we pay to a paying agent or the trustee for the payment of the principal of or any premium or interest on any debt securities
that remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid
to us, and the holder of the debt security thereafter may look only to us for payment thereof.
Governing
Law
The
indentures and the debt securities will be governed by and construed in accordance with the laws of the State of New York, except
to the extent that the Trust Indenture Act is applicable.
Ranking
Debt Securities
The
subordinated debt securities will be unsecured and will be subordinate and junior in priority of payment to certain other indebtedness
to the extent described in a prospectus supplement. The subordinated indenture does not limit the amount of subordinated debt
securities that we may issue. It also does not limit us from issuing any other secured or unsecured debt.
The
senior debt securities will be unsecured and will rank equally in right of payment to all our other senior unsecured debt. The
senior indenture does not limit the amount of senior debt securities that we may issue. It also does not limit us from issuing
any other secured or unsecured debt.
DESCRIPTION
OF WARRANTS
The
following description, together with the additional information we may include in any applicable prospectus supplements and free
writing prospectuses, summarizes the material terms and provisions of the warrants that we may offer under this prospectus, which
may consist of warrants to purchase common stock, preferred stock or debt securities and may be issued in one or more series.
Warrants may be offered independently or together with common stock, preferred stock or debt securities offered by any prospectus
supplement, and may be attached to or separate from those securities. While the terms we have summarized below will apply generally
to any warrants that we may offer under this prospectus, we will describe the particular terms of any series of warrants that
we may offer in more detail in the applicable prospectus supplement and any applicable free writing prospectus. The terms of any
warrants offered under a prospectus supplement may differ from the terms described below. However, no prospectus supplement will
fundamentally change the terms that are set forth in this prospectus or offer a security that is not registered and described
in this prospectus at the time of its effectiveness.
We
may issue the warrants under a warrant agreement that we will enter into with a warrant agent to be selected by us. If selected,
the warrant agent will act solely as an agent of ours in connection with the warrants and will not act as an agent for the holders
or beneficial owners of the warrants. If applicable, we will file as exhibits to the registration statement of which this prospectus
is a part, or will incorporate by reference from a Current Report on Form 8-K that we file with the SEC, the form of warrant
agreement, including a form of warrant certificate, that describes the terms of the particular series of warrants we are offering
before the issuance of the related series of warrants. The following summaries of material provisions of the warrants and the
warrant agreements are subject to, and qualified in their entirety by reference to, all the provisions of the warrant agreement
and warrant certificate applicable to a particular series of warrants. We urge you to read the applicable prospectus supplement
and any applicable free writing prospectus related to the particular series of warrants that we sell under this prospectus, as
well as the complete warrant agreements and warrant certificates that contain the terms of the warrants.
General
We
will describe in the applicable prospectus supplement the terms relating to a series of warrants, including:
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the
offering price and aggregate number of warrants offered;
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the
currency for which the warrants may be purchased;
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if
applicable, the designation and terms of the securities with which the warrants are issued
and the number of warrants issued with each such security or each principal amount of
such security;
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if
applicable, the date on and after which the warrants and the related securities will
be separately transferable;
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in
the case of warrants to purchase debt securities, the principal amount of debt securities
purchasable upon exercise of one warrant and the price at, and currency in which, this
principal amount of debt securities may be purchased upon such exercise;
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in
the case of warrants to purchase common stock or preferred stock, the number of shares
of common stock or preferred stock, as the case may be, purchasable upon the exercise
of one warrant and the price at which these shares may be purchased upon such exercise;
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the
effect of any merger, consolidation, sale or other disposition of our business on the
warrant agreements and the warrants;
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the
terms of any rights to redeem or call the warrants;
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any
provisions for changes to or adjustments in the exercise price or number of securities
issuable upon exercise of the warrants;
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the
dates on which the right to exercise the warrants will commence and expire;
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the
manner in which the warrant agreements and warrants may be modified;
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United
States federal income tax consequences of holding or exercising the warrants;
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the
terms of the securities issuable upon exercise of the warrants; and
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any
other specific terms, preferences, rights or limitations of or restrictions on the warrants.
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Before
exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such
exercise, including:
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in
the case of warrants to purchase debt securities, the right to receive payments of principal
of, or premium, if any, or interest on, the debt securities purchasable upon exercise
or to enforce covenants in the applicable indenture; or
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in
the case of warrants to purchase common stock or preferred stock, the right to receive
dividends, if any, or, payments upon our liquidation, dissolution or winding up or to
exercise voting rights, if any.
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Exercise
of Warrants
Each
warrant will entitle the holder to purchase the securities that we specify in the applicable prospectus supplement at the exercise
price that we describe in the applicable prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement,
holders of the warrants may exercise the warrants at any time up to the specified time on the expiration date that we set forth
in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants will become
void.
Holders
of the warrants may exercise the warrants by delivering the warrant certificate representing the warrants to be exercised together
with specified information, and paying the required amount to the warrant agent in immediately available funds, as provided in
the applicable prospectus supplement. We will set forth on the reverse side of the warrant certificate and in the applicable prospectus
supplement the information that the holder of the warrant will be required to deliver to us or the warrant agent as applicable.
Upon
receipt of the required payment and the warrant certificate properly completed and duly executed at the corporate trust office
of the warrant agent or any other office indicated in the applicable prospectus supplement, we will issue and deliver the securities
purchasable upon such exercise. If fewer than all of the warrants represented by the warrant certificate are exercised, then we
will issue a new warrant certificate for the remaining amount of warrants. If we so indicate in the applicable prospectus supplement,
holders of the warrants may surrender securities as all or part of the exercise price for warrants.
Enforceability
of Rights by Holders of Warrants
If
selected, each warrant agent will act solely as our agent under the applicable warrant agreement and will not assume any obligation
or relationship of agency or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for
more than one issue of warrants. A warrant agent will have no duty or responsibility in case of any default by us under the applicable
warrant agreement or warrant, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make
any demand upon us. Any holder of a warrant may, without the consent of the related warrant agent or the holder of any other warrant,
enforce by appropriate legal action its right to exercise, and receive the securities purchasable upon exercise of, its warrants.
DESCRIPTION
OF UNITS
The
following description, together with the additional information we may include in any applicable prospectus supplements and free
writing prospectuses, summarizes the material terms and provisions of the units that we may offer under this prospectus.
While
the terms we have summarized below will apply generally to any units that we may offer under this prospectus, we will describe
the particular terms of any series of units in more detail in the applicable prospectus supplement. The terms of any units offered
under a prospectus supplement may differ from the terms described below. However, no prospectus supplement will fundamentally
change the terms that are set forth in this prospectus or offer a security that is not registered and described in this prospectus
at the time of its effectiveness.
We
will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from
a Current Report on Form 8-K that we file with the SEC, the form of unit agreement that describes the terms of the series
of units we are offering, and any supplemental agreements, before the issuance of the related series of units. The following summaries
of material terms and provisions of the units are subject to, and qualified in their entirety by reference to, all the provisions
of the unit agreement and any supplemental agreements applicable to a particular series of units. We urge you to read the applicable
prospectus supplements related to the particular series of units that we sell under this prospectus, as well as the complete unit
agreement and any supplemental agreements that contain the terms of the units.
General
We
may issue units comprised of one or more debt securities, shares of common stock, shares of preferred stock and warrants in any
combination. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit.
Thus, the holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement under
which a unit is issued may provide that the securities included in the unit may not be held or transferred separately, at any
time or at any time before a specified date.
We
will describe in the applicable prospectus supplement the terms of the series of units, including:
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the
designation and terms of the units and of the securities comprising the units, including
whether and under what circumstances those securities may be held or transferred separately;
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any
provisions of the governing unit agreement that differ from those described below; and
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any
provisions for the issuance, payment, settlement, transfer or exchange of the units or
of the securities comprising the units.
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The
provisions described in this section, as well as those described under “Description of Capital Stock,” “Description
of Debt Securities” and “Description of Warrants” will apply to each unit and to any common stock, preferred
stock, debt security or warrant included in each unit, respectively.
Issuance
in Series
We
may issue units in such amounts and in numerous distinct series as we determine.
Enforceability
of Rights by Holders of Units
Each
unit agent will act solely as our agent under the applicable unit agreement and will not assume any obligation or relationship
of agency or trust with any holder of any unit. A single bank or trust company may act as unit agent for more than one series
of units. A unit agent will have no duty or responsibility in case of any default by us under the applicable unit agreement or
unit, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any
holder of a unit may, without the consent of the related unit agent or the holder of any other unit, enforce by appropriate legal
action its rights as holder under any security included in the unit.
We,
the unit agents and any of their agents may treat the registered holder of any unit certificate as an absolute owner of the units
evidenced by that certificate for any purpose and as the person entitled to exercise the rights attaching to the units so requested,
despite any notice to the contrary. See “Legal Ownership of Securities.”
LEGAL
OWNERSHIP OF SECURITIES
We
can issue securities in registered form or in the form of one or more global securities. We describe global securities in greater
detail below. We refer to those persons who have securities registered in their own names on the books that we or any applicable
trustee or depositary or warrant agent maintain for this purpose as the “holders” of those securities. These persons
are the legal holders of the securities. We refer to those persons who, indirectly through others, own beneficial interests in
securities that are not registered in their own names, as “indirect holders” of those securities. As we discuss below,
indirect holders are not legal holders, and investors in securities issued in book-entry form or in street name will be indirect
holders.
Book-Entry
Holders
We
may issue securities in book-entry form only, as we will specify in the applicable prospectus supplement. This means securities
may be represented by one or more global securities registered in the name of a financial institution that holds them as depositary
on behalf of other financial institutions that participate in the depositary’s book-entry system. These participating institutions,
which are referred to as participants, in turn, hold beneficial interests in the securities on behalf of themselves or their customers.
Only
the person in whose name a security is registered is recognized as the holder of that security. Global securities will be registered
in the name of the depositary or its participants. Consequently, for global securities, we will recognize only the depositary
as the holder of the securities, and we will make all payments on the securities to the depositary. The depositary passes along
the payments it receives to its participants, which in turn pass the payments along to their customers who are the beneficial
owners. The depositary and its participants do so under agreements they have made with one another or with their customers; they
are not obligated to do so under the terms of the securities.
As
a result, investors in a global security will not own securities directly. Instead, they will own beneficial interests in a global
security, through a bank, broker or other financial institution that participates in the depositary’s book-entry system
or holds an interest through a participant. As long as the securities are issued in global form, investors will be indirect holders,
and not legal holders, of the securities.
Street
Name Holders
We
may terminate a global security or issue securities that are not issued in global form. In these cases, investors may choose to
hold their securities in their own names or in “street name.” Securities held by an investor in street name would
be registered in the name of a bank, broker or other financial institution that the investor chooses, and the investor would hold
only a beneficial interest in those securities through an account he or she maintains at that institution.
For
securities held in street name, we or any applicable trustee or depositary will recognize only the intermediary banks, brokers
and other financial institutions in whose names the securities are registered as the holders of those securities, and we or any
such trustee or depositary will make all payments on those securities to them. These institutions pass along the payments they
receive to their customers who are the beneficial owners, but only because they agree to do so in their customer agreements or
because they are legally required to do so. Investors who hold securities in street name will be indirect holders, not legal holders,
of those securities.
Legal
Holders
Our
obligations, as well as the obligations of any applicable trustee or third party employed by us or a trustee, run only to the
legal holders of the securities. We do not have obligations to investors who hold beneficial interests in global securities, in
street name or by any other indirect means. This will be the case whether an investor chooses to be an indirect holder of a security
or has no choice because we are issuing the securities only in global form.
For
example, once we make a payment or give a notice to the holder, we have no further responsibility for the payment or notice even
if that holder is required, under agreements with its participants or customers or by law, to pass it along to the indirect holders
but does not do so. Similarly, we may want to obtain the approval of the holders to amend an indenture, to relieve us of the consequences
of a default or of our obligation to comply with a particular provision of an indenture, or for other purposes. In such an event,
we would seek approval only from the legal holders, and not the indirect holders, of the securities. Whether and how the legal
holders contact the indirect holders is up to the legal holders.
Special
Considerations for Indirect Holders
If
you hold securities through a bank, broker or other financial institution, either in book-entry form because the securities are
represented by one or more global securities or in street name, you should check with your own institution to find out:
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how
it handles securities payments and notices;
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whether
it imposes fees or charges;
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how
it would handle a request for the holders’ consent, if ever required;
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whether
and how you can instruct it to send you securities registered in your own name so you
can be a legal holder, if that is permitted in the future;
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how
it would exercise rights under the securities if there were a default or other event
triggering the need for holders to act to protect their interests; and
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if
the securities are in book-entry form, how the depositary’s rules and procedures
will affect these matters.
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Global
Securities
A
global security is a security that represents one or any other number of individual securities held by a depositary. Generally,
all securities represented by the same global securities will have the same terms.
Each
security issued in book-entry form will be represented by a global security that we issue to, deposit with and register in the
name of a financial institution or its nominee that we select. The financial institution that we select for this purpose is called
the depositary. Unless we specify otherwise in the applicable prospectus supplement, The Depository Trust Company, New York, New
York, known as DTC, will be the depositary for all securities issued in book-entry form.
A
global security may not be transferred to or registered in the name of anyone other than the depositary, its nominee or a successor
depositary, unless special termination situations arise. We describe those situations below under “— Special Situations
When A Global Security Will Be Terminated.” As a result of these arrangements, the depositary, or its nominee, will be the
sole registered owner and legal holder of all securities represented by a global security, and investors will be permitted to
own only beneficial interests in a global security. Beneficial interests must be held by means of an account with a broker, bank
or other financial institution that in turn has an account with the depositary or with another institution that does. Thus, an
investor whose security is represented by a global security will not be a legal holder of the security, but only an indirect holder
of a beneficial interest in the global security.
If
the prospectus supplement for a particular security indicates that the security will be issued as a global security, then the
security will be represented by a global security at all times unless and until the global security is terminated. If termination
occurs, we may issue the securities through another book-entry clearing system or decide that the securities may no longer be
held through any book-entry clearing system.
Special
Considerations For Global Securities
As
an indirect holder, an investor’s rights relating to a global security will be governed by the account rules of the
investor’s financial institution and of the depositary, as well as general laws relating to securities transfers. We do
not recognize an indirect holder as a holder of securities and instead deal only with the depositary that holds the global security.
If
securities are issued only as global securities, an investor should be aware of the following:
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an
investor cannot cause the securities to be registered in his or her name, and cannot
obtain non-global certificates for his or her interest in the securities, except in the
special situations we describe below;
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an
investor will be an indirect holder and must look to his or her own bank or broker for
payments on the securities and protection of his or her legal rights relating to the
securities, as we describe above;
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an
investor may not be able to sell interests in the securities to some insurance companies
and to other institutions that are required by law to own their securities in non-book-entry
form;
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an
investor may not be able to pledge his or her interest in the global security in circumstances
where certificates representing the securities must be delivered to the lender or other
beneficiary of the pledge in order for the pledge to be effective;
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the
depositary’s policies, which may change from time to time, will govern payments,
transfers, exchanges and other matters relating to an investor’s interest in the
global security. We and any applicable trustee have no responsibility for any aspect
of the depositary’s actions or for its records of ownership interests in the global
security. We and the trustee also do not supervise the depositary in any way;
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the
depositary may, and we understand that DTC will, require that those who purchase and
sell interests in the global security within its book-entry system use immediately available
funds, and your broker or bank may require you to do so as well; and
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financial
institutions that participate in the depositary’s book-entry system, and through
which an investor holds its interest in the global security, may also have their own
policies affecting payments, notices and other matters relating to the securities. There
may be more than one financial intermediary in the chain of ownership for an investor.
We do not monitor and are not responsible for the actions of any of those intermediaries
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Special
Situations When A Global Security Will Be Terminated
In
a few special situations described below, a global security will terminate and interests in it will be exchanged for physical
certificates representing those interests. After that exchange, the choice of whether to hold securities directly or in street
name will be up to the investor. Investors must consult their own banks or brokers to find out how to have their interests in
securities transferred to their own names, so that they will be direct holders. We have described the rights of holders and street
name investors above.
A
global security will terminate when the following special situations occur:
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if
the depositary notifies us that it is unwilling, unable or no longer qualified to continue
as depositary for that global security and we do not appoint another institution to act
as depositary within 90 days;
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if
we notify any applicable trustee that we wish to terminate that global security; or
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if
an event of default has occurred with regard to securities represented by that global
security and has not been cured or waived.
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The
applicable prospectus supplement may also list additional situations for terminating a global security that would apply only to
the particular series of securities covered by the prospectus supplement. When a global security terminates, the depositary, and
neither we, nor any applicable trustee, is responsible for deciding the names of the institutions that will be the initial direct
holders.
PLAN
OF DISTRIBUTION
We
may sell the securities being offered hereby in one or more of the following ways from time to time:
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through
agents to the public or to investors;
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to
underwriters for resale to the public or to investors;
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negotiated
transactions;
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directly
to investors; or
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through
a combination of any of these methods of sale.
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As
set forth in more detail below, the securities may be distributed from time to time in one or more transactions:
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at
a fixed price or prices, which may be changed;
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at
market prices prevailing at the time of sale;
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at
prices related to such prevailing market prices; or
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We
will set forth in a prospectus supplement the terms of that particular offering of securities, including:
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the
name or names of any agents or underwriters;
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the
purchase price of the securities being offered and the proceeds we will receive from the sale;
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any
over-allotment options under which underwriters may purchase additional securities from us;
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any
agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation;
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any
initial public offering price;
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any
discounts or concessions allowed or re-allowed or paid to dealers; and
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any
securities exchanges or markets on which such securities may be listed.
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Only
underwriters named in the prospectus supplement are underwriters of the securities offered by the prospectus supplement.
If
underwriters are used in an offering, we will execute an underwriting agreement with such underwriters and will specify the name
of each underwriter and the terms of the transaction (including any underwriting discounts and other terms constituting compensation
of the underwriters and any dealers) in a prospectus supplement. The securities may be offered to the public either through underwriting
syndicates represented by managing underwriters or directly by one or more investment banking firms or others, as designated.
If an underwriting syndicate is used, the managing underwriter(s) will be specified on the cover of the prospectus supplement.
If underwriters are used in the sale, the offered securities will be acquired by the underwriters for their own accounts and may
be resold from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or
at varying prices determined at the time of sale. Any public offering price and any discounts or concessions allowed or re-allowed
or paid to dealers may be changed from time to time. Unless otherwise set forth in the prospectus supplement, the obligations
of the underwriters to purchase the offered securities will be subject to conditions precedent and the underwriters will be obligated
to purchase all of the offered securities if any are purchased.
We
may grant to the underwriters options to purchase additional securities to cover over-allotments, if any, at the public offering
price, with additional underwriting commissions or discounts, as may be set forth in a related prospectus supplement. The terms
of any over-allotment option will be set forth in the prospectus supplement for those securities.
If
we use a dealer in the sale of the securities being offered pursuant to this prospectus or any prospectus supplement, we will
sell the securities to the dealer, as principal. The dealer may then resell the securities to the public at varying prices
to be determined by the dealer at the time of resale. The names of the dealers and the terms of the transaction will be
specified in a prospectus supplement.
We
may sell the securities directly or through agents we designate from time to time. We will name any agent involved in the
offering and sale of securities and we will describe any commissions we will pay the agent in the prospectus supplement. Unless
the prospectus supplement states otherwise, any agent will act on a best-efforts basis for the period of its appointment.
We
may authorize agents or underwriters to solicit offers by institutional investors to purchase securities from us at the public
offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery
on a specified date in the future. We will describe the conditions to these contracts and the commissions we must pay for solicitation
of these contracts in the prospectus supplement.
In
connection with the sale of the securities, underwriters, dealers or agents may receive compensation from us or from purchasers
of the common stock for whom they act as agents in the form of discounts, concessions or commissions. Underwriters may sell the
securities to or through dealers, and those dealers may receive compensation in the form of discounts, concessions or commissions
from the underwriters or commissions from the purchasers for whom they may act as agents. Underwriters, dealers and agents that
participate in the distribution of the securities, and any institutional investors or others that purchase common stock directly
and then resell the securities, may be deemed to be underwriters, and any discounts or commissions received by them from us and
any profit on the resale of the common stock by them may be deemed to be underwriting discounts and commissions under the Securities
Act.
We
may provide agents and underwriters with indemnification against particular civil liabilities, including liabilities under the
Securities Act, or contribution with respect to payments that the agents or underwriters may make with respect to such liabilities.
Agents and underwriters may engage in transactions with, or perform services for, us in the ordinary course of business.
In
addition, we may enter into derivative transactions with third parties (including the writing of options), or sell securities
not covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement
indicates, in connection with such a transaction, the third parties may, pursuant to this prospectus and the applicable prospectus
supplement, sell securities covered by this prospectus and the applicable prospectus supplement. If so, the third party may use
securities borrowed from us or others to settle such sales and may use securities received from us to close out any related short
positions. We may also loan or pledge securities covered by this prospectus and the applicable prospectus supplement to third
parties, who may sell the loaned securities or, in an event of default in the case of a pledge, sell the pledged securities pursuant
to this prospectus and the applicable prospectus supplement. The third party in such sale transactions will be an underwriter
and will be identified in the applicable prospectus supplement or in a post-effective amendment.
To
facilitate an offering of a series of securities, persons participating in the offering may engage in transactions that stabilize,
maintain, or otherwise affect the market price of the securities. This may include over-allotments or short sales of the securities,
which involves the sale by persons participating in the offering of more securities than have been sold to them by us. In those
circumstances, such persons would cover such over-allotments or short positions by purchasing in the open market or by exercising
the over-allotment option granted to those persons. In addition, those persons may stabilize or maintain the price of the securities
by bidding for or purchasing securities in the open market or by imposing penalty bids, whereby selling concessions allowed to
underwriters or dealers participating in any such offering may be reclaimed if securities sold by them are repurchased in connection
with stabilization transactions. The effect of these transactions may be to stabilize or maintain the market price of the securities
at a level above that which might otherwise prevail in the open market. Such transactions, if commenced, may be discontinued at
any time. We make no representation or prediction as to the direction or magnitude of any effect that the transactions described
above, if implemented, may have on the price of our securities.
Unless
otherwise specified in the applicable prospectus supplement, each class or series of securities will be a new issue with no established
trading market, other than our common stock, which is listed on The Nasdaq Capital Market. We may elect to list any other class
or series of securities on any exchange or market, but we are not obligated to do so. It is possible that one or more underwriters
may make a market in a class or series of securities, but the underwriters will not be obligated to do so and may discontinue
any market making at any time without notice. We cannot give any assurance as to the liquidity of the trading market for any of
the securities.
In
order to comply with the securities laws of some states, if applicable, the securities offered pursuant to this prospectus will
be sold in those states only through registered or licensed brokers or dealers. In addition, in some states securities may not
be sold unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or
qualification requirement is available and complied with.
Any
underwriter may engage in overallotment, stabilizing transactions, short covering transactions and penalty bids in accordance
with Regulation M under the Securities Exchange Act of 1934, as amended, or the Exchange Act. Overallotment involves sales in
excess of the offering size, which create a short position. Stabilizing transactions permit bids to purchase the underlying security
so long as the stabilizing bids do not exceed a specified maximum. Short covering transactions involve purchases of the securities
in the open market after the distribution is completed to cover short positions. Penalty bids permit the underwriters to reclaim
a selling concession from a dealer when the securities originally sold by the dealer are purchased in a covering transaction to
cover short positions. Those activities may cause the price of the securities to be higher than it would otherwise be. If commenced,
the underwriters may discontinue any of these activities at any time.
Any
underwriters who are qualified market makers on The Nasdaq Capital Market may engage in passive market making transactions in
the securities on The Nasdaq Capital Market in accordance with Rule 103 of Regulation M, during the business day prior to
the pricing of the offering, before the commencement of offers or sales of the securities. Passive market makers must comply with
applicable volume and price limitations and must be identified as passive market makers. In general, a passive market maker must
display its bid at a price not in excess of the highest independent bid for such security. If all independent bids are lowered
below the passive market maker’s bid, however, the passive market maker’s bid must then be lowered when certain purchase
limits are exceeded.
LEGAL
MATTERS
The
validity of the issuance of the securities offered hereby will be passed upon for us by Sheppard, Mullin, Richter & Hampton
LLP, New York, New York. Additional legal matters may be passed upon for us or any underwriters, dealers or agents, by counsel
that we will name in the applicable prospectus supplement.
EXPERTS
The
consolidated financial statements of the Company as of December 31, 2020 and 2019 and for each of the two years in the period ended
December 31, 2020 incorporated by reference in this Prospectus and in the Registration Statement have been so incorporated in
reliance on the report of BDO USA, LLP, an independent registered public accounting firm incorporated herein by reference, given
on the authority of said firm as experts in auditing and accounting.
WHERE
YOU CAN FIND MORE INFORMATION
This
prospectus constitutes a part of a registration statement on Form S-3 filed under the Securities Act. As permitted
by the SEC’s rules, this prospectus and any prospectus supplement, which form a part of the registration statement, do not
contain all the information that is included in the registration statement. You will find additional information about us
in the registration statement. Any statements made in this prospectus or any prospectus supplement concerning legal documents
are not necessarily complete and you should read the documents that are filed as exhibits to the registration statement or otherwise
filed with the SEC for a more complete understanding of the document or matter.
We
file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available
to the public at no cost from the SEC’s website at http://www.sec.gov. In addition, we make available on or through
our Internet site copies of these reports as soon as reasonably practicable after we electronically file or furnish them to the
SEC. Our Internet site can be found at http://www.hepionpharmar.com. The information on our website is not a part of, and
should not be considered as being incorporated by reference into, this prospectus supplement or the accompanying prospectus.
INCORPORATION
OF DOCUMENTS BY REFERENCE
We
have filed a registration statement on Form S-3 with the Securities and Exchange Commission under the Securities Act. This
prospectus is part of the registration statement but the registration statement includes and incorporates by reference additional
information and exhibits. The Securities and Exchange Commission permits us to “incorporate by reference” the information
contained in documents we file with the Securities and Exchange Commission, which means that we can disclose important information
to you by referring you to those documents rather than by including them in this prospectus. Information that is incorporated
by reference is considered to be part of this prospectus and you should read it with the same care that you read this prospectus.
Information that we file later with the Securities and Exchange Commission will automatically update and supersede the information
that is either contained, or incorporated by reference, in this prospectus, and will be considered to be a part of this prospectus
from the date those documents are filed. We have filed with the Securities and Exchange Commission, and incorporate by reference
in this prospectus:
We
also incorporate by reference all documents (other than Current Reports furnished under Item 2.02 or Item 7.01 of Form 8-K
and exhibits filed on such form that are related to such items) that are subsequently filed by us with the Securities and Exchange
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of the offering of
the securities made by this prospectus (including documents filed after the date of the initial Registration Statement of which
this prospectus is a part and prior to the effectiveness of the Registration Statement). These documents include periodic reports,
such as Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as well as
proxy statements.
Any
statement contained in this prospectus or in a document incorporated or deemed to be incorporated by reference into this prospectus
will be deemed to be modified or superseded to the extent that a statement contained in this prospectus or any subsequently filed
document that is deemed to be incorporated by reference into this prospectus modifies or supersedes the statement
You
may request, and we will provide you with, a copy of these filings, at no cost, by calling us at (732) 902-4000 or by writing
to us at the following address:
Hepion
Pharmaceuticals, Inc.
399
Thornall Street, First Floor
Edison,
New Jersey, 08837
Attn.:
Secretary
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
following table sets forth an estimate of the fees and expenses relating to the issuance and distribution of the securities being
registered hereby, other than underwriting discounts and commissions, all of which shall be borne by the Registrant. All
of such fees and expenses, except for the SEC registration fee and the FINRA filing fee, are estimated:
|
SEC registration fee
|
|
$
|
38,185
|
|
|
Legal
fees and expenses
|
|
*
|
|
|
Printing
fees and expenses
|
|
*
|
|
|
Accounting
fees and expenses
|
|
*
|
|
|
Miscellaneous
fees and expenses
|
|
*
|
|
|
|
|
|
|
|
Total
|
|
$
|
*
|
|
*These
fees are calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this time.
The applicable prospectus supplement will set forth the estimated amount of expenses of any offering of securities.
Item
15. Indemnification of Officers and Directors.
Section 145
(“Section 145”) of the DGCL, permits indemnification of directors, officers, agents and controlling persons of
a corporation under certain conditions and subject to certain limitations. Section 145 empowers a corporation 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, suit or proceeding
whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was a director, officer or
agent of the corporation or another enterprise if serving at the request of the corporation. Depending on the character of the
proceeding, a corporation may indemnify against expenses (including attorneys’ fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred in connection with such action, suit or proceeding if the person indemnified acted
in good faith and in a manner he or she reasonably believed to be in or not opposed to, the best interests of the corporation,
and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. In
the case of an action by or in the right of the corporation, no indemnification may be made with respect to any claim, issue or
matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall determine that despite the adjudication of liability
such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper. Section 145
further provides that to the extent a present or former director or officer of a corporation has been successful in the defense
of any action, suit or proceeding referred to above or in the defense of any claim, issue or matter therein, such person shall
be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection
therewith. The foregoing is only a summary of the described sections of the Delaware General Corporation Law and is qualified
in its entirety by reference to such sections.
Our
Certificate of Incorporation and amended and restated bylaws provide that it shall indemnify each of its officers and directors
to the fullest extent permitted by Section 145.
Our
Certificate of Incorporation provides that no current or former director shall be personally liable to it or its stockholders
for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation
thereof is not permitted under the DGCL as the same exists or may hereafter be amended.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers and controlling
persons pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will
be governed by the final adjudication of such issue.
Item
16. Exhibits.
a)
Exhibits.
|
Exhibit Number
|
|
Description of Document
|
|
1.1*
|
|
Form of
Underwriting Agreement
|
|
|
|
|
|
3.1
|
|
Certificate
of Incorporation of ContraVir Pharmaceuticals, Inc. (filed as Exhibit 3.1 to the Company’s registration statement
on Form 10-12G which was filed with the Securities and Exchange Commission on August 8, 2013 and incorporated herein
by reference).
|
|
|
|
|
|
3.2
|
|
Certificate
of Amendment of Certificate of Incorporation of Company dated May 25, 2018 (filed as Exhibit 3.1 to the Company’s Current
Report on Form 8-K filed with the Securities and Exchange Commission on May 29, 2018 and incorporated herein by reference);
|
|
|
|
|
|
3.3
|
|
Certificate
of Amendment to the Certificate of Incorporation, filed with the Secretary of State of the State of Delaware on dated May
28, 2019 (incorporated by reference filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the
Securities and Exchange Commission on May 31, 2019 and incorporated herein by reference)
|
|
|
|
|
|
3.4
|
|
Certificate
of Amendment to the Certificate of Incorporation, dated July 18, 2019 (filed as Exhibit 3.1 to the Company’s Current
Report on Form 8-K filed with the Securities and Exchange Commission on July 23, 2019 and incorporated herein by reference).
|
|
|
|
|
|
3.5
|
|
Certificate
of Designation, Preferences and Rights of the Series A Convertible Preferred Stock of ContraVir Pharmaceuticals, Inc.
filed with the Secretary of State of the State of Delaware on October 14, 2014 (filed as Exhibit 3.1 to the Company’s
Current Report on Form 8-K filed with the Securities and Exchange Commission on October 14, 2014 and incorporated
herein by reference).
|
|
|
|
|
|
3.6
|
|
Certificate
of Designation, Preferences and Rights of the Series C Convertible Preferred Stock of ContraVir Pharmaceuticals, Inc.
filed with the Secretary of State of the State of Delaware on July 2, 2018 (filed as Exhibit 3.1 to the Company’s
Current Report on Form 8-K filed with the Securities and Exchange Commission on July 5, 2018 and incorporated herein
by reference).
|
|
|
|
|
|
3.7
|
|
By-Laws
of ContraVir Pharmaceuticals, Inc. (filed as Exhibit 3.2 to the Company’s registration statement on Form 10-12G
which was filed with the Securities and Exchange Commission on August 8, 2013 and incorporated herein by reference).
|
|
|
|
|
|
4.1
|
|
Form of
Senior Indenture
|
|
|
|
|
|
4.2
|
|
Form of
Subordinated Indenture
|
|
|
|
|
|
4.3*
|
|
Form of Senior Note
|
|
|
|
|
|
4.4*
|
|
Form of Subordinated Note
|
|
|
|
|
|
4.5*
|
|
Form of
Warrant
|
|
*
|
To the extent
applicable, to be filed by an amendment or as an exhibit to a document filed under the Securities Exchange Act of 1934, as
amended, and incorporated by reference herein.
|
|
**
|
To be filed by
amendment.
|
Item
17. Undertakings.
(a)
The undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price
set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To
include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
provided, however ,
that paragraphs (a)(1)(i), (a)(1)(ii), and (a)(1)(iii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission 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 a part
of the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at
the termination of the offering.
(5) That,
for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(A) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement
as of the date the filed prospectus was deemed part of and included in the registration statement; and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in
reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose
of providing the information required by Section 10(a) of the Securities Act 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.
(6) That,
for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution
of the securities:
The
undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or
sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser
and will be considered to offer or sell such securities to such purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to
by the undersigned registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) The
undersigned registrant hereby undertakes 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 Commission under Section 305(b)(2) of the Trust Indenture Act.
(c) 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 Section 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.
(d) 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 and
is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed
in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the Township of Edison, State of New Jersey, on April 2, 2021.
|
|
HEPION
PHARMACEUTICALS, INC.
|
|
|
|
|
|
|
By:
|
/s/
Robert Foster
|
|
|
|
Robert
Foster
|
|
|
|
President,
Chief Executive Officer and Director
|
POWER
OF ATTORNEY
KNOW
ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert Foster and John Cavan,
his true and lawful attorneys-in-fact and agent with full power of substitution and re-substitution, for him and in his name,
place and stead, in any and all capacities to sign any or all amendments (including, without limitation, post-effective amendments)
to this Registration Statement, any related Registration Statement filed pursuant to Rule 462(b) under the Securities
Act of 1933 and any or all pre- or post-effective amendments thereto, 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
agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about
the premises, as fully for all intents and purposes as he might or could do in person, hereby ratifying and confirming that
said attorneys-in-fact and agent, or any substitute or substitutes for him, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, the following persons in the capacities and on the dates indicated have signed
this Registration Statement below.
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
|
/s/ Robert
Foster
|
|
President,
Chief Executive Officer and Director
|
|
April
2, 2021
|
|
Robert
Foster
|
|
(Principal
Executive Officer)
|
|
|
|
|
|
|
|
|
|
/s/ John
Cavan
|
|
Chief
Financial Officer
|
|
April
2, 2021
|
|
John
Cavan
|
|
(Principal
Financial and Accounting Officer)
|
|
|
|
|
|
|
|
|
|
/s/ Gary
S. Jacob
|
|
Director
and Chairman of the Board
|
|
April
2, 2021
|
|
Gary
S. Jacob
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Timothy
Block
|
|
Director
|
|
April
2, 2021
|
|
Timothy
Block
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Thomas
H. Adams
|
|
Director
|
|
April
2, 2021
|
|
Thomas
H. Adams
|
|
|
|
|
|
|
|
|
|
|
|
/s/ John
Brancaccio
|
|
Director
|
|
April
2, 2021
|
|
John
Brancaccio
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Arnold Lippa
|
|
Director
|
|
April
2, 2021
|
|
Arnold
Lippa
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Petrus
Wijngaard
|
|
Director
|
|
April
2, 2021
|
|
Petrus
Wijngaard
|
|
|
|
|
Exhibit 4.1
HEPION PHARMACEUTICALS, INC.,
ISSUER
AND
[TRUSTEE],
TRUSTEE
INDENTURE
DATED AS OF , 20__
SENIOR DEBT SECURITIES
TABLE OF CONTENTS
|
|
Page
|
|
ARTICLE I DEFINITIONS
|
5
|
|
Section 1.1 Definitions of Terms
|
5
|
|
ARTICLE II ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
|
8
|
|
Section 2.1 Designation and Terms of Securities
|
8
|
|
Section 2.2 Form of Securities and Trustee's Certificate
|
9
|
|
Section 2.3 Denominations: Provisions for Payment
|
9
|
|
Section 2.4 Execution and Authentications
|
10
|
|
Section 2.5 Registration of Transfer and Exchange
|
11
|
|
Section 2.6 Temporary Securities
|
12
|
|
Section 2.7 Mutilated, Destroyed, Lost or Stolen Securities
|
12
|
|
Section 2.8 Cancellation
|
12
|
|
Section 2.9 Benefits of Indenture
|
13
|
|
Section 2.10 Authenticating Agent
|
13
|
|
Section 2.11 Global Securities
|
13
|
|
ARTICLE III REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
|
14
|
|
Section 3.1 Redemption
|
14
|
|
Section 3.2 Notice of Redemption
|
14
|
|
Section 3.3 Payment Upon Redemption
|
15
|
|
Section 3.4 Sinking Fund
|
15
|
|
Section 3.5 Satisfaction of Sinking Fund Payments
with Securities
|
15
|
|
Section 3.6 Redemption of Securities for Sinking Fund
|
15
|
|
ARTICLE IV COVENANTS
|
16
|
|
Section 4.1 Payment of Principal, Premium and Interest
|
16
|
|
Section 4.2 Maintenance of Office or Agency
|
16
|
|
Section 4.3 Paying Agents
|
16
|
|
Section 4.4 Appointment to Fill Vacancy in Office
of Trustee
|
17
|
|
Section 4.5 Compliance with Consolidation Provisions
|
17
|
|
ARTICLE V SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
|
17
|
|
Section 5.1 Company to Furnish Trustee Names and Addresses
of Securityholders
|
17
|
|
Section 5.2 Preservation Of Information; Communications
With Securityholders
|
17
|
|
Section 5.3 Reports by the Company
|
18
|
|
Section 5.4 Reports by the Trustee
|
18
|
|
ARTICLE VI REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
|
19
|
|
Section 6.1 Events of Default
|
19
|
|
Section 6.2 Collection of Indebtedness and Suits for
Enforcement by Trustee
|
20
|
|
Section 6.3 Application of Moneys Collected
|
21
|
|
Section 6.4 Limitation on Suits
|
21
|
|
Section 6.5 Rights and Remedies Cumulative; Delay
or Omission Not Waiver
|
22
|
|
Section 6.6 Control by Securityholders
|
22
|
|
Section 6.7 Undertaking to Pay Costs
|
22
|
|
ARTICLE VII CONCERNING THE TRUSTEE
|
23
|
|
Section 7.1 Certain Duties and Responsibilities of
Trustee
|
23
|
|
Section 7.2 Certain Rights of Trustee
|
23
|
|
Section 7.3 Trustee Not Responsible for Recitals or
Issuance or Securities
|
24
|
|
Section 7.4 May Hold Securities
|
24
|
|
Section 7.5 Moneys Held in Trust
|
24
|
|
Section 7.6 Compensation and Reimbursement
|
25
|
|
Section 7.7 Reliance on Officer's Certificate
|
25
|
|
Section 7.8 Disqualification; Conflicting Interests
|
25
|
|
Section 7.9 Corporate Trustee Required; Eligibility
|
25
|
|
Section 7.10 Resignation and Removal; Appointment
of Successor
|
25
|
|
Section 7.11 Acceptance of Appointment By Successor
|
26
|
|
Section 7.12 Merger, Conversion, Consolidation or Succession to Business
|
27
|
|
Section 7.13 Preferential Collection of Claims Against
the Company
|
27
|
|
Section 7.14 Notice of Default
|
27
|
|
ARTICLE VIII CONCERNING THE SECURITYHOLDERS
|
28
|
|
Section 8.1 Evidence of Action by Securityholders
|
28
|
|
Section 8.2 Proof of Execution by Securityholders
|
28
|
|
Section 8.3 Who May be Deemed Owners
|
28
|
|
Section 8.4 Certain Securities Owned by Company Disregarded
|
28
|
|
Section 8.5 Actions Binding on Future Securityholders
|
29
|
|
ARTICLE IX SUPPLEMENTAL INDENTURES
|
30
|
|
Section 9.1 Supplemental Indentures Without the Consent
of Securityholders
|
30
|
|
Section 9.2 Supplemental Indentures With Consent of
Securityholders
|
30
|
|
Section 9.3 Effect of Supplemental Indentures
|
31
|
|
Section 9.4 Securities Affected by Supplemental Indentures
|
31
|
|
Section 9.5 Execution of Supplemental Indentures
|
31
|
|
ARTICLE X SUCCESSOR ENTITY
|
32
|
|
Section 10.1 Company May Consolidate, Etc
|
32
|
|
Section 10.2 Successor Entity Substituted
|
32
|
|
Section 10.3 Evidence of Consolidation, Etc
|
32
|
|
ARTICLE XI SATISFACTION AND DISCHARGE
|
33
|
|
Section 11.1 Satisfaction and Discharge of Indenture
|
33
|
|
Section 11.2 Discharge of Obligations
|
33
|
|
Section 11.3 Deposited Moneys to be Held in Trust
|
33
|
|
Section 11.4 Payment of Moneys Held by Paying Agents
|
33
|
|
Section 11.5 Repayment to Company
|
33
|
|
ARTICLE XII IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
|
34
|
|
Section 12.1 No Recourse
|
34
|
|
ARTICLE XIII MISCELLANEOUS PROVISIONS
|
35
|
|
Section 13.1 Effect on Successors and Assigns
|
35
|
|
Section 13.2 Actions by Successor
|
35
|
|
Section 13.3 Surrender of Company Powers
|
35
|
|
Section 13.4 Notices
|
35
|
|
Section 13.5 Governing Law
|
35
|
|
Section 13.6 Treatment of Securities as Debt
|
35
|
|
Section 13.7 Certificates and Opinions as to Conditions
Precedent
|
35
|
|
Section 13.8 Payments on Business Days
|
35
|
|
Section 13.9 Conflict with Trust Indenture Act
|
36
|
|
Section 13.10 Counterparts
|
36
|
|
Section 13.11 Separability
|
36
|
|
Section 13.12 Compliance Certificates
|
36
|
INDENTURE
INDENTURE, dated as of [ ·
], among Hepion Pharmaceuticals, Inc., a Delaware corporation (the "Company"), and [TRUSTEE], as trustee (the "Trustee"):
WHEREAS, for its lawful corporate purposes,
the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance of debt securities (hereinafter
referred to as the "Securities"), in an unlimited aggregate principal amount to be issued from time to time in one or
more series as in this Indenture provided, as registered Securities without coupons, to be authenticated by the certificate of
the Trustee;
WHEREAS, to provide the terms and conditions
upon which the Securities are to be authenticated, issued and delivered, the Company has duly authorized the execution of this
Indenture; and
WHEREAS, all things necessary to make this
Indenture a valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the
premises and the purchase of the Securities by the holders thereof, it is mutually covenanted and agreed as follows for the equal
and ratable benefit of the holders of Securities:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions of Terms
.
The terms defined in this Section (except
as in this Indenture or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this
Section and shall include the plural as well as the singular. All other terms used in this Indenture that are defined in the Trust
Indenture Act of 1939, as amended, or that are by reference in such Act defined in the Securities Act of 1933, as amended (except
as herein or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires), shall have
the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of the execution
of this instrument.
"Authenticating Agent" means
an authenticating agent with respect to all or any of the series of Securities appointed by the Trustee pursuant to Section 2.10.
"Bankruptcy Law" means Title
11, U.S. Code, or any similar federal or state law for the relief of debtors.
"Board of Directors" means the
Board of Directors of the Company or any duly authorized committee of such Board.
"Board Resolution" means a copy
of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of such certification.
"Business Day" means, with respect
to any series of Securities, any day other than a day on which federal or state banking institutions in the Borough of Manhattan,
the City of New York, or in the city of the Corporate Trust Office of the Trustee, are authorized or obligated by law, executive
order or regulation to close.
"Certificate" means a certificate
signed by any Officer. The Certificate need not comply with the provisions of Section 13.07.
"Company" means Hepion Pharmaceuticals,
Inc., a corporation duly organized and existing under the laws of the State of Delaware, and, subject to the provisions of Article
Ten, shall also include its successors and assigns.
"Corporate Trust Office" means
the office of the Trustee at which, at any particular time, its corporate trust business shall be principally administered, which
office at the date hereof is located at.
"Custodian" means any receiver,
trustee, assignee, liquidator or similar official under any Bankruptcy Law.
"Default" means any event, act
or condition that with notice or lapse of time, or both, would constitute an Event of Default.
"Defaulted Interest" has the
meaning set forth in Section 2.03.
"Depositary" means, with respect
to Securities of any series for which the Company shall determine that such Securities will be issued as a Global Security, The
Depository Trust Company, another clearing agency, or any successor registered as a clearing agency under the Exchange Act, or
other applicable statute or regulation, which, in each case, shall be designated by the Company pursuant to either Section 2.01
or 2.11.
"Event of Default" means, with
respect to Securities of a particular series, any event specified in Section 6.01, continued for the period of time, if any, therein
designated.
"Exchange Act" means the Securities
and Exchange Act of 1934, as amended.
"Global Security" means, with
respect to any series of Securities, a Security executed by the Company and delivered by the Trustee to the Depositary or pursuant
to the Depositary's instruction, all in accordance with the Indenture, which shall be registered in the name of the Depositary
or its nominee.
"Governmental Obligations" means
securities that are (a) direct obligations of the United States of America for the payment of which its full faith and credit is
pledged or (b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States
of America, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America
that, in either case, are not callable or redeemable at the option of the issuer thereof at any time prior to the stated maturity
of the Securities, and shall also include a depositary receipt issued by a bank or trust company as custodian with respect to any
such Governmental Obligation or a specific payment of principal of or interest on any such Governmental Obligation held by such
custodian for the account of the holder of such depositary receipt; provided, however, that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received
by the custodian in respect of the Governmental Obligation or the specific payment of principal of or interest on the Governmental
Obligation evidenced by such depositary receipt.
"herein", "hereof"
and "hereunder", and other words of similar import, refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
"Indenture" means this instrument
as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto
entered into in accordance with the terms hereof.
"Interest Payment Date", when
used with respect to any installment of interest on a Security of a particular series, means the date specified in such Security
or in a Board Resolution or in an indenture supplemental hereto with respect to such series as the fixed date on which an installment
of interest with respect to Securities of that series is due and payable.
"Officer" means, with respect
to the Company, the chairman of the Board of Directors, a chief executive officer, a president, a chief financial officer, a chief
operating officer, any executive vice president, any senior vice president, any vice president, the treasurer or any assistant
treasurer, the controller or any assistant controller or the secretary or any assistant secretary.
"Officer's Certificate" means
a certificate signed by any Officer. Each such certificate shall include the statements provided for in Section 13.07, if and to
the extent required by the provisions thereof.
"Opinion of Counsel" means an
opinion in writing subject to customary exceptions of legal counsel, who may be an employee of or counsel for the Company, that
is delivered to the Trustee in accordance with the terms hereof. Each such opinion shall include the statements provided for in
Section 13.07, if and to the extent required by the provisions thereof.
"Outstanding", when used with
reference to Securities of any series, means, subject to the provisions of Section 8.04, as of any particular time, all Securities
of that series theretofore authenticated and delivered by the Trustee under this Indenture, except (a) Securities theretofore canceled
by the Trustee or any paying agent, or delivered to the Trustee or any paying agent for cancellation or that have previously been
canceled; (b) Securities or portions thereof for the payment or redemption of which moneys or Governmental Obligations in the necessary
amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been
set aside and segregated in trust by the Company (if the Company shall act as its own paying agent); provided, however, that if
such Securities or portions of such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall
have been given as provided in Article Three, or provision satisfactory to the Trustee shall have been made for giving such notice;
and (c) Securities in lieu of or in substitution for which other Securities shall have been authenticated and delivered pursuant
to the terms of Section 2.07.
"Person" means any individual,
corporation, partnership, joint venture, joint-stock company, limited liability company, association, trust, unincorporated organization,
any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
"Predecessor Security" of any
particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular
Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 2.07 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Security.
"Responsible Officer" when used
with respect to the Trustee means the chairman of its board of directors, the chief executive officer, the president, any vice
president, the secretary, the treasurer, any trust officer, any corporate trust officer or any other officer or assistant officer
of the Trustee customarily performing functions similar to those performed by the Persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred because of his or her knowledge of and familiarity with the particular
subject.
"Securities" means the debt Securities
authenticated and delivered under this Indenture.
"Securityholder", "holder
of Securities", "registered holder", or other similar term, means the Person or Persons in whose name or names a
particular Security shall be registered on the books of the Company kept for that purpose in accordance with the terms of this
Indenture.
"Security Register" and "Security
Registrar" shall have the meanings as set forth in Section 2.05.
"Subsidiary" means, with respect
to any Person, (i) any corporation at least a majority of whose outstanding Voting Stock shall at the time be owned, directly or
indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, (ii) any
general partnership, joint venture or similar entity, at least a majority of whose outstanding partnership or similar interests
shall at the time be owned by such Person, or by one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries
and (iii) any limited partnership of which such Person or any of its Subsidiaries is a general partner.
"Trustee" means , and, subject
to the provisions of Article Seven, shall also include its successors and assigns, and, if at any time there is more than one Person
acting in such capacity hereunder, "Trustee" shall mean each such Person. The term "Trustee" as used with respect
to a particular series of the Securities shall mean the trustee with respect to that series.
"Trust Indenture Act" means the
Trust Indenture Act of 1939, as amended.
"Voting Stock", as applied to
stock of any Person, means shares, interests, participations or other equivalents in the equity interest (however designated) in
such Person having ordinary voting power for the election of a majority of the directors (or the equivalent) of such Person, other
than shares, interests, participations or other equivalents having such power only by reason of the occurrence of a contingency.
ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES
Section 2.1 Designation and Terms of Securities.
(a) The aggregate principal amount of Securities
that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more series up
to the aggregate principal amount of Securities of that series from time to time authorized by or pursuant to a Board Resolution
or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of Securities of any series, there shall
be established in or pursuant to a Board Resolution, and set forth in an Officer's Certificate, or established in one or more indentures
supplemental hereto:
(i) the title of the Securities of the series
(which shall distinguish the Securities of that series from all other Securities);
(ii) any limit upon the aggregate principal
amount of the Securities of that series that may be authenticated and delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of that series);
(iii) the date or dates on which the principal
of the Securities of the series is payable, any original issue discount that may apply to the Securities of that series upon their
issuance, the principal amount due at maturity, and the place(s) of payment;
(iv) the rate or rates at which the Securities
of the series shall bear interest or the manner of calculation of such rate or rates, if any;
(v) the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest will be payable or the manner of determination of such Interest
Payment Dates, the place(s) of payment, and the record date for the determination of holders to whom interest is payable on any
such Interest Payment Dates or the manner of determination of such record dates;
(vi) the right, if any, to extend the interest
payment periods and the duration of such extension;
(vii) the period or periods within which,
the price or prices at which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part,
at the option of the Company;
(viii) the obligation, if any, of the Company
to redeem or purchase Securities of the series pursuant to any sinking fund, mandatory redemption, or analogous provisions (including
payments made in cash in satisfaction of future sinking fund obligations) or at the option of a holder thereof and the period or
periods within which, the price or prices at which, and the terms and conditions upon which, Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such obligation;
(ix) the form of the Securities of the series
including the form of the Certificate of Authentication for such series;
(x) if other than denominations of one thousand
U.S. dollars ($1,000) or any integral multiple thereof, the denominations in which the Securities of the series shall be issuable;
(xi) any and all other terms (including terms,
to the extent applicable, relating to any auction or remarketing of the Securities of that series and any security for the obligations
of the Company with respect to such Securities) with respect to such series (which terms shall not be inconsistent with the terms
of this Indenture, as amended by any supplemental indenture) including any terms which may be required by or advisable under United
States laws or regulations or advisable in connection with the marketing of Securities of that series;
(xii) whether the Securities are issuable
as a Global Security and, in such case, the terms and the identity of the Depositary for such series;
(xiii) whether the Securities will be convertible
into or exchangeable for shares of common stock, preferred stock or other securities of the Company or any other Person and, if
so, the terms and conditions upon which such Securities will be so convertible or exchangeable, including the conversion or exchange
price, as applicable, or how it will be calculated and may be adjusted, any mandatory or optional (at the Company's option or the
holders' option) conversion or exchange features, and the applicable conversion or exchange period;
(xiv) if other than the principal amount
thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration
of the maturity thereof pursuant to Section 6.01;
(xv) any additional or different Events of
Default or restrictive covenants (which may include, among other restrictions, restrictions on the Company's ability or the ability
of the Company's Subsidiaries to: incur additional indebtedness; issue additional securities; create liens; pay dividends or make
distributions in respect of the capital stock of the Company or the Company's Subsidiaries; redeem capital stock; place restrictions
on the Company's Subsidiaries' ability to pay dividends, make distributions or transfer assets; make investments or other restricted
payments; sell or otherwise dispose of assets; enter into sale- leaseback transactions; engage in transactions with stockholders
or affiliates; issue or sell stock of the Company's Subsidiaries; or effect a consolidation or merger) or financial covenants (which
may include, among other financial covenants, financial covenants that require the Company and its Subsidiaries to maintain specified
interest coverage, fixed charge, cash flow-based, asset-based or other financial ratios) provided for with respect to the Securities
of the series;
(xvi) if other than dollars, the coin or
currency in which the Securities of the series are denominated (including, but not limited to, foreign currency);
(xvii) the terms and conditions, if any,
upon which the Company shall pay amounts in addition to the stated interest, premium, if any and principal amounts of the Securities
of the series to any Securityholder that is not a "United States person" for federal tax purposes; and
(xviii) any restrictions on transfer, sale
or assignment of the Securities of the series.
All Securities of any one series shall
be substantially identical except as may otherwise be provided in or pursuant to any such Board Resolution or in any indentures
supplemental hereto.
If any of the terms of the series are established
by action taken pursuant to a Board Resolution of the Company, a copy of an appropriate record of such action shall be certified
by the secretary or an assistant secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officer's
Certificate of the Company setting forth the terms of the series.
Securities of any particular series may
be issued at various times, with different dates on which the principal or any installment of principal is payable, with different
rates of interest, if any, or different methods by which rates of interest may be determined, with different dates on which such
interest may be payable and with different redemption dates.
Section 2.2 Form of Securities and Trustee's
Certificate.
The Securities of any series and the Trustee's
certificate of authentication to be borne by such Securities shall be substantially of the tenor and purport as set forth in one
or more indentures supplemental hereto or as provided in a Board Resolution, and set forth in an Officer's Certificate, and they
may have such letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed
or engraved thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as
may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any
securities exchange on which Securities of that series may be listed, or to conform to usage.
Section 2.3 Denominations: Provisions
for Payment.
The Securities shall be issuable as registered
Securities and in the denominations of one thousand U.S. dollars ($1,000) or any integral multiple thereof, subject to Section
2.01(a)(10).
The Securities of a particular series shall
bear interest payable on the dates and at the rate specified with respect to that series. Subject to Section 2.01(a)(16), the principal
of and the interest on the Securities of any series, as well as any premium thereon in case of redemption thereof prior to maturity,
shall be payable in the coin or currency of the United States of America that at the time is legal tender for public and private
debt, at the office or agency of the Company maintained for that purpose.
Each Security shall be dated the date of its authentication.
Interest on the Securities shall be computed on the basis of a 360-day year composed of twelve 30-day months.
The interest installment on any Security
that is payable, and is punctually paid or duly provided for, on any Interest Payment Date for Securities of that series shall
be paid to the Person in whose name said Security (or one or more Predecessor Securities) is registered at the close of business
on the regular record date for such interest installment. In the event that any Security of a particular series or portion thereof
is called for redemption and the redemption date is subsequent to a regular record date with respect to any Interest Payment Date
and prior to such Interest Payment Date, interest on such Security will be paid upon presentation and surrender of such Security
as provided in Section 3.03.
Any interest on any Security that is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date for Securities of the same series (herein called
"Defaulted Interest") shall forthwith cease to be payable to the registered holder on the relevant regular record date
by virtue of having been such holder; and such Defaulted Interest shall be paid by the Company, at its election, as provided in
clause (1) or clause (2) below:
(i) The Company may make payment of any
Defaulted Interest on Securities to the Persons in whose names such Securities (or their respective Predecessor Securities) are
registered at the close of business on a special record date for the payment of such Defaulted Interest, which shall be fixed in
the following manner: the Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on
each such Security and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount
of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a special
record date for the payment of such Defaulted Interest which shall not be more than 15 nor less than 10 days prior to the date
of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such special record date and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the special record date therefor to be mailed, first class postage prepaid,
to each Securityholder at his or her address as it appears in the Security Register (as hereinafter defined), not less than 10
days prior to such special record date. Notice of the proposed payment of such Defaulted Interest and the special record date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names such Securities (or their
respective Predecessor Securities) are registered on such special record date.
(ii) The Company may make payment of any
Defaulted Interest on any Securities in any other lawful manner not inconsistent with the requirements of any securities exchange
on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the
Trustee.
Unless otherwise set forth in a Board Resolution
or one or more indentures supplemental hereto establishing the terms of any series of Securities pursuant to Section 2.01 hereof,
the term "regular record date" as used in this Section with respect to a series of Securities and any Interest Payment
Date for such series shall mean either the fifteenth day of the month immediately preceding the month in which an Interest Payment
Date established for such series pursuant to Section 2.01 hereof shall occur, if such Interest Payment Date is the first day of
a month, or the first day of the month in which an Interest Payment Date established for such series pursuant to Section 2.01 hereof
shall occur, if such Interest Payment Date is the fifteenth day of a month, whether or not such date is a Business Day.
Subject to the foregoing provisions of
this Section, each Security of a series delivered under this Indenture upon transfer of or in exchange for or in lieu of any other
Security of such series shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Security.
Section 2.4 Execution and Authentications
.
The Securities shall be signed on behalf
of the Company by one of its Officers. Signatures may be in the form of a manual or facsimile signature.
The Company may use the facsimile signature
of any Person who shall have been an Officer, notwithstanding the fact that at the time the Securities shall be authenticated and
delivered or disposed of such Person shall have ceased to be such an officer of the Company. The Securities may contain such notations,
legends or endorsements required by law, stock exchange rule or usage. Each Security shall be dated the date of its authentication
by the Trustee.
A Security shall not be valid until authenticated
manually by an authorized signatory of the Trustee, or by an Authenticating Agent. Such signature shall be conclusive evidence
that the Security so authenticated has been duly authenticated and delivered hereunder and that the holder is entitled to the benefits
of this Indenture. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver
Securities of any series executed by the Company to the Trustee for authentication, together with a written order of the Company
for the authentication and delivery of such Securities, signed by an Officer, and the Trustee in accordance with such written order
shall authenticate and deliver such Securities.
In authenticating such Securities and accepting
the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive,
if requested, and (subject to Section 7.01) shall be fully protected in relying upon, an Opinion of Counsel stating that the form
and terms thereof have been established in conformity with the provisions of this Indenture.
The Trustee shall not be required to authenticate
such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee's own rights, duties or immunities
under the Securities and this Indenture or otherwise in a manner that is not reasonably acceptable to the Trustee.
Section 2.5 Registration of Transfer and Exchange.
(a) Securities of any series may be exchanged
upon presentation thereof at the office or agency of the Company designated for such purpose, for other Securities of such series
of authorized denominations, and for a like aggregate principal amount, upon payment of a sum sufficient to cover any tax or other
governmental charge in relation thereto, all as provided in this Section. In respect of any Securities so surrendered for exchange,
the Company shall execute, the Trustee shall authenticate and such office or agency shall deliver in exchange therefor the Security
or Securities of the same series that the Securityholder making the exchange shall be entitled to receive, bearing numbers not
contemporaneously outstanding.
(b) The Company shall keep, or cause to
be kept, at its office or agency designated for such purpose a register or registers (herein referred to as the "Security
Register") in which, subject to such reasonable regulations as it may prescribe, the Company shall register the Securities
and the transfers of Securities as in this Article provided and which at all reasonable times shall be open for inspection by the
Trustee. The registrar for the purpose of registering Securities and transfer of Securities as herein provided shall be appointed
as authorized by Board Resolution (the "Security Registrar").
Upon surrender for transfer of any Security
at the office or agency of the Company designated for such purpose, the Company shall execute, the Trustee shall authenticate and
such office or agency shall deliver in the name of the transferee or transferees a new Security or Securities of the same series
as the Security presented for a like aggregate principal amount.
All Securities presented or surrendered
for exchange or registration of transfer, as provided in this Section, shall be accompanied (if so required by the Company or the
Security Registrar) by a written instrument or instruments of transfer, in form satisfactory to the Company or the Security Registrar,
duly executed by the registered holder or by such holder's duly authorized attorney in writing.
(c) Except as provided pursuant to Section
2.01 pursuant to a Board Resolution, and set forth in an Officer's Certificate, or established in one or more indentures supplemental
to this Indenture, no service charge shall be made for any exchange or registration of transfer of Securities, or issue of new
Securities in case of partial redemption of any series, but the Company may require payment of a sum sufficient to cover any tax
or other governmental charge in relation thereto, other than exchanges pursuant to Section 2.06, Section 3.03(b) and Section 9.04
not involving any transfer.
(d) The Company shall not be required (i)
to issue, exchange or register the transfer of any Securities during a period beginning at the opening of business 15 days before
the day of the mailing of a notice of redemption of less than all the Outstanding Securities of the same series and ending at the
close of business on the day of such mailing, nor (ii) to register the transfer of or exchange any Securities of any series or
portions thereof called for redemption, other than the unredeemed portion of any such Securities being redeemed in part. The provisions
of this Section 2.05 are, with respect to any Global Security, subject to Section 2.11 hereof.
Section 2.6 Temporary Securities.
Pending the preparation of definitive Securities
of any series, the Company may execute, and the Trustee shall authenticate and deliver, temporary Securities (printed, lithographed
or typewritten) of any authorized denomination. Such temporary Securities shall be substantially in the form of the definitive
Securities in lieu of which they are issued, but with such omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Company. Every temporary Security of any series shall be executed by the Company and
be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive
Securities of such series. Without unnecessary delay the Company will execute and will furnish definitive Securities of such series
and thereupon any or all temporary Securities of such series may be surrendered in exchange therefor (without charge to the holders),
at the office or agency of the Company designated for the purpose, and the Trustee shall authenticate and such office or agency
shall deliver in exchange for such temporary Securities an equal aggregate principal amount of definitive Securities of such series,
unless the Company advises the Trustee to the effect that definitive Securities need not be executed and furnished until further
notice from the Company. Until so exchanged, the temporary Securities of such series shall be entitled to the same benefits under
this Indenture as definitive Securities of such series authenticated and delivered hereunder.
Section 2.7 Mutilated, Destroyed, Lost
or Stolen Securities.
In case any temporary or definitive Security
shall become mutilated or be destroyed, lost or stolen, the Company (subject to the next succeeding sentence) shall execute, and
upon the Company's request the Trustee (subject as aforesaid) shall authenticate and deliver, a new Security of the same series,
bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Security, or in lieu of and
in substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substituted Security shall furnish
to the Company and the Trustee such security or indemnity as may be required by them to save each of them harmless, and, in every
case of destruction, loss or theft, the applicant shall also furnish to the Company and the Trustee evidence to their satisfaction
of the destruction, loss or theft of the applicant's Security and of the ownership thereof. The Trustee may authenticate any such
substituted Security and deliver the same upon the written request or authorization of any officer of the Company. Upon the issuance
of any substituted Security, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
In case any Security that has matured or
is about to mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Security,
pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated Security) if the applicant
for such payment shall furnish to the Company and the Trustee such security or indemnity as they may require to save them harmless,
and, in case of destruction, loss or theft, evidence to the satisfaction of the Company and the Trustee of the destruction, loss
or theft of such Security and of the ownership thereof.
Every replacement Security issued pursuant
to the provisions of this Section shall constitute an additional contractual obligation of the Company whether or not the mutilated,
destroyed, lost or stolen Security shall be found at any time, or be enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Securities of the same series duly issued hereunder. All Securities
shall be held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities, and shall preclude (to the extent lawful) any and all other rights
or remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or
payment of negotiable instruments or other securities without their surrender.
Section 2.8 Cancellation.
All Securities surrendered for the purpose
of payment, redemption, exchange or registration of transfer shall, if surrendered to the Company or any paying agent, be delivered
to the Trustee for cancellation, or, if surrendered to the Trustee, shall be cancelled by it, and no Securities shall be issued
in lieu thereof except as expressly required or permitted by any of the provisions of this Indenture. On request of the Company
at the time of such surrender, the Trustee shall deliver to the Company canceled Securities held by the Trustee. In the absence
of such request the Trustee may dispose of canceled Securities in accordance with its standard procedures and deliver a certificate
of disposition to the Company. If the Company shall otherwise acquire any of the Securities, however, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are delivered
to the Trustee for cancellation.
Section 2.9 Benefits of Indenture.
Nothing in this Indenture or in the Securities,
express or implied, shall give or be construed to give to any Person, other than the parties hereto and the holders of the Securities
any legal or equitable right, remedy or claim under or in respect of this Indenture, or under any covenant, condition or provision
herein contained; all such covenants, conditions and provisions being for the sole benefit of the parties hereto and of the holders
of the Securities.
Section 2.10 Authenticating Agent.
So long as any of the Securities of any
series remain Outstanding there may be an Authenticating Agent for any or all such series of Securities which the Trustee shall
have the right to appoint. Said Authenticating Agent shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series issued upon exchange, transfer or partial redemption thereof, and Securities so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder.
All references in this Indenture to the authentication of Securities by the Trustee shall be deemed to include authentication by
an Authenticating Agent for such series. Each Authenticating Agent shall be acceptable to the Company and shall be a corporation
that has a combined capital and surplus, as most recently reported or determined by it, sufficient under the laws of any jurisdiction
under which it is organized or in which it is doing business to conduct a trust business, and that is otherwise authorized under
such laws to conduct such business and is subject to supervision or examination by federal or state authorities. If at any time
any Authenticating Agent shall cease to be eligible in accordance with these provisions, it shall resign immediately.
Any Authenticating Agent may at any time
resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time (and upon request
by the Company shall) terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating
Agent and to the Company. Upon resignation, termination or cessation of eligibility of any Authenticating Agent, the Trustee may
appoint an eligible successor Authenticating Agent acceptable to the Company. Any successor Authenticating Agent, upon acceptance
of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder as if originally
named as an Authenticating Agent pursuant hereto.
Section 2.11 Global Securities.
(a) If the Company shall establish pursuant
to Section 2.01 that the Securities of a particular series are to be issued as a Global Security, then the Company shall execute
and the Trustee shall, in accordance with Section 2.04, authenticate and deliver, a Global Security that (i) shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of, all of the Outstanding Securities of such series,
(ii) shall be registered in the name of the Depositary or its nominee, (iii) shall be delivered by the Trustee to the Depositary
or pursuant to the Depositary's instruction and (iv) shall bear a legend substantially to the following effect: "Except as
otherwise provided in Section 2.11 of the Indenture, this Security may be transferred, in whole but not in part, only to another
nominee of the Depositary or to a successor Depositary or to a nominee of such successor Depositary."
(b) Notwithstanding the provisions of Section
2.05, the Global Security of a series may be transferred, in whole but not in part and in the manner provided in Section 2.05,
only to another nominee of the Depositary for such series, or to a successor Depositary for such series selected or approved by
the Company or to a nominee of such successor Depositary.
(c) If at any time the Depositary for a
series of the Securities notifies the Company that it is unwilling or unable to continue as Depositary for such series or if at
any time the Depositary for such series shall no longer be registered or in good standing under the Exchange Act, or other applicable
statute or regulation, and a successor Depositary for such series is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such condition, as the case may be, or if an Event of Default has occurred and is continuing
and the Company has received a request from the Depositary or from the Trustee, this Section 2.11 shall no longer be applicable
to the Securities of such series and the Company will execute, and subject to Section 2.04, the Trustee will authenticate and deliver
the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Security of such series in exchange for such Global Security. In addition, the
Company may at any time determine that the Securities of any series shall no longer be represented by a Global Security and that
the provisions of this Section 2.11 shall no longer apply to the Securities of such series. In such event the Company will execute
and, subject to Section 2.04, the Trustee, upon receipt of an Officer's Certificate evidencing such determination by the Company,
will authenticate and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations,
and in an aggregate principal amount equal to the principal amount of the Global Security of such series in exchange for such Global
Security. Upon the exchange of the Global Security for such Securities in definitive registered form without coupons, in authorized
denominations, the Global Security shall be canceled by the Trustee. Such Securities in definitive registered form issued in exchange
for the Global Security pursuant to this Section 2.11(c) shall be registered in such names and in such authorized denominations
as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee.
The Trustee shall deliver such Securities to the Depositary for delivery to the Persons in whose names such Securities are so registered.
ARTICLE III
REDEMPTION OF SECURITIES AND SINKING
FUND PROVISIONS
Section 3.1 Redemption.
The Company may redeem the Securities of
any series issued hereunder on and after the dates and in accordance with the terms established for such series pursuant to Section
2.01 hereof.
Section 3.2 Notice of Redemption
.
(a) In case the Company shall desire to
exercise such right to redeem all or, as the case may be, a portion of the Securities of any series in accordance with any right
the Company reserved for itself to do so pursuant to Section 2.01 hereof, the Company shall, or shall cause the Trustee to, give
notice of such redemption to holders of the Securities of such series to be redeemed by mailing, first class postage prepaid, a
notice of such redemption not less than 30 days and not more than 90 days before the date fixed for redemption of that series to
such holders at their last addresses as they shall appear upon the Security Register, unless a shorter period is specified in the
Securities to be redeemed. Any notice that is mailed in the manner herein provided shall be conclusively presumed to have been
duly given, whether or not the registered holder receives the notice. In any case, failure duly to give such notice to the holder
of any Security of any series designated for redemption in whole or in part, or any defect in the notice, shall not affect the
validity of the proceedings for the redemption of any other Securities of such series or any other series. In the case of any redemption
of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere
in this Indenture, the Company shall furnish the Trustee with an Officer's Certificate evidencing compliance with any such restriction.
Each such notice of redemption shall specify
the date fixed for redemption and the redemption price at which Securities of that series are to be redeemed, and shall state that
payment of the redemption price of such Securities to be redeemed will be made at the office or agency of the Company, upon presentation
and surrender of such Securities, that interest accrued to the date fixed for redemption will be paid as specified in said notice,
that from and after said date interest will cease to accrue and that the redemption is from a sinking fund, if such is the case.
If less than all the Securities of a series are to be redeemed, the notice to the holders of Securities of that series to be redeemed
in part shall specify the particular Securities to be so redeemed.
In case any Security is to be redeemed
in part only, the notice that relates to such Security shall state the portion of the principal amount thereof to be redeemed,
and shall state that on and after the redemption date, upon surrender of such Security, a new Security or Securities of such series
in principal amount equal to the unredeemed portion thereof will be issued.
(b) If less than all the Securities of
a series are to be redeemed, the Company shall give the Trustee at least 45 days' notice (unless a shorter notice shall be satisfactory
to the Trustee) in advance of the date fixed for redemption as to the aggregate principal amount of Securities of the series to
be redeemed, and thereupon the Trustee shall select, by lot or in such other manner as it shall deem appropriate and fair in its
discretion and that may provide for the selection of a portion or portions (equal to one thousand U.S. dollars ($1,000) or any
integral multiple thereof) of the principal amount of such Securities of a denomination larger than $1,000, the Securities to be
redeemed and shall thereafter promptly notify the Company in writing of the numbers of the Securities to be redeemed, in whole
or in part. The Company may, if and whenever it shall so elect, by delivery of instructions signed on its behalf by an Officer,
instruct the Trustee or any paying agent to call all or any part of the Securities of a particular series for redemption and to
give notice of redemption in the manner set forth in this Section, such notice to be in the name of the Company or its own name
as the Trustee or such paying agent may deem advisable. In any case in which notice of redemption is to be given by the Trustee
or any such paying agent, the Company shall deliver or cause to be delivered to, or permit to remain with, the Trustee or such
paying agent, as the case may be, such Security Register, transfer books or other records, or suitable copies or extracts therefrom,
sufficient to enable the Trustee or such paying agent to give any notice by mail that may be required under the provisions of this
Section.
Section 3.3 Payment Upon Redemption.
(a) If the giving of notice of redemption
shall have been completed as above provided, the Securities or portions of Securities of the series to be redeemed specified in
such notice shall become due and payable on the date and at the place stated in such notice at the applicable redemption price,
together with interest accrued to the date fixed for redemption and interest on such Securities or portions of Securities shall
cease to accrue on and after the date fixed for redemption, unless the Company shall default in the payment of such redemption
price and accrued interest with respect to any such Security or portion thereof. On presentation and surrender of such Securities
on or after the date fixed for redemption at the place of payment specified in the notice, said Securities shall be paid and redeemed
at the applicable redemption price for such series, together with interest accrued thereon to the date fixed for redemption (but
if the date fixed for redemption is an interest payment date, the interest installment payable on such date shall be payable to
the registered holder at the close of business on the applicable record date pursuant to Section 2.03).
(b) Upon presentation of any Security of
such series that is to be redeemed in part only, the Company shall execute and the Trustee shall authenticate and the office or
agency where the Security is presented shall deliver to the holder thereof, at the expense of the Company, a new Security of the
same series of authorized denominations in principal amount equal to the unredeemed portion of the Security so presented.
Section 3.4 Sinking Fund.
The provisions of Sections 3.04, 3.05 and
3.06 shall be applicable to any sinking fund for the retirement of Securities of a series, except as otherwise specified as contemplated
by Section 2.01 for Securities of such series.
The minimum amount of any sinking fund
payment provided for by the terms of Securities of any series is herein referred to as a "mandatory sinking fund payment,"
and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as
an "optional sinking fund payment". If provided for by the terms of Securities of any series, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 3.05. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of Securities of such series.
Section 3.5 Satisfaction of Sinking Fund Payments
with Securities.
The Company (i) may deliver Outstanding
Securities of a series and (ii) may apply as a credit Securities of a series that have been redeemed either at the election of
the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant
to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the
Securities of such series required to be made pursuant to the terms of such Securities as provided for by the terms of such series,
provided that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose
by the Trustee at the redemption price specified in such Securities for redemption through operation of the sinking fund and the
amount of such sinking fund payment shall be reduced accordingly.
Section 3.6 Redemption of Securities for Sinking
Fund.
Not less than 45 days prior to each sinking
fund payment date for any series of Securities (unless a shorter period shall be satisfactory to the Trustee), the Company will
deliver to the Trustee an Officer's Certificate specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of the series, the portion thereof, if any, that is to be satisfied by delivering and crediting Securities
of that series pursuant to Section 3.05 and the basis for such credit and will, together with such Officer's Certificate, deliver
to the Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 3.02 and cause
notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section
3.02. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated
in Section 3.03.
ARTICLE IV
COVENANTS
Section 4.1 Payment of Principal, Premium and Interest.
The Company will duly and punctually pay
or cause to be paid the principal of (and premium, if any) and interest on the Securities of that series at the time and place
and in the manner provided herein and established with respect to such Securities. Payments of principal on the Securities may
be made at the time provided herein and established with respect to such Securities by U.S. dollar check drawn on and mailed to
the address of the Securityholder entitled thereto as such address shall appear in the Security Register, or U.S. dollar wire transfer
to, a U.S. dollar account (such wire transfer to be made only to a Securityholder of an aggregate principal amount of Securities
of the applicable series in excess of U.S. $2,000,000 and only if such Securityholder shall have furnished wire instructions to
the Trustee no later than 15 days prior to the relevant payment date). Payments of interest on the Securities may be made at the
time provided herein and established with respect to such Securities by U.S. dollar check mailed to the address of the Securityholder
entitled thereto as such address shall appear in the Security Register, or U.S. dollar wire transfer to, a U.S. dollar account
(such a wire transfer to be made only to a Securityholder of an aggregate principal amount of Securities of the applicable series
in excess of U.S. $2,000,000 and only if such Securityholder shall have furnished wire instructions in writing to the Security
Registrar and the Trustee no later than 15 days prior to the relevant payment date.
Section 4.2 Maintenance of Office or Agency.
So long as any series of the Securities
remain Outstanding, the Company agrees to maintain an office or agency with respect to each such series and at such other location
or locations as may be designated as provided in this Section 4.02, where (i) Securities of that series may be presented for payment,
(ii) Securities of that series may be presented as herein above authorized for registration of transfer and exchange, and (iii)
notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be given or served,
such designation to continue with respect to such office or agency until the Company shall, by written notice signed by any officer
authorized to sign an Officer's Certificate and delivered to the Trustee, designate some other office or agency for such purposes
or any of them. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, notices and demands may be made or served at the Corporate Trust Office of
the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, notices and demands. The
Company initially appoints the Corporate Trust Office of the Trustee as its paying agent with respect to the Securities.
Section 4.3 Paying Agents.
(a) If the Company shall appoint one or
more paying agents for all or any series of the Securities, other than the Trustee, the Company will cause each such paying agent
to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions
of this Section:
(i) that it will hold all sums held by it
as such agent for the payment of the principal of (and premium, if any) or interest on the Securities of that series (whether such
sums have been paid to it by the Company or by any other obligor of such Securities) in trust for the benefit of the Persons entitled
thereto;
(ii) that it will give the Trustee notice
of any failure by the Company (or by any other obligor of such Securities) to make any payment of the principal of (and premium,
if any) or interest on the Securities of that series when the same shall be due and payable;
(iii) that it will, at any time during the
continuance of any failure referred to in the preceding paragraph (a)(2) above, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such paying agent; and
(iv) that it will perform all other duties
of paying agent as set forth in this Indenture.
(b) If the Company shall act as its own
paying agent with respect to any series of the Securities, it will on or before each due date of the principal of (and premium,
if any) or interest on Securities of that series, set aside, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay such principal (and premium, if any) or interest so becoming due on Securities of that series until
such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of such
action, or any failure (by it or any other obligor on such Securities) to take such action. Whenever the Company shall have one
or more paying agents for any series of Securities, it will, prior to each due date of the principal of (and premium, if any) or
interest on any Securities of that series, deposit with the paying agent a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium
or interest, and (unless such paying agent is the Trustee) the Company will promptly notify the Trustee of this action or failure
so to act.
(c) Notwithstanding anything in this Section
to the contrary, (i) the agreement to hold sums in trust as provided in this Section is subject to the provisions of Section 11.05,
and (ii) the Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any
other purpose, pay, or direct any paying agent to pay, to the Trustee all sums held in trust by the Company or such paying agent,
such sums to be held by the Trustee upon the same terms and conditions as those upon which such sums were held by the Company or
such paying agent; and, upon such payment by the Company or any paying agent to the Trustee, the Company or such paying agent shall
be released from all further liability with respect to such money.
Section 4.4 Appointment to Fill Vacancy in Office
of Trustee.
The Company, whenever necessary to avoid
or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so that there shall
at all times be a Trustee hereunder.
Section 4.5 Compliance with Consolidation Provisions.
The Company will not, while any of the
Securities remain Outstanding, consolidate with or merge into any other Person, in either case where the Company is not the survivor
of such transaction, or sell or convey all or substantially all of its property to any other Person unless the provisions of Article
Ten hereof are complied with.
ARTICLE V
SECURITYHOLDERS' LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
Section 5.1 Company to Furnish Trustee Names and
Addresses of Securityholders.
The Company will furnish or cause to be
furnished to the Trustee (a) within 15 days after each regular record date (as defined in Section 2.03) a list, in such form as
the Trustee may reasonably require, of the names and addresses of the holders of each series of Securities as of such regular record
date, provided that the Company shall not be obligated to furnish or cause to furnish such list at any time that the list shall
not differ in any respect from the most recent list furnished to the Trustee by the Company and (b) at such other times as the
Trustee may request in writing within 30 days after the receipt by the Company of any such request, a list of similar form and
content as of a date not more than 15 days prior to the time such list is furnished; provided, however, that, in either case, no
such list need be furnished for any series for which the Trustee shall be the Security Registrar.
Section 5.2 Preservation Of Information;
Communications With Securityholders.
(a) The Trustee shall preserve, in as current
a form as is reasonably practicable, all information as to the names and addresses of the holders of Securities contained in the
most recent list furnished to it as provided in Section 5.01 and as to the names and addresses of holders of Securities received
by the Trustee in its capacity as Security Registrar (if acting in such capacity).
(b) The Trustee may destroy any list furnished
to it as provided in Section 5.01 upon receipt of a new list so furnished.
(c) Securityholders may communicate as
provided in Section 312(b) of the Trust Indenture Act with other Securityholders with respect to their rights under this Indenture
or under the Securities, and, in connection with any such communications, the Trustee shall satisfy its obligations under Section
312(b) of the Trust Indenture Act in accordance with the provisions of Section 312(b) of the Trust Indenture Act.
Section 5.3 Reports by the Company.
The Company covenants and agrees to provide
(which delivery may be via electronic mail) to the Trustee, after the Company files the same with the Securities and Exchange Commission,
copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing
as the Securities and Exchange Commission may from time to time by rules and regulations prescribe) that the Company files with
the Securities and Exchange Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; provided, however, the Company
shall not be required to deliver to the Trustee any materials for which the Company has sought and received confidential treatment
by the Securities and Exchange Commission; and provided further, so long as such filings by the Company are available on the Securities
and Exchange Commission's Electronic Data Gathering, Analysis and Retrieval System (EDGAR), such filings shall be deemed to have
been filed with the Trustee for purposes of this Section 5.03 without any further action required by the Company.
Section 5.4 Reports by the Trustee.
(a) If required by Section 313(a) of the
Trust Indenture Act, the Trustee, within sixty (60) days after each May 1, shall transmit by mail, first class postage prepaid,
to the Securityholders, as their names and addresses appear upon the Security Register, a brief report dated as of such May 1,
which complies with Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section
313(b) and 313(c) of the Trust Indenture Act.
(c) A copy of each such report shall, at
the time of such transmission to Securityholders, be filed by the Trustee with the Company, with each securities exchange upon
which any Securities are listed (if so listed) and also with the Securities and Exchange Commission. The Company agrees to notify
the Trustee when any Securities become listed on any securities exchange.
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 6.1 Events of Default.
(a) Whenever used herein with respect to
Securities of a particular series, "Event of Default" means any one or more of the following events that has occurred
and is continuing:
(i) the Company defaults in the payment of
any installment of interest upon any of the Securities of that series, as and when the same shall become due and payable, and such
default continues for a period of 90 days; provided, however, that a valid extension of an interest payment period by the Company
in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment of interest for
this purpose;
(ii) the Company defaults in the payment
of the principal of (or premium, if any, on) any of the Securities of that series as and when the same shall become due and payable
whether at maturity, upon redemption, by declaration or otherwise, or in any payment required by any sinking or analogous fund
established with respect to that series; provided, however, that a valid extension of the maturity of such Securities in accordance
with the terms of any indenture supplemental hereto shall not constitute a default in the payment of principal or premium, if any;
(iii) the Company fails to observe or perform
any other of its covenants or agreements with respect to that series contained in this Indenture or otherwise established with
respect to that series of Securities pursuant to Section 2.01 hereof (other than a covenant or agreement that has been expressly
included in this Indenture solely for the benefit of one or more series of Securities other than such series) for a period of 90
days after the date on which written notice of such failure, requiring the same to be remedied and stating that such notice is
a "Notice of Default" hereunder, shall have been given to the Company by the Trustee, by registered or certified mail,
or to the Company and the Trustee by the holders of at least 25% in principal amount of the Securities of that series at the time
Outstanding;
(iv) the Company pursuant to or within the
meaning of any Bankruptcy Law (i) commences a voluntary case, (ii) consents to the entry of an order for relief against it in an
involuntary case, (iii) consents to the appointment of a Custodian of it or for all or substantially all of its property or (iv)
makes a general assignment for the benefit of its creditors; or
(v) a court of competent jurisdiction enters
an order under any Bankruptcy Law that (i) is for relief against the Company in an involuntary case, (ii) appoints a Custodian
of the Company for all or substantially all of its property or (iii) orders the liquidation of the Company, and the order or decree
remains unstayed and in effect for 90 days.
(b) In each and every such case (other
than an Event of Default specified in clause (4) or clause (5) above), unless the principal of all the Securities of that series
shall have already become due and payable, either the Trustee or the holders of not less than 25% in aggregate principal amount
of the Securities of that series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by
such Securityholders), may declare the principal of (and premium, if any, on) and accrued and unpaid interest on all the Securities
of that series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately
due and payable. If an Event of Default specified in clause (4) or clause (5) above occurs, the principal of and accrued and unpaid
interest on all the Securities of that series shall automatically be immediately due and payable without any declaration or other
act on the part of the Trustee or the holders of the Securities.
(c) At any time after the principal of
(and premium, if any, on) and accrued and unpaid interest on the Securities of that series shall have been so declared due and
payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter
provided, the holders of a majority in aggregate principal amount of the Securities of that series then Outstanding hereunder,
by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if: (i) the Company
has paid or deposited with the Trustee a sum sufficient to pay all matured installments of interest upon all the Securities of
that series and the principal of (and premium, if any, on) any and all Securities of that series that shall have become due otherwise
than by acceleration (with interest upon such principal and premium, if any, and, to the extent that such payment is enforceable
under applicable law, upon overdue installments of interest, at the rate per annum expressed in the Securities of that series to
the date of such payment or deposit) and the amount payable to the Trustee under Section 7.06, and (ii) any and all Events of Default
under the Indenture with respect to such series, other than the nonpayment of principal on (and premium, if any, on) and accrued
and unpaid interest on Securities of that series that shall not have become due by their terms, shall have been remedied or waived
as provided in Section 6.06.
No such rescission and annulment shall
extend to or shall affect any subsequent default or impair any right consequent thereon.
(d) In case the Trustee shall have proceeded
to enforce any right with respect to Securities of that series under this Indenture and such proceedings shall have been discontinued
or abandoned because of such rescission or annulment or for any other reason or shall have been determined adversely to the Trustee,
then and in every such case, subject to any determination in such proceedings, the Company and the Trustee shall be restored respectively
to their former positions and rights hereunder, and all rights, remedies and powers of the Company and the Trustee shall continue
as though no such proceedings had been taken.
Section 6.2 Collection of Indebtedness and Suits
for Enforcement by Trustee.
(a) The Company covenants that (i) in case
it shall default in the payment of any installment of interest on any of the Securities of a series, or in any payment required
by any sinking or analogous fund established with respect to that series as and when the same shall have become due and payable,
and such default shall have continued for a period of 90 days, or (ii) in case it shall default in the payment of the principal
of (or premium, if any, on) any of the Securities of a series when the same shall have become due and payable, whether upon maturity
of the Securities of a series or upon redemption or upon declaration or otherwise then, upon demand of the Trustee, the Company
will pay to the Trustee, for the benefit of the holders of the Securities of that series, the whole amount that then shall have
been become due and payable on all such Securities for principal (and premium, if any) or interest, or both, as the case may be,
with interest upon the overdue principal (and premium, if any) and (to the extent that payment of such interest is enforceable
under applicable law) upon overdue installments of interest at the rate per annum expressed in the Securities of that series; and,
in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, and the amount payable
to the Trustee under Section 7.06.
(b) If the Company shall fail to pay such
amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered
to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute
any such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree against the Company
or other obligor upon the Securities of that series and collect the moneys adjudged or decreed to be payable in the manner provided
by law or equity out of the property of the Company or other obligor upon the Securities of that series, wherever situated.
(c) In case of any receivership, insolvency,
liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or judicial proceedings affecting the Company,
or its creditors or property, the Trustee shall have power to intervene in such proceedings and take any action therein that may
be permitted by the court and shall (except as may be otherwise provided by law) be entitled to file such proofs of claim and other
papers and documents as may be necessary or advisable in order to have the claims of the Trustee and of the holders of Securities
of such series allowed for the entire amount due and payable by the Company under the Indenture at the date of institution of such
proceedings and for any additional amount that may become due and payable by the Company after such date, and to collect and receive
any moneys or other property payable or deliverable on any such claim, and to distribute the same after the deduction of the amount
payable to the Trustee under Section 7.06; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized
by each of the holders of Securities of such series to make such payments to the Trustee, and, in the event that the Trustee shall
consent to the making of such payments directly to such Securityholders, to pay to the Trustee any amount due it under Section
7.06.
(d) All rights of action and of asserting
claims under this Indenture, or under any of the terms established with respect to Securities of that series, may be enforced by
the Trustee without the possession of any of such Securities, or the production thereof at any trial or other proceeding relative
thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for payment to the Trustee of any amounts due under Section 7.06, be for the
ratable benefit of the holders of the Securities of such series.
In case of an Event of Default hereunder,
the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity
or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in the Indenture or
in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee
by this Indenture or by law.
Nothing contained herein shall be deemed
to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities of that series or the rights of any holder thereof or to authorize
the Trustee to vote in respect of the claim of any Securityholder in any such proceeding.
Section 6.3 Application of Moneys Collected.
Any moneys collected by the Trustee pursuant
to this Article with respect to a particular series of Securities shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such moneys on account of principal (or premium, if any) or interest,
upon presentation of the Securities of that series, and notation thereon of the payment, if only partially paid, and upon surrender
thereof if fully paid:
FIRST: To the payment of reasonable costs
and expenses of collection and of all amounts payable to the Trustee under Section 7.06;
SECOND: To the payment of the amounts then
due and unpaid upon Securities of such series for principal (and premium, if any) and interest, in respect of which or for the
benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due
and payable on such Securities for principal (and premium, if any) and interest, respectively; and
THIRD: To the payment of the remainder,
if any, to the Company or any other Person lawfully entitled thereto.
Section 6.4 Limitation on Suits.
No holder of any Security of any series
shall have any right by virtue or by availing of any provision of this Indenture to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless (i) such holder previously shall have given to the Trustee written notice of an Event of Default and of
the continuance thereof with respect to the Securities of such series specifying such Event of Default, as hereinbefore provided;
(ii) the holders of not less than 25% in aggregate principal amount of the Securities of such series then Outstanding shall have
made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder; (iii)
such holder or holders shall have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby; (iv) the Trustee for 90 days after its receipt of such notice, request and offer
of indemnity, shall have failed to institute any such action, suit or proceeding and (v) during such 90 day period, the holders
of a majority in principal amount of the Securities of that series do not give the Trustee a direction inconsistent with the request.
Notwithstanding anything contained herein
to the contrary or any other provisions of this Indenture, the right of any holder of any Security to receive payment of the principal
of (and premium, if any) and interest on such Security, as therein provided, on or after the respective due dates expressed in
such Security (or in the case of redemption, on the redemption date), or to institute suit for the enforcement of any such payment
on or after such respective dates or redemption date, shall not be impaired or affected without the consent of such holder and
by accepting a Security hereunder it is expressly understood, intended and covenanted by the taker and holder of every Security
of such series with every other such taker and holder and the Trustee, that no one or more holders of Securities of such series
shall have any right in any manner whatsoever by virtue or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of the holders of any other of such Securities, or to obtain or seek to obtain priority over or preference
to any other such holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all holders of Securities of such series. For the protection and enforcement of the provisions of
this Section, each and every Securityholder and the Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 6.5 Rights and Remedies Cumulative; Delay
or Omission Not Waiver.
(a) Except as otherwise provided in Section
2.07, all powers and remedies given by this Article to the Trustee or to the Securityholders shall, to the extent permitted by
law, be deemed cumulative and not exclusive of any other powers and remedies available to the Trustee or the holders of the Securities,
by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this
Indenture or otherwise established with respect to such Securities.
(b) No delay or omission of the Trustee
or of any holder of any of the Securities to exercise any right or power accruing upon any Event of Default occurring and continuing
as aforesaid shall impair any such right or power, or shall be construed to be a waiver of any such default or an acquiescence
therein; and, subject to the provisions of Section 6.04, every power and remedy given by this Article or by law to the Trustee
or the Securityholders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
Section 6.6 Control by Securityholders.
The holders of a majority in aggregate
principal amount of the Securities of any series at the time Outstanding, determined in accordance with Section 8.04, shall have
the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee with respect to such series; provided, however, that such direction shall not be in
conflict with any rule of law or with this Indenture. Subject to the provisions of Section 7.01, the Trustee shall have the right
to decline to follow any such direction if the Trustee in good faith shall, by a Responsible Officer or officers of the Trustee,
determine that the proceeding so directed, subject to the Trustee's duties under the Trust Indenture Act, would involve the Trustee
in personal liability or might be unduly prejudicial to the Securityholders not involved in the proceeding. The holders of a majority
in aggregate principal amount of the Securities of any series at the time Outstanding affected thereby, determined in accordance
with Section 8.04, may on behalf of the holders of all of the Securities of such series waive any past default in the performance
of any of the covenants contained herein or established pursuant to Section 2.01 with respect to such series and its consequences,
except a default in the payment of the principal of, or premium, if any, or interest on, any of the Securities of that series as
and when the same shall become due by the terms of such Securities otherwise than by acceleration (unless such default has been
cured and a sum sufficient to pay all matured installments of interest and principal and any premium has been deposited with the
Trustee (in accordance with Section 6.01(c)). Upon any such waiver, the default covered thereby shall be deemed to be cured for
all purposes of this Indenture and the Company, the Trustee and the holders of the Securities of such series shall be restored
to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default
or impair any right consequent thereon.
Section 6.7 Undertaking to Pay Costs.
All parties to this Indenture agree, and
each holder of any Securities by such holder's acceptance thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder,
or group of Securityholders, holding more than 10% in aggregate principal amount of the Outstanding Securities of any series, or
to any suit instituted by any Securityholder for the enforcement of the payment of the principal of (or premium, if any) or interest
on any Security of such series, on or after the respective due dates expressed in such Security or established pursuant to this
Indenture.
ARTICLE VII
CONCERNING THE TRUSTEE
Section 7.1 Certain Duties and Responsibilities
of Trustee.
(a) The Trustee, prior to the occurrence
of an Event of Default with respect to the Securities of a series and after the curing of all Events of Default with respect to
the Securities of that series that may have occurred, shall undertake to perform with respect to the Securities of such series
such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants shall be read into this
Indenture against the Trustee. In case an Event of Default with respect to the Securities of a series has occurred (that has not
been cured or waived), the Trustee shall exercise with respect to Securities of that series such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
(b) No provision of this Indenture shall
be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) prior to the occurrence of an Event of
Default with respect to the Securities of a series and after the curing or waiving of all such Events of Default with respect to
that series that may have occurred: (A) the duties and obligations of the Trustee shall with respect to the Securities of such
series be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable with respect to the
Securities of such series except for the performance of such duties and obligations as are specifically set forth in this Indenture,
and no implied covenants or obligations shall be read into this Indenture against the Trustee; and (B) in the absence of bad faith
on the part of the Trustee, the Trustee may with respect to the Securities of such series conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee
and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions that by any provision
hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture;
(2) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the holders of not less
than a majority in principal amount of the Securities of any series at the time Outstanding relating to the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee
under this Indenture with respect to the Securities of that series; and
(4) none of the provisions contained in this
Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance
of any of its duties or in the exercise of any of its rights or powers if there is reasonable ground for believing that the repayment
of such funds or liability is not reasonably assured to it under the terms of this Indenture or adequate indemnity against such
risk is not reasonably assured to it.
Section 7.2 Certain Rights of Trustee.
Except as otherwise provided in Section
7.01:
(a) The Trustee may rely and shall be protected
in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, security or other paper or document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) Any request, direction, order or demand
of the Company mentioned herein shall be sufficiently evidenced by a Board Resolution or an instrument signed in the name of the
Company by any authorized officer of the Company (unless other evidence in respect thereof is specifically prescribed herein);
(c) The Trustee may consult with counsel
and the written advice of such counsel or, if requested, any Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken or suffered or omitted hereunder in good faith and in reliance thereon;
(d) The Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Securityholders
pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee reasonable security
or indemnity against the costs, expenses and liabilities that may be incurred therein or thereby; nothing contained herein shall,
however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default with respect to a series of the Securities
(that has not been cured or waived), to exercise with respect to Securities of that series such of the rights and powers vested
in it by this Indenture, and to use the same degree of care and skill in their exercise, as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs;
(e) The Trustee shall not be liable for
any action taken or omitted to be taken by it in good faith and believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Indenture;
(f) The Trustee shall not be bound to make
any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond, security, or other papers or documents, unless requested in writing so to do by the holders
of not less than a majority in principal amount of the Outstanding Securities of the particular series affected thereby (determined
as provided in Section 8.04); provided, however, that if the payment within a reasonable time to the Trustee of the costs, expenses
or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require reasonable indemnity
against such costs, expenses or liabilities as a condition to so proceeding. The reasonable expense of every such examination shall
be paid by the Company or, if paid by the Trustee, shall be repaid by the Company upon demand; and
(g) The Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee
shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder.
In addition, the Trustee shall not be deemed
to have knowledge of any Default or Event of Default except (1) any Event of Default occurring pursuant to Sections 6.01(a)(1)
and 6.01(a)(2) or (2) any Default or Event of Default of which the Trustee shall have received written notification in the manner
set forth in this Indenture or a Responsible Officer of the Trustee shall have obtained actual knowledge. Delivery of reports,
information and documents to the Trustee under Section 5.03 is for informational purposes only and the information and the Trustee's
receipt of the foregoing shall not constitute constructive notice of any information contained therein, or determinable from information
contained therein including the Company's compliance with any of their covenants thereunder (as to which the Trustee is entitled
to rely exclusively on an Officer's Certificate).
Section 7.3 Trustee Not Responsible
for Recitals or Issuance or Securities.
(a) The recitals contained herein and in
the Securities shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of
the same.
(b) The Trustee makes no representations
as to the validity or sufficiency of this Indenture or of the Securities.
(c) The Trustee shall not be accountable
for the use or application by the Company of any of the Securities or of the proceeds of such Securities, or for the use or application
of any moneys paid over by the Trustee in accordance with any provision of this Indenture or established pursuant to Section 2.01,
or for the use or application of any moneys received by any paying agent other than the Trustee.
Section 7.4 May Hold Securities.
The Trustee or any paying agent or Security
Registrar, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would
have if it were not Trustee, paying agent or Security Registrar.
Section 7.5 Moneys Held in
Trust.
Subject to the provisions of Section 11.05,
all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which
they were received, but need not be segregated from other funds except to the extent required by law. The Trustee shall be under
no liability for interest on any moneys received by it hereunder except such as it may agree with the Company to pay thereon.
Section 7.6 Compensation and
Reimbursement.
(a) The Company covenants and agrees to
pay to the Trustee, and the Trustee shall be entitled to, such reasonable compensation (which shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust) as the Company and the Trustee may from time to time agree
in writing, for all services rendered by it in the execution of the trusts hereby created and in the exercise and performance of
any of the powers and duties hereunder of the Trustee, and, except as otherwise expressly provided herein, the Company will pay
or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements
of its counsel and of all Persons not regularly in its employ), except any such expense, disbursement or advance as may arise from
its negligence or bad faith and except as the Company and Trustee may from time to time agree in writing. The Company also covenants
to indemnify the Trustee (and its officers, agents, directors and employees) for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or bad faith on the part of the Trustee and arising out of or in connection with the acceptance
or administration of this trust, including the reasonable costs and expenses of defending itself against any claim of liability
in the premises.
(b) The obligations of the Company under
this Section to compensate and indemnify the Trustee and to pay or reimburse the Trustee for reasonable expenses, disbursements
and advances shall constitute additional indebtedness hereunder. Such additional indebtedness shall be secured by a lien prior
to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for
the benefit of the holders of particular Securities.
Section 7.7 Reliance on Officer's
Certificate.
Except as otherwise provided in Section
7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it reasonably necessary or desirable
that a matter be proved or established prior to taking or suffering or omitting to take any action hereunder, such matter (unless
other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part
of the Trustee, be deemed to be conclusively proved and established by an Officer's Certificate delivered to the Trustee and such
certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any
action taken, suffered or omitted to be taken by it under the provisions of this Indenture upon the faith thereof.
Section 7.8 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the Company shall
in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act.
Section 7.9 Corporate Trustee
Required; Eligibility.
There shall at all times be a Trustee with
respect to the Securities issued hereunder which shall at all times be a corporation organized and doing business under the laws
of the United States of America or any state or territory thereof or of the District of Columbia, or a corporation or other Person
permitted to act as trustee by the Securities and Exchange Commission, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least fifty million U.S. dollars ($50,000,000), and subject to supervision or examination
by federal, state, territorial, or District of Columbia authority.
If such corporation or other Person publishes
reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such corporation or other Person shall be deemed to
be its combined capital and surplus as set forth in its most recent report of condition so published. The Company may not, nor
may any Person directly or indirectly controlling, controlled by, or under common control with the Company, serve as Trustee. In
case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 7.10.
Section 7.10 Resignation and Removal;
Appointment of Successor.
(a) The Trustee or any successor hereafter
appointed may at any time resign with respect to the Securities of one or more series by giving written notice thereof to the Company
and by transmitting notice of resignation by mail, first class postage prepaid, to the Securityholders of such series, as their
names and addresses appear upon the Security Register. Upon receiving such notice of resignation, the Company shall promptly appoint
a successor trustee with respect to Securities of such series by written instrument, in duplicate, executed by order of the Board
of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If
no successor trustee shall have been so appointed and have accepted appointment within 30 days after the mailing of such notice
of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor trustee
with respect to Securities of such series, or any Securityholder of that series who has been a bona fide holder of a Security or
Securities for at least six months may on behalf of himself and all others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, appoint
a successor trustee.
(b) In case at any time any one of the
following shall occur:
(1) the Trustee shall fail to comply with
the provisions of Section 7.08 after written request therefor by the Company or by any Securityholder who has been a bona fide
holder of a Security or Securities for at least six months; or
(2) the Trustee shall cease to be eligible
in accordance with the provisions of Section 7.09 and shall fail to resign after written request therefor by the Company or by
any such Securityholder; or
(3) the Trustee shall become incapable of
acting, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding, or a receiver of the Trustee
or of its property shall be appointed or consented to, or any public officer shall take charge or control of the Trustee or of
its property or affairs for the purpose of rehabilitation, conservation or liquidation; then, in any such case, the Company may
remove the Trustee with respect to all Securities and appoint a successor trustee by written instrument, in duplicate, executed
by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the
successor trustee, or any Securityholder who has been a bona fide holder of a Security or Securities for at least six months may,
on behalf of that holder and all others similarly situated, petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate
principal amount of the Securities of any series at the time Outstanding may at any time remove the Trustee with respect to such
series by so notifying the Trustee and the Company and may appoint a successor Trustee for such series with the consent of the
Company.
(d) Any resignation or removal of the Trustee
and appointment of a successor trustee with respect to the Securities of a series pursuant to any of the provisions of this Section
shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.11.
(e) Any successor trustee appointed pursuant
to this Section may be appointed with respect to the Securities of one or more series or all of such series, and at any time there
shall be only one Trustee with respect to the Securities of any particular series.
Section 7.11 Acceptance of Appointment By Successor.
(a) In case of the appointment hereunder
of a successor trustee with respect to all Securities, every such successor trustee so appointed shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor
trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor
trustee all the rights, powers, and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor
trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder
of a successor trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and
each successor trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental
hereto wherein each successor trustee shall accept such appointment and which (i) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor trustee relates,
(ii) shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee, and (iii) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust, that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any
other such Trustee and that no Trustee shall be responsible for any act or failure to act on the part of any other Trustee hereunder;
and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein, such retiring Trustee shall with respect to the Securities of that or those series to
which the appointment of such successor trustee relates have no further responsibility for the exercise of rights and powers or
for the performance of the duties and obligations vested in the Trustee under this Indenture, and each such successor trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the appointment of such successor trustee relates; but,
on request of the Company or any successor trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor
trustee, to the extent contemplated by such supplemental indenture, the property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment of such successor trustee relates.
(c) Upon request of any such successor
trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor
trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor trustee shall accept its
appointment unless at the time of such acceptance such successor trustee shall be qualified and eligible under this Article.
(e) Upon acceptance of appointment by a
successor trustee as provided in this Section, the Company shall transmit notice of the succession of such trustee hereunder by
mail, first class postage prepaid, to the Securityholders, as their names and addresses appear upon the Security Register. If the
Company fails to transmit such notice within ten days after acceptance of appointment by the successor trustee, the successor trustee
shall cause such notice to be transmitted at the expense of the Company.
Section 7.12 Merger, Conversion, Consolidation
or Succession to Business.
Any corporation into which the Trustee
may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation
to which the Trustee shall be a party, or any corporation succeeding to the corporate trust business of the Trustee, including
the administration of the trust created by this Indenture, shall be the successor of the Trustee hereunder, provided that such
corporation shall be qualified under the provisions of Section 7.08 and eligible under the provisions of Section 7.09, without
the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
Section 7.13 Preferential Collection of Claims
Against the Company.
The Trustee shall comply with Section 311(a)
of the Trust Indenture Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture Act. A Trustee
who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.
Section 7.14 Notice of Default
If any Default or any Event of Default
occurs and is continuing and if such Default or Event of Default is known to a Responsible Officer of the Trustee, the Trustee
shall mail to each Securityholder in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act notice
of the Default or Event of Default within the earlier of 90 days after it occurs and 30 days after it is known to a Responsible
Officer of the Trustee or written notice of it is received by the Trustee, unless such Default or Event of Default has been cured;
provided, however, that, except in the case of a default in the payment of the principal of (or premium, if any) or interest on
any Security, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determine that the withholding
of such notice is in the interest of the Securityholders.
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
Section 8.1 Evidence of Action by Securityholders
.
Whenever in this Indenture it is provided
that the holders of a majority or specified percentage in aggregate principal amount of the Securities of a particular series may
take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any
other action), the fact that at the time of taking any such action the holders of such majority or specified percentage of that
series have joined therein may be evidenced by any instrument or any number of instruments of similar tenor executed by such holders
of Securities of that series in person or by agent or proxy appointed in writing.
If the Company shall solicit from the Securityholders
of any series any request, demand, authorization, direction, notice, consent, waiver or other action, the Company may, at its option,
as evidenced by an Officer's Certificate, fix in advance a record date for such series for the determination of Securityholders
entitled to give such request, demand, authorization, direction, notice, consent, waiver or other action, but the Company shall
have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver
or other action may be given before or after the record date, but only the Securityholders of record at the close of business on
the record date shall be deemed to be Securityholders for the purposes of determining whether Securityholders of the requisite
proportion of Outstanding Securities of that series have authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other action, and for that purpose the Outstanding Securities of that series shall be computed
as of the record date; provided, however, that no such authorization, agreement or consent by such Securityholders on the record
date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six
months after the record date.
Section 8.2 Proof of Execution by Securityholders.
Subject to the provisions of Section 7.01,
proof of the execution of any instrument by a Securityholder (such proof will not require notarization) or his agent or proxy and
proof of the holding by any Person of any of the Securities shall be sufficient if made in the following manner:
(a) The fact and date of the execution
by any such Person of any instrument may be proved in any reasonable manner acceptable to the Trustee.
(b) The ownership of Securities shall be
proved by the Security Register of such Securities or by a certificate of the Security Registrar thereof.
The Trustee may require such additional
proof of any matter referred to in this Section as it shall deem necessary.
Section 8.3 Who May be Deemed Owners.
Prior to the due presentment for registration
of transfer of any Security, the Company, the Trustee, any paying agent and any Security Registrar may deem and treat the Person
in whose name such Security shall be registered upon the books of the Company as the absolute owner of such Security (whether or
not such Security shall be overdue and notwithstanding any notice of ownership or writing thereon made by anyone other than the
Security Registrar) for the purpose of receiving payment of or on account of the principal of, premium, if any, and (subject to
Section 2.03) interest on such Security and for all other purposes; and neither the Company nor the Trustee nor any paying agent
nor any Security Registrar shall be affected by any notice to the contrary.
Section 8.4 Certain Securities Owned by Company
Disregarded.
In determining whether the holders of the
requisite aggregate principal amount of Securities of a particular series have concurred in any direction, consent or waiver under
this Indenture, the Securities of that series that are owned by the Company or any other obligor on the Securities of that series
or by any Person directly or indirectly controlling or controlled by or under common control with the Company or any other obligor
on the Securities of that series shall be disregarded and deemed not to be Outstanding for the purpose of any such determination,
except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction, consent or
waiver, only Securities of such series that the Trustee actually knows are so owned shall be so disregarded. The Securities so
owned that have been pledged in good faith may be regarded as Outstanding for the purposes of this Section, if the pledgee shall
establish to the satisfaction of the Trustee the pledgee's right so to act with respect to such Securities and that the pledgee
is not a Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company
or any such other obligor. In case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee.
Section 8.5 Actions Binding
on Future Securityholders.
At any time prior to (but not after) the
evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the holders of the majority or percentage
in aggregate principal amount of the Securities of a particular series specified in this Indenture in connection with such action,
any holder of a Security of that series that is shown by the evidence to be included in the Securities the holders of which have
consented to such action may, by filing written notice with the Trustee, and upon proof of holding as provided in Section 8.02,
revoke such action so far as concerns such Security. Except as aforesaid any such action taken by the holder of any Security shall
be conclusive and binding upon such holder and upon all future holders and owners of such Security, and of any Security issued
in exchange therefor, on registration of transfer thereof or in place thereof, irrespective of whether or not any notation in regard
thereto is made upon such Security. Any action taken by the holders of the majority or percentage in aggregate principal amount
of the Securities of a particular series specified in this Indenture in connection with such action shall be conclusively binding
upon the Company, the Trustee and the holders of all the Securities of that series.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.1 Supplemental Indentures
Without the Consent of Securityholders.
In addition to any supplemental indenture
otherwise authorized by this Indenture, the Company and the Trustee may from time to time and at any time enter into an indenture
or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as then in effect), without
the consent of the Securityholders, for one or more of the following purposes:
(a) to cure any ambiguity, defect, or inconsistency
herein or in the Securities of any series;
(b) to comply with Article Ten;
(c) to provide for uncertificated Securities
in addition to or in place of certificated Securities;
(d) to add to the covenants, restrictions,
conditions or provisions relating to the Company for the benefit of the holders of all or any series of Securities (and if such
covenants, restrictions, conditions or provisions are to be for the benefit of less than all series of Securities, stating that
such covenants, restrictions, conditions or provisions are expressly being included solely for the benefit of such series), to
make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants, restrictions, conditions
or provisions an Event of Default, or to surrender any right or power herein conferred upon the Company;
(e) to add to, delete from, or revise the
conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue, authentication, and delivery of
Securities, as herein set forth;
(f) to make any change that does not adversely
affect the rights of any Securityholder in any material respect;
(g) to provide for the issuance of and
establish the form and terms and conditions of the Securities of any series as provided in Section 2.01, to establish the form
of any certifications required to be furnished pursuant to the terms of this Indenture or any series of Securities, or to add to
the rights of the holders of any series of Securities;
(h) to evidence and provide for the acceptance
of appointment hereunder by a successor trustee; or
(i) to comply with any requirements of
the Securities and Exchange Commission or any successor in connection with the qualification of this Indenture under the Trust
Indenture Act.
The Trustee is hereby authorized to join
with the Company in the execution of any such supplemental indenture, and to make any further appropriate agreements and stipulations
that may be therein contained, but the Trustee shall not be obligated to enter into any such supplemental indenture that affects
the Trustee's own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by
the provisions of this Section may be executed by the Company and the Trustee without the consent of the holders of any of the
Securities at the time Outstanding, notwithstanding any of the provisions of Section 9.02.
Section 9.2 Supplemental Indentures With Consent
of Securityholders.
With the consent (evidenced as provided
in Section 8.01) of the holders of not less than a majority in aggregate principal amount of the Securities of each series affected
by such supplemental indenture or indentures at the time Outstanding, the Company, when authorized by a Board Resolution, and the
Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to
the provisions of the Trust Indenture Act as then in effect) for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner not covered
by Section 9.01 the rights of the holders of the Securities of such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the holders of each Security then Outstanding and affected thereby, (a) extend
the fixed maturity of any Securities of any series, or reduce the principal amount thereof, or reduce the rate or extend the time
of payment of interest thereon, or reduce any premium payable upon the redemption thereof or (b) reduce the aforesaid percentage
of Securities, the holders of which are required to consent to any such supplemental indenture.
It shall not be necessary for the consent
of the Securityholders of any series affected thereby under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Section 9.3 Effect of Supplemental Indentures.
Upon the execution of any supplemental
indenture pursuant to the provisions of this Article or of Section 10.01, this Indenture shall, with respect to such series, be
and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Trustee, the Company and the holders of Securities of the series affected thereby
shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions
of this Indenture for any and all purposes.
Section 9.4 Securities Affected by Supplemental
Indentures.
Securities of any series affected by a
supplemental indenture, authenticated and delivered after the execution of such supplemental indenture pursuant to the provisions
of this Article or of Section 10.01, may bear a notation in form approved by the Company, provided such form meets the requirements
of any securities exchange upon which such series may be listed, as to any matter provided for in such supplemental indenture.
If the Company shall so determine, new Securities of that series so modified as to conform, in the opinion of the Board of Directors,
to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Company, authenticated
by the Trustee and delivered in exchange for the Securities of that series then Outstanding.
Section 9.5 Execution of Supplemental Indentures.
Upon the request of the Company, accompanied
by its Board Resolutions authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of Securityholders required to consent thereto as aforesaid, the Trustee shall join with the Company in
the execution of such supplemental indenture unless such supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its discretion but shall not be obligated to enter into such
supplemental indenture. The Trustee, subject to the provisions of Section 7.01, may receive an Officer's Certificate or, if requested,
an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant to this Article is authorized or
permitted by, and conforms to, the terms of this Article and that it is proper for the Trustee under the provisions of this Article
to join in the execution thereof; provided, however, that such Officer's Certificate or Opinion of Counsel need not be provided
in connection with the execution of a supplemental indenture that establishes the terms of a series of Securities pursuant to Section
2.01 hereof. Promptly after the execution by the Company and the Trustee of any supplemental indenture pursuant to the provisions
of this Section, the Trustee shall transmit by mail, first class postage prepaid, a notice, setting forth in general terms the
substance of such supplemental indenture, to the Securityholders of all series affected thereby as their names and addresses appear
upon the Security Register. Any failure of the Trustee to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
ARTICLE X
SUCCESSOR ENTITY
Section 10.1 Company May Consolidate,
Etc.
Except as provided pursuant to Section
2.01 pursuant to a Board Resolution, and set forth in an Officer's Certificate, or established in one or more indentures supplemental
to this Indenture, nothing contained in this Indenture shall prevent any consolidation or merger of the Company with or into any
other Person (whether or not affiliated with the Company) or successive consolidations or mergers in which the Company or its successor
or successors shall be a party or parties, or shall prevent any sale, conveyance, transfer or other disposition of the property
of the Company or its successor or successors as an entirety, or substantially as an entirety, to any other corporation (whether
or not affiliated with the Company or its successor or successors) authorized to acquire and operate the same; provided, however,
(a) the Company hereby covenants and agrees that, upon any such consolidation or merger (in each case, if the Company is not the
survivor of such transaction), sale, conveyance, transfer or other disposition, the due and punctual payment of the principal of
(premium, if any) and interest on all of the Securities of all series in accordance with the terms of each series, according to
their tenor, and the due and punctual performance and observance of all the covenants and conditions of this Indenture with respect
to each series or established with respect to such series pursuant to Section 2.01 to be kept or performed by the Company shall
be expressly assumed, by supplemental indenture (which shall conform to the provisions of the Trust Indenture Act, as then in effect)
reasonably satisfactory in form to the Trustee executed and delivered to the Trustee by the entity formed by such consolidation,
or into which the Company shall have been merged, or by the entity which shall have acquired such property and (b) in the event
that the Securities of any series then Outstanding are convertible into or exchangeable for shares of common stock or other securities
of the Company, such entity shall, by such supplemental indenture, make provision so that the Securityholders of Securities of
that series shall thereafter be entitled to receive upon conversion or exchange of such Securities the number of securities or
property to which a holder of the number of shares of common stock or other securities of the Company deliverable upon conversion
or exchange of those Securities would have been entitled had such conversion or exchange occurred immediately prior to such consolidation,
merger, sale, conveyance, transfer or other disposition.
Section 10.2 Successor Entity Substituted.
(a) In case of any such consolidation,
merger, sale, conveyance, transfer or other disposition and upon the assumption by the successor entity by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the Trustee, of the obligations set forth under Section 10.01
on all of the Securities of all series Outstanding, such successor entity shall succeed to and be substituted for the Company with
the same effect as if it had been named as the Company herein, and thereupon the predecessor corporation shall be relieved of all
obligations and covenants under this Indenture and the Securities.
(b) In case of any such consolidation,
merger, sale, conveyance, transfer or other disposition, such changes in phraseology and form (but not in substance) may be made
in the Securities thereafter to be issued as may be appropriate.
(c) Nothing contained in this Article shall
require any action by the Company in the case of a consolidation or merger of any Person into the Company where the Company is
the survivor of such transaction, or the acquisition by the Company, by purchase or otherwise, of all or any part of the property
of any other Person (whether or not affiliated with the Company).
Section 10.3 Evidence of Consolidation, Etc. to
Trustee.
The Trustee, subject to the provisions
of Section 7.01, may receive an Officer's Certificate and, if requested, an Opinion of Counsel as conclusive evidence that any
such consolidation, merger, sale, conveyance, transfer or other disposition, and any such assumption, comply with the provisions
of this Article.
ARTICLE XI
SATISFACTION AND DISCHARGE
Section 11.1 Satisfaction and Discharge
of Indenture.
If at any time: (a) the Company shall have
delivered to the Trustee for cancellation all Securities of a series theretofore authenticated and not delivered to the Trustee
for cancellation (other than any Securities that shall have been destroyed, lost or stolen and that shall have been replaced or
paid as provided in Section 2.07 and Securities for whose payment money or Governmental Obligations have theretofore been deposited
in trust or segregated and held in trust by the Company and thereupon repaid to the Company or discharged from such trust, as provided
in Section 11.05); or (b) all such Securities of a particular series not theretofore delivered to the Trustee for cancellation
shall have become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and the Company shall deposit
or cause to be deposited with the Trustee as trust funds the entire amount in moneys or Governmental Obligations or a combination
thereof, sufficient in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay at maturity or upon redemption all Securities of that series not theretofore delivered
to the Trustee for cancellation, including principal (and premium, if any) and interest due or to become due to such date of maturity
or date fixed for redemption, as the case may be, and if the Company shall also pay or cause to be paid all other sums payable
hereunder with respect to such series by the Company then this Indenture shall thereupon cease to be of further effect with respect
to such series except for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03 and 7.10, that shall survive until the
date of maturity or redemption date, as the case may be, and Sections 7.06 and 11.05, that shall survive to such date and thereafter,
and the Trustee, on demand of the Company and at the cost and expense of the Company shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture with respect to such series.
Section 11.2 Discharge of Obligations.
If at any time all such Securities of a
particular series not heretofore delivered to the Trustee for cancellation or that have not become due and payable as described
in Section 11.01 shall have been paid by the Company by depositing irrevocably with the Trustee as trust funds moneys or an amount
of Governmental Obligations sufficient to pay at maturity or upon redemption all such Securities of that series not theretofore
delivered to the Trustee for cancellation, including principal (and premium, if any) and interest due or to become due to such
date of maturity or date fixed for redemption, as the case may be, and if the Company shall also pay or cause to be paid all other
sums payable hereunder by the Company with respect to such series, then after the date such moneys or Governmental Obligations,
as the case may be, are deposited with the Trustee the obligations of the Company under this Indenture with respect to such series
shall cease to be of further effect except for the provisions of Sections 2.03, 2.05, 2.07, 4,01, 4.02, 4,03, 7.06, 7.10 and 11.05
hereof that shall survive until such Securities shall mature and be paid.
Thereafter, Sections 7.06 and 11.05 shall
survive.
Section 11.3 Deposited Moneys to be Held in Trust.
All moneys or Governmental Obligations
deposited with the Trustee pursuant to Sections 11.01 or 11.02 shall be held in trust and shall be available for payment as due,
either directly or through any paying agent (including the Company acting as its own paying agent), to the holders of the particular
series of Securities for the payment or redemption of which such moneys or Governmental Obligations have been deposited with the
Trustee.
Section 11.4 Payment of Moneys Held by Paying Agents.
In connection with the satisfaction and
discharge of this Indenture all moneys or Governmental Obligations then held by any paying agent under the provisions of this Indenture
shall, upon demand of the Company, be paid to the Trustee and thereupon such paying agent shall be released from all further liability
with respect to such moneys or Governmental Obligations.
Section 11.5 Repayment to Company.
Any moneys or Governmental Obligations
deposited with any paying agent or the Trustee, or then held by the Company, in trust for payment of principal of or premium, if
any, or interest on the Securities of a particular series that are not applied but remain unclaimed by the holders of such Securities
for at least two years after the date upon which the principal of (and premium, if any) or interest on such Securities shall have
respectively become due and payable, or such other shorter period set forth in applicable escheat or abandoned or unclaimed property
law, shall be repaid to the Company on May 31 of each year or upon the Company's request or (if then held by the Company) shall
be discharged from such trust; and thereupon the paying agent and the Trustee shall be released from all further liability with
respect to such moneys or Governmental Obligations, and the holder of any of the Securities entitled to receive such payment shall
thereafter, as a general creditor, look only to the Company for the payment thereof.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 12.1 No Recourse.
No recourse under or upon any obligation,
covenant or agreement of this Indenture, or of any Security, or for any claim based thereon or otherwise in respect thereof, shall
be had against any incorporator, stockholder, officer or director, past, present or future as such, of the Company or of any predecessor
or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely corporate obligations, and that no such personal
liability whatever shall attach to, or is or shall be incurred by, the incorporators, stockholders, officers or directors as such,
of the Company or of any predecessor or successor corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom; and that any and all such personal liability of every name and nature, either at common law or in equity
or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, stockholder, officer
or director as such, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants
or agreements contained in this Indenture or in any of the Securities or implied therefrom, are hereby expressly waived and released
as a condition of, and as a consideration for, the execution of this Indenture and the issuance of such Securities.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.1 Effect on Successors and
Assigns.
All the covenants, stipulations, promises
and agreements in this Indenture made by or on behalf of the Company shall bind its successors and assigns, whether so expressed
or not.
Section 13.2 Actions by Successor
.
Any act or proceeding by any provision
of this Indenture authorized or required to be done or performed by any board, committee or officer of the Company shall and may
be done and performed with like force and effect by the corresponding board, committee or officer of any corporation that shall
at the time be the lawful successor of the Company.
Section 13.3 Surrender of Company Powers.
The Company by instrument in writing executed
by authority of its Board of Directors and delivered to the Trustee may surrender any of the powers reserved to the Company, and
thereupon such power so surrendered shall terminate both as to the Company and as to any successor corporation.
Section 13.4 Notices.
Except as otherwise expressly provided
herein, any notice, request or demand that by any provision of this Indenture is required or permitted to be given, made or served
by the Trustee or by the holders of Securities or by any other Person pursuant to this Indenture to or on the Company may be given
or served by being deposited in first class mail, postage prepaid, addressed (until another address is filed in writing by the
Company with the Trustee), as follows:
Any notice, election, request or demand
by the Company or any Securityholder or by any other Person pursuant to this Indenture to or upon the Trustee shall be deemed to
have been sufficiently given or made, for all purposes, if given or made in writing at the Corporate Trust Office of the Trustee.
Section 13.5 Governing Law.
This Indenture and each Security shall
be deemed to be a contract made under the internal laws of the State of New York, and for all purposes shall be construed in accordance
with the laws of said State, except to the extent that the Trust Indenture Act is applicable.
Section 13.6 Treatment of Securities as Debt.
It is intended that the Securities will
be treated as indebtedness and not as equity for federal income tax purposes. The provisions of this Indenture shall be interpreted
to further this intention.
Section 13.7 Certificates and Opinions as to Conditions
Precedent.
(a) Upon any application or demand by the
Company to the Trustee to take any action under any of the provisions of this Indenture, the Company shall furnish to the Trustee
an Officer's Certificate stating that all conditions precedent provided for in this Indenture (other than the certificate to be
delivered pursuant to Section 13.12) relating to the proposed action have been complied with and, if requested, an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent have been complied with, except that in the case of any
such application or demand as to which the furnishing of such documents is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional certificate or opinion need be furnished.
(b) Each certificate or opinion provided
for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant in this Indenture shall
include (i) a statement that the Person making such certificate or opinion has read such covenant or condition; (ii) a brief statement
as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate
or opinion are based; (iii) a statement that, in the opinion of such Person, he has made such examination or investigation as is
reasonably necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied
with; and (iv) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
Section 13.8 Payments on Business Days.
Except as provided pursuant to Section
2.01 pursuant to a Board Resolution, and set forth in an Officer's Certificate, or established in one or more indentures supplemental
to this Indenture, in any case where the date of maturity of interest or principal of any Security or the date of redemption of
any Security shall not be a Business Day, then payment of interest or principal (and premium, if any) may be made on the next succeeding
Business Day with the same force and effect as if made on the nominal date of maturity or redemption, and no interest shall accrue
for the period after such nominal date.
Section 13.9 Conflict with Trust Indenture Act.
If and to the extent that any provision
of this Indenture limits, qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture
Act, such imposed duties shall control.
Section 13.10 Counterparts.
This Indenture may be executed in any number
of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.
Section 13.11 Separability.
In case any one or more of the provisions
contained in this Indenture or in the Securities of any series shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Indenture or of such
Securities, but this Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable provision
had never been contained herein or therein.
Section 13.12 Compliance Certificates.
The Company shall deliver to the Trustee,
within 120 days after the end of each fiscal year during which any Securities of any series were outstanding, an officer's certificate
stating whether or not the signers know of any Default or Event of Default that occurred during such fiscal year. Such certificate
shall contain a certification from the principal executive officer, principal financial officer or principal accounting officer
of the Company that a review has been conducted of the activities of the Company and the Company's performance under this Indenture
and that the Company has complied with all conditions and covenants under this Indenture. For purposes of this Section 13.12, such
compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture. If
the officer of the Company signing such certificate has knowledge of such a Default or Event of Default, the certificate shall
describe any such Default or Event of Default and its status.
IN WITNESS WHEREOF, the parties hereto
have caused this Indenture to be duly executed all as of the day and year first above written.
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HEPION PHARMACEUTICALS, INC.
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By:
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Name:
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Title:
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[TRUSTEE], as Trustee
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By:
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Name:
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Title:
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Exhibit 4.2
HEPION PHARMACEUTICALS, INC.,
ISSUER
AND
[TRUSTEE],
TRUSTEE
INDENTURE
DATED AS OF , 20__
SUBORDINATED DEBT SECURITIES
TABLE OF CONTENTS
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Page
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ARTICLE 1 DEFINITIONS
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5
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Section 1.01 Definitions of Terms
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5
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ARTICLE 2 ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
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8
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Section 2.01 Designation and Terms of Securities
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8
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Section 2.02 Form of Securities and Trustee's Certificate
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9
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Section 2.03 Denominations: Provisions for Payment
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9
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Section 2.04 Execution and Authentications
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10
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Section 2.05 Registration of Transfer and Exchange
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11
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Section 2.06 Temporary Securities
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12
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Section 2.07 Mutilated, Destroyed, Lost or Stolen Securities
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12
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Section 2.08 Cancellation
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12
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Section 2.09 Benefits of Indenture
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12
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Section 2.10 Authenticating Agent
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13
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Section 2.11 Global Securities
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13
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ARTICLE 3 REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
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14
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Section 3.01 Redemption
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14
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Section 3.02 Notice of Redemption
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14
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Section 3.03 Payment Upon Redemption
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15
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Section 3.04 Sinking Fund
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15
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Section 3.05 Satisfaction of Sinking Fund Payments with Securities
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15
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Section 3.06 Redemption of Securities for Sinking Fund
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15
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ARTICLE 4 COVENANTS
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16
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Section 4.01 Payment of Principal, Premium and Interest
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16
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Section 4.02 Maintenance of Office or Agency
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16
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Section 4.03 Paying Agents
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16
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Section 4.04 Appointment to Fill Vacancy in Office of Trustee
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17
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Section 4.05 Compliance with Consolidation Provisions
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17
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ARTICLE 5 SECURITYHOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
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18
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Section 5.01 Company to Furnish Trustee Names and Addresses of Securityholders
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18
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Section 5.02 Preservation Of Information; Communications With Securityholders
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18
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Section 5.03 Reports by the Company
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18
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Section 5.04 Reports by the Trustee
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18
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ARTICLE 6 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
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19
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Section 6.01 Events of Default
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19
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Section 6.02 Collection of Indebtedness and Suits for Enforcement by
Trustee
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20
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Section 6.03 Application of Moneys Collected
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21
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Section 6.04 Limitation on Suits
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21
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Section 6.05 Rights and Remedies Cumulative; Delay or Omission Not Waiver
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22
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Section 6.06 Control by Securityholders
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22
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Section 6.07 Undertaking to Pay Costs
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22
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ARTICLE 7 CONCERNING THE TRUSTEE
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23
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Section 7.01 Certain Duties and Responsibilities of Trustee
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23
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Section 7.02 Certain Rights of Trustee
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23
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Section 7.03 Trustee Not Responsible for Recitals or Issuance or Securities
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24
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Section 7.04 May Hold Securities
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24
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Section 7.05 Moneys Held in Trust
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25
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Section 7.06 Compensation and Reimbursement
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25
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Section 7.07 Reliance on Officer's Certificate
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25
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Section 7.08 Disqualification; Conflicting Interests
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25
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Section 7.09 Corporate Trustee Required; Eligibility
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25
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Section 7.10 Resignation and Removal; Appointment of Successor
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26
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Section 7.11 Acceptance of Appointment By Successor
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26
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Section 7.12 Merger, Conversion, Consolidation or Succession
to Business
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27
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Section 7.13 Preferential Collection of Claims Against the Company
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28
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Section 7.14 Notice of Default
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28
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ARTICLE 8 CONCERNING THE SECURITYHOLDERS
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29
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Section 8.01 Evidence of Action by Securityholders
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29
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Section 8.02 Proof of Execution by Securityholders
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29
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Section 8.03 Who May be Deemed Owners
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29
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Section 8.04 Certain Securities Owned by Company Disregarded
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30
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Section 8.05 Actions Binding on Future Securityholders
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30
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ARTICLE 9 SUPPLEMENTAL INDENTURES
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31
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Section 9.01 Supplemental Indentures Without the Consent of Securityholders
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31
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Section 9.02 Supplemental Indentures With Consent of Securityholders
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32
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Section 9.03 Effect of Supplemental Indentures
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32
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Section 9.04 Securities Affected by Supplemental Indentures
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32
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Section 9.05 Execution of Supplemental Indentures
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33
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ARTICLE 10 SUCCESSOR ENTITY
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34
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Section 10.01 Company May Consolidate, Etc
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34
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Section 10.02 Successor Entity Substituted
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34
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Section 10.03 Evidence of Consolidation, Etc
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34
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ARTICLE 11 SATISFACTION AND DISCHARGE
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35
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Section 11.01 Satisfaction and Discharge of Indenture
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35
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Section 11.02 Discharge of Obligations
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35
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Section 11.03 Deposited Moneys to be Held in Trust
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35
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Section 11.04 Payment of Moneys Held by Paying Agents
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35
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Section 11.05 Repayment to Company
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36
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ARTICLE 12 IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
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37
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Section 12.01 No Recourse
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37
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ARTICLE 13 MISCELLANEOUS PROVISIONS
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38
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Section 13.01 Effect on Successors and Assigns
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38
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Section 13.02 Actions by Successor
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38
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Section 13.03 Surrender of Company Powers
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38
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Section 13.04 Notices
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38
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Section 13.05 Governing Law
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38
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Section 13.06 Treatment of Securities as Debt
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38
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Section 13.07 Certificates and Opinions as to Conditions Precedent
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38
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Section 13.08 Payments on Business Days
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38
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Section 13.09 Conflict with Trust Indenture Act
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39
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Section 13.10 Counterparts
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39
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Section 13.11 Separability
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39
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Section 13.12 Compliance Certificates
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39
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ARTICLE 14 SUBORDINATION OF SECURITIES
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40
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Section 14.01 Subordination Terms
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40
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(1)
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This Table of Contents does not constitute part of the Indenture and shall not have
any bearing on the interpretation of any of its terms or provisions.
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INDENTURE
INDENTURE , dated as of [ ·
], among Hepion Pharmaceuticals, Inc. , a Delaware corporation (the "Company"), and [ TRUSTEE ], as trustee
(the "Trustee"):
WHEREAS, for its lawful corporate purposes,
the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance of subordinated debt securities
(hereinafter referred to as the "Securities"), in an unlimited aggregate principal amount to be issued from time to time
in one or more series as in this Indenture provided, as registered Securities without coupons, to be authenticated by the certificate
of the Trustee;
WHEREAS, to provide the terms and conditions
upon which the Securities are to be authenticated, issued and delivered, the Company has duly authorized the execution of this
Indenture; and
WHEREAS, all things necessary to make this
Indenture a valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the
premises and the purchase of the Securities by the holders thereof, it is mutually covenanted and agreed as follows for the equal
and ratable benefit of the holders of Securities:
ARTICLE 1
DEFINITIONS
Section 1.01 Definitions of Terms.
The terms defined in this Section (except
as in this Indenture or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this
Section and shall include the plural as well as the singular. All other terms used in this Indenture that are defined in the Trust
Indenture Act of 1939, as amended, or that are by reference in such Act defined in the Securities Act of 1933, as amended (except
as herein or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires), shall have
the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of the execution
of this instrument.
"Authenticating Agent" means
an authenticating agent with respect to all or any of the series of Securities appointed by the Trustee pursuant to Section 2.10.
"Bankruptcy Law" means Title
11, U.S. Code, or any similar federal or state law for the relief of debtors.
"Board of Directors" means the
Board of Directors of the Company or any duly authorized committee of such Board.
"Board Resolution" means a copy
of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of such certification.
"Business Day" means, with respect
to any series of Securities, any day other than a day on which federal or state banking institutions in the Borough of Manhattan,
the City of New York, or in the city of the Corporate Trust Office of the Trustee, are authorized or obligated by law, executive
order or regulation to close.
"Certificate" means a certificate
signed by any Officer. The Certificate need not comply with the provisions of Section 13.07.
"Company" means Hepion Pharmaceuticals,
Inc., a corporation duly organized and existing under the laws of the State of Delaware, and, subject to the provisions of Article
Ten, shall also include its successors and assigns.
"Corporate Trust Office" means
the office of the Trustee at which, at any particular time, its corporate trust business shall be principally administered, which
office at the date hereof is located at.
"Custodian" means any receiver,
trustee, assignee, liquidator or similar official under any Bankruptcy Law.
"Default" means any event, act
or condition that with notice or lapse of time, or both, would constitute an Event of Default.
"Defaulted Interest" has the
meaning set forth in Section 2.03.
"Depositary" means, with respect
to Securities of any series for which the Company shall determine that such Securities will be issued as a Global Security, The
Depository Trust Company, another clearing agency, or any successor registered as a clearing agency under the Exchange Act, or
other applicable statute or regulation, which, in each case, shall be designated by the Company pursuant to either Section 2.01
or 2.11.
"Event of Default" means, with
respect to Securities of a particular series, any event specified in Section 6.01, continued for the period of time, if any, therein
designated.
"Exchange Act" means the Securities
and Exchange Act of 1934, as amended.
"Global Security" means, with
respect to any series of Securities, a Security executed by the Company and delivered by the Trustee to the Depositary or pursuant
to the Depositary's instruction, all in accordance with the Indenture, which shall be registered in the name of the Depositary
or its nominee.
"Governmental Obligations" means
securities that are (a) direct obligations of the United States of America for the payment of which its full faith and credit is
pledged or (b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States
of America, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America
that, in either case, are not callable or redeemable at the option of the issuer thereof at any time prior to the stated maturity
of the Securities, and shall also include a depositary receipt issued by a bank or trust company as custodian with respect to any
such Governmental Obligation or a specific payment of principal of or interest on any such Governmental Obligation held by such
custodian for the account of the holder of such depositary receipt; provided, however, that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received
by the custodian in respect of the Governmental Obligation or the specific payment of principal of or interest on the Governmental
Obligation evidenced by such depositary receipt.
"herein", "hereof"
and "hereunder", and other words of similar import, refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
"Indenture" means this instrument
as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto
entered into in accordance with the terms hereof.
"Interest Payment Date", when
used with respect to any installment of interest on a Security of a particular series, means the date specified in such Security
or in a Board Resolution or in an indenture supplemental hereto with respect to such series as the fixed date on which an installment
of interest with respect to Securities of that series is due and payable.
"Officer" means, with respect
to the Company, the chairman of the Board of Directors, a chief executive officer, a president, a chief financial officer, a chief
operating officer, any executive vice president, any senior vice president, any vice president, the treasurer or any assistant
treasurer, the controller or any assistant controller or the secretary or any assistant secretary.
"Officer's Certificate" means
a certificate signed by any Officer. Each such certificate shall include the statements provided for in Section 13.07, if and to
the extent required by the provisions thereof.
"Opinion of Counsel" means an
opinion in writing subject to customary exceptions of legal counsel, who may be an employee of or counsel for the Company, that
is delivered to the Trustee in accordance with the terms hereof. Each such opinion shall include the statements provided for in
Section 13.07, if and to the extent required by the provisions thereof.
"Outstanding", when used with
reference to Securities of any series, means, subject to the provisions of Section 8.04, as of any particular time, all Securities
of that series theretofore authenticated and delivered by the Trustee under this Indenture, except (a) Securities theretofore canceled
by the Trustee or any paying agent, or delivered to the Trustee or any paying agent for cancellation or that have previously been
canceled; (b) Securities or portions thereof for the payment or redemption of which moneys or Governmental Obligations in the necessary
amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been
set aside and segregated in trust by the Company (if the Company shall act as its own paying agent); provided, however, that if
such Securities or portions of such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall
have been given as provided in Article Three, or provision satisfactory to the Trustee shall have been made for giving such notice;
and (c) Securities in lieu of or in substitution for which other Securities shall have been authenticated and delivered pursuant
to the terms of Section 2.07.
"Person" means any individual,
corporation, partnership, joint venture, joint-stock company, limited liability company, association, trust, unincorporated organization,
any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
"Predecessor Security" of any
particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular
Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 2.07 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Security.
"Responsible Officer" when used
with respect to the Trustee means the chairman of its board of directors, the chief executive officer, the president, any vice
president, the secretary, the treasurer, any trust officer, any corporate trust officer or any other officer or assistant officer
of the Trustee customarily performing functions similar to those performed by the Persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred because of his or her knowledge of and familiarity with the particular
subject.
"Securities" means the debt Securities
authenticated and delivered under this Indenture.
"Securityholder", "holder
of Securities", "registered holder", or other similar term, means the Person or Persons in whose name or names a
particular Security shall be registered on the books of the Company kept for that purpose in accordance with the terms of this
Indenture.
"Security Register" and "Security
Registrar" shall have the meanings as set forth in Section 2.05.
"Subsidiary" means, with respect
to any Person, (i) any corporation at least a majority of whose outstanding Voting Stock shall at the time be owned, directly or
indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, (ii) any
general partnership, joint venture or similar entity, at least a majority of whose outstanding partnership or similar interests
shall at the time be owned by such Person, or by one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries
and (iii) any limited partnership of which such Person or any of its Subsidiaries is a general partner.
"Trustee" means , and, subject
to the provisions of Article Seven, shall also include its successors and assigns, and, if at any time there is more than one Person
acting in such capacity hereunder, "Trustee" shall mean each such Person. The term "Trustee" as used with respect
to a particular series of the Securities shall mean the trustee with respect to that series.
"Trust Indenture Act" means the
Trust Indenture Act of 1939, as amended.
"Voting Stock", as applied to
stock of any Person, means shares, interests, participations or other equivalents in the equity interest (however designated) in
such Person having ordinary voting power for the election of a majority of the directors (or the equivalent) of such Person, other
than shares, interests, participations or other equivalents having such power only by reason of the occurrence of a contingency.
ARTICLE 2
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND
EXCHANGE OF SECURITIES
Section 2.01 Designation and Terms of
Securities.
(a) The aggregate principal amount of Securities
that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more series up
to the aggregate principal amount of Securities of that series from time to time authorized by or pursuant to a Board Resolution
or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of Securities of any series, there shall
be established in or pursuant to a Board Resolution, and set forth in an Officer's Certificate, or established in one or more indentures
supplemental hereto:
(1) the title of the Securities of the series
(which shall distinguish the Securities of that series from all other Securities);
(2) any limit upon the aggregate principal
amount of the Securities of that series that may be authenticated and delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of that series);
(3) the date or dates on which the
principal of the Securities of the series is payable, any original issue discount that may apply to the Securities of that series
upon their issuance, the principal amount due at maturity, and the place(s) of payment;
(4) the rate or rates at which the Securities
of the series shall bear interest or the manner of calculation of such rate or rates, if any;
(5) the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest will be payable or the manner of determination of such Interest
Payment Dates, the place(s) of payment, and the record date for the determination of holders to whom interest is payable on any
such Interest Payment Dates or the manner of determination of such record dates;
(6) the right, if any, to extend the interest
payment periods and the duration of such extension;
(7) the period or periods within which, the
price or prices at which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part,
at the option of the Company;
(8) the obligation, if any, of the Company
to redeem or purchase Securities of the series pursuant to any sinking fund, mandatory redemption, or analogous provisions (including
payments made in cash in satisfaction of future sinking fund obligations) or at the option of a holder thereof and the period or
periods within which, the price or prices at which, and the terms and conditions upon which, Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such obligation;
(9) the form of the Securities of the series
including the form of the Certificate of Authentication for such series;
(10) if other than denominations of one thousand
U.S. dollars ($1,000) or any integral multiple thereof, the denominations in which the Securities of the series shall be issuable;
(11) any and all other terms (including terms,
to the extent applicable, relating to any auction or remarketing of the Securities of that series and any security for the obligations
of the Company with respect to such Securities) with respect to such series (which terms shall not be inconsistent with the terms
of this Indenture, as amended by any supplemental indenture) including any terms which may be required by or advisable under United
States laws or regulations or advisable in connection with the marketing of Securities of that series;
(12) whether the Securities are issuable
as a Global Security and, in such case, the terms and the identity of the Depositary for such series;
(13) whether the Securities will be convertible
into or exchangeable for shares of common stock, preferred stock or other securities of the Company or any other Person and, if
so, the terms and conditions upon which such Securities will be so convertible or exchangeable, including the conversion or exchange
price, as applicable, or how it will be calculated and may be adjusted, any mandatory or optional (at the Company's option or the
holders' option) conversion or exchange features, and the applicable conversion or exchange period;
(14) if other than the principal amount thereof,
the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the
maturity thereof pursuant to Section 6.01;
(15) any additional or different Events of
Default or restrictive covenants (which may include, among other restrictions, restrictions on the Company's ability or the ability
of the Company's Subsidiaries to: incur additional indebtedness; issue additional securities; create liens; pay dividends or make
distributions in respect of the capital stock of the Company or the Company's Subsidiaries; redeem capital stock; place restrictions
on the Company's Subsidiaries' ability to pay dividends, make distributions or transfer assets; make investments or other restricted
payments; sell or otherwise dispose of assets; enter into sale-leaseback transactions; engage in transactions with stockholders
or affiliates; issue or sell stock of the Company's Subsidiaries; or effect a consolidation or merger) or financial covenants (which
may include, among other financial covenants, financial covenants that require the Company and its Subsidiaries to maintain specified
interest coverage, fixed charge, cash flow-based, asset-based or other financial ratios) provided for with respect to the Securities
of the series;
(16) if other than dollars, the coin or currency
in which the Securities of the series are denominated (including, but not limited to, foreign currency);
(17) the terms and conditions, if any, upon
which the Company shall pay amounts in addition to the stated interest, premium, if any and principal amounts of the Securities
of the series to any Securityholder that is not a "United States person" for federal tax purposes;
(18) any restrictions on transfer, sale or
assignment of the Securities of the series; and
(19) the subordination terms of the Securities
of the series.
All Securities of any one series shall
be substantially identical except as may otherwise be provided in or pursuant to any such Board Resolution or in any indentures
supplemental hereto.
If any of the terms of the series are established
by action taken pursuant to a Board Resolution of the Company, a copy of an appropriate record of such action shall be certified
by the secretary or an assistant secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officer's
Certificate of the Company setting forth the terms of the series.
Securities of any particular series may
be issued at various times, with different dates on which the principal or any installment of principal is payable, with different
rates of interest, if any, or different methods by which rates of interest may be determined, with different dates on which such
interest may be payable and with different redemption dates.
Section 2.02 Form of Securities and
Trustee's Certificate.
The Securities of any series and the Trustee's
certificate of authentication to be borne by such Securities shall be substantially of the tenor and purport as set forth in one
or more indentures supplemental hereto or as provided in a Board Resolution, and set forth in an Officer's Certificate, and they
may have such letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed
or engraved thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as
may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any
securities exchange on which Securities of that series may be listed, or to conform to usage.
Section 2.03 Denominations: Provisions
for Payment.
The Securities shall be issuable as registered
Securities and in the denominations of one thousand U.S. dollars ($1,000) or any integral multiple thereof, subject to Section
2.01(a)(10). The Securities of a particular series shall bear interest payable on the dates and at the rate specified with respect
to that series. Subject to Section 2.01(a)(16), the principal of and the interest on the Securities of any series, as well as any
premium thereon in case of redemption thereof prior to maturity, shall be payable in the coin or currency of the United States
of America that at the time is legal tender for public and private debt, at the office or agency of the Company maintained for
that purpose. Each Security shall be dated the date of its authentication. Interest on the Securities shall be computed on the
basis of a 360-day year composed of twelve 30-day months.
The interest installment on any Security
that is payable, and is punctually paid or duly provided for, on any Interest Payment Date for Securities of that series shall
be paid to the Person in whose name said Security (or one or more Predecessor Securities) is registered at the close of business
on the regular record date for such interest installment. In the event that any Security of a particular series or portion thereof
is called for redemption and the redemption date is subsequent to a regular record date with respect to any Interest Payment Date
and prior to such Interest Payment Date, interest on such Security will be paid upon presentation and surrender of such Security
as provided in Section 3.03.
Any interest on any Security that is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date for Securities of the same series (herein called
"Defaulted Interest") shall forthwith cease to be payable to the registered holder on the relevant regular record date
by virtue of having been such holder; and such Defaulted Interest shall be paid by the Company, at its election, as provided in
clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted
Interest on Securities to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered
at the close of business on a special record date for the payment of such Defaulted Interest, which shall be fixed in the following
manner: the Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each such Security
and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal
to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit
of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a special record
date for the payment of such Defaulted Interest which shall not be more than 15 nor less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such special record date and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the special record date therefor to be mailed, first class postage prepaid,
to each Securityholder at his or her address as it appears in the Security Register (as hereinafter defined), not less than 10
days prior to such special record date. Notice of the proposed payment of such Defaulted Interest and the special record date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names such Securities (or their
respective Predecessor Securities) are registered on such special record date.
(2) The Company may make payment of any Defaulted
Interest on any Securities in any other lawful manner not inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company
to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.
Unless otherwise set forth in a Board Resolution
or one or more indentures supplemental hereto establishing the terms of any series of Securities pursuant to Section 2.01 hereof,
the term "regular record date" as used in this Section with respect to a series of Securities and any Interest Payment
Date for such series shall mean either the fifteenth day of the month immediately preceding the month in which an Interest Payment
Date established for such series pursuant to Section 2.01 hereof shall occur, if such Interest Payment Date is the first day of
a month, or the first day of the month in which an Interest Payment Date established for such series pursuant to Section 2.01 hereof
shall occur, if such Interest Payment Date is the fifteenth day of a month, whether or not such date is a Business Day.
Subject to the foregoing provisions of
this Section, each Security of a series delivered under this Indenture upon transfer of or in exchange for or in lieu of any other
Security of such series shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Security.
Section 2.04 Execution and Authentications.
The Securities shall be signed on behalf
of the Company by one of its Officers. Signatures may be in the form of a manual or facsimile signature.
The Company may use the facsimile signature
of any Person who shall have been an Officer, notwithstanding the fact that at the time the Securities shall be authenticated and
delivered or disposed of such Person shall have ceased to be such an officer of the Company. The Securities may contain such notations,
legends or endorsements required by law, stock exchange rule or usage. Each Security shall be dated the date of its authentication
by the Trustee.
A Security shall not be valid until authenticated
manually by an authorized signatory of the Trustee, or by an Authenticating Agent. Such signature shall be conclusive evidence
that the Security so authenticated has been duly authenticated and delivered hereunder and that the holder is entitled to the benefits
of this Indenture. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver
Securities of any series executed by the Company to the Trustee for authentication, together with a written order of the Company
for the authentication and delivery of such Securities, signed by an Officer, and the Trustee in accordance with such written order
shall authenticate and deliver such Securities.
In authenticating such Securities and accepting
the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive,
if requested, and (subject to Section 7.01) shall be fully protected in relying upon, an Opinion of Counsel stating that the form
and terms thereof have been established in conformity with the provisions of this Indenture.
The Trustee shall not be required to authenticate
such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee's own rights, duties or immunities
under the Securities and this Indenture or otherwise in a manner that is not reasonably acceptable to the Trustee.
Section 2.05 Registration of Transfer
and Exchange.
(a) Securities of any series may be exchanged
upon presentation thereof at the office or agency of the Company designated for such purpose, for other Securities of such series
of authorized denominations, and for a like aggregate principal amount, upon payment of a sum sufficient to cover any tax or other
governmental charge in relation thereto, all as provided in this Section. In respect of any Securities so surrendered for exchange,
the Company shall execute, the Trustee shall authenticate and such office or agency shall deliver in exchange therefor the Security
or Securities of the same series that the Securityholder making the exchange shall be entitled to receive, bearing numbers not
contemporaneously outstanding.
(b) The Company shall keep, or cause to
be kept, at its office or agency designated for such purpose a register or registers (herein referred to as the "Security
Register") in which, subject to such reasonable regulations as it may prescribe, the Company shall register the Securities
and the transfers of Securities as in this Article provided and which at all reasonable times shall be open for inspection by the
Trustee. The registrar for the purpose of registering Securities and transfer of Securities as herein provided shall be appointed
as authorized by Board Resolution (the "Security Registrar").
Upon surrender for transfer of any Security
at the office or agency of the Company designated for such purpose, the Company shall execute, the Trustee shall authenticate and
such office or agency shall deliver in the name of the transferee or transferees a new Security or Securities of the same series
as the Security presented for a like aggregate principal amount.
All Securities presented or surrendered
for exchange or registration of transfer, as provided in this Section, shall be accompanied (if so required by the Company or the
Security Registrar) by a written instrument or instruments of transfer, in form satisfactory to the Company or the Security Registrar,
duly executed by the registered holder or by such holder's duly authorized attorney in writing.
(c) Except as provided pursuant to Section
2.01 pursuant to a Board Resolution, and set forth in an Officer's Certificate, or established in one or more indentures supplemental
to this Indenture, no service charge shall be made for any exchange or registration of transfer of Securities, or issue of new
Securities in case of partial redemption of any series, but the Company may require payment of a sum sufficient to cover any tax
or other governmental charge in relation thereto, other than exchanges pursuant to Section 2.06, Section 3.03(b) and Section 9.04
not involving any transfer.
(d) The Company shall not be required (i)
to issue, exchange or register the transfer of any Securities during a period beginning at the opening of business 15 days before
the day of the mailing of a notice of redemption of less than all the Outstanding Securities of the same series and ending at the
close of business on the day of such mailing, nor (ii) to register the transfer of or exchange any Securities of any series or
portions thereof called for redemption, other than the unredeemed portion of any such Securities being redeemed in part. The provisions
of this Section 2.05 are, with respect to any Global Security, subject to Section 2.11 hereof.
Section 2.06 Temporary Securities.
Pending the preparation of definitive Securities
of any series, the Company may execute, and the Trustee shall authenticate and deliver, temporary Securities (printed, lithographed
or typewritten) of any authorized denomination. Such temporary Securities shall be substantially in the form of the definitive
Securities in lieu of which they are issued, but with such omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Company. Every temporary Security of any series shall be executed by the Company and
be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive
Securities of such series. Without unnecessary delay the Company will execute and will furnish definitive Securities of such series
and thereupon any or all temporary Securities of such series may be surrendered in exchange therefor (without charge to the holders),
at the office or agency of the Company designated for the purpose, and the Trustee shall authenticate and such office or agency
shall deliver in exchange for such temporary Securities an equal aggregate principal amount of definitive Securities of such series,
unless the Company advises the Trustee to the effect that definitive Securities need not be executed and furnished until further
notice from the Company. Until so exchanged, the temporary Securities of such series shall be entitled to the same benefits under
this Indenture as definitive Securities of such series authenticated and delivered hereunder.
Section 2.07 Mutilated, Destroyed, Lost
or Stolen Securities.
In case any temporary or definitive Security
shall become mutilated or be destroyed, lost or stolen, the Company (subject to the next succeeding sentence) shall execute, and
upon the Company's request the Trustee (subject as aforesaid) shall authenticate and deliver, a new Security of the same series,
bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Security, or in lieu of and
in substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substituted Security shall furnish
to the Company and the Trustee such security or indemnity as may be required by them to save each of them harmless, and, in every
case of destruction, loss or theft, the applicant shall also furnish to the Company and the Trustee evidence to their satisfaction
of the destruction, loss or theft of the applicant's Security and of the ownership thereof. The Trustee may authenticate any such
substituted Security and deliver the same upon the written request or authorization of any officer of the Company. Upon the issuance
of any substituted Security, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
In case any Security that has matured or
is about to mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Security,
pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated Security) if the applicant
for such payment shall furnish to the Company and the Trustee such security or indemnity as they may require to save them harmless,
and, in case of destruction, loss or theft, evidence to the satisfaction of the Company and the Trustee of the destruction, loss
or theft of such Security and of the ownership thereof.
Every replacement Security issued pursuant
to the provisions of this Section shall constitute an additional contractual obligation of the Company whether or not the mutilated,
destroyed, lost or stolen Security shall be found at any time, or be enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Securities of the same series duly issued hereunder. All Securities
shall be held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities, and shall preclude (to the extent lawful) any and all other rights
or remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or
payment of negotiable instruments or other securities without their surrender.
Section 2.08 Cancellation.
All Securities surrendered for the purpose
of payment, redemption, exchange or registration of transfer shall, if surrendered to the Company or any paying agent, be delivered
to the Trustee for cancellation, or, if surrendered to the Trustee, shall be cancelled by it, and no Securities shall be issued
in lieu thereof except as expressly required or permitted by any of the provisions of this Indenture. On request of the Company
at the time of such surrender, the Trustee shall deliver to the Company canceled Securities held by the Trustee. In the absence
of such request the Trustee may dispose of canceled Securities in accordance with its standard procedures and deliver a certificate
of disposition to the Company. If the Company shall otherwise acquire any of the Securities, however, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are delivered
to the Trustee for cancellation.
Section 2.09 Benefits of Indenture.
Nothing in this Indenture or in the Securities,
express or implied, shall give or be construed to give to any Person, other than the parties hereto and the holders of the Securities
(and, with respect to the provisions of Article Fourteen, the holders of any indebtedness of the Company to which the Securities
of any series are subordinated) any legal or equitable right, remedy or claim under or in respect of this Indenture, or under any
covenant, condition or provision herein contained; all such covenants, conditions and provisions being for the sole benefit of
the parties hereto and of the holders of the Securities (and, with respect to the provisions of Article Fourteen, the holders of
any indebtedness of the Company to which the Securities of any series are subordinated).
Section 2.10 Authenticating Agent.
So long as any of the Securities of any
series remain Outstanding there may be an Authenticating Agent for any or all such series of Securities which the Trustee shall
have the right to appoint. Said Authenticating Agent shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series issued upon exchange, transfer or partial redemption thereof, and Securities so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder.
All references in this Indenture to the authentication of Securities by the Trustee shall be deemed to include authentication by
an Authenticating Agent for such series. Each Authenticating Agent shall be acceptable to the Company and shall be a corporation
that has a combined capital and surplus, as most recently reported or determined by it, sufficient under the laws of any jurisdiction
under which it is organized or in which it is doing business to conduct a trust business, and that is otherwise authorized under
such laws to conduct such business and is subject to supervision or examination by federal or state authorities. If at any time
any Authenticating Agent shall cease to be eligible in accordance with these provisions, it shall resign immediately.
Any Authenticating Agent may at any time
resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time (and upon request
by the Company shall) terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating
Agent and to the Company. Upon resignation, termination or cessation of eligibility of any Authenticating Agent, the Trustee may
appoint an eligible successor Authenticating Agent acceptable to the Company. Any successor Authenticating Agent, upon acceptance
of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder as if originally
named as an Authenticating Agent pursuant hereto.
Section 2.11 Global Securities.
(a) If the Company shall establish pursuant
to Section 2.01 that the Securities of a particular series are to be issued as a Global Security, then the Company shall execute
and the Trustee shall, in accordance with Section 2.04, authenticate and deliver, a Global Security that (i) shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of, all of the Outstanding Securities of such series,
(ii) shall be registered in the name of the Depositary or its nominee, (iii) shall be delivered by the Trustee to the Depositary
or pursuant to the Depositary's instruction and (iv) shall bear a legend substantially to the following effect: "Except as
otherwise provided in Section 2.11 of the Indenture, this Security may be transferred, in whole but not in part, only to another
nominee of the Depositary or to a successor Depositary or to a nominee of such successor Depositary."
(b) Notwithstanding the provisions of Section
2.05, the Global Security of a series may be transferred, in whole but not in part and in the manner provided in Section 2.05,
only to another nominee of the Depositary for such series, or to a successor Depositary for such series selected or approved by
the Company or to a nominee of such successor Depositary.
(c) If at any time the Depositary for a
series of the Securities notifies the Company that it is unwilling or unable to continue as Depositary for such series or if at
any time the Depositary for such series shall no longer be registered or in good standing under the Exchange Act, or other applicable
statute or regulation, and a successor Depositary for such series is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such condition, as the case may be, or if an Event of Default has occurred and is continuing
and the Company has received a request from the Depositary or from the Trustee, this Section 2.11 shall no longer be applicable
to the Securities of such series and the Company will execute, and subject to Section 2.04, the Trustee will authenticate and deliver
the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Security of such series in exchange for such Global Security. In addition, the
Company may at any time determine that the Securities of any series shall no longer be represented by a Global Security and that
the provisions of this Section 2.11 shall no longer apply to the Securities of such series. In such event the Company will execute
and, subject to Section 2.04, the Trustee, upon receipt of an Officer's Certificate evidencing such determination by the Company,
will authenticate and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations,
and in an aggregate principal amount equal to the principal amount of the Global Security of such series in exchange for such Global
Security. Upon the exchange of the Global Security for such Securities in definitive registered form without coupons, in authorized
denominations, the Global Security shall be canceled by the Trustee. Such Securities in definitive registered form issued in exchange
for the Global Security pursuant to this Section 2.11(c) shall be registered in such names and in such authorized denominations
as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee.
The Trustee shall deliver such Securities to the Depositary for delivery to the Persons in whose names such Securities are so registered.
ARTICLE 3
REDEMPTION OF SECURITIES AND SINKING
FUND PROVISIONS
Section 3.01 Redemption.
The Company may redeem the Securities of
any series issued hereunder on and after the dates and in accordance with the terms established for such series pursuant to Section
2.01 hereof.
Section 3.02 Notice of Redemption.
(a) In case the Company shall desire to
exercise such right to redeem all or, as the case may be, a portion of the Securities of any series in accordance with any right
the Company reserved for itself to do so pursuant to Section 2.01 hereof, the Company shall, or shall cause the Trustee to, give
notice of such redemption to holders of the Securities of such series to be redeemed by mailing, first class postage prepaid, a
notice of such redemption not less than 30 days and not more than 90 days before the date fixed for redemption of that series to
such holders at their last addresses as they shall appear upon the Security Register, unless a shorter period is specified in the
Securities to be redeemed. Any notice that is mailed in the manner herein provided shall be conclusively presumed to have been
duly given, whether or not the registered holder receives the notice. In any case, failure duly to give such notice to the holder
of any Security of any series designated for redemption in whole or in part, or any defect in the notice, shall not affect the
validity of the proceedings for the redemption of any other Securities of such series or any other series. In the case of any redemption
of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere
in this Indenture, the Company shall furnish the Trustee with an Officer's Certificate evidencing compliance with any such restriction.
Each such notice of redemption shall specify
the date fixed for redemption and the redemption price at which Securities of that series are to be redeemed, and shall state that
payment of the redemption price of such Securities to be redeemed will be made at the office or agency of the Company, upon presentation
and surrender of such Securities, that interest accrued to the date fixed for redemption will be paid as specified in said notice,
that from and after said date interest will cease to accrue and that the redemption is from a sinking fund, if such is the case.
If less than all the Securities of a series are to be redeemed, the notice to the holders of Securities of that series to be redeemed
in part shall specify the particular Securities to be so redeemed.
In case any Security is to be redeemed
in part only, the notice that relates to such Security shall state the portion of the principal amount thereof to be redeemed,
and shall state that on and after the redemption date, upon surrender of such Security, a new Security or Securities of such series
in principal amount equal to the unredeemed portion thereof will be issued.
(b) If less than all the Securities of
a series are to be redeemed, the Company shall give the Trustee at least 45 days' notice (unless a shorter notice shall be satisfactory
to the Trustee) in advance of the date fixed for redemption as to the aggregate principal amount of Securities of the series to
be redeemed, and thereupon the Trustee shall select, by lot or in such other manner as it shall deem appropriate and fair in its
discretion and that may provide for the selection of a portion or portions (equal to one thousand U.S. dollars ($1,000) or any
integral multiple thereof) of the principal amount of such Securities of a denomination larger than $1,000, the Securities to be
redeemed and shall thereafter promptly notify the Company in writing of the numbers of the Securities to be redeemed, in whole
or in part. The Company may, if and whenever it shall so elect, by delivery of instructions signed on its behalf by an Officer,
instruct the Trustee or any paying agent to call all or any part of the Securities of a particular series for redemption and to
give notice of redemption in the manner set forth in this Section, such notice to be in the name of the Company or its own name
as the Trustee or such paying agent may deem advisable. In any case in which notice of redemption is to be given by the Trustee
or any such paying agent, the Company shall deliver or cause to be delivered to, or permit to remain with, the Trustee or such
paying agent, as the case may be, such Security Register, transfer books or other records, or suitable copies or extracts therefrom,
sufficient to enable the Trustee or such paying agent to give any notice by mail that may be required under the provisions of this
Section.
Section 3.03 Payment Upon Redemption.
(a) If the giving of notice of redemption
shall have been completed as above provided, the Securities or portions of Securities of the series to be redeemed specified in
such notice shall become due and payable on the date and at the place stated in such notice at the applicable redemption price,
together with interest accrued to the date fixed for redemption and interest on such Securities or portions of Securities shall
cease to accrue on and after the date fixed for redemption, unless the Company shall default in the payment of such redemption
price and accrued interest with respect to any such Security or portion thereof. On presentation and surrender of such Securities
on or after the date fixed for redemption at the place of payment specified in the notice, said Securities shall be paid and redeemed
at the applicable redemption price for such series, together with interest accrued thereon to the date fixed for redemption (but
if the date fixed for redemption is an interest payment date, the interest installment payable on such date shall be payable to
the registered holder at the close of business on the applicable record date pursuant to Section 2.03).
(b) Upon presentation of any Security of
such series that is to be redeemed in part only, the Company shall execute and the Trustee shall authenticate and the office or
agency where the Security is presented shall deliver to the holder thereof, at the expense of the Company, a new Security of the
same series of authorized denominations in principal amount equal to the unredeemed portion of the Security so presented.
Section 3.04 Sinking Fund.
The provisions of Sections 3.04, 3.05 and
3.06 shall be applicable to any sinking fund for the retirement of Securities of a series, except as otherwise specified as contemplated
by Section 2.01 for Securities of such series.
The minimum amount of any sinking fund
payment provided for by the terms of Securities of any series is herein referred to as a "mandatory sinking fund payment,"
and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as
an "optional sinking fund payment". If provided for by the terms of Securities of any series, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 3.05. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of Securities of such series.
Section 3.05 Satisfaction of Sinking
Fund Payments with Securities.
The Company (i) may deliver Outstanding
Securities of a series and (ii) may apply as a credit Securities of a series that have been redeemed either at the election of
the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant
to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the
Securities of such series required to be made pursuant to the terms of such Securities as provided for by the terms of such series,
provided that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose
by the Trustee at the redemption price specified in such Securities for redemption through operation of the sinking fund and the
amount of such sinking fund payment shall be reduced accordingly.
Section 3.06 Redemption of Securities
for Sinking Fund.
Not less than 45 days prior to each sinking
fund payment date for any series of Securities (unless a shorter period shall be satisfactory to the Trustee), the Company will
deliver to the Trustee an Officer's Certificate specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of the series, the portion thereof, if any, that is to be satisfied by delivering and crediting Securities
of that series pursuant to Section 3.05 and the basis for such credit and will, together with such Officer's Certificate, deliver
to the Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 3.02 and cause
notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section
3.02. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated
in Section 3.03.
ARTICLE 4
COVENANTS
Section 4.01 Payment of Principal, Premium
and Interest.
The Company will duly and punctually pay
or cause to be paid the principal of (and premium, if any) and interest on the Securities of that series at the time and place
and in the manner provided herein and established with respect to such Securities.
Payments of principal on the Securities
may be made at the time provided herein and established with respect to such Securities by U.S. dollar check drawn on and mailed
to the address of the Securityholder entitled thereto as such address shall appear in the Security Register, or U.S. dollar wire
transfer to, a U.S. dollar account (such wire transfer to be made only to a Securityholder of an aggregate principal amount of
Securities of the applicable series in excess of U.S. $2,000,000 and only if such Securityholder shall have furnished wire instructions
to the Trustee no later than 15 days prior to the relevant payment date). Payments of interest on the Securities may be made at
the time provided herein and established with respect to such Securities by U.S. dollar check mailed to the address of the Securityholder
entitled thereto as such address shall appear in the Security Register, or U.S. dollar wire transfer to, a U.S. dollar account
(such a wire transfer to be made only to a Securityholder of an aggregate principal amount of Securities of the applicable series
in excess of U.S. $2,000,000 and only if such Securityholder shall have furnished wire instructions in writing to the Security
Registrar and the Trustee no later than 15 days prior to the relevant payment date.
Section 4.02 Maintenance of
Office or Agency.
So long as any series of the Securities remain Outstanding,
the Company agrees to maintain an office or agency with respect to each such series and at such other location or locations as
may be designated as provided in this Section 4.02, where (i) Securities of that series may be presented for payment, (ii) Securities
of that series may be presented as herein above authorized for registration of transfer and exchange, and (iii) notices and demands
to or upon the Company in respect of the Securities of that series and this Indenture may be given or served, such designation
to continue with respect to such office or agency until the Company shall, by written notice signed by any officer authorized to
sign an Officer's Certificate and delivered to the Trustee, designate some other office or agency for such purposes or any of them.
If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, notices and demands may be made or served at the Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee as its agent to receive all such presentations, notices and demands. The Company initially
appoints the Corporate Trust Office of the Trustee as its paying agent with respect to the Securities.
Section 4.03 Paying Agents.
(a) If the Company shall appoint one or
more paying agents for all or any series of the Securities, other than the Trustee, the Company will cause each such paying agent
to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions
of this Section:
(1) that it will hold all sums held by it
as such agent for the payment of the principal of (and premium, if any) or interest on the Securities of that series (whether such
sums have been paid to it by the Company or by any other obligor of such Securities) in trust for the benefit of the Persons entitled
thereto;
(2) that it will give the Trustee notice
of any failure by the Company (or by any other obligor of such Securities) to make any payment of the principal of (and premium,
if any) or interest on the Securities of that series when the same shall be due and payable;
(3) that it will, at any time during the
continuance of any failure referred to in the preceding paragraph (a)(2) above, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such paying agent; and
(4) that it will perform all other duties
of paying agent as set forth in this Indenture.
(b) If the Company shall act as its own
paying agent with respect to any series of the Securities, it will on or before each due date of the principal of (and premium,
if any) or interest on Securities of that series, set aside, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay such principal (and premium, if any) or interest so becoming due on Securities of that series until
such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of such
action, or any failure (by it or any other obligor on such Securities) to take such action. Whenever the Company shall have one
or more paying agents for any series of Securities, it will, prior to each due date of the principal of (and premium, if any) or
interest on any Securities of that series, deposit with the paying agent a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium
or interest, and (unless such paying agent is the Trustee) the Company will promptly notify the Trustee of this action or failure
so to act.
(c) Notwithstanding anything in this Section
to the contrary, (i) the agreement to hold sums in trust as provided in this Section is subject to the provisions of Section 11.05,
and (ii) the Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any
other purpose, pay, or direct any paying agent to pay, to the Trustee all sums held in trust by the Company or such paying agent,
such sums to be held by the Trustee upon the same terms and conditions as those upon which such sums were held by the Company or
such paying agent; and, upon such payment by the Company or any paying agent to the Trustee, the Company or such paying agent shall
be released from all further liability with respect to such money.
Section 4.04 Appointment to
Fill Vacancy in Office of Trustee.
The Company, whenever necessary to avoid
or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so that there shall
at all times be a Trustee hereunder.
Section 4.05 Compliance with Consolidation
Provisions.
The Company will not, while any of the
Securities remain Outstanding, consolidate with or merge into any other Person, in either case where the Company is not the survivor
of such transaction, or sell or convey all or substantially all of its property to any other Person unless the provisions of Article
Ten hereof are complied with.
ARTICLE 5
SECURITYHOLDERS' LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
Section 5.01 Company to Furnish Trustee
Names and Addresses of Securityholders.
The Company will furnish or cause to be
furnished to the Trustee (a) within 15 days after each regular record date (as defined in Section 2.03) a list, in such form as
the Trustee may reasonably require, of the names and addresses of the holders of each series of Securities as of such regular record
date, provided that the Company shall not be obligated to furnish or cause to furnish such list at any time that the list shall
not differ in any respect from the most recent list furnished to the Trustee by the Company and (b) at such other times as the
Trustee may request in writing within 30 days after the receipt by the Company of any such request, a list of similar form and
content as of a date not more than 15 days prior to the time such list is furnished; provided, however, that, in either case, no
such list need be furnished for any series for which the Trustee shall be the Security Registrar.
Section 5.02 Preservation Of Information;
Communications With Securityholders.
(a) The Trustee shall preserve, in as current
a form as is reasonably practicable, all information as to the names and addresses of the holders of Securities contained in the
most recent list furnished to it as provided in Section 5.01 and as to the names and addresses of holders of Securities received
by the Trustee in its capacity as Security Registrar (if acting in such capacity).
(b) The Trustee may destroy any list furnished
to it as provided in Section 5.01 upon receipt of a new list so furnished.
(c) Securityholders may communicate as
provided in Section 312(b) of the Trust Indenture Act with other Securityholders with respect to their rights under this Indenture
or under the Securities, and, in connection with any such communications, the Trustee shall satisfy its obligations under Section
312(b) of the Trust Indenture Act in accordance with the provisions of Section 312(b) of the Trust Indenture Act.
Section 5.03 Reports by the Company.
The Company covenants and agrees to provide
(which delivery may be via electronic mail) to the Trustee, after the Company files the same with the Securities and Exchange Commission,
copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing
as the Securities and Exchange Commission may from time to time by rules and regulations prescribe) that the Company files with
the Securities and Exchange Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; provided, however, the Company
shall not be required to deliver to the Trustee any materials for which the Company has sought and received confidential treatment
by the Securities and Exchange Commission; and provided further, so long as such filings by the Company are available on the Securities
and Exchange Commission's Electronic Data Gathering, Analysis and Retrieval System (EDGAR), such filings shall be deemed to have
been filed with the Trustee for purposes of this Section 5.03 without any further action required by the Company.
Section 5.04 Reports by the
Trustee.
(a) If required by Section 313(a) of the
Trust Indenture Act, the Trustee, within sixty (60) days after each May 1, shall transmit by mail, first class postage prepaid,
to the Securityholders, as their names and addresses appear upon the Security Register, a brief report dated as of such May 1,
which complies with Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section
313(b) and 313(c) of the Trust Indenture Act.
(c) A copy of each such report shall, at
the time of such transmission to Securityholders, be filed by the Trustee with the Company, with each securities exchange upon
which any Securities are listed (if so listed) and also with the Securities and Exchange Commission. The Company agrees to notify
the Trustee when any Securities become listed on any securities exchange.
ARTICLE 6
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 6.01 Events of Default.
(a) Whenever used herein with respect to
Securities of a particular series, "Event of Default" means any one or more of the following events that has occurred
and is continuing:
(1) the Company defaults in the payment of
any installment of interest upon any of the Securities of that series, as and when the same shall become due and payable, and such
default continues for a period of 90 days; provided, however, that a valid extension of an interest payment period by the Company
in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment of interest for
this purpose;
(2) the Company defaults in the payment of
the principal of (or premium, if any, on) any of the Securities of that series as and when the same shall become due and payable
whether at maturity, upon redemption, by declaration or otherwise, or in any payment required by any sinking or analogous fund
established with respect to that series; provided, however, that a valid extension of the maturity of such Securities in accordance
with the terms of any indenture supplemental hereto shall not constitute a default in the payment of principal or premium, if any;
(3) the Company fails to observe or perform
any other of its covenants or agreements with respect to that series contained in this Indenture or otherwise established with
respect to that series of Securities pursuant to Section 2.01 hereof (other than a covenant or agreement that has been expressly
included in this Indenture solely for the benefit of one or more series of Securities other than such series) for a period of 90
days after the date on which written notice of such failure, requiring the same to be remedied and stating that such notice is
a "Notice of Default" hereunder, shall have been given to the Company by the Trustee, by registered or certified mail,
or to the Company and the Trustee by the holders of at least 25% in principal amount of the Securities of that series at the time
Outstanding;
(4) the Company pursuant to or within the
meaning of any Bankruptcy Law (i) commences a voluntary case, (ii) consents to the entry of an order for relief against it in an
involuntary case, (iii) consents to the appointment of a Custodian of it or for all or substantially all of its property or (iv)
makes a general assignment for the benefit of its creditors; or
(5) a court of competent jurisdiction enters
an order under any Bankruptcy Law that (i) is for relief against the Company in an involuntary case, (ii) appoints a Custodian
of the Company for all or substantially all of its property or (iii) orders the liquidation of the Company, and the order or decree
remains unstayed and in effect for 90 days.
(b) In each and every such case (other than
an Event of Default specified in clause (4) or clause (5) above), unless the principal of all the Securities of that series shall
have already become due and payable, either the Trustee or the holders of not less than 25% in aggregate principal amount of the
Securities of that series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by such
Securityholders), may declare the principal of (and premium, if any, on) and accrued and unpaid interest on all the Securities
of that series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately
due and payable. If an Event of Default specified in clause (4) or clause (5) above occurs, the principal of and accrued and unpaid
interest on all the Securities of that series shall automatically be immediately due and payable without any declaration or other
act on the part of the Trustee or the holders of the Securities.
(c) At any time after the principal of
(and premium, if any, on) and accrued and unpaid interest on the Securities of that series shall have been so declared due and
payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter
provided, the holders of a majority in aggregate principal amount of the Securities of that series then Outstanding hereunder,
by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if: (i) the Company
has paid or deposited with the Trustee a sum sufficient to pay all matured installments of interest upon all the Securities of
that series and the principal of (and premium, if any, on) any and all Securities of that series that shall have become due otherwise
than by acceleration (with interest upon such principal and premium, if any, and, to the extent that such payment is enforceable
under applicable law, upon overdue installments of interest, at the rate per annum expressed in the Securities of that series to
the date of such payment or deposit) and the amount payable to the Trustee under Section 7.06, and (ii) any and all Events of Default
under the Indenture with respect to such series, other than the nonpayment of principal on (and premium, if any, on) and accrued
and unpaid interest on Securities of that series that shall not have become due by their terms, shall have been remedied or waived
as provided in Section 6.06.
No such rescission and annulment shall
extend to or shall affect any subsequent default or impair any right consequent thereon.
(d) In case the Trustee shall have proceeded
to enforce any right with respect to Securities of that series under this Indenture and such proceedings shall have been discontinued
or abandoned because of such rescission or annulment or for any other reason or shall have been determined adversely to the Trustee,
then and in every such case, subject to any determination in such proceedings, the Company and the Trustee shall be restored respectively
to their former positions and rights hereunder, and all rights, remedies and powers of the Company and the Trustee shall continue
as though no such proceedings had been taken.
Section 6.02 Collection of Indebtedness
and Suits for Enforcement by Trustee.
(a) The Company covenants that (i) in case
it shall default in the payment of any installment of interest on any of the Securities of a series, or in any payment required
by any sinking or analogous fund established with respect to that series as and when the same shall have become due and payable,
and such default shall have continued for a period of 90 days, or (ii) in case it shall default in the payment of the principal
of (or premium, if any, on) any of the Securities of a series when the same shall have become due and payable, whether upon maturity
of the Securities of a series or upon redemption or upon declaration or otherwise then, upon demand of the Trustee, the Company
will pay to the Trustee, for the benefit of the holders of the Securities of that series, the whole amount that then shall have
been become due and payable on all such Securities for principal (and premium, if any) or interest, or both, as the case may be,
with interest upon the overdue principal (and premium, if any) and (to the extent that payment of such interest is enforceable
under applicable law) upon overdue installments of interest at the rate per annum expressed in the Securities of that series; and,
in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, and the amount payable
to the Trustee under Section 7.06.
(b) If the Company shall fail to pay such
amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered
to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute
any such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree against the Company
or other obligor upon the Securities of that series and collect the moneys adjudged or decreed to be payable in the manner provided
by law or equity out of the property of the Company or other obligor upon the Securities of that series, wherever situated.
(c) In case of any receivership, insolvency,
liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or judicial proceedings affecting the Company,
or its creditors or property, the Trustee shall have power to intervene in such proceedings and take any action therein that may
be permitted by the court and shall (except as may be otherwise provided by law) be entitled to file such proofs of claim and other
papers and documents as may be necessary or advisable in order to have the claims of the Trustee and of the holders of Securities
of such series allowed for the entire amount due and payable by the Company under the Indenture at the date of institution of such
proceedings and for any additional amount that may become due and payable by the Company after such date, and to collect and receive
any moneys or other property payable or deliverable on any such claim, and to distribute the same after the deduction of the amount
payable to the Trustee under Section 7.06; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized
by each of the holders of Securities of such series to make such payments to the Trustee, and, in the event that the Trustee shall
consent to the making of such payments directly to such Securityholders, to pay to the Trustee any amount due it under Section
7.06.
(d) All rights of action and of asserting
claims under this Indenture, or under any of the terms established with respect to Securities of that series, may be enforced by
the Trustee without the possession of any of such Securities, or the production thereof at any trial or other proceeding relative
thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for payment to the Trustee of any amounts due under Section 7.06, be for the
ratable benefit of the holders of the Securities of such series.
In case of an Event of Default hereunder,
the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity
or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in the Indenture or
in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee
by this Indenture or by law.
Nothing contained herein shall be deemed
to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities of that series or the rights of any holder thereof or to authorize
the Trustee to vote in respect of the claim of any Securityholder in any such proceeding.
Section 6.03 Application of Moneys Collected.
Any moneys collected by the Trustee pursuant
to this Article with respect to a particular series of Securities shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such moneys on account of principal (or premium, if any) or interest,
upon presentation of the Securities of that series, and notation thereon of the payment, if only partially paid, and upon surrender
thereof if fully paid:
FIRST: To the payment of all indebtedness
of the Company to which such series of Securities is subordinated to the extent required by Section 7.06 and Article Fourteen;
SECOND: To the payment of the amounts then
due and unpaid upon Securities of such series for principal (and premium, if any) and interest, in respect of which or for the
benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due
and payable on such Securities for principal (and premium, if any) and interest, respectively; and
THIRD: To the payment of the remainder,
if any, to the Company or any other Person lawfully entitled thereto.
Section 6.04 Limitation on Suits.
No holder of any Security of any series
shall have any right by virtue or by availing of any provision of this Indenture to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless (i) such holder previously shall have given to the Trustee written notice of an Event of Default and of
the continuance thereof with respect to the Securities of such series specifying such Event of Default, as hereinbefore provided;
(ii) the holders of not less than 25% in aggregate principal amount of the Securities of such series then Outstanding shall have
made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder; (iii)
such holder or holders shall have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby; (iv) the Trustee for 90 days after its receipt of such notice, request and offer
of indemnity, shall have failed to institute any such action, suit or proceeding and (v) during such 90 day period, the holders
of a majority in principal amount of the Securities of that series do not give the Trustee a direction inconsistent with the request.
Notwithstanding anything contained herein
to the contrary or any other provisions of this Indenture, the right of any holder of any Security to receive payment of the principal
of (and premium, if any) and interest on such Security, as therein provided, on or after the respective due dates expressed in
such Security (or in the case of redemption, on the redemption date), or to institute suit for the enforcement of any such payment
on or after such respective dates or redemption date, shall not be impaired or affected without the consent of such holder and
by accepting a Security hereunder it is expressly understood, intended and covenanted by the taker and holder of every Security
of such series with every other such taker and holder and the Trustee, that no one or more holders of Securities of such series
shall have any right in any manner whatsoever by virtue or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of the holders of any other of such Securities, or to obtain or seek to obtain priority over or preference
to any other such holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all holders of Securities of such series. For the protection and enforcement of the provisions of
this Section, each and every Securityholder and the Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 6.05 Rights and Remedies Cumulative;
Delay or Omission Not Waiver.
(a) Except as otherwise provided in Section
2.07, all powers and remedies given by this Article to the Trustee or to the Securityholders shall, to the extent permitted by
law, be deemed cumulative and not exclusive of any other powers and remedies available to the Trustee or the holders of the Securities,
by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this
Indenture or otherwise established with respect to such Securities.
(b) No delay or omission of the Trustee
or of any holder of any of the Securities to exercise any right or power accruing upon any Event of Default occurring and continuing
as aforesaid shall impair any such right or power, or shall be construed to be a waiver of any such default or an acquiescence
therein; and, subject to the provisions of Section 6.04, every power and remedy given by this Article or by law to the Trustee
or the Securityholders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
Section 6.06 Control by Securityholders.
The holders of a majority in aggregate
principal amount of the Securities of any series at the time Outstanding, determined in accordance with Section 8.04, shall have
the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee with respect to such series; provided, however, that such direction shall not be in
conflict with any rule of law or with this Indenture. Subject to the provisions of Section 7.01, the Trustee shall have the right
to decline to follow any such direction if the Trustee in good faith shall, by a Responsible Officer or officers of the Trustee,
determine that the proceeding so directed, subject to the Trustee's duties under the Trust Indenture Act, would involve the Trustee
in personal liability or might be unduly prejudicial to the Securityholders not involved in the proceeding. The holders of a majority
in aggregate principal amount of the Securities of any series at the time Outstanding affected thereby, determined in accordance
with Section 8.04, may on behalf of the holders of all of the Securities of such series waive any past default in the performance
of any of the covenants contained herein or established pursuant to Section 2.01 with respect to such series and its consequences,
except a default in the payment of the principal of, or premium, if any, or interest on, any of the Securities of that series as
and when the same shall become due by the terms of such Securities otherwise than by acceleration (unless such default has been
cured and a sum sufficient to pay all matured installments of interest and principal and any premium has been deposited with the
Trustee (in accordance with Section 6.01(c)). Upon any such waiver, the default covered thereby shall be deemed to be cured for
all purposes of this Indenture and the Company, the Trustee and the holders of the Securities of such series shall be restored
to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default
or impair any right consequent thereon.
Section 6.07 Undertaking to
Pay Costs.
All parties to this Indenture agree, and
each holder of any Securities by such holder's acceptance thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder,
or group of Securityholders, holding more than 10% in aggregate principal amount of the Outstanding Securities of any series, or
to any suit instituted by any Securityholder for the enforcement of the payment of the principal of (or premium, if any) or interest
on any Security of such series, on or after the respective due dates expressed in such Security or established pursuant to this
Indenture.
ARTICLE 7
CONCERNING THE TRUSTEE
Section 7.01 Certain Duties and Responsibilities
of Trustee.
(a) The Trustee, prior to the occurrence
of an Event of Default with respect to the Securities of a series and after the curing of all Events of Default with respect to
the Securities of that series that may have occurred, shall undertake to perform with respect to the Securities of such series
such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants shall be read into this
Indenture against the Trustee. In case an Event of Default with respect to the Securities of a series has occurred (that has not
been cured or waived), the Trustee shall exercise with respect to Securities of that series such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
(b) No provision of this Indenture shall
be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of an Event of
Default with respect to the Securities of a series and after the curing or waiving of all such Events of Default with respect to
that series that may have occurred:(A) the duties and obligations of the Trustee shall with respect to the Securities of such series
be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable with respect to the Securities
of such series except for the performance of such duties and obligations as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture against the Trustee; and (B) in the absence of bad faith on
the part of the Trustee, the Trustee may with respect to the Securities of such series conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of any such certificates or opinions that by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture;
(ii) the Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the holders of not less
than a majority in principal amount of the Securities of any series at the time Outstanding relating to the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee
under this Indenture with respect to the Securities of that series; and
(iv) None of the provisions contained in
this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its rights or powers if there is reasonable ground for believing
that the repayment of such funds or liability is not reasonably assured to it under the terms of this Indenture or adequate indemnity
against such risk is not reasonably assured to it.
Section 7.02 Certain Rights of Trustee.
Except as otherwise provided in Section
7.01:
(a) The Trustee may rely and shall be protected
in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, security or other paper or document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) Any request, direction, order or demand
of the Company mentioned herein shall be sufficiently evidenced by a Board Resolution or an instrument signed in the name of the
Company by any authorized officer of the Company (unless other evidence in respect thereof is specifically prescribed herein);
(c) The Trustee may consult with counsel
and the written advice of such counsel or, if requested, any Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken or suffered or omitted hereunder in good faith and in reliance thereon;
(d) The Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Securityholders
pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee reasonable security
or indemnity against the costs, expenses and liabilities that may be incurred therein or thereby; nothing contained herein shall,
however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default with respect to a series of the Securities
(that has not been cured or waived), to exercise with respect to Securities of that series such of the rights and powers vested
in it by this Indenture, and to use the same degree of care and skill in their exercise, as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs;
(e) The Trustee shall not be liable for
any action taken or omitted to be taken by it in good faith and believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Indenture;
(f) The Trustee shall not be bound to make
any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond, security, or other papers or documents, unless requested in writing so to do by the holders
of not less than a majority in principal amount of the Outstanding Securities of the particular series affected thereby (determined
as provided in Section 8.04); provided, however, that if the payment within a reasonable time to the Trustee of the costs, expenses
or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require reasonable indemnity
against such costs, expenses or liabilities as a condition to so proceeding. The reasonable expense of every such examination shall
be paid by the Company or, if paid by the Trustee, shall be repaid by the Company upon demand; and
(g) The Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee
shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder.
In addition, the Trustee shall not be deemed
to have knowledge of any Default or Event of Default except (1) any Event of Default occurring pursuant to Sections 6.01(a)(1)
and 6.01(a)(2) or (2) any Default or Event of Default of which the Trustee shall have received written notification in the manner
set forth in this Indenture or a Responsible Officer of the Trustee shall have obtained actual knowledge. Delivery of reports,
information and documents to the Trustee under Section 5.03 is for informational purposes only and the information and the Trustee's
receipt of the foregoing shall not constitute constructive notice of any information contained therein, or determinable from information
contained therein including the Company's compliance with any of their covenants thereunder (as to which the Trustee is entitled
to rely exclusively on an Officer's Certificate).
Section 7.03 Trustee Not Responsible
for Recitals or Issuance or Securities.
(a) The recitals contained herein and in
the Securities shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of
the same.
(b) The Trustee makes no representations
as to the validity or sufficiency of this Indenture or of the Securities.
(c) The Trustee shall not be accountable
for the use or application by the Company of any of the Securities or of the proceeds of such Securities, or for the use or application
of any moneys paid over by the Trustee in accordance with any provision of this Indenture or established pursuant to Section 2.01,
or for the use or application of any moneys received by any paying agent other than the Trustee.
Section 7.04 May Hold Securities.
The Trustee or any paying agent or Security
Registrar, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would
have if it were not Trustee, paying agent or Security Registrar.
Section 7.05 Moneys Held in Trust.
Subject to the provisions of Section 11.05,
all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which
they were received, but need not be segregated from other funds except to the extent required by law. The Trustee shall be under
no liability for interest on any moneys received by it hereunder except such as it may agree with the Company to pay thereon.
Section 7.06 Compensation and Reimbursement.
(a) The Company covenants and agrees to
pay to the Trustee, and the Trustee shall be entitled to, such reasonable compensation (which shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust) as the Company and the Trustee may from time to time agree
in writing, for all services rendered by it in the execution of the trusts hereby created and in the exercise and performance of
any of the powers and duties hereunder of the Trustee, and, except as otherwise expressly provided herein, the Company will pay
or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements
of its counsel and of all Persons not regularly in its employ), except any such expense, disbursement or advance as may arise from
its negligence or bad faith and except as the Company and Trustee may from time to time agree in writing. The Company also covenants
to indemnify the Trustee (and its officers, agents, directors and employees) for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or bad faith on the part of the Trustee and arising out of or in connection with the acceptance
or administration of this trust, including the reasonable costs and expenses of defending itself against any claim of liability
in the premises.
(b) The obligations of the Company under
this Section to compensate and indemnify the Trustee and to pay or reimburse the Trustee for reasonable expenses, disbursements
and advances shall constitute indebtedness of the Company to which the Securities are subordinated. Such additional indebtedness
shall be secured by a lien prior to that of the Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the holders of particular Securities.
Section 7.07 Reliance on Officer's Certificate.
Except as otherwise provided in Section
7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it reasonably necessary or desirable
that a matter be proved or established prior to taking or suffering or omitting to take any action hereunder, such matter (unless
other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part
of the Trustee, be deemed to be conclusively proved and established by an Officer's Certificate delivered to the Trustee and such
certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any
action taken, suffered or omitted to be taken by it under the provisions of this Indenture upon the faith thereof.
Section 7.08 Disqualification; Conflicting
Interests.
If the Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the Company shall
in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act.
Section 7.09 Corporate Trustee Required;
Eligibility.
There shall at all times be a Trustee with
respect to the Securities issued hereunder which shall at all times be a corporation organized and doing business under the laws
of the United States of America or any state or territory thereof or of the District of Columbia, or a corporation or other Person
permitted to act as trustee by the Securities and Exchange Commission, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least fifty million U.S. dollars ($50,000,000), and subject to supervision or examination
by federal, state, territorial, or District of Columbia authority.
If such corporation or other Person publishes
reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such corporation or other Person shall be deemed to
be its combined capital and surplus as set forth in its most recent report of condition so published. The Company may not, nor
may any Person directly or indirectly controlling, controlled by, or under common control with the Company, serve as Trustee. In
case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 7.10.
Section 7.10 Resignation and Removal;
Appointment of Successor.
(a) The Trustee or any successor hereafter
appointed may at any time resign with respect to the Securities of one or more series by giving written notice thereof to the Company
and by transmitting notice of resignation by mail, first class postage prepaid, to the Securityholders of such series, as their
names and addresses appear upon the Security Register. Upon receiving such notice of resignation, the Company shall promptly appoint
a successor trustee with respect to Securities of such series by written instrument, in duplicate, executed by order of the Board
of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If
no successor trustee shall have been so appointed and have accepted appointment within 30 days after the mailing of such notice
of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor trustee
with respect to Securities of such series, or any Securityholder of that series who has been a bona fide holder of a Security or
Securities for at least six months may on behalf of himself and all others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, appoint
a successor trustee.
(b) In case at any time any one of the
following shall occur:
(i) the Trustee shall fail to comply with
the provisions of Section 7.08 after written request therefor by the Company or by any Securityholder who has been a bona fide
holder of a Security or Securities for at least six months; or
(ii) the Trustee shall cease to be eligible
in accordance with the provisions of Section 7.09 and shall fail to resign after written request therefor by the Company or by
any such Securityholder; or
(iii) the Trustee shall become incapable
of acting, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding, or a receiver of the Trustee
or of its property shall be appointed or consented to, or any public officer shall take charge or control of the Trustee or of
its property or affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Company may
remove the Trustee with respect to all Securities and appoint a successor trustee by written instrument, in duplicate, executed
by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the
successor trustee, or any Securityholder who has been a bona fide holder of a Security or Securities for at least six months may,
on behalf of that holder and all others similarly situated, petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate
principal amount of the Securities of any series at the time Outstanding may at any time remove the Trustee with respect to such
series by so notifying the Trustee and the Company and may appoint a successor Trustee for such series with the consent of the
Company.
(d) Any resignation or removal of the Trustee
and appointment of a successor trustee with respect to the Securities of a series pursuant to any of the provisions of this Section
shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.11.
(e) Any successor trustee appointed pursuant
to this Section may be appointed with respect to the Securities of one or more series or all of such series, and at any time there
shall be only one Trustee with respect to the Securities of any particular series.
Section 7.11 Acceptance of Appointment
By Successor.
(a) In case of the appointment hereunder
of a successor trustee with respect to all Securities, every such successor trustee so appointed shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor
trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor
trustee all the rights, powers, and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor
trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder
of a successor trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and
each successor trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental
hereto wherein each successor trustee shall accept such appointment and which (i) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor trustee relates,
(ii) shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee, and (iii) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust, that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any
other such Trustee and that no Trustee shall be responsible for any act or failure to act on the part of any other Trustee hereunder;
and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein, such retiring Trustee shall with respect to the Securities of that or those series to
which the appointment of such successor trustee relates have no further responsibility for the exercise of rights and powers or
for the performance of the duties and obligations vested in the Trustee under this Indenture, and each such successor trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the appointment of such successor trustee relates; but,
on request of the Company or any successor trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor
trustee, to the extent contemplated by such supplemental indenture, the property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment of such successor trustee relates.
(c) Upon request of any such successor trustee,
the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor trustee
all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor trustee shall accept its
appointment unless at the time of such acceptance such successor trustee shall be qualified and eligible under this Article.
(e) Upon acceptance of appointment by a
successor trustee as provided in this Section, the Company shall transmit notice of the succession of such trustee hereunder by
mail, first class postage prepaid, to the Securityholders, as their names and addresses appear upon the Security Register. If the
Company fails to transmit such notice within ten days after acceptance of appointment by the successor trustee, the successor trustee
shall cause such notice to be transmitted at the expense of the Company.
Section 7.12 Merger, Conversion, Consolidation
or Succession to Business.
Any corporation into which the Trustee
may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation
to which the Trustee shall be a party, or any corporation succeeding to the corporate trust business of the Trustee, including
the administration of the trust created by this Indenture, shall be the successor of the Trustee hereunder, provided that such
corporation shall be qualified under the provisions of Section 7.08 and eligible under the provisions of Section 7.09, without
the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
Section 7.13 Preferential Collection
of Claims Against the Company.
The Trustee shall comply with Section 311(a)
of the Trust Indenture Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture Act. A Trustee
who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.
Section 7.14 Notice of Default
If any Default or any Event of Default
occurs and is continuing and if such Default or Event of Default is known to a Responsible Officer of the Trustee, the Trustee
shall mail to each Securityholder in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act notice
of the Default or Event of Default within the earlier of 90 days after it occurs and 30 days after it is known to a Responsible
Officer of the Trustee or written notice of it is received by the Trustee, unless such Default or Event of Default has been cured;
provided, however, that, except in the case of a default in the payment of the principal of (or premium, if any) or interest on
any Security, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determine that the withholding
of such notice is in the interest of the Securityholders.
ARTICLE 8
CONCERNING THE SECURITYHOLDERS
Section 8.01 Evidence of Action by Securityholders.
Whenever in this Indenture it is provided
that the holders of a majority or specified percentage in aggregate principal amount of the Securities of a particular series may
take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any
other action), the fact that at the time of taking any such action the holders of such majority or specified percentage of that
series have joined therein may be evidenced by any instrument or any number of instruments of similar tenor executed by such holders
of Securities of that series in person or by agent or proxy appointed in writing.
If the Company shall solicit
from the Securityholders of any series any request, demand, authorization, direction, notice, consent, waiver or other action,
the Company may, at its option, as evidenced by an Officer's Certificate, fix in advance a record date for such series for the
determination of Securityholders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other
action, but the Company shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other action may be given before or after the record date, but only the Securityholders of
record at the close of business on the record date shall be deemed to be Securityholders for the purposes of determining whether
Securityholders of the requisite proportion of Outstanding Securities of that series have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other action, and for that purpose the Outstanding Securities
of that series shall be computed as of the record date; provided, however, that no such authorization, agreement or consent by
such Securityholders on the record date shall be deemed effective unless it shall become effective pursuant to the provisions of
this Indenture not later than six months after the record date.
Section 8.02 Proof of Execution
by Securityholders.
Subject to the provisions of Section 7.01,
proof of the execution of any instrument by a Securityholder (such proof will not require notarization) or his agent or proxy and
proof of the holding by any Person of any of the Securities shall be sufficient if made in the following manner:
(a) The fact and date of the execution
by any such Person of any instrument may be proved in any reasonable manner acceptable to the Trustee.
(b) The ownership of Securities shall be
proved by the Security Register of such Securities or by a certificate of the Security Registrar thereof.
The Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
Section 8.03 Who May be Deemed
Owners.
Prior to the due presentment for registration
of transfer of any Security, the Company, the Trustee, any paying agent and any Security Registrar may deem and treat the Person
in whose name such Security shall be registered upon the books of the Company as the absolute owner of such Security (whether or
not such Security shall be overdue and notwithstanding any notice of ownership or writing thereon made by anyone other than the
Security Registrar) for the purpose of receiving payment of or on account of the principal of, premium, if any, and (subject to
Section 2.03) interest on such Security and for all other purposes; and neither the Company nor the Trustee nor any paying agent
nor any Security Registrar shall be affected by any notice to the contrary.
Section 8.04 Certain Securities
Owned by Company Disregarded.
In determining whether the holders of the
requisite aggregate principal amount of Securities of a particular series have concurred in any direction, consent or waiver under
this Indenture, the Securities of that series that are owned by the Company or any other obligor on the Securities of that series
or by any Person directly or indirectly controlling or controlled by or under common control with the Company or any other obligor
on the Securities of that series shall be disregarded and deemed not to be Outstanding for the purpose of any such determination,
except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction, consent or
waiver, only Securities of such series that the Trustee actually knows are so owned shall be so disregarded. The Securities so
owned that have been pledged in good faith may be regarded as Outstanding for the purposes of this Section, if the pledgee shall
establish to the satisfaction of the Trustee the pledgee's right so to act with respect to such Securities and that the pledgee
is not a Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company
or any such other obligor. In case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee.
Section 8.05 Actions Binding
on Future Securityholders.
At any time prior to (but not after) the
evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the holders of the majority or percentage
in aggregate principal amount of the Securities of a particular series specified in this Indenture in connection with such action,
any holder of a Security of that series that is shown by the evidence to be included in the Securities the holders of which have
consented to such action may, by filing written notice with the Trustee, and upon proof of holding as provided in Section 8.02,
revoke such action so far as concerns such Security. Except as aforesaid any such action taken by the holder of any Security shall
be conclusive and binding upon such holder and upon all future holders and owners of such Security, and of any Security issued
in exchange therefor, on registration of transfer thereof or in place thereof, irrespective of whether or not any notation in regard
thereto is made upon such Security. Any action taken by the holders of the majority or percentage in aggregate principal amount
of the Securities of a particular series specified in this Indenture in connection with such action shall be conclusively binding
upon the Company, the Trustee and the holders of all the Securities of that series.
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures
Without the Consent of Securityholders.
In addition to any supplemental indenture
otherwise authorized by this Indenture, the Company and the Trustee may from time to time and at any time enter into an indenture
or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as then in effect), without
the consent of the Securityholders, for one or more of the following purposes:
(a) to cure any ambiguity, defect, or inconsistency
herein or in the Securities of any series;
(b) to comply with Article Ten;
(c) to provide for uncertificated Securities
in addition to or in place of certificated Securities;
(d) to add to the covenants, restrictions,
conditions or provisions relating to the Company for the benefit of the holders of all or any series of Securities (and if such
covenants, restrictions, conditions or provisions are to be for the benefit of less than all series of Securities, stating that
such covenants, restrictions, conditions or provisions are expressly being included solely for the benefit of such series), to
make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants, restrictions, conditions
or provisions an Event of Default, or to surrender any right or power herein conferred upon the Company;
(e) to add to, delete from, or revise the
conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue, authentication, and delivery of
Securities, as herein set forth;
(f) to make any change that does not adversely
affect the rights of any Securityholder in any material respect;
(g) to provide for the issuance of and
establish the form and terms and conditions of the Securities of any series as provided in Section 2.01, to establish the form
of any certifications required to be furnished pursuant to the terms of this Indenture or any series of Securities, or to add to
the rights of the holders of any series of Securities;
(h) to evidence and provide for the acceptance
of appointment hereunder by a successor trustee; or
(i) to comply with any requirements of
the Securities and Exchange Commission or any successor in connection with the qualification of this Indenture under the Trust
Indenture Act.
The Trustee is hereby authorized to join
with the Company in the execution of any such supplemental indenture, and to make any further appropriate agreements and stipulations
that may be therein contained, but the Trustee shall not be obligated to enter into any such supplemental indenture that affects
the Trustee's own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by
the provisions of this Section may be executed by the Company and the Trustee without the consent of the holders of any of the
Securities at the time Outstanding, notwithstanding any of the provisions of Section 9.02.
Section 9.02 Supplemental Indentures With Consent
of Securityholders.
With the consent (evidenced as provided
in Section 8.01) of the holders of not less than a majority in aggregate principal amount of the Securities of each series affected
by such supplemental indenture or indentures at the time Outstanding, the Company, when authorized by a Board Resolution, and the
Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to
the provisions of the Trust Indenture Act as then in effect) for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner not covered
by Section 9.01 the rights of the holders of the Securities of such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the holders of each Security then Outstanding and affected thereby, (a) extend
the fixed maturity of any Securities of any series, or reduce the principal amount thereof, or reduce the rate or extend the time
of payment of interest thereon, or reduce any premium payable upon the redemption thereof or (b) reduce the aforesaid percentage
of Securities, the holders of which are required to consent to any such supplemental indenture.
It shall not be necessary for the consent
of the Securityholders of any series affected thereby under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Section 9.03 Effect of Supplemental Indentures.
Upon the execution of any supplemental
indenture pursuant to the provisions of this Article or of Section 10.01, this Indenture shall, with respect to such series, be
and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Trustee, the Company and the holders of Securities of the series affected thereby
shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions
of this Indenture for any and all purposes.
Section 9.04 Securities Affected by Supplemental
Indentures.
Securities of any series affected by a
supplemental indenture, authenticated and delivered after the execution of such supplemental indenture pursuant to the provisions
of this Article or of Section 10.01, may bear a notation in form approved by the Company, provided such form meets the requirements
of any securities exchange upon which such series may be listed, as to any matter provided for in such supplemental indenture.
If the Company shall so determine, new Securities of that series so modified as to conform, in the opinion of the Board of Directors,
to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Company, authenticated
by the Trustee and delivered in exchange for the Securities of that series then Outstanding.
Section 9.05 Execution of Supplemental Indentures.
Upon the request of the Company, accompanied
by its Board Resolutions authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of Securityholders required to consent thereto as aforesaid, the Trustee shall join with the Company in
the execution of such supplemental indenture unless such supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its discretion but shall not be obligated to enter into such
supplemental indenture. The Trustee, subject to the provisions of Section 7.01, may receive an Officer's Certificate or, if requested,
an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant to this Article is authorized or
permitted by, and conforms to, the terms of this Article and that it is proper for the Trustee under the provisions of this Article
to join in the execution thereof; provided, however, that such Officer's Certificate or Opinion of Counsel need not be provided
in connection with the execution of a supplemental indenture that establishes the terms of a series of Securities pursuant to Section
2.01 hereof.
Promptly after the execution by the Company
and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Trustee shall transmit by mail, first
class postage prepaid, a notice, setting forth in general terms the substance of such supplemental indenture, to the Securityholders
of all series affected thereby as their names and addresses appear upon the Security Register. Any failure of the Trustee to mail
such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
ARTICLE 10
SUCCESSOR ENTITY
Section 10.01 Company May Consolidate,
Etc.
Except as provided pursuant to Section
2.01 pursuant to a Board Resolution, and set forth in an Officer's Certificate, or established in one or more indentures supplemental
to this Indenture, nothing contained in this Indenture shall prevent any consolidation or merger of the Company with or into any
other Person (whether or not affiliated with the Company) or successive consolidations or mergers in which the Company or its successor
or successors shall be a party or parties, or shall prevent any sale, conveyance, transfer or other disposition of the property
of the Company or its successor or successors as an entirety, or substantially as an entirety, to any other corporation (whether
or not affiliated with the Company or its successor or successors) authorized to acquire and operate the same; provided, however,
(a) the Company hereby covenants and agrees that, upon any such consolidation or merger (in each case, if the Company is not the
survivor of such transaction), sale, conveyance, transfer or other disposition, the due and punctual payment of the principal of
(premium, if any) and interest on all of the Securities of all series in accordance with the terms of each series, according to
their tenor, and the due and punctual performance and observance of all the covenants and conditions of this Indenture with respect
to each series or established with respect to such series pursuant to Section 2.01 to be kept or performed by the Company shall
be expressly assumed, by supplemental indenture (which shall conform to the provisions of the Trust Indenture Act, as then in effect)
reasonably satisfactory in form to the Trustee executed and delivered to the Trustee by the entity formed by such consolidation,
or into which the Company shall have been merged, or by the entity which shall have acquired such property and (b) in the event
that the Securities of any series then Outstanding are convertible into or exchangeable for shares of common stock or other securities
of the Company, such entity shall, by such supplemental indenture, make provision so that the Securityholders of Securities of
that series shall thereafter be entitled to receive upon conversion or exchange of such Securities the number of securities or
property to which a holder of the number of shares of common stock or other securities of the Company deliverable upon conversion
or exchange of those Securities would have been entitled had such conversion or exchange occurred immediately prior to such consolidation,
merger, sale, conveyance, transfer or other disposition.
Section 10.02 Successor Entity
Substituted.
(a) In case of any such consolidation,
merger, sale, conveyance, transfer or other disposition and upon the assumption by the successor entity by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the Trustee, of the obligations set forth under Section 10.01
on all of the Securities of all series Outstanding, such successor entity shall succeed to and be substituted for the Company with
the same effect as if it had been named as the Company herein, and thereupon the predecessor corporation shall be relieved of all
obligations and covenants under this Indenture and the Securities.
(b) In case of any such consolidation,
merger, sale, conveyance, transfer or other disposition, such changes in phraseology and form (but not in substance) may be made
in the Securities thereafter to be issued as may be appropriate.
(c) Nothing contained in this Article shall
require any action by the Company in the case of a consolidation or merger of any Person into the Company where the Company is
the survivor of such transaction, or the acquisition by the Company, by purchase or otherwise, of all or any part of the property
of any other Person (whether or not affiliated with the Company).
Section 10.03 Evidence of Consolidation,
Etc. to Trustee.
The Trustee, subject to the provisions
of Section 7.01, may receive an Officer's Certificate and, if requested, an Opinion of Counsel as conclusive evidence that any
such consolidation, merger, sale, conveyance, transfer or other disposition, and any such assumption, comply with the provisions
of this Article.
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge
of Indenture.
If at any time: (a) the Company shall have
delivered to the Trustee for cancellation all Securities of a series theretofore authenticated and not delivered to the Trustee
for cancellation (other than any Securities that shall have been destroyed, lost or stolen and that shall have been replaced or
paid as provided in Section 2.07 and Securities for whose payment money or Governmental Obligations have theretofore been deposited
in trust or segregated and held in trust by the Company and thereupon repaid to the Company or discharged from such trust, as provided
in Section 11.05); or (b) all such Securities of a particular series not theretofore delivered to the Trustee for cancellation
shall have become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and the Company shall deposit
or cause to be deposited with the Trustee as trust funds the entire amount in moneys or Governmental Obligations or a combination
thereof, sufficient in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay at maturity or upon redemption all Securities of that series not theretofore delivered
to the Trustee for cancellation, including principal (and premium, if any) and interest due or to become due to such date of maturity
or date fixed for redemption, as the case may be, and if the Company shall also pay or cause to be paid all other sums payable
hereunder with respect to such series by the Company then this Indenture shall thereupon cease to be of further effect with respect
to such series except for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03 and 7.10, that shall survive until the
date of maturity or redemption date, as the case may be, and Sections 7.06 and 11.05, that shall survive to such date and thereafter,
and the Trustee, on demand of the Company and at the cost and expense of the Company shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture with respect to such series.
Section 11.02 Discharge of
Obligations.
If at any time all such Securities of a
particular series not heretofore delivered to the Trustee for cancellation or that have not become due and payable as described
in Section 11.01 shall have been paid by the Company by depositing irrevocably with the Trustee as trust funds moneys or an amount
of Governmental Obligations sufficient to pay at maturity or upon redemption all such Securities of that series not theretofore
delivered to the Trustee for cancellation, including principal (and premium, if any) and interest due or to become due to such
date of maturity or date fixed for redemption, as the case may be, and if the Company shall also pay or cause to be paid all other
sums payable hereunder by the Company with respect to such series, then after the date such moneys or Governmental Obligations,
as the case may be, are deposited with the Trustee the obligations of the Company under this Indenture with respect to such series
shall cease to be of further effect except for the provisions of Sections 2.03, 2.05, 2.07, 4,01, 4.02, 4,03, 7.06, 7.10 and 11.05
hereof that shall survive until such Securities shall mature and be paid.
Thereafter, Sections 7.06 and 11.05 shall
survive.
Section 11.03 Deposited Moneys
to be Held in Trust.
All moneys or Governmental Obligations
deposited with the Trustee pursuant to Sections 11.01 or 11.02 shall be held in trust and shall be available for payment as due,
either directly or through any paying agent (including the Company acting as its own paying agent), to the holders of the particular
series of Securities for the payment or redemption of which such moneys or Governmental Obligations have been deposited with the
Trustee.
Section 11.04 Payment of Moneys
Held by Paying Agents.
In connection with the satisfaction and
discharge of this Indenture all moneys or Governmental Obligations then held by any paying agent under the provisions of this Indenture
shall, upon demand of the Company, be paid to the Trustee and thereupon such paying agent shall be released from all further liability
with respect to such moneys or Governmental Obligations.
Section 11.05 Repayment to Company.
Any moneys or Governmental Obligations
deposited with any paying agent or the Trustee, or then held by the Company, in trust for payment of principal of or premium, if
any, or interest on the Securities of a particular series that are not applied but remain unclaimed by the holders of such Securities
for at least two years after the date upon which the principal of (and premium, if any) or interest on such Securities shall have
respectively become due and payable, or such other shorter period set forth in applicable escheat or abandoned or unclaimed property
law, shall be repaid to the Company on May 31 of each year or upon the Company's request or (if then held by the Company) shall
be discharged from such trust; and thereupon the paying agent and the Trustee shall be released from all further liability with
respect to such moneys or Governmental Obligations, and the holder of any of the Securities entitled to receive such payment shall
thereafter, as a general creditor, look only to the Company for the payment thereof.
ARTICLE 12
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 12.01 No Recourse.
No recourse under or upon any obligation,
covenant or agreement of this Indenture, or of any Security, or for any claim based thereon or otherwise in respect thereof, shall
be had against any incorporator, stockholder, officer or director, past, present or future as such, of the Company or of any predecessor
or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely corporate obligations, and that no such personal
liability whatever shall attach to, or is or shall be incurred by, the incorporators, stockholders, officers or directors as such,
of the Company or of any predecessor or successor corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom; and that any and all such personal liability of every name and nature, either at common law or in equity
or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, stockholder, officer
or director as such, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants
or agreements contained in this Indenture or in any of the Securities or implied therefrom, are hereby expressly waived and released
as a condition of, and as a consideration for, the execution of this Indenture and the issuance of such Securities.
ARTICLE 13
MISCELLANEOUS PROVISIONS
Section 13.01 Effect on Successors and
Assigns.
All the covenants, stipulations, promises
and agreements in this Indenture made by or on behalf of the Company shall bind its successors and assigns, whether so expressed
or not.
Section 13.02 Actions by Successor.
Any act or proceeding by any provision
of this Indenture authorized or required to be done or performed by any board, committee or officer of the Company shall and may
be done and performed with like force and effect by the corresponding board, committee or officer of any corporation that shall
at the time be the lawful successor of the Company.
Section 13.03 Surrender of
Company Powers.
The Company by instrument in writing executed
by authority of its Board of Directors and delivered to the Trustee may surrender any of the powers reserved to the Company, and
thereupon such power so surrendered shall terminate both as to the Company and as to any successor corporation.
Section 13.04 Notices.
Except as otherwise expressly provided
herein, any notice, request or demand that by any provision of this Indenture is required or permitted to be given, made or served
by the Trustee or by the holders of Securities or by any other Person pursuant to this Indenture to or on the Company may be given
or served by being deposited in first class mail, postage prepaid, addressed (until another address is filed in writing by the
Company with the Trustee), as follows:. Any notice, election, request or demand by the Company or any Securityholder or by any
other Person pursuant to this Indenture to or upon the Trustee shall be deemed to have been sufficiently given or made, for all
purposes, if given or made in writing at the Corporate Trust Office of the Trustee.
Section 13.05 Governing Law.
This Indenture and each Security shall
be deemed to be a contract made under the internal laws of the State of New York, and for all purposes shall be construed in accordance
with the laws of said State, except to the extent that the Trust Indenture Act is applicable.
Section 13.06 Treatment of
Securities as Debt.
It is intended that the Securities will
be treated as indebtedness and not as equity for federal income tax purposes. The provisions of this Indenture shall be interpreted
to further this intention.
Section 13.07 Certificates
and Opinions as to Conditions Precedent.
(a) Upon any application or demand by the
Company to the Trustee to take any action under any of the provisions of this Indenture, the Company shall furnish to the Trustee
an Officer's Certificate stating that all conditions precedent provided for in this Indenture (other than the certificate to be
delivered pursuant to Section 13.12) relating to the proposed action have been complied with and, if requested, an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent have been complied with, except that in the case of any
such application or demand as to which the furnishing of such documents is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional certificate or opinion need be furnished.
(b) Each certificate or opinion provided
for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant in this Indenture shall
include (i) a statement that the Person making such certificate or opinion has read such covenant or condition; (ii) a brief statement
as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate
or opinion are based; (iii) a statement that, in the opinion of such Person, he has made such examination or investigation as is
reasonably necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied
with; and (iv) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
Section 13.08 Payments on
Business Days.
Except as provided pursuant to Section
2.01 pursuant to a Board Resolution, and set forth in an Officer's Certificate, or established in one or more indentures supplemental
to this Indenture, in any case where the date of maturity of interest or principal of any Security or the date of redemption of
any Security shall not be a Business Day, then payment of interest or principal (and premium, if any) may be made on the next succeeding
Business Day with the same force and effect as if made on the nominal date of maturity or redemption, and no interest shall accrue
for the period after such nominal date.
Section 13.09 Conflict with
Trust Indenture Act.
If and to the extent that any provision
of this Indenture limits, qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture
Act, such imposed duties shall control.
Section 13.10 Counterparts.
This Indenture may be executed in any number
of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.
Section 13.11 Separability.
In case any one or more of the provisions
contained in this Indenture or in the Securities of any series shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Indenture or of such
Securities, but this Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable provision
had never been contained herein or therein.
Section 13.12 Compliance Certificates.
The Company shall deliver to the Trustee,
within 120 days after the end of each fiscal year during which any Securities of any series were outstanding, an officer's certificate
stating whether or not the signers know of any Default or Event of Default that occurred during such fiscal year. Such certificate
shall contain a certification from the principal executive officer, principal financial officer or principal accounting officer
of the Company that a review has been conducted of the activities of the Company and the Company's performance under this Indenture
and that the Company has complied with all conditions and covenants under this Indenture. For purposes of this Section 13.12, such
compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture. If
the officer of the Company signing such certificate has knowledge of such a Default or Event of Default, the certificate shall
describe any such Default or Event of Default and its status.
ARTICLE 14
SUBORDINATION OF SECURITIES
Section 14.01 Subordination Terms.
The payment by the Company of the principal
of, premium, if any, and interest on any series of Securities issued hereunder shall be subordinated to the extent set forth in
an indenture supplemental hereto relating to such series.
IN WITNESS WHEREOF,
the parties hereto have caused this Indenture to be duly executed all as of the day and year first above written.
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HEPION PHARMACEUTICALS, INC.
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By:
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Name:
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Title:
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[ TRUSTEE ], as Trustee
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By:
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Name:
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Title:
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Exhibit 23.2
Consent of Independent Registered
Public Accounting Firm
Hepion Pharmaceuticals, Inc.
Edison, New Jersey
We
hereby consent to the incorporation by reference in the Prospectus constituting a part of this Registration Statement of our report dated
March 31, 2021, relating to the consolidated financial statements of
Hepion Pharmaceuticals, Inc. appearing in the Company’s Annual Report on Form 10-K for the year ended December 31, 2020.
We also consent to the reference to us under
the caption “Experts” in the Prospectus.
/s/ BDO USA, LLP
Woodbridge, New Jersey
April 2, 2021