As filed with the Securities
and Exchange Commission on September 20, 2019
Registration
No. 333-
UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
WASHINGTON, D.C.
20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT
OF 1933
SELLAS Life Sciences
Group, Inc.
(Exact name of registrant
as specified in its charter)
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Delaware
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20-8099512
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(State or other jurisdiction
of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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15 W. 38th Street, 10th Floor
New York, NY 10018
(917) 438-4353
(Address, including
zip code, and telephone number, including area code, of registrant’s principal executive offices)
Angelos M. Stergiou, M.D., ScD h.c.
President and Chief Executive Officer
15 W. 38th Street, 10th
Floor
New York, NY 10018
(917) 438-4353
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
Copies to:
Joel I. Papernik, Esq.
Daniel A. Bagliebter, Esq.
Mintz, Levin, Cohn, Ferris, Glovsky and
Popeo, P.C.
666 Third Avenue
New York, New York 10017
(212) 935-3000
Approximate date of commencement of proposed
sale to the public: From time to time after the effective date of this registration statement.
If the only securities
being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following
box: ¨
If any of the
securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check
the following box: x
If this form is filed
to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
¨
If this form is a post-effective
amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering. ¨
If this form is a registration
statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ¨
If this form is a post-effective
amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
Indicate by check mark
whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company,
or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller
reporting company” and "emerging growth company" in Rule 12b-2 of the Exchange Act.
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Large accelerated filer ¨
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Accelerated filer ¨
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Non-accelerated filer x
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Smaller reporting company x
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Emerging growth company ¨
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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. ¨
CALCULATION OF REGISTRATION FEE
Title of Each Class of
Securities to be Registered
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Amount
to be
Registered
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Proposed
Maximum
Offering Price
Per Unit
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Proposed
Maximum
Aggregate
Offering Price
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Amount of
Registration Fee
(1)
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Common Stock, $0.0001 par value per share
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(2)
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(3)
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(3)
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—
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Preferred Stock, $0.0001 par value per share
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(2)
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(3)
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(3)
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—
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Debt Securities
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(2)
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(3)
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(3)
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—
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Warrants
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(2)
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(3)
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(3)
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—
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Rights
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(2)
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(3)
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(3)
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Units
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(2)
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(3)
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(3)
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Total
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(2)
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$50,000,000
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$6,060
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(1)
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Calculated pursuant to Rule 457(o) under the Securities Act of 1933, as amended, or the Securities Act, based on the proposed maximum aggregate offering price.
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(2)
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There are being registered hereunder such indeterminate number of shares of common stock and preferred stock, such indeterminate
principal amount of debt securities and such indeterminate number of warrants, rights and units to purchase common stock, preferred
stock and/or debt securities as may be sold by the registrant from time to time, which together shall have an aggregate initial
offering price not to exceed $50,000,000. 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
$50,000,000, less the aggregate dollar amount of all securities previously issued hereunder. Any securities registered hereunder
may be sold separately or in combination with the other securities registered hereunder. The proposed maximum offering price 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 hereunder also include such indeterminate number of shares of common stock and preferred stock
and amount of debt securities as may be issued upon conversion of or exchange for preferred stock or debt securities that provide
for conversion or exchange, upon exercise of warrants or rights or pursuant to the antidilution provisions of any such securities.
In addition, pursuant to Rule 416 under the Securities Act, the shares being registered hereunder include such indeterminate number
of shares of common stock and preferred stock as may be issuable with respect to the shares being registered hereunder as a result
of stock splits, stock dividends or similar transactions.
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(3)
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The proposed maximum aggregate offering price per class of security will be determined from time to time by the registrant
in connection with the issuance by the registrant of the securities registered hereunder and is not specified as to each class
of security pursuant to General Instruction II.D. of Form S-3 under the Securities Act.
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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 that specifically states that this registration statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the registration statement shall become
effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The information in this preliminary 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 preliminary prospectus is not an offer to sell nor
does it seek an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
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PROSPECTUS
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SUBJECT TO COMPLETION
DATED SEPTEMBER 20, 2019
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$50,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Rights
Units
From time to time, we
may offer and sell up to an aggregate amount of $50,000,000 of any combination of the securities described in this prospectus in
one or more offerings. We may also offer such securities as may be issuable upon conversion, redemption, repurchase, exchange or
exercise of any securities registered hereunder, including any applicable anti-dilution provisions.
This prospectus provides
a general description of the securities we may offer. Each time we sell securities pursuant to this prospectus, we will provide
the specific terms of these offerings in one or more supplements to this prospectus. We may also authorize one or more free writing
prospectuses to be provided to you in connection with these offerings. The prospectus supplement and any related free writing prospectus
may also add, update or change information contained in this prospectus. You should carefully read this prospectus, the applicable
prospectus supplement and any related free writing prospectus, as well as any documents incorporated by reference, before buying
any of the securities being offered.
This prospectus may not
be used to consummate a sale of securities unless it is accompanied by the applicable prospectus supplement.
Our common stock is traded
on the Nasdaq Capital Market under the symbol “SLS.” On September 16, 2019, the closing price of our common stock,
as reported on the Nasdaq Capital Market, was $0.14 per share. The applicable prospectus supplement will contain information, where
applicable, as to any other listings on the Nasdaq Capital Market or any securities market or other exchange of the securities,
if any, covered by the prospectus supplement.
The aggregate market
value of our outstanding common stock held by non-affiliates was approximately $31,830,902, based on 227,363,588
shares of common stock held by non-affiliates as of the date of this prospectus, and the last reported sale price per share
of our common stock of $0.14 on September 16, 2019. Pursuant to General Instruction I.B.6 of Form S-3, in no event will
we sell shares pursuant to this prospectus with a value of more than one-third of the aggregate market value of our common
stock held by non-affiliates in any 12-month period, so long as the aggregate market value of our common stock held by
non-affiliates is less than $75,000,000. During the 12 calendar months prior to, and including, the date of this prospectus,
we have not sold any securities pursuant to General Instruction I.B.6 of Form S-3.
Investing in our securities
involves a high degree of risk. You should review carefully the risks and uncertainties described under the heading “Risk
Factors” contained in this prospectus beginning on page 5 and any applicable prospectus supplement and in any free writing
prospectuses we have authorized for use in connection with a specific offering, and under similar headings in the other documents
that are incorporated by reference into this prospectus.
The securities may be sold
directly by us to investors, through agents designated from time to time or to or through underwriters or dealers, on a continuous
or delayed basis. For additional information on the methods of sale, you should refer to the section titled “Plan of Distribution”
in this prospectus. If any agents or underwriters are involved in the sale of any securities with respect to which this prospectus
is being delivered, the names of such agents or underwriters and any applicable fees, commissions, discounts and over-allotment
options will be set forth in a prospectus supplement. The price to the public of such securities and the net proceeds we expect
to receive from such sale will also be set forth in a prospectus supplement.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete.
Any representation to the contrary is a criminal offense.
The date of this prospectus is ,
2019.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part
of a registration statement that we filed with the Securities and Exchange Commission, or the SEC, using a “shelf”
registration process. Under this shelf registration process, we may, from time to time, offer and sell, either individually or
in combination, in one or more offerings, up to a total dollar amount of $50,000,000 of any combination of the securities described
in this prospectus. This prospectus provides you with a general description of the securities we may offer.
Each time we offer 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. The prospectus supplement and any related free writing prospectus that we may authorize to be provided
to you may also add, update or change any of the information contained in this prospectus or in the documents that we have incorporated
by reference into this prospectus. We urge you to carefully read this prospectus, any applicable prospectus supplement and any
related free writing prospectuses we have authorized for use in connection with a specific offering, together with the information
incorporated herein by reference as described under the heading “Incorporation By Reference,” before buying any of
the securities being offered.
This prospectus may not
be used to consummate a sale of securities unless it is accompanied by a prospectus supplement.
You should rely only on
the information contained in, or incorporated by reference into, this prospectus and any applicable prospectus supplement, along
with the information contained in any free writing prospectuses we have authorized for use in connection with a specific offering.
We have not authorized anyone to provide you with information in addition to or different from that contained in this prospectus,
any applicable prospectus supplement and any related free writing prospectus. We take no responsibility for, and can provide no
assurances as to the reliability of, any information not contained in this prospectus, any applicable prospectus supplement or
any related free writing prospectus that we may authorize to be provided to you. This prospectus is an offer to sell only the securities
offered hereby, but only under circumstances and in jurisdictions where it is lawful to do so.
You should assume that the information 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 that any information 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.
To the extent there is a conflict between the information contained
in this prospectus, on the one hand, and the information contained in any document incorporated by reference filed with the SEC
before the date of this prospectus, on the other hand, you should rely on the information in this prospectus. If any statement
in a document incorporated by reference is inconsistent with a statement in another document incorporated by reference having a
later date, the statement in the document having the later date modifies or supersedes the earlier statement.
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 in the section titled “Where You Can Find More Information.”
The names “SELLAS Life Sciences Group, Inc.,” “SELLAS,”
the SELLAS logo, and other trademarks or service marks of SELLAS Life Sciences Group, Inc. appearing in this prospectus are the
property of SELLAS Life Sciences Group, Inc. Other trademarks, service marks or trade names appearing in this prospectus are the
property of their respective owners. We do not intend the use or display of other companies’ trade names, trademarks or service
marks to imply a relationship with, or endorsement or sponsorship of or by either, of these other companies.
PROSPECTUS SUMMARY
This summary highlights
information contained elsewhere in this prospectus or incorporated by reference in this prospectus. This summary provides an overview
of selected information and does not contain all of the information you should consider before investing in our securities. You
should read this entire prospectus and the applicable prospectus supplement carefully, especially the sections titled “Risk
Factors” and our consolidated financial statements and related notes included elsewhere in this prospectus, the applicable
prospectus supplement and the documents incorporated by reference therein before making an investment decision. Except as otherwise
indicated or unless the context otherwise requires, references to “company,” “we,” “us,” “our”
or “SELLAS,” refer to SELLAS Life Sciences Group, Inc. and its consolidated subsidiaries.
Overview
We are a late-stage biopharmaceutical
company focused on the development of novel cancer immunotherapeutics for a broad range of indications. Our product candidates
currently include galinpepimut-S and nelipepimut-S.
Galinpepimut-S, or
GPS
Our lead product candidate,
galinpepimut-S, or GPS, is a cancer immunotherapeutic agent licensed from Memorial Sloan Kettering Cancer Center, or MSK, that
targets the Wilms tumor 1, or WT1, protein, which is present in 20 or more cancer types. Based on its mechanism of action as a
directly immunizing agent, GPS has potential as a monotherapy or in combination with other immunotherapeutic agents to address
a broad spectrum of hematologic, or blood, cancers and solid tumor indications.
In November 2018, following
discussions with the U.S. Food and Drug Administration, or FDA, regarding a clinical trial design and biostatistical plan, we commenced
preparations for a Phase 3 trial for GPS monotherapy in patients with acute myeloid leukemia, or AML, in the maintenance setting
after achievement of their second complete remission, or CRem2, following successful completion of second-line antileukemic therapy.
This trial is expected to serve as the basis for a Biologics License Application, or BLA, submission, subject to positive results.
We plan to initiate this Phase 3 trial in the fourth quarter of 2019. The study is expected to enroll approximately 116 patients
at approximately 50 clinical sites in the United States and Europe and is contemplated to have a planned interim safety and futility
analysis after 80 events (deaths).
In December 2018, we
initiated a Phase 1/2 multi-arm ("basket" type) clinical study of GPS in combination with Merck & Co., Inc.’s
anti-PD-1 therapy, Keytruda® (pembrolizumab). In July 2019, we dosed the first patient in this trial. We plan to enroll approximately
90 patients at up to 20 centers in the United States. The trial is initially evaluating patients with ovarian cancer (second or
third line) and colorectal cancer (third or fourth line), to be followed by patients with AML who are unable to attain deeper morphological
response than partial on hypomethylating agents and who are not eligible for allogeneic hematopoietic stem cell transplant, and
patients with triple negative breast cancer (TNBC) (second line), and small cell lung cancer (second line).
GPS was granted Orphan
Drug Product Designations from the FDA as well as Orphan Medicinal Product Designations from the European Medicines Agency, or
EMA, for GPS in AML, malignant pleural mesothelioma, or MPM, and multiple myeloma, or MM, as well as Fast Track Designation for
AML, MPM, and MM from the FDA.
Nelipepimut-S, or
NPS
Nelipepimut-S, or NPS,
is a cancer immunotherapy targeting the human epidermal growth factor receptor, or HER2, expressing cancers. Data presented in
2018 from our Phase 2b clinical trial of the combination of trastuzumab (Herceptin®) plus NPS in HER1/2+ breast cancer patients
in the adjuvant setting to prevent recurrences showed a clinically and statistically significant improvement in the disease-free
survival, or DFS, rate for the TNBC cohort at 24 months for patients treated with NPS plus trastuzumab of 92.6% compared to 70.2%
for those treated with trastuzumab alone. In October 2018, the Data Safety Monitoring Board unanimously concluded that the final
analysis of the Phase 2b study data, with a median follow-up of 26 months, confirmed that TNBC patients should be the key target
population for the development of trastuzumab plus NPS in the adjuvant setting in early-stage HER2 1+/2+ breast cancer patients.
We are having ongoing discussions with the FDA to define an optimal path for further development of the combination of NPS plus
trastuzumab in TNBC.
FBP-targeting bivalent
vaccine (GALE-301/-302)
GALE-301 and GALE 302
are cancer immunotherapies that target the E39 peptide derived from the folate binding protein, or FBP. In a Phase 1/2a investigator
sponsored trial assessing GALE-301 in ovarian and endometrial cancers, we observed improvement in the 24-month DFS rate, in a small
number of patients treated with the optimal dose. We are evaluating GALE-301/302 for potential internal development in a Phase
2 setting for ovarian cancer, strategic partnership, or other type of candidate rationalization.
Explanatory Note
On December 29, 2017,
we completed the business combination with the privately held Bermuda exempted company, Sellas Life Sciences Group Ltd., or Private
SELLAS, in accordance with the terms of the Agreement and Plan of Merger and Reorganization, dated as of August 7, 2017 and amended
November 5, 2017, or the Merger Agreement, among SELLAS Life Sciences Group, Inc., Sellas Intermediate Holdings I, Inc., Sellas
Intermediate Holdings II, Inc., Galena Bermuda Merger Sub, Ltd., and Private SELLAS. We refer to this business combination throughout
this Prospectus as the Merger.
Corporate Information
We were incorporated
on April 3, 2006 in Delaware as Argonaut Pharmaceuticals, Inc. On November 28, 2006, we changed our name to RXi Pharmaceuticals
Corporation and began operations January 2007. On September 26, 2011, we changed our name to Galena Biopharma, Inc. In December
2017, we completed the Merger with the Bermuda exempted company SELLAS Life Sciences Group Ltd, or Private SELLAS, and changed
our name to “SELLAS Life Sciences Group, Inc.”
Our principal executive
offices are located at 15 West 38th Street, 10th Floor, New York, NY 10018, and our phone number is (917) 438-4353.
Our website address is www.sellaslife.com. The information contained on, or that can be accessed through, our website is not part
of, and is not incorporated by reference into this prospectus and should not be considered to be part of this prospectus.
The Securities We May Offer
We may offer shares of our
common stock and preferred stock, various series of debt securities and/or warrants, rights or units to purchase any such securities,
either individually or in combination, up to a total dollar amount of $50,000,000, from time to time under this prospectus, together
with any applicable prospectus supplement and any related free writing prospectuses, at prices and on terms to be determined by
market conditions at the time of any offering. We may also offer common stock, preferred stock and/or debt securities upon the
exercise of warrants, rights or units. This prospectus provides you with a general description of the securities we may offer.
Each time we offer a type or series of securities under this prospectus, we will provide a prospectus supplement that will describe
the specific amounts, prices and other important terms of the securities, including, 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 date, 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, exercise, 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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ranking, if applicable;
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restrictive covenants, if any;
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voting or other rights, if any; and
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material or special U.S. federal income tax considerations, if any.
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Any applicable prospectus
supplement and any related free writing prospectus that we may authorize to be provided to you may also add, update or change any
of the information contained in this prospectus or in the documents we have incorporated by reference. However, no prospectus supplement
or free writing prospectus will offer any 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.
This prospectus may not be used to consummate a sale of our
securities unless it is accompanied by a prospectus supplement.
We may sell the securities
directly to investors or to or through agents, underwriters or dealers. We, and our agents or underwriters, reserve the right to
accept or reject all or part of any proposed purchase of securities. If we do offer securities to or through agents or underwriters,
we will include in the applicable prospectus supplement:
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the names of those agents or underwriters;
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applicable fees, discounts and commissions to be paid to them;
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details regarding over-allotment options, if any; and
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the estimated net proceeds to us.
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Common Stock
We may issue shares of our
common stock from time to time. The holders of our common stock are entitled to one vote for each share held of record on all matters
submitted to a vote of stockholders. Subject to preferences that may be applicable to any then outstanding shares of preferred
stock, the holders of common stock are entitled to receive ratably such dividends as may be declared by our board of directors
out of legally available funds. Upon our liquidation, dissolution or winding up, holders of our common stock are entitled to share
ratably in all assets legally available for distribution to stockholders remaining after payment of liabilities and the liquidation
preferences of any outstanding shares of preferred stock. Holders of common stock have no preemptive rights and no right to convert
their common stock into any other securities. There are no redemption or sinking fund provisions applicable to our common stock.
When we issue shares of common stock under this prospectus, the shares will be fully paid and non-assessable. The rights, preferences
and privileges of the holders of common stock are subject to, and may be adversely affected by, the rights of the holders of shares
of any series of preferred stock that we may designate in the future. In this prospectus, we have summarized certain general features
of the common stock under “Description of Capital Stock—Common Stock.” We urge you, however, to read the applicable
prospectus supplement (and any related free writing prospectus that we may authorize to be provided to you) related to any common
stock being offered.
Preferred Stock
We may issue shares of our
preferred stock from time to time, in one or more series. If we sell any series of preferred stock under this prospectus and any
applicable prospectus supplement, our board of directors will determine the designations, voting powers, preferences and rights
of the preferred stock being offered, as well as the qualifications, limitations or restrictions thereof, including dividend rights,
conversion rights, preemptive rights, terms of redemption or repurchase, liquidation preferences, sinking fund terms and the number
of shares constituting any series or the designation of any series. Convertible preferred stock may be convertible into our common
stock or exchangeable for our other securities. Conversion may be mandatory or at the holder’s option and would be at prescribed
conversion rates.
We will file as an exhibit
to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that we file with
the SEC, the form of the certificate of designation that describes the terms of the series of preferred stock that we are offering
before the issuance of the related series of preferred stock. We urge you to read the applicable 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 issue debt securities
from time to time, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt.
The senior debt securities will rank equally with any other unsecured and unsubordinated debt. The subordinated debt securities
will be subordinate and junior in right of payment, to the extent and in the manner described in the instrument governing the debt,
to all of our senior indebtedness. Convertible debt securities will be convertible into our common stock or other securities. Conversion
may be mandatory or at the holder’s option and would be at prescribed conversion rates.
Any debt
securities issued under this prospectus will be issued under one or more documents called indentures, which are contracts
between us and a national banking association or other eligible party, as trustee. Forms of senior and subordinated
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 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. In this prospectus, we have summarized certain general features of the debt securities under
“Description of Debt Securities.” We urge you, however, to read the applicable prospectus supplement (and any
related 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 indentures that contain the terms of the debt securities.
Warrants
We may issue warrants for
the purchase of common stock, preferred stock and/or debt securities in one or more series. We may issue warrants independently
or together with common stock, preferred stock and/or debt securities, and the warrants may be attached to or separate from these
securities. Forms of the warrant agreements and forms of warrant certificates containing the terms of the warrants being offered
have been filed as exhibits to the registration statement of which this prospectus is a part, and supplemental warrant agreements
and forms of warrant certificates 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. We urge you to read the applicable prospectus supplement
(and any free writing prospectus that we may authorize to be provided to you) related to the particular series of warrants being
offered, as well as the complete warrant agreements and warrant certificates that contain the terms of the warrants.
Any warrants issued under
this prospectus may be evidenced by warrant certificates. Warrants may also be issued under an applicable warrant agreement that
we enter into with a warrant agent. We will indicate the name and address of the warrant agent, if applicable, in the prospectus
supplement relating to the particular series of warrants being offered.
Rights
We may issue rights for
the purchase of common stock, preferred stock or debt securities. We may issue subscription rights independently or together with
common stock, preferred stock and/or debt securities, and the rights may be attached to or separate from these securities. Each
series of rights will be issued under a separate rights agreement to be entered into between us and a bank or trust company, as
rights agent. The rights agent will act solely as our agent in connection with the certificates relating to the rights of the series
of certificates and will not assume any obligation or relationship of agency or trust for or with any holders of rights certificates
or beneficial owners of rights. We urge you to read the applicable prospectus supplement (and any free writing prospectus that
we may authorize to be provided to you) related to the particular series of rights being offered, as well as the complete rights
agreements that contain the terms of the rights.
Units
We may issue units consisting
of common stock, preferred stock, one or more debt securities, warrants or rights for the purchase of common stock, preferred stock
and/or debt securities in one or more series, 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 security included in the unit. The unit agreement under which a unit is issued may provide that the securities included in
the unit may not be held or transferred separately, at any time or at any time before a specified date. We urge you to read the
applicable prospectus supplement (and any free writing prospectus that we may authorize to be provided to you) related to the particular
series of units being offered, as well as the complete unit agreements that contain the terms of the units.
Use of Proceeds
Except as described in
any applicable prospectus supplement or in any free writing prospectuses we have authorized for use in connection with a
specific offering, we currently intend to use the net proceeds from the sale of the securities offered by us hereunder, if
any, for working capital and general corporate purposes, including research and development of our product candidates
(including clinical trial activities), and general and administrative expenses. See “Use of Proceeds” in this
prospectus.
Nasdaq Capital Market Listing
Our common stock is listed
on the Nasdaq Capital Market under the symbol “SLS.” The applicable prospectus supplement will contain information,
where applicable, as to other listings, if any, on the Nasdaq Capital Market or other securities exchange of the securities covered
by the applicable prospectus supplement.
RISK FACTORS
Investing in our securities
involves a high degree of risk. Before deciding whether to invest in our securities, you should carefully consider the risks described
in the documents incorporated by reference in this prospectus and any applicable prospectus supplement, as well as other information
we include or incorporate by reference into this prospectus and any applicable prospectus supplement, before making an investment
decision. Our business, financial condition or results of operations could be materially adversely affected by any of these risks.
The trading price of our securities could decline due to the occurrence of any of these risks, and you may lose all or part of
your investment. This prospectus and the documents incorporated herein by reference also contain forward-looking statements that
involve risks and uncertainties. Actual results could differ materially from those anticipated in these forward-looking statements
as a result of certain factors, including the risks described in the documents incorporated herein by reference, including in (1) our
most recent Annual Report on Form 10-K on file with the SEC, (2) our most recent Quarterly Reports on Form 10-Q
on file with the SEC and (3) any amendments thereto reflected in subsequent filings with the SEC, all of which are incorporated
by reference into this prospectus in their entirety, together with other information in this prospectus, the applicable prospectus
supplement and the documents incorporated by reference that we may authorize for use in connection with a specific offering. Please
also read carefully the section below entitled “Special Note Regarding Forward-Looking Statements.”
SPECIAL NOTE REGARDING
FORWARD-LOOKING STATEMENTS
This prospectus, the applicable prospectus supplement, and the
documents incorporated by reference contain forward-looking statements about us and our industry that involve substantial risks
and uncertainties. All statements other than statements of historical facts contained in this prospectus, the applicable prospectus
supplement, and the documented incorporated by reference, including statements regarding our future financial condition, business
strategy and plans, and objectives of management for future operations, are forward-looking statements. In some cases, you can
identify forward-looking statements by terminology such as “aim,” “anticipate,” “assume,” “believe,”
“contemplate,” “continue,” “could,” “design,” “due,” “estimate,”
“expect,” “goal,” “intend,” “may,” “objective,” “plan,”
“predict,” “positioned,” “potential,” “seek,” “should,” “target,”
“will,” “would” and other similar expressions that are predictions of or indicate future events and future
trends, or the negative of these terms or other comparable terminology.
We have based these forward-looking statements largely on our
current expectations and projections about future events and financial trends that we believe may affect our financial condition,
results of operations, business strategy and financial needs. These forward-looking statements are subject to a number of known
and unknown risks, uncertainties and assumptions, including risks described in the section titled “Risk Factors” contained
in our most recent Annual Report on Form 10-K and Quarterly Reports on Form 10-Q and incorporated by reference in this prospectus,
as the same may be amended, supplemented or superseded by the risks and uncertainties described under similar headings in the other
documents that are filed after the date hereof and incorporated by reference into this prospectus, regarding, among other things:
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our ability to continue to operate despite incurring substantial losses since our inception and our expectation that we will
continue to incur substantial and increasing losses for the foreseeable future;
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our ability to continue as a going concern;
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our ability to obtain the substantial additional financing necessary to achieve our goals;
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whether we will generate revenues and achieve profitability in the future;
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the ability of investors to evaluate the success of our business and to assess our future viability given our limited operating
history;
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our expectations regarding our continuing to incur significant operating and non-operating expenses;
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the initiation of legal or administrative actions against us;
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our ability to use net operating losses to offset future taxable income;
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our ability to comply with the regulatory and environmental provisions and laws to which we are subject;
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our ability to obtain regulatory approval of our product candidates;
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whether the results of our clinical trials will be sufficient to support domestic or global regulatory approvals;
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the initiation, timing, progress and results of our pre-clinical and clinical trials;
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the success of our lead product candidate, GPS, and our ability to successfully complete clinical trials and obtain regulatory
approval for our other product candidates;
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whether our product development program will uncover all possible adverse events that patients who take our product candidates
may experience;
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whether we can maintain orphan drug exclusivity and fast track designation for certain of our product candidates and whether
we will receive orphan drug product designation and fast track designation for additional product candidates should we seek such
designations;
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our ability to successfully identify, acquire, develop or commercialize new potential product candidates;
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our ability to realize benefits from strategic alliances that we may form in the future;
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whether we can continue to rely on third parties to conduct our preclinical studies and clinical trials;
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developments or disputes concerning our intellectual property or other proprietary rights;
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our expectations regarding the potential market size and the size of the patient populations for our product candidates, if
approved, for commercial use;
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the implementation of our business model and strategic plans for our business and product candidates;
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our ability to maintain and establish collaborations or obtain additional funding;
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the market price and value of our common stock;
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our ability to compete in the markets we serve; and
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other factors that may impact our financial results.
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These risks are not exhaustive. Other sections
of this prospectus, the applicable prospectus supplement, or the documents incorporated herein by reference may include additional
factors that could harm our business and financial performance. Moreover, we operate in a very competitive and rapidly changing
environment. New risk factors emerge from time to time, and it is not possible for our management to predict all risk factors,
nor can we assess the impact of all factors 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, or implied by, any forward-looking statements.
You should not rely upon forward-looking
statements as predictions of future events. We cannot assure you that the events and circumstances reflected in the forward-looking
statements will be achieved or occur. Although we believe that the expectations reflected in the forward-looking statements are
reasonable, we cannot guarantee future results, levels of activity, performance or achievements. Except as required by law, we
undertake no obligation to update publicly any forward-looking statements for any reason after the date of this prospectus or to
conform these statements to actual results or to changes in our expectations.
You should carefully read this prospectus,
and the applicable prospectus supplement, together with the information incorporated herein by reference as described under the
heading “Incorporation by Reference,” as well as the documents filed as exhibits to the registration statement of which
this prospectus is a part with the understanding that our actual future results, levels of activity, performance and achievements
may be materially different from what we expect. We qualify all of our forward-looking statements by these cautionary statements.
Except as required by law, we assume no
obligation to update these forward-looking statements publicly, or to update the reasons actual results could differ materially
from those anticipated in these forward-looking statements, even if new information becomes available in the future.
USE OF PROCEEDS
Except as described in any applicable
prospectus supplement or in any related free writing prospectuses we may authorize for use in connection with a specific
offering, we currently intend to use the net proceeds from the sale of the securities offered by us hereunder, if any, for
working capital, capital expenditures and other general corporate purposes including research and development of our product
candidates (including clinical trial activities), and general and administrative expenses. In addition, we may use a portion of
the proceeds for the acquisition of, or investment in, technologies, solutions or businesses that complement our
business, although we have no present commitments or agreements to enter into any such acquisitions or investments. As of the
date of this prospectus, we cannot specify with certainty all of the particular uses for the net proceeds to us from the sale
of the securities offered by us hereunder. We will set forth in the applicable prospectus supplement or free writing
prospectus our intended use for the net proceeds received from the sale of any securities sold pursuant to the prospectus
supplement or free writing prospectus.
DILUTION
We will set forth in a prospectus supplement
the following information regarding any material dilution of the equity interests of investors purchasing securities in an offering
under this prospectus:
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the net tangible book value per share of our equity securities before and after the offering;
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the amount of the increase in such net tangible book value per share attributable to the cash payments made by purchasers in
the offering; and
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the
amount of the immediate dilution from the public offering price which will be absorbed by such purchasers.
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DESCRIPTION OF CAPITAL
STOCK
The
following description of our capital stock summarizes the material terms and provisions of our common stock and our preferred stock.
For the complete terms of our common stock, please refer to our amended and restated certificate of incorporation and our amended
and restated bylaws, each as amended to date, that are incorporated by reference into the registration statement of which this
prospectus is a part or may be incorporated by reference into this prospectus. The terms of these securities may also be affected
by the Delaware General Corporation Law, or the DGCL. The summary below is qualified in its entirety by reference to our amended
and restated certificate of incorporation and amended and restated bylaws, which are filed as exhibits to the registration
statement of which this prospectus is a part.
General
Our amended and restated certificate
of incorporation authorizes us to issue up to 350,000,000 shares of common stock, $0.0001 par value per share, and 5,000,000 shares
of preferred stock, $0.0001 par value per share.
As of September 16, 2019, there were:
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227,800,147 shares of common stock outstanding;
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no shares of Preferred stock outstanding;
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1,172,488 shares of common stock issuable upon exercise of outstanding options; and
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warrants outstanding for the purchase of an aggregate of 15,085,931 shares of common stock.
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Common stock
Voting
Each holder of our common stock is
entitled to one vote for each share on all matters submitted to a vote of the stockholders, including the election of directors.
Our amended and restated certificate of incorporation and amended and restated bylaws do not provide for cumulative voting rights.
Because of this absence of cumulative voting, the holders of a majority of the shares of common stock entitled to vote in any election
of directors can elect all the directors standing for election, if they should so choose.
Dividends
Subject to preferences that may be
applicable to any then outstanding shares of preferred stock, holders of common stock are entitled to receive ratably those dividends,
if any, as may be declared from time to time by our board of directors out of legally available funds.
Liquidation
In the event of our dissolution or
liquidation, holders of common stock will be entitled to share ratably in the net assets legally available for distribution to
stockholders after the payment of all our debts and other liabilities and the satisfaction of any preferential rights that may
be granted to the holders of any then outstanding shares of preferred stock.
Rights and Preferences
Holders of common stock have no preemptive,
conversion or subscription rights, and there are no redemption or sinking fund provisions applicable to the common stock. The rights,
preferences, and privileges of the holders of common stock are subject to, and may be adversely affected by, the rights of the
holders of shares of any series of preferred stock.
Fully-paid
All of the outstanding shares of our
common stock are, and the shares of common stock issued upon the conversion of any securities convertible into our common stock
will be, fully paid and non-assessable. The shares of common stock offered by this prospectus or upon the conversion
of any preferred stock or debt securities or exercise of any warrants offered pursuant to this prospectus, when issued and paid
for, will also be, fully paid and non-assessable.
Preferred stock
Under our amended and restated certificate
of incorporation, our board of directors has the authority, without further action by our stockholders, to issue up to 5,000,000
shares of preferred stock in one or more series and to fix the rights, preferences, privileges and restrictions thereof. These
rights, preferences and privileges could include dividend rights, conversion rights, voting rights, terms of redemption, liquidation
preferences, sinking fund terms and the number of shares constituting any series or the designation of such series, any or all
of which may be greater than the rights of common stock. The issuance of our preferred stock could adversely affect the voting
power of holders of common stock and the likelihood that such holders will receive dividend payments and payments upon liquidation.
In addition, the issuance of preferred stock could have the effect of delaying, deferring or preventing a change of control of
our company or other corporate action.
The following summary of terms of our
preferred stock is not complete. You should refer to the provisions of our amended and restated certificate of incorporation and
amended and restated bylaws and the resolutions containing the terms of each class or series of the preferred stock which have
been or will be filed with the SEC at or prior to the time of issuance of such class or series of preferred stock and described
in the applicable prospectus supplement. The applicable prospectus supplement may also state that any of the terms set forth herein
are inapplicable to such series of preferred stock, provided that the information set forth in such prospectus supplement does
not constitute material changes to the information herein such that it alters the nature of the offering or the securities offered.
Our board of directors will fix the
designations, voting powers, preferences and rights of the preferred stock of each series we issue under this prospectus, as well
as the qualifications, limitations or restrictions thereof, in the certificate of designation relating to that series. We will
file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference from reports
that we file with the SEC, the form of any certificate of designation that describes the terms of the series of preferred stock
we are offering. We will describe in the applicable prospectus supplement the terms of the series of preferred stock being offered,
including, to the extent applicable:
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the title and stated value;
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the number of shares we are offering;
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the liquidation preference per share;
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the purchase price;
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the dividend rate, period and payment date and method of calculation for dividends;
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whether dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate;
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the procedures for any auction and remarketing;
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the provisions for a sinking fund;
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the provisions for redemption or repurchase and any restrictions on our ability to exercise those redemption and repurchase rights;
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any listing of the preferred stock on any securities exchange or market;
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whether the preferred stock will be convertible into our common stock or other securities, and the conversion rate or conversion price, or how they will be calculated, and the conversion period;
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whether the preferred stock will be exchangeable into debt securities, and the exchange rate or exchange price, or how they will be calculated, and the exchange period;
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voting rights of the preferred stock;
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preemptive rights;
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restrictions on transfer, sale or other assignment;
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whether interests in the preferred stock will be represented by depositary shares;
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a discussion of material or special U.S. federal income tax considerations applicable to the preferred stock;
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the relative ranking and preferences of the preferred stock as to dividend rights and rights if we liquidate, dissolve or wind up our affairs;
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any limitations on the issuance of any class or series of preferred stock ranking senior to or on parity with the series of preferred stock as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; and
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any other specific terms, preferences, rights or limitations of, or restrictions on, the preferred stock.
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If we issue shares of preferred stock under this prospectus,
they will be validly issued, fully paid and non-assessable.
The DGCL 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 such preferred
stock. This right is in addition to any voting rights that may be provided for in the applicable certificate of designation.
The issuance of our preferred stock could adversely affect the
voting power, conversion or other rights of holders of common stock and reduce the likelihood that such holders will receive dividend
payments and payments upon liquidation. In addition, the issuance of preferred stock could have the effect of delaying, deferring
or preventing a change in control of our company or other corporate action. Additionally, the issuance of preferred stock may have
the effect of decreasing the market price of our common stock.
Possible Anti-Takeover Effects of
Delaware Law and Our Certificate of Incorporation and Bylaws
Provisions of the DGCL and our amended
and restated certificate of incorporation and amended and restated bylaws could make it more difficult to acquire our company by
means of a tender offer, a proxy contest or otherwise, or to remove incumbent officers and directors. These provisions, summarized
below, are expected to discourage certain types of coercive takeover practices and takeover bids that our board of directors may
consider inadequate and to encourage persons seeking to acquire control of our company to first negotiate with our board of directors.
We believe that the benefits of increased protection of our ability to negotiate with the proponent of an unfriendly or unsolicited
proposal to acquire or restructure our company outweigh the disadvantages of discouraging takeover or acquisition proposals because,
among other things, negotiation of these proposals could result in an improvement of their terms.
Classified Board
Our amended and restated certificate
of incorporation and our amended and restated bylaws provide that our board of directors is divided into three classes. The directors
designated as Class I directors have terms expiring at the annual meeting of stockholders in 2020. The directors designated
as Class II directors will have terms expiring at the annual meeting of stockholders in 2021, and the directors designated
as Class III directors will have terms expiring at the annual meeting of stockholders in 2022. Directors for each class will
be elected at the annual meeting of stockholders held in the year in which the term for that class expires and thereafter will
serve for a term of three years. At any meeting of stockholders for the election of directors at which a quorum is present, the
election will be determined by a plurality of the votes cast by the stockholders entitled to vote at the election. Under the classified
board provisions, it would take at least two elections of directors for any individual or group to gain control of our board. Accordingly,
these provisions could discourage a third party from initiating a proxy contest, making a tender offer or otherwise attempting
to gain control of our company.
Removal of Directors
Our amended and restated bylaws provide
that our stockholders may only remove our directors with cause.
Amendment
Our amended and restated certificate
of incorporation and our amended and restated bylaws provide that the affirmative vote of the holders of at least 75% of our voting
stock then outstanding is required to amend certain provisions relating to the number, term, election and removal of our directors,
the filling of our board vacancies, stockholder notice procedures, the calling of special meetings of stockholders and the indemnification
of directors. Further, any amendments of our bylaws must be approved by our stockholders as our amended and restated certificate
of incorporation does not authorize our board of directors to amend our bylaws.
Size of Board and Vacancies
Our amended and restated bylaws provide
that the number of directors on our board of directors is fixed exclusively by our board of directors. Newly created directorships
resulting from any increase in our authorized number of directors will be filled by a majority of our board of directors then in
office, provided that a majority of the entire board of directors, or a quorum, is present and any vacancies in our board of directors
resulting from death, resignation, retirement, disqualification, removal from office or other cause will be filled generally by
the majority vote of our remaining directors in office, even if less than a quorum is present.
Special Stockholder Meetings
Our amended and restated certificate
of incorporation provides that only the Chairman of our board of directors, our Chief Executive Officer or our board of directors
pursuant to a resolution adopted by a majority of the total number of directors we would have if there were no vacancies may call
special meetings of our stockholders.
Stockholder Action by Unanimous
Written Consent
Our amended and restated certificate
of incorporation expressly eliminates the right of our stockholders to act by written consent.
Requirements for Advance Notification
of Stockholder Nominations and Proposals
Our amended and restated bylaws provide
advance notice procedures with respect to stockholder proposals and nomination of candidates for election as directors other than
nominations made by or at the direction of board of directors or a committee of our board of directors.
No Cumulative Voting
The DGCL provides that stockholders
are denied the right to cumulate votes in the election of directors unless our certificate of incorporation provides otherwise.
Our amended and restated certificate of incorporation does not provide for cumulative voting.
Undesignated Preferred Stock
The authority that is possessed by
our board of directors to issue preferred stock could potentially be used to discourage attempts by third parties to obtain control
of our company through a merger, tender offer, proxy contest, or otherwise by making it more difficult or costlier to obtain control
of our company. Our board of directors may issue preferred stock with voting rights or conversion rights that, if exercised, could
adversely affect the voting power of the holders of common stock.
Authorized but Unissued Shares
Our authorized but unissued shares
of common stock and preferred stock will be available for future issuance without stockholder 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 our company by means of a proxy contest, tender offer, merger or otherwise.
The above provisions may deter a hostile
takeover or delay a change in control or management of our company.
Listing on the Nasdaq Capital Market
Our common stock is listed on the
Nasdaq Capital Market under the symbol “SLS”. On September 16, 2019, the closing price of our common stock was $0.14
per share. As of September 16, 2019, we had approximately 113 stockholders of record.
The applicable prospectus supplement
will contain information, where applicable, as to other listing, if any, on the Nasdaq Capital Market or other securities exchange
of the preferred stock covered by such prospectus supplement.
Transfer Agent and Registrar
The transfer agent and registrar for
our capital stock is Computershare Trust Company, N.A. Its address is 250 Royall Street, Canton, MA 02021. Its telephone number
is (201) 680-4503.
DESCRIPTION OF DEBT SECURITIES
We may issue debt securities from time
to time, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt. While the
terms we have summarized below will apply generally to any debt securities that we may offer under this prospectus, we will describe
the particular terms of any debt securities that we may offer in more detail in the applicable prospectus supplement. The terms
of any debt securities offered under a prospectus supplement may differ from the terms described below. Unless the context requires
otherwise, whenever we refer to the indenture, we also are referring to any supplemental indentures that specify the terms of a
particular series of debt securities.
We will issue the debt securities
under the indenture that we will enter into with the trustee named in the indenture. The indenture will be qualified under
the Trust Indenture Act of 1939, as amended, or the Trust Indenture Act. We have filed forms of senior and subordinated
indentures 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 following summary of material provisions
of the debt securities and the indenture is subject to, and qualified in its entirety by reference to, all of the provisions of
the indenture applicable to a particular series of debt securities. We urge you to read the applicable prospectus supplements and
any related free writing prospectuses related to the debt securities that we may offer under this prospectus, as well as the complete
indenture that contains the terms of the debt securities.
General
The indenture does not limit the amount
of debt securities that we may issue. It provides that we may issue debt securities up to the principal amount that we may authorize
and may be in any currency or currency unit that we may designate. Except for the limitations on consolidation, merger and sale
of all or substantially all of our assets contained in the indenture, the terms of the indenture do not contain any covenants or
other provisions designed to give holders of any debt securities protection against changes in our operations, financial condition
or transactions involving us.
We may issue the debt securities issued
under the indenture as “discount securities,” which means they may be sold at a discount below their stated principal
amount. These debt securities, as well as other debt securities that are not issued at a discount, may be issued with “original
issue discount,” or OID, for U.S. federal income tax purposes because of interest payment and other characteristics or terms
of the debt securities. Material U.S. federal income tax considerations applicable to debt securities issued with OID will be described
in more detail in any applicable prospectus supplement.
We will describe in the applicable prospectus
supplement the terms of the series of debt securities being offered, including:
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the title of the series of debt securities;
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any limit upon the aggregate principal amount that may be issued;
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the maturity date or dates;
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the form of the debt securities of the series;
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the applicability of any guarantees;
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whether or not the debt securities will be secured or unsecured, and the terms of any secured debt;
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whether the debt securities rank as senior debt, senior subordinated debt, subordinated debt or
any combination thereof, and the terms of any subordination;
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if the price (expressed as a percentage of the aggregate principal amount thereof) at which such
debt securities will be issued is a price other than the principal amount thereof, the portion of the principal amount thereof
payable upon declaration of acceleration of the maturity thereof, or if applicable, the portion of the principal amount of such
debt securities that is convertible into another security or the method by which any such portion shall be determined;
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the interest rate or rates, which may be fixed or variable, or the method for determining the rate
and the date interest will begin to accrue, the dates interest will be payable and the regular record dates for interest payment
dates or the method for determining such dates;
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our right, if any, to defer payment of interest and the maximum length of any such deferral period;
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if applicable, the date or dates after which, or the period or periods during which, and the price
or prices at which, we may, at our option, redeem the series of debt securities pursuant to any optional or provisional redemption
provisions and the terms of those redemption provisions;
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the date or dates, if any, on which, and the price or prices at which we are obligated, pursuant
to any mandatory sinking fund or analogous fund provisions or otherwise, to redeem, or at the holder’s option to purchase,
the series of debt securities and the currency or currency unit in which the debt securities are payable;
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the denominations in which we will issue the series of debt securities, if other than denominations
of $1,000 and any integral multiple thereof;
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any and all terms, if applicable, relating to any auction or remarketing of the debt securities
of that series and any security for our obligations with respect to such debt securities and any other terms which may be advisable
in connection with the marketing of debt securities of that series;
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whether the debt securities of the series shall be issued in whole or in part in the form of a
global security or securities; the terms and conditions, if any, upon which such global security or securities may be exchanged
in whole or in part for other individual securities; and the depositary for such global security or securities;
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if applicable, the provisions relating to conversion or exchange of any debt securities of the
series and the terms and conditions upon which such debt securities will be so convertible or exchangeable, including the conversion
or exchange price, as applicable, or how it will be calculated and may be adjusted, any mandatory or optional (at our option or
the holders’ option) conversion or exchange features, the applicable conversion or exchange period and the manner of settlement
for any conversion or exchange;
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if other than the full principal amount thereof, the portion of the principal amount of debt securities
of the series which shall be payable upon declaration of acceleration of the maturity thereof;
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additions to or changes in the covenants applicable to the particular debt securities being issued,
including, among others, the consolidation, merger or sale covenant;
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additions to or changes in the events of default with respect to the securities and any change
in the right of the trustee or the holders to declare the principal, premium, if any, and interest, if any, with respect to such
securities to be due and payable;
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additions to or changes in or deletions of the provisions relating to covenant defeasance and legal
defeasance;
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additions to or changes in the provisions relating to satisfaction and discharge of the indenture;
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additions to or changes in the provisions relating to the modification of the indenture both with
and without the consent of holders of debt securities issued under the indenture;
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the currency of payment of debt securities if other than U.S. dollars and the manner of determining
the equivalent amount in U.S. dollars;
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whether interest will be payable in cash or additional debt securities at our or the holders’
option and the terms and conditions upon which the election may be made;
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the terms and conditions, if any, upon which we will pay amounts in addition to the stated interest,
premium, if any and principal amounts of the debt securities of the series to any holder that is not a “United States person”
for federal tax purposes;
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any restrictions on transfer, sale or assignment of the debt securities of the series; and
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any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities,
any other additions or changes in the provisions of the indenture, and any terms that may be required by us or advisable under
applicable laws or regulations.
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Conversion or Exchange Rights
We will set forth in the applicable prospectus
supplement the terms on which a series of debt securities may be convertible into or exchangeable for our common stock or our other
securities. We will include provisions as to settlement upon conversion or exchange and whether conversion or exchange is mandatory,
at the option of the holder or at our option. We may include provisions pursuant to which the number of shares of our common stock
or our other securities that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation, Merger or Sale
Unless we provide otherwise in the prospectus
supplement applicable to a particular series of debt securities, the indenture will not contain any covenant that restricts our
ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of our assets as an entirety or substantially as
an entirety. However, any successor to or acquirer of such assets (other than a subsidiary of ours) must assume all of our obligations
under the indenture or the debt securities, as appropriate.
Events of Default under the Indenture
Unless we provide otherwise in the prospectus
supplement applicable to a particular series of debt securities, the following are events of default under the indenture with respect
to any series of debt securities that we may issue:
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if we fail to pay any installment of interest on any series of debt securities, as and when the
same shall become due and payable, and such default continues for a period of 90 days; provided, however, that a valid extension
of an interest payment period by us in accordance with the terms of any indenture supplemental thereto shall not constitute a default
in the payment of interest for this purpose;
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if we fail to pay the principal of, or premium, if any, on any series of debt securities as and
when the same shall become due and payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment
required by any sinking or analogous fund established with respect to such series; provided, however, that a valid extension of
the maturity of such debt securities in accordance with the terms of any indenture supplemental thereto shall not constitute a
default in the payment of principal or premium, if any;
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if we fail to observe or perform any other covenant or agreement contained in the debt securities
or the indenture, other than a covenant specifically relating to another series of debt securities, and our failure continues for
90 days after we receive written notice of such failure, requiring the same to be remedied and stating that such is a notice
of default thereunder, from the trustee or holders of at least 25% in aggregate principal amount of the outstanding debt securities
of the applicable series; and
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if specified events of bankruptcy, insolvency or reorganization occur.
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If an event of default with respect to
debt securities of any series occurs and is continuing, other than an event of default specified in the last bullet point above,
the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series, by
notice to us in writing, and to the trustee if notice is given by such holders, may declare the unpaid principal of, premium, if
any, and accrued interest, if any, due and payable immediately. If an event of default specified in the last bullet point above
occurs with respect to us, the principal amount of and accrued interest, if any, of each issue of debt securities then outstanding
shall be due and payable without any notice or other action on the part of the trustee or any holder.
The holders of a majority in principal
amount of the outstanding debt securities of an affected series may waive any default or event of default with respect to the series
and its consequences, except defaults or events of default regarding payment of principal, premium, if any, or interest, unless
we have cured the default or event of default in accordance with the indenture. Any waiver shall cure the default or event of default.
Subject to the terms of the indenture,
if an event of default under an indenture shall occur and be continuing, the trustee will be under no obligation to exercise any
of its rights or powers under such indenture at the request or direction of any of the holders of the applicable series of debt
securities, unless such holders have offered the trustee reasonable indemnity. The holders of a majority in principal amount of
the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt securities
of that series, provided that:
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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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A holder of the debt securities of any
series will have the right to institute a proceeding under the indenture or to appoint a receiver or trustee, or to seek other
remedies only if:
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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 written request,
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such holders have offered to the trustee indemnity satisfactory to it against the costs, expenses
and liabilities to be incurred by the trustee in compliance with the request; and
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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.
We will periodically file statements with
the trustee regarding our compliance with specified covenants in the indenture.
Modification of Indenture; Waiver
We and the trustee may change an indenture
without the consent of any holders with respect to specific matters:
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to cure any ambiguity, defect or inconsistency in the indenture or in the debt securities of any
series;
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to comply with the provisions described above under “Description of Debt Securities—Consolidation,
Merger or Sale;”
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to provide for uncertificated debt securities in addition to or in place of certificated debt securities;
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to add to our covenants, restrictions, conditions or provisions such new covenants, restrictions,
conditions or provisions for the benefit of the holders of all or any series of debt securities, to make the occurrence, or the
occurrence and the continuance, of a default in any such additional covenants, restrictions, conditions or provisions an event
of default or to surrender any right or power conferred upon us in the indenture;
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to add to, delete from or revise the conditions, limitations, and restrictions on the authorized
amount, terms, or purposes of issue, authentication and delivery of debt securities, as set forth in the indenture;
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to make any change that does not adversely affect the interests of any holder of debt securities
of any series in any material respect;
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to provide for the issuance of and establish the form and terms and conditions of the debt securities
of any series as provided above under “Description of Debt Securities—General” to establish the form of any certifications
required to be furnished pursuant to the terms of the indenture or any series of debt securities, or to add to the rights of the
holders of any series of debt securities;
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to evidence and provide for the acceptance of appointment under any indenture by a successor trustee;
or
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to comply with any requirements of the SEC in connection with the qualification of any indenture
under the Trust Indenture Act.
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In addition, under the indenture, the rights
of holders of a series of debt securities may be changed by us and the trustee with the written consent of the holders of at least
a majority in aggregate principal amount of the outstanding debt securities of each series that is affected. However, unless we
provide otherwise in the prospectus supplement applicable to a particular series of debt securities, we and the trustee may make
the following changes only with the consent of each holder of any outstanding debt securities affected:
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extending the fixed maturity of any debt securities of any series;
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reducing the principal amount, reducing the rate of or extending the time of payment of interest,
or reducing any premium payable upon the redemption of any series of any debt securities; or
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reducing the percentage of debt securities, the holders of which are required to consent to any
amendment, supplement, modification or waiver.
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Discharge
Each indenture provides that we can elect
to be discharged from our obligations with respect to one or more series of debt securities, except for specified obligations,
including obligations to:
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register the transfer or exchange of debt securities of the series;
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replace stolen, lost or mutilated debt securities of the series;
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pay principal of and premium and interest on any debt securities of the series;
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maintain paying agencies;
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hold monies for payment in trust;
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recover excess money held by the trustee;
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compensate and indemnify the trustee; and
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appoint any successor trustee.
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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, any premium, if any, and
interest on, the debt securities of the series on the dates payments are due.
Form, Exchange and Transfer
We will issue the debt securities of each
series only in fully registered form without coupons and, unless we provide otherwise in the applicable prospectus supplement,
in denominations of $1,000 and any integral multiple thereof. The indenture provides that we may issue debt securities of a series
in temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depository
Trust Company, or DTC, or another depositary named by us and identified in the applicable prospectus supplement with respect to
that series. To the extent the debt securities of a series are issued in global form and as book-entry, a description of terms
relating to any book-entry securities will be set forth in the applicable prospectus supplement.
At the option of the holder, subject to
the terms of the indenture and the limitations applicable to global securities described in the applicable prospectus supplement,
the holder of the debt securities of any series can exchange the debt securities for other debt securities of the same series,
in any authorized denomination and of like tenor and aggregate principal amount.
Subject to the terms of the indenture and
the limitations applicable to global securities set forth in the applicable prospectus supplement, holders of the debt securities
may present the debt securities for exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed
thereon duly executed if so required by us or the security registrar, at the office of the security registrar or at the office
of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder presents
for transfer or exchange, we will impose no service charge for any registration of transfer or exchange, but we may require payment
of any taxes or other governmental charges.
We will name in the applicable prospectus
supplement the security registrar, and any transfer agent in addition to the security registrar, that we initially designate for
any debt securities. We may at any time designate additional transfer agents or rescind the designation of any transfer agent or
approve a change in the office through which any transfer agent acts, except that we will be required to maintain a transfer agent
in each place of payment for the debt securities of each series.
If we elect to redeem the debt securities
of any series, we will not be required to:
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issue, register the transfer of, or exchange any debt securities of that series during a period
beginning at the opening of business 15 days before the day of mailing of a notice of redemption of any debt securities that
may be selected for redemption and ending at the close of business on the day of the mailing; or
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register the transfer of or exchange any debt securities so selected for redemption, in whole or
in part, except the unredeemed portion of any debt securities we are redeeming in part.
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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. Upon an event of default under an indenture, the trustee must use the same degree of care as a prudent
person would exercise or use in the conduct of his or her own affairs. Subject to this provision, the trustee is under no obligation
to exercise any of the powers given it by the indenture at the request of any holder of debt securities unless it is offered reasonable
security and indemnity against the costs, expenses and liabilities that it might incur.
Payment and Paying Agents
Unless we otherwise indicate in the applicable
prospectus supplement, we will make payment of the interest on any debt securities on any interest payment date to the person in
whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular record
date for the interest.
We will pay principal of and any premium
and interest on the debt securities of a particular series at the office of the paying agents designated by us, except that unless
we otherwise indicate in the applicable prospectus supplement, we will make interest payments by check that we will mail to the
holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable prospectus supplement, we will designate
the corporate trust office of the trustee as our sole paying agent for payments with respect to debt securities of each series.
We will name in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities
of a particular series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All money we pay to a paying agent or the
trustee for the payment of the principal of or any premium or interest on any debt securities that remains unclaimed at the end
of two years after such principal, premium or interest has become due and payable will be repaid to us, and the holder of the debt
security thereafter may look only to us for payment thereof.
Governing Law
The indenture and the debt securities
will be governed by and construed in accordance with the internal laws of the State of New York, except to the extent that the
Trust Indenture Act of 1939 is applicable.
DESCRIPTION OF WARRANTS
The following description, together with the additional information
we may include in any applicable prospectus supplement and in any related free writing prospectus that we may authorize to be distributed
to you, 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 and/or debt securities and may be issued in one or more series. Warrants
may be offered independently or in combination with common stock, preferred stock or debt securities offered by any prospectus
supplement, 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. The following description of warrants will apply to the warrants
offered by this prospectus unless we provide otherwise in the applicable prospectus supplement. The applicable prospectus supplement
for a particular series of warrants may specify different or additional terms.
We have filed forms of the warrant agreements and forms of warrant
certificates containing the terms of the warrants that may be offered as exhibits to the registration statement of which this prospectus
is a part. We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference
from reports that we file with the SEC, the form of warrant and/or the warrant agreement and warrant certificate, as applicable,
that contain the terms of the particular series of warrants we are offering, and any supplemental agreements, before the issuance
of such warrants. The following summaries of material terms and provisions of the warrants are subject to, and qualified in their
entirety by reference to, all the provisions of the form of warrant and/or the warrant agreement and warrant certificate, as applicable,
and any supplemental agreements applicable to a particular series of warrants that we may offer under this prospectus. We urge
you to read the applicable prospectus supplement related to the particular series of warrants that we may offer under this prospectus,
as well as any related free writing prospectus, and the complete form of warrant and/or the warrant agreement and warrant certificate,
as applicable, and any supplemental agreements, that contain the terms of the warrants.
General
We will describe in the applicable prospectus supplement the
terms of the series of warrants being offered, including, to the extent applicable:
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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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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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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 amount of warrants or rights outstanding;
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the effect of any merger, consolidation, sale or other disposition of our business on the warrant
agreements and the warrants;
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the terms of any rights to redeem or call the warrants;
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the terms of any rights to force the exercise of the warrants;
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any provisions for changes to or adjustments in the exercise price or number of securities issuable
upon exercise of the warrants;
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the dates on which the right to exercise the warrants will commence and expire;
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the manner in which the warrant agreements and warrants may be modified;
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a discussion of material or special U.S. federal income tax considerations 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.
The warrants may be exercised as set forth in the prospectus supplement relating to the warrants offered. Unless we otherwise specify
in the applicable prospectus supplement, warrants may be exercised at any time up to the specified time on the expiration date
that we set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants
will become void.
Unless we otherwise specify in the applicable prospectus supplement,
holders of the warrants may exercise the warrants by delivering the warrant or warrant certificate, as applicable, 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 in the applicable warrant or warrant certificate
and in the applicable prospectus supplement the information that the holder of the warrant will be required to deliver to the warrant
agent in connection with the exercise of the warrant.
Upon receipt of the required payment and the warrant or warrant
certificate, as applicable, properly completed and duly executed at the corporate trust office of the warrant agent, if any, or
any other office, including ours, indicated in the prospectus supplement, we will, as soon as practicable, issue and deliver the
securities purchasable upon such exercise. If less than all of the warrants (or the warrants represented by such warrant certificate)
are exercised, a new warrant or a new warrant certificate, as applicable, will be issued for the remaining 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.
Governing Law
Unless we provide otherwise
in the applicable prospectus supplement, the warrants, warrant agreements, and any claim, controversy or dispute arising under
or related to the warrants or warrant agreements will be governed by and construed in accordance with the laws of the State of
New York.
Enforceability of
Rights by Holders of Warrants
Each warrant agent, if any,
will act solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship of agency
or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of warrants.
A warrant agent will have no duty or responsibility in case of any default by us under the applicable warrant agreement or warrant,
including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder
of a warrant may, without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal
action its right to exercise, and receive the securities purchasable upon exercise of, its warrants.
Outstanding Warrants
Certain of our outstanding warrants
contain customary net exercise provisions and provisions for the adjustment of the exercise price and the number of shares issuable
upon the exercise of the warrant in the event of certain stock dividends, stock splits, recapitalizations, reclassifications, consolidations
and other fundamental transactions.
DESCRIPTION OF RIGHTS
General
We may issue rights to our
stockholders to purchase shares of our common stock, preferred stock or the other securities described in this prospectus. We may
offer rights separately or together with one or more additional rights, debt securities, preferred stock, common stock, warrants
or any combination of those securities in the form of units, as described in the applicable prospectus supplement. Each series
of rights will be issued under a separate rights agreement to be entered into between us and a bank or trust company, as rights
agent. The rights agent will act solely as our agent in connection with the certificates relating to the rights of the series of
certificates and will not assume any obligation or relationship of agency or trust for or with any holders of rights certificates
or beneficial owners of rights. The following description sets forth certain general terms and provisions of the rights to which
any prospectus supplement may relate. The particular terms of the rights to which any prospectus supplement may relate and the
extent, if any, to which the general provisions may apply to the rights so offered will be described in the applicable prospectus
supplement. To the extent that any particular terms of the rights, rights agreement or rights certificates described in a prospectus
supplement differ from any of the terms described below, then the terms described below will be deemed to have been superseded
by that prospectus supplement. We encourage you to read the applicable rights agreement and rights certificate for additional information
before you decide whether to purchase any of our rights. We will provide in a prospectus supplement the following terms of the
rights being issued:
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the date of determining the stockholders entitled to the rights distribution;
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the aggregate number of shares of common stock, preferred stock or other securities purchasable upon
exercise of the rights;
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the aggregate number of rights issued;
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whether the rights are transferrable and the date, if any, on and after which the rights may be separately
transferred;
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the date on which the right to exercise the rights will commence, and the date on which the right
to exercise the rights will expire;
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the method by which holders of rights will be entitled to exercise;
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the conditions to the completion of the offering, if any;
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the withdrawal, termination and cancellation rights, if any;
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whether there are any backstop or standby purchaser or purchasers and the terms of their commitment,
if any;
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whether stockholders are entitled to oversubscription rights, if any;
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any applicable material U.S. federal income tax considerations; and
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any other terms of the rights, including terms, procedures and limitations relating to the distribution,
exchange and exercise of the rights, as applicable.
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Each right will entitle
the holder of rights to purchase for cash the principal amount of shares of common stock, preferred stock or other securities at
the exercise price provided in the applicable prospectus supplement. Rights may be exercised at any time up to the close of business
on the expiration date for the rights provided in the applicable prospectus supplement.
Holders may exercise rights
as described in the applicable prospectus supplement. Upon receipt of payment and the rights certificate properly completed and
duly executed at the corporate trust office of the rights agent or any other office indicated in the prospectus supplement, we
will, as soon as practicable, forward the shares of common stock, preferred stock or other securities, as applicable, purchasable
upon exercise of the rights. If less than all of the rights issued in any rights offering are exercised, we may offer any unsubscribed
securities directly to persons other than stockholders, to or through agents, underwriters or dealers or through a combination
of such methods, including pursuant to standby arrangements, as described in the applicable prospectus supplement.
Rights Agent
The rights agent for any
rights we offer will be set forth in the applicable prospectus supplement.
DESCRIPTION OF UNITS
The following description,
together with the additional information that we include in any applicable prospectus supplement and in any free writing prospectus
that we may authorize to be distributed to you, 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.
We will incorporate by reference
from reports 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 may offer under this prospectus, as well as any related free writing prospectuses
and the complete unit agreement and any supplemental agreements that contain the terms of the units.
General
We may issue units consisting
of common stock, preferred stock, one or more debt securities, warrants or rights for the purchase of common stock, preferred stock
and/or debt securities in one or more series 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 security included in the unit. The unit agreement under which a unit is issued may provide that the securities included in
the unit may not be held or transferred separately, at any time or at any time before a specified date.
We will describe in the
applicable prospectus supplement the terms of the series of units being offered, 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 set forth in any prospectus supplement or as described under “Description of Common Stock,”
“Description of Preferred Stock,” “Description of Debt Securities,” “Description of Warrants”
and “Description of Rights” will apply to each unit, as applicable, and to any common stock, preferred stock, debt
security, warrant or right included in each unit, as applicable.
Unit Agent
The name and address of
the unit agent, if any, for any units we offer will be set forth in the applicable prospectus supplement.
Issuance in Series
We may issue units in such
amounts and in such 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.
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, 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. Securities issued in global form will be registered
in the name of the depositary or its participants. Consequently, for securities issued in global form, 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 in non-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 applicable 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 holders, of those securities.
Legal Holders
Our obligations, as well
as the obligations of any applicable trustee and of any third parties 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 legal holder, we have no further responsibility for the payment or notice even if that legal
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 legal 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 the 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 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 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, 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 in global form only, 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
The rights of an indirect
holder 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 in the form of a global security, 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, broker or other financial
institution 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 a 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 a global security;
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we and any applicable trustee have no responsibility for any aspect of the depositary’s actions
or for its records of ownership interests in a global security, nor do we or any applicable trustee 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 a global security within its book-entry system use immediately available funds, and your bank, broker or other financial institution
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 a global security, may also have their own policies affecting payments, notices and other matters
relating to the securities.
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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, the 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, brokers or other financial institutions to find out how to have their interests in securities
transferred to their own name, so that they will be direct holders. We have described the rights of holders and street name investors
above.
Unless we provide otherwise
in the applicable prospectus supplement, the 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 applicable prospectus supplement. When a global security terminates, the depositary, and not we or
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 our securities
from time to time:
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to or through underwriters;
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directly to one or more purchasers;
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ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
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block trades in which the broker-dealer will attempt to sell the shares as agent but may position
and resell a portion of the block as principal to facilitate the transaction;
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purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
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an exchange distribution in accordance with the rules of the applicable exchange; or
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through a combination of any of these methods or any other method permitted by law.
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We may directly solicit
offers to purchase securities, or agents may be designated to solicit such offers. In any applicable prospectus supplement relating
to such offering, we will name any agent that could be viewed as an underwriter under the Securities Act and describe any commissions
that we must pay to any such agent. Any such agent will be acting on a best efforts basis for the period of its appointment or,
if indicated in the applicable prospectus supplement, on a firm commitment basis. This prospectus may be used in connection with
any offering of our securities through any of these methods or other methods described in the applicable prospectus supplement.
The distribution of our
securities may be effected from time to time in one or more transactions:
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at a fixed price, or prices, which may be changed from time to time;
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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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Each prospectus supplement
will describe the method of distribution of the securities and any applicable restrictions.
A prospectus supplement
or supplements (and any related free writing prospectus that we may authorize to be provided to you with respect to a particular
offering) will describe the terms of the offering of our securities, including the following:
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the name or names of the agent or any underwriters;
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the public offering or purchase price of the securities or other consideration therefor, and the proceeds,
if any, 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 commissions to be allowed or paid to the agent or underwriters;
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all other items constituting underwriting compensation;
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any discounts and commissions to be allowed or paid to dealers; and
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any securities exchange or market on which the securities will be listed.
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If any underwriters or agents are used
in the sale of our securities in respect of which this prospectus is delivered, we will enter into an underwriting agreement,
sales agreement or other agreement with them at the time of sale to them, and we will set forth in the applicable prospectus supplement
relating to such offering the names of the underwriters or agents and the terms of the related agreement with them.
In connection with the
offering of securities, we may grant to the underwriters an option to purchase additional securities with an additional underwriting
commission, as may be set forth in the applicable prospectus supplement.
If a dealer is used in
the sale of the securities in respect of which the prospectus is delivered, we will sell such securities to the dealer, as principal.
The dealer, who may be deemed to be an “underwriter” as that term is defined in the Securities Act, may then resell
such securities to the public at varying prices to be determined by such dealer at the time of resale.
We may provide agents
and underwriters with indemnification against civil liabilities, including liabilities under the Securities Act, or contribution
with respect to payments that the agents or underwriters may make with respect to those liabilities.
If so indicated in the
applicable prospectus supplement, we will authorize underwriters or other persons acting as agents to solicit offers by certain
institutions to purchase securities from us pursuant to delayed delivery contracts providing for payment and delivery on the date
stated in the applicable prospectus supplement. Each contract will be for an amount not less than, and the aggregate amount of
securities sold pursuant to such contracts shall not be less nor more than, the respective amounts stated in the applicable prospectus
supplement. Institutions with whom the contracts, when authorized, may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable institutions and other institutions. Delayed delivery
contracts will not be subject to any conditions except that:
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the purchase by an institution of the securities covered under that contract shall not at the time
of delivery be prohibited under the laws of the jurisdiction to which that institution is subject; and
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if the securities are also being sold to underwriters acting as principals for their own account,
the underwriters shall have purchased such securities not sold for delayed delivery.
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Offered securities may
also be offered and sold, if so indicated in the applicable prospectus supplement, in connection with a remarketing upon their
purchase, in accordance with a redemption or repayment pursuant to their terms, or otherwise, by one or more remarketing firms,
acting as principals for their own accounts or as agents for us. Any remarketing firm will be identified and the terms of its agreement,
if any, with us and its compensation will be described in the applicable prospectus supplement. Remarketing firms may be deemed
to be underwriters in connection with their remarketing of offered securities.
Certain agents, underwriters
and dealers, and their associates and affiliates, may be customers of, have borrowing relationships with, engage in other transactions
with, or perform services, including investment banking services, for us or one or more of our respective affiliates in the ordinary
course of business for which they receive compensation.
In order to facilitate
the offering of our securities, any underwriters may engage in transactions that stabilize, maintain or otherwise affect the price
of the securities or any other securities the prices of which may be used to determine payments on such securities. Specifically,
any underwriters may overallot in connection with the offering, creating a short position for their own accounts. In addition,
to cover overallotments or to stabilize the price of the securities or of any such other securities, the underwriters may bid for,
and purchase, the securities or any such other securities in the open market. Finally, in any offering of our securities through
a syndicate of underwriters, the underwriting syndicate may reclaim selling concessions allowed to an underwriter or a dealer for
distributing the securities in the offering if the syndicate repurchases previously distributed securities in transactions to cover
syndicate short positions, in stabilization transactions or otherwise. Any of these activities may stabilize or maintain the market
price of the securities above independent market levels. Any such underwriters are not required to engage in these activities and
may end any of these activities at any time.
We may engage in at the
market offerings into an existing trading market in accordance with Rule 415(a)(4) under the Securities Act. In addition,
we may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties
in privately negotiated transactions. If the applicable prospectus supplement so indicates, in connection with those derivatives,
the third parties may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale
transactions. If so, the third party may use securities pledged by us or borrowed from us or others to settle those sales or to
close out any related open borrowings of stock, and may use securities received in settlement of those derivatives to close out
any related open borrowings of stock. The third party in such sale transactions will be an underwriter and, if not identified in
this prospectus, will be named in the applicable prospectus supplement (or a post-effective amendment). In addition, we may otherwise
loan or pledge securities to a financial institution or other third party that in turn may sell the securities short using this
prospectus and an applicable prospectus supplement. Such financial institution or other third party may transfer its economic short
position to investors in our securities or in connection with a concurrent offering of other securities.
Under Rule 15c6-1
of the Exchange Act, trades in the secondary market generally are required to settle in two business days, unless the parties to
any such trade expressly agree otherwise. The applicable prospectus supplement may provide that the original issue date for your
securities may be more than two scheduled business days after the trade date for your securities. Accordingly, in such a case,
if you wish to trade securities on any date prior to the second business day before the original issue date for your securities,
you will be required, by virtue of the fact that your securities initially are expected to settle in more than two scheduled business
days after the trade date for your securities, to make alternative settlement arrangements to prevent a failed settlement.
The specific terms of
any lock-up provisions in respect of any given offering will be described in the applicable prospectus supplement.
The anticipated date
of delivery of offered securities will be set forth in the applicable prospectus supplement relating to each offer.
LEGAL MATTERS
Mintz, Levin, Cohn, Ferris, Glovsky and
Popeo, P.C., New York, New York, will pass upon the validity of the securities offered hereby unless otherwise indicated in the
applicable prospectus supplement. Any underwriters will also be advised about the validity of the securities and other legal matters
by their own counsel, which will be named in the applicable prospectus supplement.
EXPERTS
Our consolidated financial statements appearing in our Annual Report on Form 10-K for the years ended December 31, 2018 and 2017, have been audited by Moss Adams LLP, an independent registered
public accounting firm, as stated in their report, which is incorporated herein by reference. Such consolidated financial statements
have been so incorporated in reliance upon the report of such firm (which report expresses an unqualified opinion and includes
an explanatory paragraph regarding the Company’s going concern uncertainty) given upon their authority as experts in auditing
and accounting.
WHERE YOU CAN FIND
MORE INFORMATION
We are a reporting company and file annual, quarterly and current
reports, proxy statements and other information with the SEC. This prospectus is part of
the registration statement on Form S-3 we filed with the SEC under the Securities Act and does not contain all the information
set forth or incorporated by reference in the registration statement. Whenever a reference is made in this prospectus to any of
our contracts, agreements or other documents, the reference may not be complete and you should refer to the exhibits that are
a part of the registration statement or the exhibits to the reports or other documents incorporated by reference into this prospectus
for a copy of such contract, agreement or other document. You may read and copy the registration statement, as well
as our reports, proxy statements and other information, at the SEC’s Public Reference Room at 100 F Street, N.E., Washington,
D.C. 20549. Please call the SEC at 1-800-SEC-0330 for more information about the operation of the public reference room. The SEC
also maintains an Internet site that contains reports, proxy and information statements and other information regarding issuers
that file electronically with the SEC, including SELLAS Life Sciences Group, Inc. The SEC’s Internet site can be found at
www.sec.gov. We maintain a website at www.sellaslife.com. Information found on, or accessible through, our website is not a part
of, and is not incorporated into, this prospectus, or any prospectus supplement, and you should not consider it part of this prospectus
or any prospectus supplement.
INCORPORATION BY REFERENCE
The SEC allows us to incorporate
by reference the information we file with it, which means that we can disclose important information to you by referring you to
another document that we have filed separately with the SEC. You should read the information incorporated by reference because
it is an important part of this prospectus and the applicable prospectus supplement. Information in this prospectus supersedes
information incorporated by reference that we filed with the SEC prior to the date of this prospectus, while information that we
file later with the SEC will automatically update and supersede the information in this prospectus and the applicable prospectus
supplement. We incorporate by reference into this prospectus and the registration statement of which this prospectus is a part
the information or documents listed below that we have filed with the SEC (Commission File No. 001-33958):
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our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2019 and June 30, 2019, filed
on May 15, 2019 and August 14, 2019, respectively;
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our Current Reports on Form 8-K, filed with the SEC on January 7, 2019, February 26, 2019, March 6, 2019, May 31, 2019, June 18, 2019, July 2, 2019, July 9, 2019, July 15, 2019, July 18, 2019, and September 10, 2019 (except for
the information furnished under Items 2.02 or 7.01 and the exhibits furnished thereto); and
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We also incorporate by reference
any future filings (other than the portions of current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and
exhibits filed on such form that are related to such items unless such Form 8-K expressly provides to the contrary) made with the
SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, including those made after the date of the initial
filing of the registration statement of which this prospectus is a part and prior to effectiveness of such registration statement,
until we file a post-effective amendment that indicates the termination of the offering of the common stock made by this prospectus
and will become a part of this prospectus from the date that such documents are filed with the SEC. Information in such future
filings updates and supplements the information provided in this prospectus and any applicable prospectus supplement. Any statements
in any such future filings will automatically be deemed to modify and supersede any information in any document we previously filed
with the SEC that is incorporated or deemed to be incorporated herein by reference to the extent that statements in the later filed
document modify or replace such earlier statements.
We will furnish without
charge to each person, including any beneficial owner, to whom a prospectus and applicable prospectus supplement is delivered,
upon written or oral request, a copy of any or all of the documents incorporated by reference into this prospectus but not delivered
with the prospectus and applicable prospectus supplement, including exhibits that are specifically incorporated by reference into
such documents. You should direct any requests for documents to SELLAS Life Sciences Group, Inc., Attention: Corporate Secretary,
15 West 38th Street, 10th Floor, New York, New York 10018. Our phone number is (917) 438-4353.
PART II
INFORMATION NOT REQUIRED
IN THE PROSPECTUS
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Item 14.
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Other Expenses of Issuance and Distribution
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The following table sets
forth an estimate of the fees and expenses payable by us, other than underwriting discounts and commissions, in connection with
the sale and distribution of the securities being registered hereby. All the amounts shown are estimates, except for the SEC registration
fee.
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Amount
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SEC registration fee
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$
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6,060
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Accounting fees and expenses
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(1)
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Legal fees and expenses
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(1)
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Transfer agent and registrar fees and expenses
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(1)
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Printing and miscellaneous fees and expenses
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(1)
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Total
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$
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(1)
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(1)
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These fees are calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at
this time.
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Item 15.
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Indemnification of Directors and Officers
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As permitted by Section 102 of the DGCL, we have adopted provisions
in our amended and restated certificate of incorporation and amended and restated bylaws, each as amended, which limit or eliminate
the personal liability of our directors for a breach of their fiduciary duty of care as a director. The duty of care generally
requires that, when acting on behalf of the corporation, directors exercise an informed business judgment based on all material
information reasonably available to them. Consequently, a director will not be personally liable to us or our stockholders for
monetary damages for breach of fiduciary duty as a director, except for liability for:
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any breach of the director’s duty of loyalty to us or our stockholders;
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any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;
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any act related to unlawful stock repurchases, redemptions or other distributions or payment of dividends; or
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any transaction from which the director derived an improper personal benefit.
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These limitations of liability do not affect the availability
of equitable remedies such as injunctive relief or rescission. Our amended and restated certificate of incorporation also authorizes
us to indemnify our officers, directors and other agents to the fullest extent permitted under Delaware law.
As permitted by Section 145 of the DGCL, our amended and restated
bylaws, as amended, provide that:
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we may indemnify our directors, officers and employees to the fullest extent permitted by the DGCL, subject to limited exceptions;
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we may advance expenses to our directors, officers and employees in connection with a legal proceeding to the fullest extent
permitted by the DGCL, subject to limited exceptions; and
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the rights provided in our amended and restated bylaws are not exclusive.
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Our amended and restated certificate of incorporation and bylaws,
each as amended, which are filed as Exhibits 3.1 and 3.3, provide for the indemnification provisions described above and elsewhere
herein. We have entered into separate indemnification agreements with our directors and officers that may be broader than the specific
indemnification provisions contained in the DGCL. These indemnification agreements generally require us, among other things, to
indemnify our officers and directors against liabilities that may arise by reason of their status or service as directors or officers,
other than liabilities arising from willful misconduct. These indemnification agreements also generally require us to advance any
expenses incurred by the directors or officers as a result of any proceeding against them as to which they could be indemnified.
In addition, we have purchased a policy of directors’ and officers’ liability insurance that insures our directors
and officers against the cost of defense, settlement or payment of a judgment in some circumstances. These indemnification provisions
and the indemnification agreements may be sufficiently broad to permit indemnification of our officers and directors for liabilities,
including reimbursement of expenses incurred, arising under the Securities Act.
We have entered into indemnification agreements with our directors
and executive officers, in addition to the indemnification provided for in our amended and restated certificate of incorporation
and amended and restated bylaws, and intend to enter into indemnification agreements with any new directors and executive officers
in the future.
We have purchased and currently intend to maintain insurance
on behalf of each and every person who is or was a director or officer of our company against any loss arising from any claim asserted
against him or her and incurred by him or her in any such capacity, subject to certain exclusions.
The following exhibits are filed as part of this Registration
Statement on Form S-3 or are incorporated herein by reference.
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Exhibit No.
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Description
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1.1**
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Form of Underwriting
Agreement
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3.1
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Composite Amended and Restated Certificate of Incorporation of SELLAS Life Sciences Group, Inc. (formerly, Galena Biopharma, Inc.) (incorporated by reference to Exhibit 3.1 to the registrant’s annual report on Form 10-K for the year ended December 31, 2017, filed on April 13, 2018)
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3.2
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Certificate of Designation of Preferences, Rights and Limitations of Series A Convertible Preferred Stock of SELLAS Life Sciences Group, Inc. (incorporated by reference to Exhibit 3.1 to the registrant’s current report on Form 8-K filed on March 12, 2018)
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3.3
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Amended and Restated Bylaws of SELLAS Life Sciences Group, Inc. (incorporated by reference to Exhibit 3.3 to the registrant’s current report on Form 8-K filed on January 5, 2018)
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4.1
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Form of Common Stock Certificate (incorporated by reference to Exhibit 4.1 to the registrant’s annual report on Form 10-K filed on April 13, 2018)
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4.2**
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Specimen Preferred Stock Certificate and Form of Certificate of Designation of Preferred Stock
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4.3**
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Form
of Senior Debt Security
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4.4**
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Form of Subordinated Debt Security
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4.5*
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Form
of Senior Indenture
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4.6*
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Form
of Subordinated Indenture
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4.7**
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Form of Warrant Agreement and Warrant Certificate
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4.8**
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Form of Unit Agreement and Unit
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4.9**
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Form of Rights Agreement and Right Certificate
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5.1*
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Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
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23.1*
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Consent of Moss Adams, LLP
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23.2*
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Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (included in Exhibit 5.1)
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24.1
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Power of Attorney (included on signature page)
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25.1***
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Statement of Eligibility of Trustee under the Indenture
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*
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Filed herewith.
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**
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To be filed by amendment or as an exhibit to a current report on Form 8-K and incorporated by reference, if applicable.
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***
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To be filed separately under electronic form type 305B2 under Rule 305(b)(2) of the Trust Indenture Act, if applicable.
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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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% 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
(1)(i), (1)(ii) and (1)(iii) of this section do not apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained
in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(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.
(4) That, for the purpose of determining
liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant
pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed
part of and included in the registration statement; and
(ii) Each prospectus required to be filed
pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the
Securities Act 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.
(5) 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.
(6) That,
for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(7) To
file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of
the Trust Indenture Act in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Trust
Indenture Act.
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 SEC such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3
and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of New York, New York, on September 20, 2019.
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SELLAS LIFE SCIENCES GROUP, INC.
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By:
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/s/ Angelos M. Stergiou
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Angelos M. Stergiou, M.D., ScD h.c
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President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person
whose signature appears below hereby severally constitutes and appoints Angelos M. Stergiou and Barbara Wood, and each of them
singly, as such person’s true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution,
for such person and in such person’s name, place and stead, in any and all capacities, to sign any and all amendments (including,
without limitation, post-effective amendments) to this registration statement (or any registration statement for the same offering
that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933), and to file the same, with all exhibits
thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting unto each said attorney-in-fact
and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about
the premises, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming
all that any said attorney-in-fact and agent, or any substitute or substitutes of any of them, may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Angelos M. Stergiou
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President, Chief Executive Officer and Director
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September 20, 2019
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Angelos M. Stergiou, M.D., ScD h.c.
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(Principal Executive Officer and Principal Financial Officer)
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/s/ John Burns
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Vice President, Finance and Corporate
Controller
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September 20, 2019
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John Burns, C.P.A.
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(Interim Principal Accounting Officer)
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/s/ Jane
Wasman
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Chair of the Board
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September 20, 2019
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Jane Wasman
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/s/ David Scheinberg
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Director
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September 20, 2019
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David Scheinberg, M.D.
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/s/ Robert Van Nostrand
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Director
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September 20, 2019
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Robert Van Nostrand
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/s/ John Varian
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Director
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September 20, 2019
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John Varian
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Exhibit 4.5
SELLAS LIVE SCIENCES GROUP, INC.
Issuer
AND
[
]
Trustee
INDENTURE
Dated as of [
]
Senior Debt Securities
CROSS-REFERENCE TABLE (1)
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Section of Trust Indenture Act of 1939, as Amended
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Section of
Indenture
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310(a).
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7.09
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310(b).
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7.08
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7.10
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310(c).
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Inapplicable
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311(a).
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7.13(a)
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311(b).
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7.13(b)
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311(c).
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Inapplicable
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312(a)
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5.02(a)
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312(b).
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5.02(b)
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312(c).
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5.02(c)
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313(a).
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5.04(a)
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313(b).
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5.04(a)
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313(c).
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5.04(a)
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5.04(b)
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313(d).
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5.04(b)
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314(a).
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5.03
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314(b).
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Inapplicable
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314(c).
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13.06
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314(d).
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Inapplicable
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314(e).
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13.06
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314(f).
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Inapplicable
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315(a).
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|
7.01(a)
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|
|
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7.02
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315(b).
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6.07
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315(c).
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7.01
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315(d).
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7.01(b)
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7.01(c)
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315(e).
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6.07
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316(a).
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6.06
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8.04
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316(b).
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6.04
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316(c).
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8.01
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317(a).
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6.02
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317(b).
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4.03
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318(a).
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13.08
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(1) This Cross-Reference Table does not constitute part of the
Indenture and shall not have any bearing on the interpretation of any of its terms or provisions.
TABLE OF CONTENTS (2)
(2) 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 and provisions.
INDENTURE, dated as of [
], by and between SELLAS Life Sciences Group, Inc., a Delaware corporation (the “Company”), and [
], 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
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SECTION 1.01
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Definitions of Terms.
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The terms defined in this Section (except as in this Indenture
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 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 with respect to all or any series of the Securities 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 and
State of New York, are authorized or obligated by law, executive order or regulation to close.
“Certificate” means a certificate signed by the
principal executive officer, the principal financial officer or the principal accounting officer of the Company. The Certificate
need not comply with the provisions of Section 13.07.
“Commission” means the Securities and Exchange Commission.
“Company” means the corporation named as the “Company”
in the first paragraph of this instrument until a successor corporation shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter “Company” shall mean such successor corporation.
“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 [ ], except that
whenever a provision herein refers to an office or agency of the Trustee in the Borough of Manhattan, the City and State of New
York, such office is located, at the date hereof, at [
].
“Custodian” means any receiver, trustee, assignee,
liquidator, or similar official under any Bankruptcy Law. “Default” means an event which is, or after notice or lapse
of time, or both, would constitute an Event of Default.
“Depositary” means, with respect to Securities of
any series, for which the Company shall determine that such Securities will be issued as a Global Security, The Depository Trust
Company, New York, New York, another clearing agency, or any successor registered as a clearing agency under the 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 Section 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 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 this Indenture, which shall be registered in the name of the Depositary or its nominee.
“Governmental Obligations” means securities that
are (i) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America,
the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America that,
in either case, are non-callable at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank
(as defined in Section 3(a)(2) of the Securities Act of 1933, as amended) 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.
“Officers’ Certificate” means a certificate
signed by the President or a Vice President and by the Chief Financial Officer, Vice President of Finance, the Treasurer or an
Assistant Treasurer or the Controller or an Assistant Controller or the Secretary or an Assistant Secretary of the Company that
is delivered to the Trustee in accordance with the terms hereof. 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 a written opinion of
counsel, who may be counsel to the Company (and may include directors or employees of the Company) and which opinion is acceptable
to the Trustee which acceptance shall not be unreasonably withheld.
“Outstanding”, when used with reference to Securities
of any series, means, subject to the provisions of Section 8.04, as of any particular time, all Securities of that series theretofore
authenticated and delivered by the Trustee under this Indenture, except (a) Securities theretofore canceled by the Trustee or any
paying agent, or delivered to the Trustee or any paying agent for cancellation or that have previously been canceled; (b) Securities
or portions thereof for the payment or redemption of which moneys or Governmental Obligations in the necessary amount shall have
been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been set aside and segregated
in trust by the Company (if the Company shall act as its own paying agent); provided, however, that if such Securities or portions
of such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as in Article
III provided, or provision satisfactory to the Trustee shall have been made for giving such notice; and (c) Securities in lieu
of or in substitution for which other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.07.
“Person” means any individual, corporation, limited
liability company, partnership, joint-venture, association, joint-stock company, trust, estate, unincorporated organization or
government or any agency or political subdivision 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 mutilated, destroyed,
lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
“Responsible Officer,” when used with respect to
the Trustee, means any officer of the Trustee, including any vice president, assistant vice president, secretary, assistant secretary,
the treasurer, any assistant treasurer, the managing director or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the
particular subject.
“Securities” means the debt Securities authenticated
and delivered under this Indenture.
“Security Register” has the meaning specified in
Section 2.05.
“Security Registrar” has the meaning specified in
Section 2.05.
“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 in the Security Register.
“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 the Person named as the “Trustee”
in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter “Trustee” shall mean such successor Trustee. 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, subject to the provisions of Sections 9.01, 9.02, and 10.01, as in effect at the date of execution of
this instrument; provided, however, that in the event the Trust Indenture Act is amended after such date, Trust Indenture Act means,
to the extent required by such amendment, the Trust Indenture Act of 1939, as so amended, or any successor statute.
“Voting Stock,” as applied to 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
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SECTION 2.01
|
Designation and Terms of Securities.
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(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 of the Company or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of Securities of a given series, there shall be established in or pursuant to a Board Resolution of the Company, and set forth in an Officers’ Certificate of the Company, or established in one or more indentures supplemental hereto:
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(1)
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the title of the Security of the series (which shall distinguish the Securities of the series from all other Securities);
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(2)
|
the aggregate principal amount of the Securities of such series initially to be issued and 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);
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(3)
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the currency or units based on or relating to currencies in which debt securities of such series are denominated and the currency or units in which principal or interest or both will or may be payable;
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(4)
|
the date or dates on which the principal of the Securities of the series is payable and the place(s) of payment;
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(5)
|
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;
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(6)
|
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 method for determining such dates;
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(7)
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the right, if any, to extend the interest payment periods or to defer the payment of interest and the duration of such extension;
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(8)
|
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;
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(9)
|
the obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund 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;
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(10)
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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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(11)
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the form of the Securities of the series including the form of the Certificate of Authentication for such series;
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(12)
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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;
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(13)
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any and all other terms 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;
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(14)
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whether the Securities are issuable as a Global Security and, in such case, the identity of the Depositary for such series;
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(15)
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whether the Securities will be convertible into shares of common stock or other securities of the Company and, if so, the terms and conditions upon which such Securities will be so convertible, including the conversion price and the conversion period;
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(16)
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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; and
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(17)
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any additional or different Events of Default or restrictive covenants provided for with respect to the Securities of the series.
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All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant to any such Board Resolution or in any indentures
supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution of the Company, a copy of an appropriate record of such action shall be certified by the Secretary
or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers’ Certificate
of the Company setting forth the terms of the series.
Securities of any particular series may be issued at various
times, with different dates on which the principal or any installment of principal is payable, with different rates of interest,
if any, or different methods by which rates of interest may be determined, with different dates on which such interest may be payable
and with different redemption dates.
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SECTION 2.02
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Form of Securities and Trustee’s Certificate.
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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 of the Company and as set forth in an Officers’ Certificate of the
Company and 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 stock exchange on which Securities of that series may be listed, or to conform to usage.
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SECTION 2.03
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Denominations: Provisions for Payment.
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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)(12). The
Securities of a particular series shall bear interest payable on the dates and at the rate specified with respect to that series.
The principal of and the interest on the Securities of any series, as well as any premium thereon in case of redemption thereof
prior to maturity, shall be payable in the coin or currency of the United States of America that at the time is legal tender for
public and private debt, at the office or agency of the Company maintained for that purpose in the Borough of Manhattan, the City
and State of New York. Each Security shall be dated the date of its authentication. Interest on the Securities shall be computed
on the basis of a 360-day year composed of twelve 30-day months.
The interest installment on any Security that is payable, and
is punctually paid or duly provided for, on any Interest Payment Date for Securities of that series shall be paid to the Person
in whose name said Security (or one or more Predecessor Securities) is registered at the close of business on the regular record
date for such interest installment. In the event that any Security of a particular series or portion thereof is called for redemption
and the redemption date is subsequent to a regular record date with respect to any Interest Payment Date and prior to such Interest
Payment Date, interest on such Security will be paid upon presentation and surrender of such Security as provided in Section 3.03.
Any interest on any Security that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date for Securities of the same series (herein called “Defaulted Interest”)
shall forthwith cease to be payable to the registered holder on the relevant regular record date by virtue of having been such
holder; and such Defaulted Interest shall be paid by the Company, at its election, as provided in clause (1) or clause (2) below:
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(1)
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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, 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.
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(2)
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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.
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Unless otherwise set forth in a Board Resolution of the Company
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 with respect to 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 last 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 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.
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SECTION 2.04
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Execution and Authentications.
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The Securities shall be signed on behalf of the Company by its
President, or one of its Vice Presidents, or its Treasurer, or one of its Assistant Treasurers, or its Secretary, or one of its
Assistant Secretaries, under its corporate seal attested by its Secretary or one of its Assistant Secretaries. 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 a
President or Vice President thereof, or of any Person who shall have been a Treasurer or Assistant Treasurer thereof, or of any
Person who shall have been a Secretary or Assistant Secretary thereof, notwithstanding the fact that at the time the Securities
shall be authenticated and delivered or disposed of such Person shall have ceased to be the President or a Vice President, the
Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary, of the Company. The seal of the Company may be
in the form of a facsimile of such seal and may be impressed, affixed, imprinted or otherwise reproduced on the Securities. 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.
A Security shall not be valid or obligatory for any purpose
and shall not be entitled to any benefit under this Indenture, in each case, until authenticated with a certificate of authentication
manually signed by an authorized signatory of the Trustee, or by an Authenticating Agent. Such certificate shall be conclusive
evidence, and the only evidence, that the Security so authenticated has been duly authenticated and delivered hereunder and that
the Security 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 its President or
any Vice President and its Secretary or any Assistant Secretary, and the Trustee in accordance with such written order shall authenticate
and deliver such Securities.
In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to
Section 7.01) shall be fully protected in relying upon, an Opinion of Counsel stating that the form and terms thereof have been
established in conformity with the provisions of this Indenture.
The Trustee shall not be required to authenticate such Securities
if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under
the Securities and this Indenture or otherwise in a manner that is not reasonably acceptable to the Trustee.
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SECTION 2.05
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Registration of Transfer and Exchange.
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(a)
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Securities of any series may be exchanged upon presentation thereof at the office or agency of the Company designated for such purpose in the Borough of Manhattan, the City and State of New York, for other Securities of such series of authorized denominations, and for a like aggregate principal amount, upon payment of a sum sufficient to cover any tax or other governmental charge in relation thereto, all as provided in this Section. In respect of any Securities so surrendered for exchange, the Company shall execute, the Trustee shall authenticate and such office or agency shall deliver in exchange therefor the Security or Securities of the same series that the Securityholder making the exchange shall be entitled to receive, bearing numbers not contemporaneously outstanding.
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(b)
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The Company shall keep, or cause to be kept, at its office or agency designated for such purpose in the Borough of Manhattan, the City and State of New York, or such other location designated by the Company a register or registers (herein referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall register the Securities and the transfers of Securities as in this Article provided and which at all reasonable times shall be open for inspection by the Trustee. The registrar for the purpose of registering Securities and transfer of Securities as herein provided shall be appointed as authorized by Board Resolution (the “Security Registrar”).
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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.
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(c)
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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.
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(d)
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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. The provisions of this Section 2.05 are, with respect to any Global Security, subject to Section 2.11 hereof.
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SECTION 2.06
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Temporary Securities.
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Pending the preparation of definitive Securities of any series,
the Company may execute, and the Trustee shall authenticate and deliver, temporary Securities (printed, lithographed or typewritten)
of any authorized denomination. Such temporary Securities shall be substantially in the form of the definitive Securities in lieu
of which they are issued, but with such omissions, insertions and variations as may be appropriate for temporary Securities, all
as may be determined by the Company. Every temporary Security of any series shall be executed by the Company and be authenticated
by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive Securities
of such series. Without unnecessary delay the Company will execute and will furnish definitive Securities of such series and thereupon
any or all temporary Securities of such series may be surrendered in exchange therefor (without charge to the holders), at the
office or agency of the Company designated for the purpose in the Borough of Manhattan, the City and State of New York, and the
Trustee shall authenticate and such office or agency shall deliver in exchange for such temporary Securities an equal aggregate
principal amount of definitive Securities of such series, unless the Company advises the Trustee to the effect that definitive
Securities need not be executed and furnished until further notice from the Company. Until so exchanged, the temporary Securities
of such series shall be entitled to the same benefits under this Indenture as definitive Securities of such series authenticated
and delivered hereunder.
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SECTION 2.07
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Mutilated, Destroyed, Lost or Stolen Securities.
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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.
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SECTION 2.08
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Cancellation.
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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.
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SECTION 2.09
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Benefits of Indenture.
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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.
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SECTION 2.10
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Authenticating Agent.
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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.
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SECTION 2.11
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Global Securities
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(a)
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If the Company shall establish pursuant to Section 2.01 that some or all of 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, the Outstanding Securities of such series which are to be issued as a Global Security, (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.”
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(b)
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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.
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(c)
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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, this Section 2.11 shall no longer be applicable to the Securities of such series and the Company will execute, and subject to Section 2.05, 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 2.05, the Trustee, upon receipt of an Officers’ Certificate evidencing such determination by the Company, will authenticate and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Security of such series in exchange for such Global Security. Upon the exchange of the Global Security for such Securities in definitive registered form without coupons, in authorized denominations, the Global Security shall be canceled by the Trustee. Such Securities in definitive registered form issued in exchange for the Global Security pursuant to this Section 2.11(c) shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Depositary for delivery to the Persons in whose names such Securities are so registered.
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ARTICLE
III
REDEMPTION OF SECURITIES AND
SINKING FUND PROVISIONS
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.
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SECTION 3.02
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Notice of Redemption.
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(a)
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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 the right reserved so to do, the Company shall, or shall cause the Trustee to, give notice of such redemption to holders of the Securities of such series to be redeemed by mailing, first class postage prepaid, a notice of such redemption not less than 30 days and not more than 90 days before the date fixed for redemption of that series to such holders at their last addresses as they shall appear upon the Security Register unless a shorter period is specified in the Securities to be redeemed. Any notice that is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the registered holder receives the notice. In any case, failure duly to give such notice to the holder of any Security of any series designated for redemption in whole or in part, or any defect in the notice, shall not affect the validity of the proceedings for the redemption of any other Securities of such series or any other series. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers’ Certificate evidencing compliance with any such restriction.
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Each such notice of redemption shall specify the date fixed
for redemption and the redemption price at which Securities of that series are to be redeemed, and shall state that payment of
the redemption price of such Securities to be redeemed will be made at the office or agency of the Company in the Borough of Manhattan,
the City and State of New York, upon presentation and surrender of such Securities, that interest accrued to the date fixed for
redemption will be paid as specified in said notice, that from and after said date interest will cease to accrue and that the redemption
is for a sinking fund, if such is the case. If less than all the Securities of a series are to be redeemed, the notice to the holders
of Securities of that series to be redeemed in whole or 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.
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(b)
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If less than all the Securities of a series are to be redeemed, the Company shall give the Trustee at least 30 days’ notice 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 its President or any Vice President, 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.
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SECTION 3.03
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Payment Upon Redemption.
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(a)
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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).
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(b)
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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.
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SECTION 3.04
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Sinking Fund.
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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.
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SECTION 3.05
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Satisfaction of Sinking Fund Payments with Securities.
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The Company (i) may deliver Outstanding Securities of a series
(other than any Securities previously called for redemption) 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.
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SECTION 3.06
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Redemption of Securities for Sinking Fund.
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Not less than 45 days prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the
next ensuing sinking fund payment for that series pursuant to the terms of the series, the portion thereof, if any, that is to
be satisfied by delivering and crediting Securities of that series pursuant to Section 3.05 and the basis for such credit and will,
together with such Officers’ Certificate, deliver to the Trustee any Securities to be so delivered. Not less than 30 days
before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment
date in the manner specified in Section 3.02 and cause notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 3.02. Such notice having been duly given, the redemption of such Securities shall
be made upon the terms and in the manner stated in Section 3.03.
ARTICLE
IV
COVENANTS
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SECTION 4.01
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Payment of Principal, Premium and Interest.
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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.
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SECTION 4.02
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Maintenance of Office or Agency.
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So long as any series of the Securities remain Outstanding,
the Company agrees to maintain an office or agency in the Borough of Manhattan, the City and State of New York, with respect to
each such series and at such other location or locations as may be designated as provided in this Section 4.02, where (i) Securities
of that series may be presented or surrendered 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 its President or a Vice President 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.
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SECTION 4.03
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Paying Agents.
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(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:
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|
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(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;
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(2)
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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;
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(3)
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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
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(4)
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that it will perform all other duties of paying agent as set forth in this Indenture.
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(b)
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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 with monies held by all other paying agents 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 (an 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.
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(c)
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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 any paying agent to the Trustee, such paying agent shall be released from all further liability with respect to such money.
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SECTION 4.04
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Appointment to Fill Vacancy in Office of Trustee.
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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.
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SECTION 4.05
|
Compliance with Consolidation Provisions.
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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 company unless the provisions of Article X hereof are complied
with.
ARTICLE
V
SECURITYHOLDERS’ LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
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SECTION 5.01
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Company to Furnish Trustee Names and Addresses of Securityholders.
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If the Company is not the Security Register, the Company will
furnish or use reasonable efforts to cause to be furnished to the Trustee (a) on 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.
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SECTION 5.02
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Preservation of Information; Communications with Securityholders.
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(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) and shall otherwise comply with Section 312(a) of the Trust Indenture Act.
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(b)
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The Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.
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(c)
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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.
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SECTION 5.03
|
Reports by the Company.
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(a)
|
The Company covenants and agrees to file with the Trustee, within 15 days after the Company is required to file the same with the 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 Commission may from time to time by rules and regulations prescribe) that the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not required to file information, documents or reports pursuant to either of such sections, then to file with the Trustee and the Commission, in accordance with the rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports that may be required pursuant to Section 13 of the Exchange Act, in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations; 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 Commission. The Company also shall comply with the other provisions of Section 314(a) of the Trust Indenture Act.
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(b)
|
The Company covenants and agrees to file with the Trustee and the Commission, in accordance with the rules and regulations prescribed from to time by the Commission, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants provided for in this Indenture as may be required from time to time by such rules and regulations.
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(c)
|
The Company covenants and agrees to transmit by mail, first class postage prepaid, or reputable over-night delivery service that provides for evidence of receipt, to the Securityholders, as their names and addresses appear upon the Security Register, within 30 days after the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company pursuant to subsections (a) and (b) of this Section as may be required by rules and regulations prescribed from time to time by the Commission.
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SECTION 5.04
|
Reports by the Trustee.
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|
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(a)
|
The Trustee shall transmit to holders as provided in Section 313 of the Trust Indenture Act such reports concerning the Trustee and its actions under this Indenture as may be required by Section 313 of the Trust Indenture Act at the times and in the manner provided by the Trust Indenture Act.
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(b)
|
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 stock exchange upon which any Securities are listed (if so listed) and, if required by Section 313 of the Trust Indenture Act, also with the Commission. The Company agrees to notify the Trustee when any Securities become listed on any stock exchange.
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ARTICLE
VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
|
SECTION 6.01
|
Events of Default.
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(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:
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(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 continuance of such default 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;
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(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;
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(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 not less than a majority in principal amount of the Securities of that series at the time Outstanding;
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(4)
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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
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(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 consecutive days.
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(b)
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In each and every such case, 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 a majority 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 (or, if any Securities of that series are discount securities, that portion of the principal amount as may be specified in the terms of that series pursuant to Section 2.01(a)(16)) of (and premium, if any, on) and accrued and unpaid interest, if any, 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.
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(c)
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At any time after the principal of the Securities of that series shall have been so declared due and payable, and before a 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 (or, by action at a meeting of holders of the Securities of such series in accordance with Section 8.09, the holders of a majority in aggregate principal amount of the Securities of such series then Outstanding represented at such meeting), 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 and (ii) any and all Events of Default under this Indenture with respect to such series, other than the nonpayment of principal of (and premium, if any, on) and accrued and unpaid interest, if any, on Securities of that series that shall have become due solely because of such acceleration, shall have been remedied, cured 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.
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(d)
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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.
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SECTION 6.02
|
Collection of Indebtedness and Suits for Enforcement by Trustee.
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|
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(a)
|
The Company covenants that (1) in case it shall default in the payment of any installment of interest on any of the Securities of a series, or any payment required by any sinking or analogous fund established with respect to that series as and when the same shall have become due and payable, and such default shall have continued for a period of 90 Business Days, or (2) 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.
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(b)
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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 out of the property of the Company or other obligor upon the Securities of that series, wherever situated.
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(c)
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In case of any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or judicial proceedings affected 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 this 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.
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(d)
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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 this 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.
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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 the payment, if only partially paid, and upon surrender thereof if fully paid:
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FIRST:
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To the payment of costs and expenses of collection and of all amounts payable to the Trustee under Section 7.06; and
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|
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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.
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|
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 a majority 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; and (iv) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity,
shall have failed to institute any such action, suit or proceeding and (v) during such 60 day period, the holders of a majority
in principal amount of the Securities of that series (or such amount as shall have acted at a meeting of the holders of Securities
of such series pursuant to the provisions of this Indenture) do not give the Trustee a direction inconsistent with the request;
provided, however, that no one or more of such holders may use this Indenture to prejudice the rights of another holder or to obtain
preference or priority over another holder.
Notwithstanding anything contained herein to the contrary, 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.
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|
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(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 on 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.
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|
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 8.01, 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 or be unduly prejudicial to the rights of holders of Securities of any other series at the time Outstanding
determined in accordance with Section 8.01. 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 would involve the Trustee in personal liability. The holders either (a) through the written consent
of not less than a majority in aggregate principal amount of the Securities of any series at the time Outstanding or (b) by action
at a meeting of holders of the Securities of such series in accordance with Section 8.09, by the holders of a majority in aggregate
principal amount of the Securities of such series then Outstanding represented at such meeting, 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)) and except in
respect a provision hereof which, under Section 9.02, cannot be modified or amended without the consent of the holders of each
Outstanding Security affected; provided however that this Section shall not limit the right of holders of Securities of a series
to rescind and annul any acceleration as set forth in Section 6.01. 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. The provisions which otherwise would be automatically deemed to be contained
in this Indenture pursuant to Section (316)(a)(1) of the Trust Indenture Act are hereby expressly excluded from this Indenture,
except to the extent such provisions are expressly included herein.
|
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
VII
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.
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|
|
(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:
|
|
|
(i)
|
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
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|
|
(ii)
|
in the absence of bad faith on the part of the Trustee, the Trustee may with respect to the Securities of such series conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions that by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirement of this Indenture;
|
|
|
(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 7.02
|
Certain Rights of Trustee.
|
Except as otherwise provided in Section 7.01:
|
|
(a)
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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;
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(b)
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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 the President or any Vice President and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer thereof (unless other evidence in respect thereof is specifically prescribed herein);
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(c)
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The Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted hereunder in good faith and in reliance thereon;
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(d)
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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;
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(e)
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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;
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(f)
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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
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(g)
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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.
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SECTION 7.03
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Trustee Not Responsible for Recitals or Issuance of Securities.
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(a)
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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.
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(b)
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The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities.
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(c)
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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.
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SECTION 7.04
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May Hold Securities.
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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.
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SECTION 7.05
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Moneys Held in Trust.
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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.
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SECTION 7.06
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Compensation and Reimbursement.
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(a)
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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. 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 costs and expenses of defending itself against any claim of liability in the premises.
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(b)
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The obligations of the Company under this Section to compensate and indemnify the Trustee and to pay or reimburse the Trustee for 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.
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SECTION 7.07
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Reliance on Officers’ Certificate.
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Except as otherwise provided in Section 7.01, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering or omitting to take any action hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed
to be conclusively proved and established by an Officers’ Certificate delivered to the Trustee and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered
or omitted to be taken by it under the provisions of this Indenture upon the faith thereof.
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SECTION 7.08
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Disqualification; Conflicting Interests.
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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.
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SECTION 7.09
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Corporate Trustee Required; Eligibility.
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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 Commission, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus
of at least 50 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 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 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.
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SECTION 7.10
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Resignation and Removal; Appointment of Successor.
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(a)
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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.
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(b)
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In case at any time any one of the following shall occur:
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(1)
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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
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(2)
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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
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(3)
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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, unless the Trustee’s duty to resign is stayed as provided herein, 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.
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(c)
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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.
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(d)
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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.
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(e)
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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.
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SECTION 7.11
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Acceptance of Appointment By Successor.
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(a)
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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.
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(b)
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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 (1) 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, (2) 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 (3) 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.
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(c)
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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.
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(d)
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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.
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(e)
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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.
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SECTION 7.12
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Merger, Conversion, Consolidation or Succession to Business.
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Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to the corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided that such corporation shall be qualified under the provisions of Section 7.08 and eligible under the provisions
of Section 7.09, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding. In case any Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication
and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
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SECTION 7.13
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Preferential Collection of Claims Against the Company.
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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.
ARTICLE
VIII
CONCERNING THE SECURITYHOLDERS
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SECTION 8.01
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Evidence of Action by Securityholders.
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Whenever in this Indenture it is provided that the holders of
a majority or specified percentage in aggregate principal amount of the Securities of a particular series may take any action (including
the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the fact that
at the time of taking any such action the holders of such majority or specified percentage of that series have joined therein may
be evidenced by any instrument or any number of instruments of similar tenor executed by such holders of Securities of that series
in Person or by agent or proxy appointed in writing.
If the Company shall solicit from the Securityholders of any
series any request, demand, authorization, direction, notice, consent, waiver or other action, the Company may, at its option,
as evidenced by an Officers’ Certificate, fix in advance a record date for such series for the determination of Securityholders
entitled to give such request, demand, authorization, direction, notice, consent, waiver or other action, but the Company shall
have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver
or other action may be given before or after the record date, but only the Securityholders of record at the close of business on
the record date shall be deemed to be Securityholders for the purposes of determining whether Securityholders of the requisite
proportion of Outstanding Securities of that series have authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other action, and for that purpose the Outstanding Securities of that series shall be computed
as of the record date; provided, however, that no such authorization, agreement or consent by such Securityholders on the record
date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six
months after the record date.
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SECTION 8.02
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Proof of Execution by Securityholders.
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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:
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(a)
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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.
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(b)
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The ownership of Securities shall be proved by the Security Register of such Securities or by a certificate of the Security Registrar thereof.
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(c)
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The Trustee may require such additional proof of any matter referred to in this Section as it shall deem necessary.
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SECTION 8.03
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Who May be Deemed Owners.
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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.
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SECTION 8.04
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Certain Securities Owned by Company Disregarded.
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In determining whether the holders of the requisite aggregate
principal amount of Securities of a particular series have concurred in any direction, consent of 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.
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SECTION 8.05
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Actions Binding on Future Securityholders.
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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.
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SECTION 8.06
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Purposes for Which Meetings May Be Called.
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A meeting of holders of any series of Securities may be called
at any time and from time to time pursuant to this Article to make, give or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be made, given or taken by holders of such series of Securities.
Notwithstanding anything contained in this Article VIII, the
Trustee may, during the pendency of a Default or an Event of Default, call a meeting of holders of any series of Securities in
accordance with its standard practices.
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SECTION 8.07
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Call Notice and Place of Meetings.
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(a)
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The Trustee may at any time call a meeting of holders of any series of Securities for any purpose specified in Section 8.06 hereof, to be held at such time and at such place in The City of New York. Notice of every meeting of holders of any series of Securities, setting forth the time and the place of such meeting, in general terms the action proposed to be taken at such meeting and the percentage of the principal amount of the Outstanding Securities of such series which shall constitute a quorum at such meeting, shall be given, in the manner provided in Section 13.04 hereof, not less than 21 nor more than 180 days prior to the date fixed for the meeting to holders of Outstanding Securities of such series.
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(b)
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In case at any time the Company, pursuant to a Board Resolution, or the holders of at least 10% in principal amount of the Outstanding Securities of any series shall have requested the Trustee to call a meeting of the holders of Securities of such series for any purpose specified in Section 8.06 hereof, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have made the first publication of the notice of such meeting within 21 days after receipt of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the holders of Securities of such series in the amount specified, as the case may be, may determine the time and the place in The City of New York for such meeting and may call such meeting for such purposes by giving notice thereof as provided in paragraph (a) of this Section.
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SECTION 8.08
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Persons Entitled To Vote at Meetings.
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To be entitled to vote at any meeting of holders of Securities
of a given series, a Person shall be (a) a holder of one or more Outstanding Securities of such series or (b) a Person appointed
by an instrument in writing as proxy for a holder or holders of one or more Outstanding Securities of such series by such holder
or holders. The only Persons who shall be entitled to be present or to speak at any meeting of holders shall be the Persons entitled
to vote at such meeting and their counsel, any representatives of the Trustee and its counsel and any representatives of the Company
and its counsel.
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SECTION 8.09
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Quorum; Action.
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The Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of a given series shall constitute a quorum with respect to a meeting of holders of Outstanding
Securities of such series. In the absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting
shall, if convened at the request of holders of Securities of such series, be dissolved. In any other case, the meeting may be
adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting.
In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less
than 10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting. Notice of the reconvening
of any adjourned meeting shall be given as provided in Section 8.07(a) hereof, except that such notice need be given only once
and not less than five days prior to the date on which the meeting is scheduled to be reconvened.
At a meeting or an adjourned meeting duly reconvened and at
which a quorum is present as aforesaid, any resolution and all matters (except as limited by the proviso to the first paragraph
of Section 9.02 hereof) shall be effectively passed and decided if passed or decided by the Persons entitled to vote not less than
a majority in aggregate principal amount of Outstanding Securities of a series represented and voting at such meeting with respect
to a meeting of holders of Outstanding Securities of such series.
Any resolution passed or decisions taken at any meeting of holders
of Securities duly held in accordance with this Section shall be binding on all the holders of Securities of such series, whether
or not present or represented at the meeting.
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SECTION 8.10
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Determination of Voting Rights; Conduct and Adjournment of Meetings.
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(a)
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Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of holders of Securities in regard to proof of the holding of Securities and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate.
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(b)
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The Trustee shall, by an instrument in writing, appoint a temporary chairman (which may be the Trustee) of the meeting, unless the meeting shall have been called by the Company or by holders of Securities of a given series as provided in Section 8.07(b) hereof, in which case the Company or the holders of Securities of such series calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting.
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(c)
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At any meeting, each holder of a Security of the series in respect of which such meeting is being held or proxy shall be entitled to one vote for each $1,000 principal amount of Securities of such series held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any Security of such series challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a holder of a Security of such series or proxy.
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(d)
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Any meeting of holders of Securities duly called pursuant to Section 8.07 hereof at which a quorum is present may be adjourned from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of the series in respect of which such meeting is being held represented at the meeting, and the meeting may be held as so adjourned without further notice.
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SECTION 8.11
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Counting Votes and Recording Action of Meetings.
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The vote upon any resolution submitted to any meeting of holders
of Securities of a given series shall be by written ballots on which shall be subscribed the signatures of the holders of Securities
of such series or of their representatives by proxy and the principal amounts and serial numbers of the Outstanding Securities
of such series held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall
count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A record, at least in duplicate, of the proceedings
of each meeting of holders of Securities of such series shall be prepared by the secretary of the meeting and there shall be attached
to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more
Persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given
as provided in Section 8.07 hereof and, if applicable, Section 8.09 hereof. Each copy shall be signed and verified by the affidavits
of the permanent chairman and secretary of the meeting and one such copy shall be delivered to the Company and another to the Trustee
to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and
verified shall be conclusive evidence of the matters therein stated.
ARTICLE
IX
SUPPLEMENTAL INDENTURES
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SECTION 9.01
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Supplemental Indentures Without the Consent of Securityholders.
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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:
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(a)
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cure any ambiguity, correct or supplement any provision herein which may be inconsistent with any other provision herein or which is otherwise defective, or make any other provisions with respect to matters or questions arising under this Indenture which the Company and the Trustee may deem necessary or desirable and which shall not be inconsistent with the provisions of this Indenture;
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(b)
|
to comply with Article X;
|
|
|
(c)
|
to provide for uncertificated Securities in addition to or in place of certificated Securities;
|
|
|
(d)
|
to add to the covenants of the Company for the benefit of the holders of all or any Series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) 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; or
|
|
|
(h)
|
comply with the requirements of the Commission in order to effect or maintain 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 written consent of the holders of at least a majority
in aggregate principal amount of the Outstanding Securities of any series or by action at a meeting of holders of the Securities
of such series in accordance with Section 8.09, by the holders of a majority in aggregate principal amount of the Securities of
such series then Outstanding represented at such meeting, the Company, when authorized by Board Resolutions, 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, (i) 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, (ii) reduce the aforesaid percentage of Securities, the holders
of which are required to consent to any such supplemental indenture, or any consent or waiver, (iii) reduce the principal amount
of discount securities payable upon acceleration of the maturity of any Securities of any series or (iv) make the principal of
or premium or interest on any Security of a series payable in currency or currency units other than that stated in the Securities
of such series.
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 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 of the Company, 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 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
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 10.01
|
Company May Consolidate, Etc.
|
Nothing contained in this Indenture or in any of the Securities
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, 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) 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.
|
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 due and punctual payment of the principal of, premium, if any, and interest on all of the Securities of all series Outstanding and the due and punctual performance of all of the covenants and conditions of this Indenture or established with respect to each series of the Securities pursuant to Section 2.01 to be performed by the Company with respect to each series, 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 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 11.01
|
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 (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 sufficient or a combination thereof, sufficient (assuming that no tax liability
will be imposed on the Trustee) 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.
|
Subject to Section 11.05, 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 or interest on the Securities
of a particular series that are not applied but remain unclaimed by the holders of such Securities for 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,
shall be repaid to the Company or (if then held by the Company) shall be discharged from such trust in each case, promptly after
the end of any such two-year period or, at the request of the Company, on a later date specified by the Company; 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 an unsecured general creditor, look
only to the Company for the payment thereof.
ARTICLE
XII
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
XIII
MISCELLANEOUS PROVISIONS
|
SECTION 13.01
|
Effect on Successors and Assigns.
|
All the covenants, stipulations, promises and agreements in
this Indenture contained 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.
Except as otherwise expressly provided herein any notice or
demand that by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the holders
of Securities to or on the Company may be given or served by being deposited first class postage prepaid in a post-office letterbox
addressed (until another address is filed in writing by the Company with the Trustee), as follows: SELLAS Life Sciences Group,
Inc., Attn: [ ]. Any notice, election, request or demand by the Company or any Securityholder 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.
Any notice or communication to a holder shall be mailed by first-class mail to his address shown on the Security Register kept
by the Security Registrar.
Failure to mail a notice or communication to a holder or any
defect in such notice or communication shall not affect its sufficiency with respect to other holders. If a notice or communication
is mailed or sent in the manner provided above within the time prescribed, it is duly given as of the date it is mailed, whether
or not the addressee receives it, except that notice to the Trustee or the Company shall only be effective upon receipt thereof
by the Trustee or the Company, respectively. If the Company mails a notice or communication to holders of Securities, it shall
mail a copy to the Trustee at the same time.
|
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.
|
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
|
Compliance Certificates and Opinions.
|
|
|
(a)
|
Upon any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company, shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with, except that in the case of any such application or demand as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished.
|
|
|
(b)
|
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant in this Indenture shall include (1) a statement that the Person making such certificate or opinion has read such covenant or condition; (2) 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; (3) a statement that, in the opinion of such Person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (4) 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 as set forth in an Officers’ Certificate, or established in one or more indentures supplemental to this Indenture,
in any case where the date of maturity of interest or principal of any Security or the date of redemption of any Security shall
not be a Business Day, then payment of interest or principal (and premium, if any) may be made on the next succeeding Business
Day with the same force and effect as if made on the nominal date of maturity or redemption, and no interest shall accrue for the
period after such nominal date.
|
SECTION 13.09
|
Conflict with Trust Indenture Act.
|
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
|
SECTION 13.10
|
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
|
Assignment.
|
The Company will have the right at all times to assign any of
its rights or obligations under this Indenture to a direct or indirect wholly-owned Subsidiary of the Company, provided that, in
the event of any such assignment, the Company, will remain liable for all such obligations. Subject to the foregoing, this Indenture
is binding upon and inures to the benefit of the parties thereto and their respective successors and assigns. This Indenture may
not otherwise be assigned by the parties thereto.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed all as of the day and year first above written.
|
|
SELLAS LIFE SCIENCES GROUP, INC.
|
|
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|
|
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By:
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|
|
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|
Name:
|
|
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Title:
|
|
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|
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[ ],
|
|
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As Trustee
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By:
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Name:
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Title:
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Exhibit 4.6
SELLAS LIFE SCIENCES GROUP, INC.
Issuer
AND
[
]
Trustee
INDENTURE
Dated as of [
]
Subordinated Debt Securities
CROSS-REFERENCE TABLE (1)
|
Section of Trust Indenture Act of 1939, as Amended
|
|
Section of
Indenture
|
|
310(a).
|
|
7.09
|
|
310(b).
|
|
7.08
|
|
|
|
7.10
|
|
310(c).
|
|
Inapplicable
|
|
311(a).
|
|
7.13(a)
|
|
311(b).
|
|
7.13(b)
|
|
311(c).
|
|
Inapplicable
|
|
312(a).
|
|
5.02(a)
|
|
312(b).
|
|
5.02(b)
|
|
312(c).
|
|
5.02(c)
|
|
313(a).
|
|
5.04(a)
|
|
313(b).
|
|
5.04(a)
|
|
313(c).
|
|
5.04(a)
|
|
|
|
5.04(b)
|
|
313(d).
|
|
5.04(b)
|
|
314(a).
|
|
5.03
|
|
314(b).
|
|
Inapplicable
|
|
314(c).
|
|
13.06
|
|
314(d).
|
|
Inapplicable
|
|
314(e).
|
|
13.06
|
|
314(f).
|
|
Inapplicable
|
|
315(a).
|
|
7.01(a)
|
|
|
|
7.02
|
|
315(b).
|
|
6.07
|
|
315(c).
|
|
7.01
|
|
315(d).
|
|
7.01(b)
|
|
|
|
7.01(c)
|
|
315(e).
|
|
6.07
|
|
316(a).
|
|
6.06
|
|
|
|
8.04
|
|
316(b).
|
|
6.04
|
|
316(c).
|
|
8.01
|
|
317(a).
|
|
6.02
|
|
317(b).
|
|
4.03
|
|
318(a).
|
|
13.08
|
1 This Cross-Reference Table does not constitute
part of the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions.
TABLE OF CONTENTS (2)
(2) 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 and provisions.
INDENTURE, dated as of [
], by and between SELLAS Life Sciences Group, Inc., a Delaware corporation (the “Company”), and [
], 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
I
DEFINITIONS
|
SECTION 1.01
|
Definitions of Terms.
|
The terms defined in this Section (except as in this Indenture
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 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 with respect to all or any series of the Securities 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 and
State of New York, are authorized or obligated by law, executive order or regulation to close.
“Certificate” means a certificate signed by the
principal executive officer, the principal financial officer or the principal accounting officer of the Company. The Certificate
need not comply with the provisions of Section 13.07.
“Commission” means the Securities and Exchange Commission.
“Company” means the corporation named as the “Company”
in the first paragraph of this instrument until a successor corporation shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter “Company” shall mean such successor corporation.
“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 [ ], except that whenever a provision herein refers to an office or agency
of the Trustee in the Borough of Manhattan, the City and State of New York, such office is located, at the date hereof, at [
].
“Custodian” means any receiver, trustee, assignee,
liquidator, or similar official under any Bankruptcy Law. “Default” means an event which is, or after notice or lapse
of time, or both, would constitute an Event of Default.
“Depositary” means, with respect to Securities of
any series, for which the Company shall determine that such Securities will be issued as a Global Security, The Depository Trust
Company, New York, New York, another clearing agency, or any successor registered as a clearing agency under the 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 Section 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 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 this Indenture, which shall be registered in the name of the Depositary or its nominee.
“Governmental Obligations” means securities that
are (i) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America,
the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America that,
in either case, are non-callable at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank
(as defined in Section 3(a)(2) of the Securities Act of 1933, as amended) 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.
“Officers’ Certificate” means a certificate
signed by the President or a Vice President and by the Chief Financial Officer, Vice President of Finance, the Treasurer or an
Assistant Treasurer or the Controller or an Assistant Controller or the Secretary or an Assistant Secretary of the Company that
is delivered to the Trustee in accordance with the terms hereof. 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 a written opinion of
counsel, who may be counsel to the Company (and may include directors or employees of the Company) and which opinion is acceptable
to the Trustee which acceptance shall not be unreasonably withheld.
“Outstanding”, when used with reference to Securities
of any series, means, subject to the provisions of Section 8.04, as of any particular time, all Securities of that series theretofore
authenticated and delivered by the Trustee under this Indenture, except (a) Securities theretofore canceled by the Trustee or any
paying agent, or delivered to the Trustee or any paying agent for cancellation or that have previously been canceled; (b) Securities
or portions thereof for the payment or redemption of which moneys or Governmental Obligations in the necessary amount shall have
been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been set aside and segregated
in trust by the Company (if the Company shall act as its own paying agent); provided, however, that if such Securities or portions
of such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as in Article
III provided, or provision satisfactory to the Trustee shall have been made for giving such notice; and (c) Securities in lieu
of or in substitution for which other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.07.
“Person” means any individual, corporation, limited
liability company, partnership, joint-venture, association, joint-stock company, trust, estate, unincorporated organization or
government or any agency or political subdivision 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 mutilated, destroyed,
lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
“Responsible Officer,” when used with respect to
the Trustee, means any officer of the Trustee, including any vice president, assistant vice president, secretary, assistant secretary,
the treasurer, any assistant treasurer, the managing director or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the
particular subject.
“Securities” means the debt Securities authenticated
and delivered under this Indenture.
“Security Register” has the meaning specified in
Section 2.05.
“Security Registrar” has the meaning specified in
Section 2.05.
“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 in the Security Register.
“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 the Person named as the “Trustee”
in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter “Trustee” shall mean such successor Trustee. 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, subject to the provisions of Sections 9.01, 9.02, and 10.01, as in effect at the date of execution of
this instrument; provided, however, that in the event the Trust Indenture Act is amended after such date, Trust Indenture Act means,
to the extent required by such amendment, the Trust Indenture Act of 1939, as so amended, or any successor statute.
“Voting Stock,” as applied to 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
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SECTION 2.01
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Designation and Terms of Securities.
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(a)
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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 of the Company or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of Securities of a given series, there shall be established in or pursuant to a Board Resolution of the Company, and set forth in an Officers’ Certificate of the Company, or established in one or more indentures supplemental hereto:
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(1)
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the title of the Security of the series (which shall distinguish the Securities of the series from all other Securities);
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(2)
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the aggregate principal amount of the Securities of such series initially to be issued and 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);
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(3)
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the currency or units based on or relating to currencies in which debt securities of such series are denominated and the currency or units in which principal or interest or both will or may be payable;
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(4)
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the date or dates on which the principal of the Securities of the series is payable and the place(s) of payment;
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(5)
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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;
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(6)
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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 method for determining such dates;
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(7)
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the right, if any, to extend the interest payment periods or to defer the payment of interest and the duration of such extension;
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(8)
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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;
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(9)
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the obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund 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;
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(10)
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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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(11)
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the form of the Securities of the series including the form of the Certificate of Authentication for such series;
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(12)
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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;
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(13)
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any and all other terms 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;
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(14)
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whether the Securities are issuable as a Global Security and, in such case, the identity of the Depositary for such series;
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(15)
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whether the Securities will be convertible into shares of common stock or other securities of the Company and, if so, the terms and conditions upon which such Securities will be so convertible, including the conversion price and the conversion period;
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(16)
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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; and
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(17)
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any additional or different Events of Default or restrictive covenants provided for with respect to the Securities of the series.
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All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant to any such Board Resolution or in any indentures
supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution of the Company, a copy of an appropriate record of such action shall be certified by the Secretary
or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers’ Certificate
of the Company setting forth the terms of the series.
Securities of any particular series may be issued at various
times, with different dates on which the principal or any installment of principal is payable, with different rates of interest,
if any, or different methods by which rates of interest may be determined, with different dates on which such interest may be payable
and with different redemption dates.
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SECTION 2.02
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Form of Securities and Trustee’s Certificate.
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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 of the Company and as set forth in an Officers’ Certificate of the
Company and 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 stock exchange on which Securities of that series may be listed, or to conform to usage.
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SECTION 2.03
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Denominations: Provisions for Payment.
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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)(12). The
Securities of a particular series shall bear interest payable on the dates and at the rate specified with respect to that series.
The principal of and the interest on the Securities of any series, as well as any premium thereon in case of redemption thereof
prior to maturity, shall be payable in the coin or currency of the United States of America that at the time is legal tender for
public and private debt, at the office or agency of the Company maintained for that purpose in the Borough of Manhattan, the City
and State of New York. Each Security shall be dated the date of its authentication. Interest on the Securities shall be computed
on the basis of a 360-day year composed of twelve 30-day months.
The interest installment on any Security that is payable, and
is punctually paid or duly provided for, on any Interest Payment Date for Securities of that series shall be paid to the Person
in whose name said Security (or one or more Predecessor Securities) is registered at the close of business on the regular record
date for such interest installment. In the event that any Security of a particular series or portion thereof is called for redemption
and the redemption date is subsequent to a regular record date with respect to any Interest Payment Date and prior to such Interest
Payment Date, interest on such Security will be paid upon presentation and surrender of such Security as provided in Section 3.03.
Any interest on any Security that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date for Securities of the same series (herein called “Defaulted Interest”)
shall forthwith cease to be payable to the registered holder on the relevant regular record date by virtue of having been such
holder; and such Defaulted Interest shall be paid by the Company, at its election, as provided in clause (1) or clause (2) below:
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(1)
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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, 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.
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(2)
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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.
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Unless otherwise set forth in a Board Resolution of the Company
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 with respect to 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 last 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 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.
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SECTION 2.04
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Execution and Authentications.
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The Securities shall be signed on behalf of the Company by its
President, or one of its Vice Presidents, or its Treasurer, or one of its Assistant Treasurers, or its Secretary, or one of its
Assistant Secretaries, under its corporate seal attested by its Secretary or one of its Assistant Secretaries. 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 a
President or Vice President thereof, or of any Person who shall have been a Treasurer or Assistant Treasurer thereof, or of any
Person who shall have been a Secretary or Assistant Secretary thereof, notwithstanding the fact that at the time the Securities
shall be authenticated and delivered or disposed of such Person shall have ceased to be the President or a Vice President, the
Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary, of the Company. The seal of the Company may be
in the form of a facsimile of such seal and may be impressed, affixed, imprinted or otherwise reproduced on the Securities. 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.
A Security shall not be valid or obligatory for any purpose
and shall not be entitled to any benefit under this Indenture, in each case, until authenticated with a certificate of authentication
manually signed by an authorized signatory of the Trustee, or by an Authenticating Agent. Such certificate shall be conclusive
evidence, and the only evidence, that the Security so authenticated has been duly authenticated and delivered hereunder and that
the Security 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 its President or
any Vice President and its Secretary or any Assistant Secretary, and the Trustee in accordance with such written order shall authenticate
and deliver such Securities.
In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to
Section 7.01) shall be fully protected in relying upon, an Opinion of Counsel stating that the form and terms thereof have been
established in conformity with the provisions of this Indenture.
The Trustee shall not be required to authenticate such Securities
if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under
the Securities and this Indenture or otherwise in a manner that is not reasonably acceptable to the Trustee.
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SECTION 2.05
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Registration of Transfer and Exchange.
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(a)
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Securities of any series may be exchanged upon presentation thereof at the office or agency of the Company designated for such purpose in the Borough of Manhattan, the City and State of New York, for other Securities of such series of authorized denominations, and for a like aggregate principal amount, upon payment of a sum sufficient to cover any tax or other governmental charge in relation thereto, all as provided in this Section. In respect of any Securities so surrendered for exchange, the Company shall execute, the Trustee shall authenticate and such office or agency shall deliver in exchange therefor the Security or Securities of the same series that the Securityholder making the exchange shall be entitled to receive, bearing numbers not contemporaneously outstanding.
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(b)
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The Company shall keep, or cause to be kept, at its office or agency designated for such purpose in the Borough of Manhattan, the City and State of New York, or such other location designated by the Company a register or registers (herein referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall register the Securities and the transfers of Securities as in this Article provided and which at all reasonable times shall be open for inspection by the Trustee. The registrar for the purpose of registering Securities and transfer of Securities as herein provided shall be appointed as authorized by Board Resolution (the “Security Registrar”).
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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.
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(c)
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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.
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(d)
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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. 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.
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SECTION 2.06
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Temporary Securities.
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Pending the preparation of definitive Securities of any series,
the Company may execute, and the Trustee shall authenticate and deliver, temporary Securities (printed, lithographed or typewritten)
of any authorized denomination. Such temporary Securities shall be substantially in the form of the definitive Securities in lieu
of which they are issued, but with such omissions, insertions and variations as may be appropriate for temporary Securities, all
as may be determined by the Company. Every temporary Security of any series shall be executed by the Company and be authenticated
by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive Securities
of such series. Without unnecessary delay the Company will execute and will furnish definitive Securities of such series and thereupon
any or all temporary Securities of such series may be surrendered in exchange therefor (without charge to the holders), at the
office or agency of the Company designated for the purpose in the Borough of Manhattan, the City and State of New York, and the
Trustee shall authenticate and such office or agency shall deliver in exchange for such temporary Securities an equal aggregate
principal amount of definitive Securities of such series, unless the Company advises the Trustee to the effect that definitive
Securities need not be executed and furnished until further notice from the Company. Until so exchanged, the temporary Securities
of such series shall be entitled to the same benefits under this Indenture as definitive Securities of such series authenticated
and delivered hereunder.
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SECTION 2.07
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Mutilated, Destroyed, Lost or Stolen Securities.
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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.
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SECTION 2.08
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Cancellation.
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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.
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SECTION 2.09
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Benefits of Indenture.
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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 XIV, the holders of Senior Indebtedness, as defined in any supplement to this Indenture pursuant to
Article XIV) 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 XIV, the holders of Senior Indebtedness).
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SECTION 2.10
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Authenticating Agent.
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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.
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SECTION 2.11
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Global Securities
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(a)
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If the Company shall establish pursuant to Section 2.01 that some or all of 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, the Outstanding Securities of such series which are to be issued as a Global Security, (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.”
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(b)
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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.
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(c)
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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, this Section 2.11 shall no longer be applicable to the Securities of such series and the Company will execute, and subject to Section 2.05, 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 2.05, the Trustee, upon receipt of an Officers’ Certificate evidencing such determination by the Company, will authenticate and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Security of such series in exchange for such Global Security. Upon the exchange of the Global Security for such Securities in definitive registered form without coupons, in authorized denominations, the Global Security shall be canceled by the Trustee. Such Securities in definitive registered form issued in exchange for the Global Security pursuant to this Section 2.11(c) shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Depositary for delivery to the Persons in whose names such Securities are so registered.
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ARTICLE
III
REDEMPTION OF SECURITIES AND
SINKING FUND PROVISIONS
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.
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SECTION 3.02
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Notice of Redemption.
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(a)
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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 the right reserved so to do, the Company shall, or shall cause the Trustee to, give notice of such redemption to holders of the Securities of such series to be redeemed by mailing, first class postage prepaid, a notice of such redemption not less than 30 days and not more than 90 days before the date fixed for redemption of that series to such holders at their last addresses as they shall appear upon the Security Register unless a shorter period is specified in the Securities to be redeemed. Any notice that is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the registered holder receives the notice. In any case, failure duly to give such notice to the holder of any Security of any series designated for redemption in whole or in part, or any defect in the notice, shall not affect the validity of the proceedings for the redemption of any other Securities of such series or any other series. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers’ Certificate evidencing compliance with any such restriction.
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Each such notice of redemption shall specify the date fixed
for redemption and the redemption price at which Securities of that series are to be redeemed, and shall state that payment of
the redemption price of such Securities to be redeemed will be made at the office or agency of the Company in the Borough of Manhattan,
the City and State of New York, upon presentation and surrender of such Securities, that interest accrued to the date fixed for
redemption will be paid as specified in said notice, that from and after said date interest will cease to accrue and that the redemption
is for a sinking fund, if such is the case. If less than all the Securities of a series are to be redeemed, the notice to the holders
of Securities of that series to be redeemed in whole or 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.
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(b)
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If less than all the Securities of a series are to be redeemed, the Company shall give the Trustee at least 30 days’ notice 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 its President or any Vice President, 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.
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SECTION 3.03
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Payment Upon Redemption.
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(a)
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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).
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(b)
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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.
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SECTION 3.04
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Sinking Fund.
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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.
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SECTION 3.05
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Satisfaction of Sinking Fund Payments with Securities.
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The Company (i) may deliver Outstanding Securities of a series
(other than any Securities previously called for redemption) 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.
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SECTION 3.06
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Redemption of Securities for Sinking Fund.
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Not less than 45 days prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the
next ensuing sinking fund payment for that series pursuant to the terms of the series, the portion thereof, if any, that is to
be satisfied by delivering and crediting Securities of that series pursuant to Section 3.05 and the basis for such credit and will,
together with such Officers’ Certificate, deliver to the Trustee any Securities to be so delivered. Not less than 30 days
before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment
date in the manner specified in Section 3.02 and cause notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 3.02. Such notice having been duly given, the redemption of such Securities shall
be made upon the terms and in the manner stated in Section 3.03.
ARTICLE
IV
COVENANTS
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SECTION 4.01
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Payment of Principal, Premium and Interest.
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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.
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SECTION 4.02
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Maintenance of Office or Agency.
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So long as any series of the Securities remain Outstanding,
the Company agrees to maintain an office or agency in the Borough of Manhattan, the City and State of New York, with respect to
each such series and at such other location or locations as may be designated as provided in this Section 4.02, where (i) Securities
of that series may be presented or surrendered 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 its President or a Vice President 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.
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SECTION 4.03
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Paying Agents.
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(a)
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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:
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(1)
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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;
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(2)
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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;
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(3)
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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
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(4)
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that it will perform all other duties of paying agent as set forth in this Indenture.
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(b)
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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 with monies held by all other paying agents 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 (an 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.
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(c)
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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 any paying agent to the Trustee, such paying agent shall be released from all further liability with respect to such money.
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SECTION 4.04
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Appointment to Fill Vacancy in Office of Trustee.
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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.
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SECTION 4.05
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Compliance with Consolidation Provisions.
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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 company unless the provisions of Article X hereof are complied
with.
ARTICLE
V
SECURITYHOLDERS’ LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
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SECTION 5.01
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Company to Furnish Trustee Names and Addresses of Securityholders.
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If the Company is not the Security Register, the Company will
furnish or use reasonable efforts to cause to be furnished to the Trustee (a) on 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.
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SECTION 5.02
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Preservation of Information; Communications with Securityholders.
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(a)
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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) and shall otherwise comply with Section 312(a) of the Trust Indenture Act.
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(b)
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The Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.
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(c)
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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.
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SECTION 5.03
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Reports by the Company.
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(a)
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The Company covenants and agrees to file with the Trustee, within 15 days after the Company is required to file the same with the 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 Commission may from time to time by rules and regulations prescribe) that the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not required to file information, documents or reports pursuant to either of such sections, then to file with the Trustee and the Commission, in accordance with the rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports that may be required pursuant to Section 13 of the Exchange Act, in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations; 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 Commission. The Company also shall comply with the other provisions of Section 314(a) of the Trust Indenture Act.
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(b)
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The Company covenants and agrees to file with the Trustee and the Commission, in accordance with the rules and regulations prescribed from to time by the Commission, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants provided for in this Indenture as may be required from time to time by such rules and regulations.
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(c)
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The Company covenants and agrees to transmit by mail, first class postage prepaid, or reputable over-night delivery service that provides for evidence of receipt, to the Securityholders, as their names and addresses appear upon the Security Register, within 30 days after the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company pursuant to subsections (a) and (b) of this Section as may be required by rules and regulations prescribed from time to time by the Commission.
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SECTION 5.04
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Reports by the Trustee.
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(a)
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The Trustee shall transmit to holders as provided in Section 313 of the Trust Indenture Act such reports concerning the Trustee and its actions under this Indenture as may be required by Section 313 of the Trust Indenture Act at the times and in the manner provided by the Trust Indenture Act.
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(b)
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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 stock exchange upon which any Securities are listed (if so listed) and, if required by Section 313 of the Trust Indenture Act, also with the Commission. The Company agrees to notify the Trustee when any Securities become listed on any stock exchange.
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ARTICLE
VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
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SECTION 6.01
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Events of Default.
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(a)
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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:
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(1)
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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 continuance of such default 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;
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(2)
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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;
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(3)
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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 not less than a majority in principal amount of the Securities of that series at the time Outstanding;
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(4)
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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
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(5)
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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 consecutive days.
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(b)
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In each and every such case, 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 a majority 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 (or, if any Securities of that series are discount securities, that portion of the principal amount as may be specified in the terms of that series pursuant to Section 2.01(a)(16)) of (and premium, if any, on) and accrued and unpaid interest, if any, 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. Notwithstanding the foregoing, the payment of such principal (or, if any Securities of that series are discount securities, that portion of the principal amount as may be specified in the terms of that series pursuant to Section 2.01(a)(16)) of (and premium, if any, on) and accrued and unpaid interest, if any, on the Securities of such series shall remain subordinated to the extent provided in Article XIV.
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(c)
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At any time after the principal of the Securities of that series shall have been so declared due and payable, and before a 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 (or, by action at a meeting of holders of the Securities of such series in accordance with Section 8.09, the holders of a majority in aggregate principal amount of the Securities of such series then Outstanding represented at such meeting), 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 and (ii) any and all Events of Default under this Indenture with respect to such series, other than the nonpayment of principal of (and premium, if any, on) and accrued and unpaid interest, if any, on Securities of that series that shall have become due solely because of such acceleration, shall have been remedied, cured 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.
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(d)
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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.
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SECTION 6.02
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Collection of Indebtedness and Suits for Enforcement by Trustee.
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(a)
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The Company covenants that (1) in case it shall default in the payment of any installment of interest on any of the Securities of a series, or any payment required by any sinking or analogous fund established with respect to that series as and when the same shall have become due and payable, and such default shall have continued for a period of 90 Business Days, or (2) 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.
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(b)
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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 out of the property of the Company or other obligor upon the Securities of that series, wherever situated.
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(c)
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In case of any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or judicial proceedings affected 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 this 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.
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(d)
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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.
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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 this 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.
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SECTION 6.03
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Application of Moneys Collected.
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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 the payment, if only partially paid, and upon surrender thereof if fully paid:
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FIRST:
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To the payment of costs and expenses of collection and of all amounts payable to the Trustee under Section 7.06;
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SECOND:
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To the payment of all Senior Indebtedness of the Company if and to the extent required by Article XIV; and
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THIRD:
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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.
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SECTION 6.04
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Limitation on Suits.
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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 a majority 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; and (iv) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity,
shall have failed to institute any such action, suit or proceeding and (v) during such 60 day period, the holders of a majority
in principal amount of the Securities of that series (or such amount as shall have acted at a meeting of the holders of Securities
of such series pursuant to the provisions of this Indenture) do not give the Trustee a direction inconsistent with the request;
provided, however, that no one or more of such holders may use this Indenture to prejudice the rights of another holder or to obtain
preference or priority over another holder.
Notwithstanding anything contained herein to the contrary, 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.
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SECTION 6.05
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Rights and Remedies Cumulative; Delay or Omission Not Waiver.
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(a)
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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.
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(b)
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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 on 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.
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SECTION 6.06
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Control by Securityholders.
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The holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding, determined in accordance with Section 8.01, 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 or be unduly prejudicial to the rights of holders of Securities of any other series at the time Outstanding
determined in accordance with Section 8.01. 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 would involve the Trustee in personal liability.
The holders either (a) through the written consent of not less
than a majority in aggregate principal amount of the Securities of any series at the time Outstanding or (b) by action at a meeting
of holders of the Securities of such series in accordance with Section 8.09, by the holders of a majority in aggregate principal
amount of the Securities of such series then Outstanding represented at such meeting, 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)) and except in respect a
provision hereof which, under Section 9.02, cannot be modified or amended without the consent of the holders of each Outstanding
Security affected; provided however that this Section shall not limit the right of holders of Securities of a series to rescind
and annul any acceleration as set forth in Section 6.01. 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. The provisions which otherwise would be automatically deemed to be contained in
this Indenture pursuant to Section 316(a)(1) of the Trust Indenture Act are hereby expressly excluded from this Indenture, except
to the extent such provisions are expressly included herein.
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SECTION 6.07
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Undertaking to Pay Costs.
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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
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SECTION 7.01
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Certain Duties and Responsibilities of Trustee.
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(a)
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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.
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(b)
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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:
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(1)
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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:
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(i)
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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
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(ii)
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in the absence of bad faith on the part of the Trustee, the Trustee may with respect to the Securities of such series conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions that by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirement of this Indenture;
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(2)
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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;
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(3)
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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
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(4)
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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.
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SECTION 7.02
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Certain Rights of Trustee.
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Except as otherwise provided in Section 7.01:
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(a)
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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;
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(b)
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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 the President or any Vice President and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer thereof (unless other evidence in respect thereof is specifically prescribed herein);
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(c)
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The Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted hereunder in good faith and in reliance thereon;
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(d)
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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;
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(e)
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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;
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(f)
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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
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(g)
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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.
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SECTION 7.03
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Trustee Not Responsible for Recitals or Issuance of Securities.
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(a)
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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.
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(b)
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The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities.
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(c)
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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.
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SECTION 7.04
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May Hold Securities.
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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.
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SECTION 7.05
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Moneys Held in Trust.
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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.
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SECTION 7.06
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Compensation and Reimbursement.
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(a)
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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. 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 costs and expenses of defending itself against any claim of liability in the premises.
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(b)
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The obligations of the Company under this Section to compensate and indemnify the Trustee and to pay or reimburse the Trustee for 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.
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SECTION 7.07
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Reliance on Officers’ Certificate.
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Except as otherwise provided in Section 7.01, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering or omitting to take any action hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed
to be conclusively proved and established by an Officers’ Certificate delivered to the Trustee and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered
or omitted to be taken by it under the provisions of this Indenture upon the faith thereof.
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SECTION 7.08
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Disqualification; Conflicting Interests.
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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.
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SECTION 7.09
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Corporate Trustee Required; Eligibility.
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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 Commission, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus
of at least 50 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 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 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.
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SECTION 7.10
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Resignation and Removal; Appointment of Successor.
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(a)
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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.
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(b)
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In case at any time any one of the following shall occur:
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(1)
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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
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(2)
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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
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(3)
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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, unless the Trustee’s duty to resign is stayed as provided herein, 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.
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(c)
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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.
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(d)
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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.
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(e)
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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.
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SECTION 7.11
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Acceptance of Appointment By Successor.
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(a)
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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.
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(b)
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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 (1) 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, (2) 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 (3) 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.
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(c)
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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.
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(d)
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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.
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(e)
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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.
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SECTION 7.12
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Merger, Conversion, Consolidation or Succession to Business.
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Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to the corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided that such corporation shall be qualified under the provisions of Section 7.08 and eligible under the provisions
of Section 7.09, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding. In case any Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication
and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
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SECTION 7.13
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Preferential Collection of Claims Against the Company.
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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.
ARTICLE
VIII
CONCERNING THE SECURITYHOLDERS
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SECTION 8.01
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Evidence of Action by Securityholders.
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Whenever in this Indenture it is provided that the holders of
a majority or specified percentage in aggregate principal amount of the Securities of a particular series may take any action (including
the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the fact that
at the time of taking any such action the holders of such majority or specified percentage of that series have joined therein may
be evidenced by any instrument or any number of instruments of similar tenor executed by such holders of Securities of that series
in Person or by agent or proxy appointed in writing.
If the Company shall solicit from the Securityholders of any
series any request, demand, authorization, direction, notice, consent, waiver or other action, the Company may, at its option,
as evidenced by an Officers’ Certificate, fix in advance a record date for such series for the determination of Securityholders
entitled to give such request, demand, authorization, direction, notice, consent, waiver or other action, but the Company shall
have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver
or other action may be given before or after the record date, but only the Securityholders of record at the close of business on
the record date shall be deemed to be Securityholders for the purposes of determining whether Securityholders of the requisite
proportion of Outstanding Securities of that series have authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other action, and for that purpose the Outstanding Securities of that series shall be computed
as of the record date; provided, however, that no such authorization, agreement or consent by such Securityholders on the record
date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six
months after the record date.
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SECTION 8.02
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Proof of Execution by Securityholders.
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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:
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(a)
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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.
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(b)
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The ownership of Securities shall be proved by the Security Register of such Securities or by a certificate of the Security Registrar thereof.
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(c)
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The Trustee may require such additional proof of any matter referred to in this Section as it shall deem necessary.
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SECTION 8.03
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Who May be Deemed Owners.
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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.
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SECTION 8.04
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Certain Securities Owned by Company Disregarded.
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In determining whether the holders of the requisite aggregate
principal amount of Securities of a particular series have concurred in any direction, consent of 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.
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SECTION 8.05
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Actions Binding on Future Securityholders.
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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.
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SECTION 8.06
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Purposes for Which Meetings May Be Called.
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A meeting of holders of any series of Securities may be called
at any time and from time to time pursuant to this Article to make, give or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be made, given or taken by holders of such series of Securities.
Notwithstanding anything contained in this Article VIII, the
Trustee may, during the pendency of a Default or an Event of Default, call a meeting of holders of any series of Securities in
accordance with its standard practices.
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SECTION 8.07
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Call Notice and Place of Meetings.
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(a)
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The Trustee may at any time call a meeting of holders of any series of Securities for any purpose specified in Section 8.06 hereof, to be held at such time and at such place in The City of New York. Notice of every meeting of holders of any series of Securities, setting forth the time and the place of such meeting, in general terms the action proposed to be taken at such meeting and the percentage of the principal amount of the Outstanding Securities of such series which shall constitute a quorum at such meeting, shall be given, in the manner provided in Section 13.04 hereof, not less than 21 nor more than 180 days prior to the date fixed for the meeting to holders of Outstanding Securities of such series.
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(b)
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In case at any time the Company, pursuant to a Board Resolution, or the holders of at least 10% in principal amount of the Outstanding Securities of any series shall have requested the Trustee to call a meeting of the holders of Securities of such series for any purpose specified in Section 8.06 hereof, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have made the first publication of the notice of such meeting within 21 days after receipt of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the holders of Securities of such series in the amount specified, as the case may be, may determine the time and the place in The City of New York for such meeting and may call such meeting for such purposes by giving notice thereof as provided in paragraph (a) of this Section.
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SECTION 8.08
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Persons Entitled To Vote at Meetings.
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To be entitled to vote at any meeting of holders of Securities
of a given series, a Person shall be (a) a holder of one or more Outstanding Securities of such series or (b) a Person appointed
by an instrument in writing as proxy for a holder or holders of one or more Outstanding Securities of such series by such holder
or holders. The only Persons who shall be entitled to be present or to speak at any meeting of holders shall be the Persons entitled
to vote at such meeting and their counsel, any representatives of the Trustee and its counsel and any representatives of the Company
and its counsel.
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SECTION 8.09
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Quorum; Action.
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The Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of a given series shall constitute a quorum with respect to a meeting of holders of Outstanding
Securities of such series. In the absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting
shall, if convened at the request of holders of Securities of such series, be dissolved. In any other case, the meeting may be
adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting.
In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less
than 10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting. Notice of the reconvening
of any adjourned meeting shall be given as provided in Section 8.07(a) hereof, except that such notice need be given only once
and not less than five days prior to the date on which the meeting is scheduled to be reconvened.
At a meeting or an adjourned meeting duly reconvened and at
which a quorum is present as aforesaid, any resolution and all matters (except as limited by the proviso to the first paragraph
of Section 9.02 hereof) shall be effectively passed and decided if passed or decided by the Persons entitled to vote not less than
a majority in aggregate principal amount of Outstanding Securities of a series represented and voting at such meeting with respect
to a meeting of holders of Outstanding Securities of such series.
Any resolution passed or decisions taken at any meeting of holders
of Securities duly held in accordance with this Section shall be binding on all the holders of Securities of such series, whether
or not present or represented at the meeting.
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SECTION 8.10
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Determination of Voting Rights; Conduct and Adjournment of Meetings.
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(a)
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Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of holders of Securities in regard to proof of the holding of Securities and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate.
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(b)
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The Trustee shall, by an instrument in writing, appoint a temporary chairman (which may be the Trustee) of the meeting, unless the meeting shall have been called by the Company or by holders of Securities of a given series as provided in Section 8.07(b) hereof, in which case the Company or the holders of Securities of such series calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting.
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(c)
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At any meeting, each holder of a Security of the series in respect of which such meeting is being held or proxy shall be entitled to one vote for each $1,000 principal amount of Securities of such series held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any Security of such series challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a holder of a Security of such series or proxy.
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(d)
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Any meeting of holders of Securities duly called pursuant to Section 8.07 hereof at which a quorum is present may be adjourned from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of the series in respect of which such meeting is being held represented at the meeting, and the meeting may be held as so adjourned without further notice.
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SECTION 8.11
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Counting Votes and Recording Action of Meetings.
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The vote upon any resolution submitted to any meeting of holders
of Securities of a given series shall be by written ballots on which shall be subscribed the signatures of the holders of Securities
of such series or of their representatives by proxy and the principal amounts and serial numbers of the Outstanding Securities
of such series held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall
count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A record, at least in duplicate, of the proceedings
of each meeting of holders of Securities of such series shall be prepared by the secretary of the meeting and there shall be attached
to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more
Persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given
as provided in Section 8.07 hereof and, if applicable, Section 8.09 hereof. Each copy shall be signed and verified by the affidavits
of the permanent chairman and secretary of the meeting and one such copy shall be delivered to the Company and another to the Trustee
to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and
verified shall be conclusive evidence of the matters therein stated.
ARTICLE
IX
SUPPLEMENTAL INDENTURES
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SECTION 9.01
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Supplemental Indentures Without the Consent of Securityholders.
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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:
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(a)
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cure any ambiguity, correct or supplement any provision herein which may be inconsistent with any other provision herein or which is otherwise defective, or make any other provisions with respect to matters or questions arising under this Indenture which the Company and the Trustee may deem necessary or desirable and which shall not be inconsistent with the provisions of this Indenture;
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(b)
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to comply with Article X;
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(c)
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to provide for uncertificated Securities in addition to or in place of certificated Securities;
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(d)
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to add to the covenants of the Company for the benefit of the holders of all or any Series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company;
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(e)
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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 Securities, as herein set forth;
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(f)
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to make any change that does not adversely affect the rights of any Securityholder in any material respect;
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(g)
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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; or
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(h)
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comply with the requirements of the Commission in order to effect or maintain the qualification of this Indenture under the Trust Indenture Act.
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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.
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SECTION 9.02
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Supplemental Indentures With Consent of Securityholders.
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With the written consent of the holders of at least a majority
in aggregate principal amount of the Outstanding Securities of any series or by action at a meeting of holders of the Securities
of such series in accordance with Section 8.09, by the holders of a majority in aggregate principal amount of the Securities of
such series then Outstanding represented at such meeting, the Company, when authorized by Board Resolutions, 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, (i) 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, (ii) reduce the aforesaid percentage of Securities, the holders
of which are required to consent to any such supplemental indenture, or any consent or waiver, (iii) reduce the principal amount
of discount securities payable upon acceleration of the maturity of any Securities of any series or (iv) make the principal of
or premium or interest on any Security of a series payable in currency or currency units other than that stated in the Securities
of such series.
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.
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SECTION 9.03
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Effect of Supplemental Indentures.
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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.
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SECTION 9.04
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Securities Affected by Supplemental Indentures.
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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 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 of the Company, 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.
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SECTION 9.05
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Execution of Supplemental Indentures.
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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 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
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
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SECTION 10.01
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Company May Consolidate, Etc.
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Nothing contained in this Indenture or in any of the Securities
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, 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) 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.
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SECTION 10.02
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Successor Entity Substituted.
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(a)
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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 due and punctual payment of the principal of, premium, if any, and interest on all of the Securities of all series Outstanding and the due and punctual performance of all of the covenants and conditions of this Indenture or established with respect to each series of the Securities pursuant to Section 2.01 to be performed by the Company with respect to each series, 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.
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(b)
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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.
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(c)
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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).
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SECTION 10.03
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Evidence of Consolidation, Etc. to Trustee.
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The Trustee, subject to the provisions of Section 7.01, may
receive 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
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SECTION 11.01
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Satisfaction and Discharge of Indenture.
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If at any time: (a) the Company shall have delivered to the
Trustee for cancellation all Securities of a series theretofore authenticated (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 sufficient or a combination thereof, sufficient (assuming that no tax liability
will be imposed on the Trustee) 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.
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SECTION 11.02
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Discharge of Obligations.
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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.
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SECTION 11.03
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Deposited Moneys to be Held in Trust.
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Subject to Section 11.05, 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.
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SECTION 11.04
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Payment of Moneys Held by Paying Agents.
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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.
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SECTION 11.05
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Repayment to Company.
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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 or interest on the Securities
of a particular series that are not applied but remain unclaimed by the holders of such Securities for 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,
shall be repaid to the Company or (if then held by the Company) shall be discharged from such trust in each case, promptly after
the end of any such two-year period or, at the request of the Company, on a later date specified by the Company; 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 an unsecured general creditor, look
only to the Company for the payment thereof.
ARTICLE
XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
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SECTION 12.01
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No Recourse.
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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
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SECTION 13.01
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Effect on Successors and Assigns.
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All the covenants, stipulations, promises and agreements in
this Indenture contained by or on behalf of the Company shall bind its successors and assigns, whether so expressed or not.
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SECTION 13.02
|
Actions by Successor.
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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.
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SECTION 13.03
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Surrender of Company Powers.
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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.
Except as otherwise expressly provided herein any notice or
demand that by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the holders
of Securities to or on the Company may be given or served by being deposited first class postage prepaid in a post-office letterbox
addressed (until another address is filed in writing by the Company with the Trustee), as follows: SELLAS Life Sciences Group,
Inc., Attn: [ ]. Any notice, election, request or demand by the Company or any Securityholder 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.
Any notice or communication to a holder shall be mailed by first-class mail to his address shown on the Security Register kept
by the Security Registrar. Failure to mail a notice or communication to a holder or any defect in such notice or communication
shall not affect its sufficiency with respect to other holders. If a notice or communication is mailed or sent in the manner provided
above within the time prescribed, it is duly given as of the date it is mailed, whether or not the addressee receives it, except
that notice to the Trustee or the Company shall only be effective upon receipt thereof by the Trustee or the Company, respectively.
If the Company mails a notice or communication to holders of Securities, it shall mail a copy to the Trustee at the same time.
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SECTION 13.05
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Governing Law.
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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.
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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.
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SECTION 13.07
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Compliance Certificates and Opinions.
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(a)
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Upon any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company, shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with, except that in the case of any such application or demand as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished.
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(b)
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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 (1) a statement that the Person making such certificate or opinion has read such covenant or condition; (2) 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; (3) a statement that, in the opinion of such Person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (4) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
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SECTION 13.08
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Payments on Business Days.
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Except as provided pursuant to Section 2.01 pursuant to a Board
Resolution, and as set forth in an Officers’ Certificate, or established in one or more indentures supplemental to this Indenture,
in any case where the date of maturity of interest or principal of any Security or the date of redemption of any Security shall
not be a Business Day, then payment of interest or principal (and premium, if any) may be made on the next succeeding Business
Day with the same force and effect as if made on the nominal date of maturity or redemption, and no interest shall accrue for the
period after such nominal date.
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SECTION 13.09
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Conflict with Trust Indenture Act.
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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.
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SECTION 13.10
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Counterparts.
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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.
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SECTION 13.11
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Separability.
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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.
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SECTION 13.12
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Assignment.
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The Company will have the right at all times to assign any of
its rights or obligations under this Indenture to a direct or indirect wholly-owned Subsidiary of the Company, provided that, in
the event of any such assignment, the Company, will remain liable for all such obligations. Subject to the foregoing, this Indenture
is binding upon and inures to the benefit of the parties thereto and their respective successors and assigns. This Indenture may
not otherwise be assigned by the parties thereto.
ARTICLE
XIV
SUBORDINATION OF SECURITIES
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SECTION 14.01
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Subordination Terms.
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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 the Securities of 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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SELLAS LIFE SCIENCES GROUP, INC.
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By:
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Name:
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Title:
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[ ],
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As Trustee
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By:
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Name:
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Title:
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Exhibit 5.1
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Chrysler Center
666 Third Avenue
New York, NY 10017
212 935 3000
mintz.com
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September 20, 2019
15 West 38th Street, 10th Floor
New York, NY 10018
Ladies and Gentlemen:
We have acted as counsel to SELLAS Life
Sciences Group, Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing
with the Securities and Exchange Commission (the “Commission”) of a Registration Statement on Form S-3 (the
“Registration Statement”), pursuant to which the Company is registering under the Securities Act of 1933, as
amended (the “Securities Act”), the following:
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(i)
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common stock, $0.0001 par value per share (the “Common Stock”);
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(ii)
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preferred stock, $0.0001 par value per share (the “Preferred Stock”);
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(iii)
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senior debt securities, in one or more series (the “Senior Debt Securities”), which may be issued pursuant to an indenture to be dated on or about the date of the first issuance of Senior Debt Securities thereunder, by and between the Company and a trustee to be selected by the Company (the “Senior Indenture”);
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(iv)
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subordinated debt securities, in one or more series (the “Subordinated Debt Securities” and, together with the Senior Debt Securities, the “Debt Securities”), which may be issued pursuant to an indenture to be dated on or about the date of the first issuance of Subordinated Debt Securities thereunder, by and between the Company and a trustee to be selected by the Company (the “Subordinated Indenture”);
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(v)
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warrants to purchase Common Stock, Preferred Stock, Senior Debt Securities and/or Subordinated Debt Securities (the “Warrants”), which may be issued under warrant agreements, to be dated on or about the date of the first issuance of the applicable Warrants thereunder, by and between the Company and a warrant agent to be selected by the Company (each, a “Warrant Agreement”);
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(vi)
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rights to purchase Common Stock, Preferred Stock or Debt Securities (the “Rights”), which may be issued pursuant to a rights agreement and certificates issued thereunder, to be dated on or about the date of the first issuance of the applicable Rights thereunder, by and between the Company and a rights agent to be selected by the Company (each, a “Rights Agreement”); and
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(vii)
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units comprised of one or more Debt Securities, shares of Common Stock, shares of Preferred
Stock, Rights, and Warrants, in any combination (the “Units”), which may be issued under unit agreements,
to be dated on or about the date of the first issuance of the applicable Units thereunder, by and between the Company and
a unit agent to be selected by the Company (each, a “Unit Agreement”).
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The Common Stock, the Preferred Stock, the
Debt Securities, the Warrants, the Rights, and the Units are collectively referred to herein as the “Securities.”
The Securities are being registered for offering and sale from time to time on a delayed or continuous basis pursuant to Rule 415
under the Securities Act. The maximum aggregate public offering price of the Securities being registered will be $50,000,000.
In connection with this opinion, we have
examined the Company’s Amended and Restated Certificate of Incorporation and Amended and Restated By-Laws, both as amended
and as currently in effect, such other records of the corporate proceedings of the Company and certificates of the Company’s
officers as we have deemed relevant, as well as the Registration Statement and the exhibits thereto.
In our capacity as counsel to the Company
in connection with such registration, we are familiar with the proceedings taken and proposed to be taken by the Company in connection
with the authorization and issuance of the Securities. For purposes of this opinion, we have assumed that such proceedings that
have not yet been completed will be timely and properly completed, in accordance with all requirements of applicable federal and
Delaware laws, in the manner presently proposed.
In our examination, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals,
the conformity to original documents of all documents submitted to us as certified, photostatic or facsimile copies and the authenticity
of the originals of such copies.
Members of our firm are admitted to the
Bar of the State of New York, and we do not express any opinion as to the laws of any other jurisdiction other than the General
Corporation Law of the State of Delaware and the United States federal laws. To the extent that any applicable document is stated
to be governed by the laws of another jurisdiction, we have assumed for purposes of this opinion that the laws of such jurisdiction
are identical to the state laws of the State of New York. No opinion is expressed herein with respect to (i) the qualification
of the Securities under the securities or blue sky laws of any state or any foreign jurisdiction or (ii) the compliance with any
federal or state law, rule or regulation relating to securities, or to the sale or issuance thereof. The Securities may be offered
and sold from time to time on a delayed or continuous basis, but this opinion is limited to the laws, including the rules and regulations
thereunder, as in effect on the date hereof.
Based upon the foregoing and in reliance
thereon, and subject to the qualifications herein stated, we are of the opinion that:
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1.
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With respect to the Common Stock, when (i) specifically authorized for issuance by the Company’s Board of Directors or an authorized committee thereof (the “Authorizing Resolutions”), (ii) the Registration Statement, as finally amended (including all post-effective amendments), has become effective under the Securities Act, (iii) an appropriate prospectus supplement with respect to the applicable shares of Common Stock has been prepared, delivered and filed in compliance with the Securities Act and the applicable rules and regulations thereunder, (iv) if the applicable shares of Common Stock are to be sold pursuant to a purchase, underwriting or similar agreement (an “Underwriting Agreement”), such Underwriting Agreement with respect to the applicable shares of Common Stock in the form filed as an exhibit to the Registration Statement, any post-effective amendment thereto or to a Current Report on Form 8-K, has been duly authorized, executed and delivered by the Company and the other parties thereto, (v) the terms of the sale of the Common Stock have been duly established in conformity with the Company’s then operative Certificate of Incorporation and By-Laws and do not violate any applicable law or result in a default under or breach of any agreement or instrument binding on the Company and comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, (vi) the Common Stock has been issued and sold as contemplated by the Registration Statement and the prospectus included therein, and (vii) the Company has received the consideration provided for in the Authorizing Resolutions and, if applicable, the Underwriting Agreement, the Common Stock will be validly issued, fully paid and non-assessable.
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2.
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With respect to the Preferred Stock, when (i) specifically authorized for issuance by the Authorizing Resolutions, (ii) the Registration Statement, as finally amended (including all post-effective amendments), has become effective under the Securities Act, (iii) an appropriate prospectus supplement with respect to the applicable shares of Preferred Stock has been prepared, delivered and filed in compliance with the Securities Act and the applicable rules and regulations thereunder, (iv) if the applicable shares of Preferred Stock are to be sold pursuant to an Underwriting Agreement, such Underwriting Agreement with respect to the applicable shares of Preferred Stock in the form filed as an exhibit to the Registration Statement, any post-effective amendment thereto or to a Current Report on Form 8-K, has been duly authorized, executed and delivered by the Company and the other parties thereto, (v) an appropriate Certificate or Certificates of Amendment or Designation relating to a class or series of the Preferred Stock to be sold under the Registration Statement has been duly authorized and adopted and filed with the Secretary of State of Delaware, (vi) the terms of issuance and sale of shares of such class or series of Preferred Stock have been duly established in conformity with the Company’s then operative Certificate of Incorporation and By-Laws and do not violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company and comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, (vii) shares of such class or series of Preferred Stock have been duly issued and sold as contemplated by the Registration Statement and the prospectus included therein, and (viii) the Company has received the consideration provided for in the Authorizing Resolutions and, if applicable, the Underwriting Agreement, such Preferred Stock will be validly issued, fully paid, and nonassessable.
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3.
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With respect to the Debt Securities, when (i) specifically authorized for issuance by the Authorizing Resolutions, (ii) the Registration Statement, as finally amended (including all post-effective amendments), has become effective under the Securities Act, (iii) an appropriate prospectus supplement with respect to the applicable Debt Securities has been prepared, delivered and filed in compliance with the Securities Act and the applicable rules and regulations thereunder, (iv) if the applicable Debt Securities are to be sold pursuant to an Underwriting Agreement, such Underwriting Agreement with respect to the applicable Debt Securities in the form filed as an exhibit to the Registration Statement, any post-effective amendment thereto or to a Current Report on Form 8-K, has been duly authorized, executed and delivered by the Company and the other parties thereto, (v) the terms of the Debt Securities and of their issuance and sale have been duly established in conformity with the Senior Indenture or the Subordinated Indenture, whichever the case may be, and do not violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company and comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, (vi) such Debt Securities have been duly executed and authenticated in accordance with the Senior Indenture or the Subordinated Indenture, whichever the case may be, and issued and sold as contemplated in the Registration Statement and the prospectus included therein, (vii) the Senior Indenture or the Subordinated Indenture, whichever the case may be, relating to the Debt Securities has been qualified under the Trust Indenture Act of 1939, as amended, and (viii) the Company has received the consideration provided for in the Authorizing Resolutions and, if applicable, the Underwriting Agreement, such Debt Securities will constitute valid and legally binding obligations of the Company.
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4.
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With respect to the Warrants, when (i) specifically authorized for issuance by the
Authorizing Resolutions, (ii) the Registration Statement, as finally amended (including all post-effective amendments), has
become effective under the Securities Act, (iii) the Warrant Agreement relating to the Warrants, if applicable, has been
duly authorized, executed, and delivered, (iv) an appropriate prospectus supplement with respect to the applicable
Warrants has been prepared, delivered and filed in compliance with the Securities Act and the applicable rules and
regulations thereunder, (v) if the applicable Warrants are to be sold pursuant to an Underwriting Agreement, such
Underwriting Agreement with respect to the applicable Warrants in the form filed as an exhibit to the Registration
Statement, any post-effective amendment thereto or to a Current Report on Form 8-K, has been duly authorized,
executed and delivered by the Company and the other parties thereto, (vi) the terms of the Warrants and of their
issuance and sale have been duly established in conformity with the Warrant Agreement and do not violate any
applicable law or result in a default under or breach of any agreement or instrument binding upon the Company and
comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the
Company, (vii) the Warrants have been duly executed and countersigned in accordance with the Warrant Agreement, if applicable, and
issued and sold as contemplated by the Registration Statement and the prospectus included therein, and (viii) the Company
has received the consideration provided for in the Authorizing Resolutions and, if applicable, the Underwriting
Agreement, the Warrants will constitute valid and legally binding obligations of the Company.
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5.
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With respect to the Rights, when (i) specifically authorized for issuance by the Authorizing Resolutions, (ii) the Registration Statement, as finally amended (including all post-effective amendments), has become effective under the Securities Act, (iii) the Rights Agreement and any certificates relating to the Rights have been duly authorized, executed, and delivered, (iv) an appropriate prospectus supplement with respect to the applicable Rights has been prepared, delivered and filed in compliance with the Securities Act and the applicable rules and regulations thereunder, (v) if the applicable Rights are to be sold pursuant to an Underwriting Agreement, such Underwriting Agreement with respect to the applicable Rights in the form filed as an exhibit to the Registration Statement, any post-effective amendment thereto or to a Current Report on Form 8-K, has been duly authorized, executed and delivered by the Company and the other parties thereto, (vi) the terms of the Rights and of their issuance and sale have been duly established in conformity with the Rights Agreement and any rights certificates and do not violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company and comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, (vii) the Rights have been duly executed and countersigned in accordance with the Rights Agreement, if applicable, and issued and sold as contemplated by the Registration Statement and the prospectus included therein, and (viii) the Company has received the consideration provided for in the Authorizing Resolutions and, if applicable, the Underwriting Agreement, the Rights will constitute valid and legally binding obligations of the Company.
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6.
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With respect to the Units, when (i) specifically authorized for issuance by the Authorizing Resolutions, (ii) the Registration Statement, as finally amended (including all post-effective amendments), has become effective under the Securities Act, (iii) the Unit Agreement, if applicable, relating to the Units has been duly authorized, executed, and delivered, (iv) an appropriate prospectus supplement with respect to the applicable Units has been prepared, delivered and filed in compliance with the Securities Act and the applicable rules and regulations thereunder, (v) if the applicable Units are to be sold pursuant to an Underwriting Agreement, such Underwriting Agreement with respect to the applicable Units in the form filed as an exhibit to the Registration Statement, any post-effective amendment thereto or to a Current Report on Form 8-K, has been duly authorized, executed and delivered by the Company and the other parties thereto, (vi) the terms of the Units and of their issuance and sale have been duly established in conformity with the Unit Agreement and do not violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company and comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, (vii) the Units have been duly executed and countersigned in accordance with the Unit Agreement, if applicable, and issued and sold as contemplated by the Registration Statement and the prospectus included therein, and (viii) the Company has received the consideration provided for in the Authorizing Resolutions and, if applicable, the Underwriting Agreement, the Units will constitute valid and legally binding obligations of the Company.
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The opinions set forth above are subject
to the following exceptions, limitations and qualifications: (i) the effect of bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws now or hereafter in effect relating to or affecting the rights and remedies of creditors;
(ii) the effect of general principles of equity, whether enforcement is considered in a proceeding in equity or at law, and the
discretion of the court before which any proceeding therefor may be brought; (iii) the unenforceability under certain circumstances
under law or court decisions of provisions providing for the indemnification of, or contribution to, a party with respect to a
liability where such indemnification or contribution is contrary to public policy; (iv) we express no opinion concerning the enforceability
of any waiver of rights or defenses with respect to stay, extension or usury laws; and (v) we express no opinion with respect to
whether acceleration of any Debt Securities may affect the ability to collect any portion of the stated principal amount thereof
which might be determined to constitute unearned interest thereon.
We have relied as to certain matters on
information obtained from public officials, officers of the Company, and other sources believed by us to be responsible and we
have assumed that the Senior Indenture and the Subordinated Indenture will be duly authorized, executed, and delivered by the respective
trustees thereunder and the Warrant Agreement, Rights Agreement and Unit Agreement will be duly authorized, executed, and delivered
by the warrant agent, rights agent and unit agent, respectively, thereunder. With respect to our opinion as to the Common Stock
and Securities convertible into or exercisable for shares of Common Stock, we have assumed that, at the time of issuance and sale,
a sufficient number of shares of Common Stock are authorized and available for issuance under the Company’s Certificate of
Incorporation as then in effect and that the consideration for the issuance and sale of the Common Stock (or Preferred Stock, Debt
Securities convertible into Common Stock or Warrants or Rights exercisable for Common Stock or any Units of such Securities) is
in an amount that is not less than the par value of the Common Stock. With respect to our opinion as to the Preferred Stock and
Securities convertible into or exercisable for shares of Preferred Stock, we have assumed that, at the time of issuance and sale,
a sufficient number of shares of Preferred Stock are authorized, designated and available for issuance and that the consideration
for the issuance and sale of the Preferred Stock (or Debt Securities convertible into Preferred Stock or Warrants or Rights exercisable
for Preferred Stock or any Units of such Securities) is in an amount that is not less than the par value of the Preferred Stock.
We have also assumed that any Warrants, Rights, and Units offered under the Registration Statement, and the related Warrant Agreement,
Rights Agreement, and Unit Agreement, as applicable, will be executed in the forms filed as exhibits to the Registration Statement
or incorporated by reference therein. We have not independently verified any of the foregoing assumptions.
Please note that we are opining only as
to the matters expressly set forth herein, and no opinion should be inferred as to any other matters. This opinion is based upon
currently existing statutes, rules, regulations and judicial decisions, and we disclaim any obligation to advise you of any change
in any of these sources of law or subsequent legal or factual developments which might affect any matters or opinions set forth
herein.
We hereby consent to the filing of this
opinion as an exhibit to the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K under
the Securities Act and to the use of this Firm’s name therein and in the prospectus included therein under the caption “Legal
Matters.” In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required
under Section 7 of the Securities Act or the rules and regulations of the Commission.
Very truly yours,
/s/ Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference
in this Registration Statement on Form S-3 of SELLAS Life Sciences Group, Inc. (the “Company”) of our report dated
March 22, 2019 relating to the consolidated financial statements of the Company, which report appears in the Annual Report on Form
10-K of the Company for the year ended December 31, 2018 (and expresses an unqualified opinion and includes an explanatory paragraph
regarding the Company’s going concern uncertainty), filed with the Securities and Exchange Commission, and to the reference
to our firm under the heading “Experts” in the Prospectus, which is part of this Registration Statement.
/s/ Moss Adams LLP
San Francisco, California
September 20, 2019