As filed with the Securities and Exchange Commission on December
20, 2018
Registration No.
333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ZOMEDICA PHARMACEUTICALS CORP.
(Exact name of registrant as specified in its charter)
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Alberta, Canada
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N/A
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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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100 Phoenix Drive, Suite 190
Ann Arbor, Michigan 48108
(734) 369-2555
(Address, including zip code, and telephone number, including
area code, of registrant’s principal executive offices)
Gerald Solensky, Jr.
President and Chief Executive Officer
100 Phoenix Drive, Suite 190
Ann Arbor, Michigan 48108
(734) 369-2555
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Copies of all communications, including communications sent
to the agent for service, to:
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John D. Hogoboom
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Paul Bolger
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Lowenstein Sandler LLP
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Tingle Merrett LLP
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1251 Ave of the Americas
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1250, 639 – 5
th
Avenue S.W.
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New York, New York 10020
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Calgary, Alberta T2P 0M9
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Tel: (212) 262-6700
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Tel: (403) 571-8006
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Fax: (212) 262-7402
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Fax: (403) 571-8008
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Approximate date of commencement of proposed sale to the public
: From time to
time after this Registration Statement becomes effective.
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If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box:
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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:
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x
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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.
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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.
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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.
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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.
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Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer:
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Accelerated filer:
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Non-accelerated filer:
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(Do not check if a smaller reporting company)
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Smaller reporting company:
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x
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Emerging growth company:
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x
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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.
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CALCULATION OF REGISTRATION FEE
Title of Each Class of
Securities to be Registered
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Amount to be
Registered (1)
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Proposed
Maximum Offering
Price per Unit
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Proposed Maximum
Aggregate Offering
Price (3)
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Amount of
Registration Fee (3)
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Common Shares, without par value
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(2)
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(2)
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(2)
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(2)
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Preferred Shares, without par value
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(2)
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(2)
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(2)
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(2)
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Warrants
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(2)
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(2)
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(2)
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(2)
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Debt Securities
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(2)
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(2)
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(2)
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(2)
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Subscription Rights
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(2)
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(2)
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(2)
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(2)
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Units (4)
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(2)
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(2)
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(2)
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(2)
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TOTAL:
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$300,000,000
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$36,360
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(1)
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An indeterminate amount of the securities of each identified class
is being registered as may from time to time be offered hereunder at indeterminate prices, along with an indeterminate number of
securities that may be issued upon exercise, settlement, exchange or conversion of securities offered or sold hereunder. These
securities may also be sold separately, together or as units with the other securities registered hereunder. The securities registered
hereunder will have an aggregate offering price that does not exceed $300 million or the equivalent in any other currency, currency
unit or units, or composite currency or currencies.
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(2)
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Not required to be included in accordance with General Instruction
II.D. of Form S-3 under the Securities Act.
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(3)
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Calculated pursuant to Rule 457(o) under the Securities Act.
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(4)
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Each unit will consist of one or more common shares, preferred shares, warrants, debt securities, subscription rights or any combination of such securities, which may or may not be separable from one another.
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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 which specifically
states that this registration statement shall thereafter become effective in accordance with section 8(a) of the Securities Act
of 1933 or until this registration statement shall become effective on such date as the Securities and Exchange Commission, acting
pursuant to said section 8(a), may determine.
EXPLANATORY NOTE
This registration statement contains two prospectuses:
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a
base prospectus which covers the offering, issuance and sale by the registrant of up to a maximum aggregate offering price of
$300 million of the registrant’s common shares, preferred shares, warrants, debt securities, subscription rights and/or
units; and
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a
sales agreement prospectus covering the offering, issuance and sale by the registrant of up to a maximum aggregate offering price
of $50 million of registrant’s common shares that may be issued and sold under a sales agreement with Cantor Fitzgerald
& Co.
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The base prospectus immediately follows this explanatory note. The
specific terms of any securities to be offered pursuant to the base prospectus will be specified in a prospectus supplement to
the base prospectus. The sales agreement prospectus immediately follows the base prospectus. The common shares that may be offered,
issued and sold by the registrant under the sales agreement prospectus is included in the $300 million of securities that may be
offered, issued and sold by the registrant under the base prospectus. Upon termination of the sales agreement with Cantor Fitzgerald
& Co., any portion of the $50 million included in the sales agreement prospectus that is not sold pursuant to the sales agreement
will be available for sale in other offerings pursuant to the base prospectus and a corresponding prospectus supplement, and if
no shares are sold under the sales agreement, the full $50 million of securities may be sold in other offerings pursuant to the
base prospectus.
The information in this prospectus is not complete
and may be changed. A registration statement relating to these securities has been filed with the Securities and Exchange Commission.
These securities may not be sold until the registration statement is effective. This prospectus is not an offer to sell these securities
and does not solicit an offer to buy these securities in any state or other jurisdiction where the offer or sale is not permitted.
Subject to completion, dated December 20, 2018
PROSPECTUS
$300,000,000
Common Shares
Preferred Shares
Warrants
Debt Securities
Subscription Rights
Units
We may offer and sell an indeterminate number of our common shares, preferred shares,
warrants, debt securities and subscription rights from time to time under this prospectus. We may offer these securities separately
or as units, which may include combinations of the securities. We will describe in a prospectus supplement the securities we are
offering and selling, as well as the specific terms of the securities.
We may offer these securities in amounts, at prices and on terms
determined at the time of offering. We may sell the securities directly to you, through agents we select, or through underwriters
and dealers we select. If we use agents, underwriters or dealers to sell the securities, we will name them and describe their compensation
in a prospectus supplement.
Our common shares are listed on the NYSE American and the TSX Venture
Exchange under the symbol “ZOM.” On December 19, 2018, the last reported closing sale price of our common shares
on the NYSE American was $1.18 per share. We have not yet determined whether the other securities that may be offered by this
prospectus will be listed on any exchange, inter-dealer quotation system or over-the-counter market. If we decide to seek the listing
of any such securities upon issuance, the prospectus supplement relating to those securities will disclose the exchange, quotation
system or market on which the securities will be listed.
We are an “emerging growth company” as that term is
used in the Jumpstart Our Business Startups Act of 2012, as amended, or the JOBS Act, and, as such, we have elected to comply with
certain reduced public company reporting requirements. See “Prospectus Summary – Implications of Being an Emerging
Growth Company” in this prospectus for more information.
Investing in our securities involves certain risks. See “Risk
Factors” in our most recent Annual Report on Form 10-K as such risk factors may be updated in our subsequent reports filed
with the Securities and Exchange Commission, which are incorporated by reference herein, and as may be amended, supplemented or
superseded from time to time by other reports we file with the Securities and Exchange Commission.
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 ____, 2018
TABLE
OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed
with the Securities and Exchange Commission (the “SEC”) utilizing a “shelf” registration process. Under
this shelf process, we may sell any combination of the securities described in this prospectus in one or more offerings. This prospectus
provides you with a general description of the securities we may offer. Each time we sell securities, we will provide a prospectus
supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add, update
or change information contained in this prospectus. You should read both this prospectus and any prospectus supplement together
with additional information described under the heading “Where You Can Find More Information.”
We have not authorized anyone to provide any information other than
that contained or incorporated by reference in this prospectus or in any free writing prospectus prepared by or on behalf of us
or to which we have referred you. We take no responsibility for, and can provide no assurance as to the reliability of, any other
information that others may give you. We are not making an offer of these securities in any state where the offer is not permitted.
You should not assume that the information contained in or incorporated by reference in this prospectus or any prospectus supplement
or in any such free writing prospectus is accurate as of any date other than their respective dates.
Unless the context provides otherwise, references herein to “we,”
“our,” “us,” “our company” and “Zomedica” refer to Zomedica Pharmaceuticals Corp.
together with, where applicable, our consolidated subsidiary, Zomedica Pharmaceuticals Inc., a Delaware corporation.
Unless otherwise noted herein, all references to “CDN$,”
“CAD$,” or “Canadian dollars” are to the currency of Canada and “$,” “dollars,”
“US$,” “United States dollars,” or “U.S. dollars” are to the currency of the United States.
CAUTIONARY NOTE ON FORWARD-LOOKING STATEMENTS
This prospectus, including the documents incorporated by reference
herein, contains forward-looking statements. In some cases, you can identify these statements by forward-looking words such as
“may,” “might,” “will,” “should,” “expects,” “plans,” “anticipates,”
“believes,” “estimates,” “predicts,” “potential” or “continue,” the
negative or plural of these words and other comparable terminology. These forward-looking statements, which are subject to risks,
uncertainties and assumptions about us, may include projections of our future financial performance, our anticipated growth strategies
and anticipated trends in our business. These statements are only predictions based on our current expectations and projections
about future events. There are important factors that could cause our actual results, level of activity, performance or achievements
to differ materially from the results, level of activity, performance or achievements expressed or implied by the forward-looking
statements, including those factors discussed under the caption entitled “Risk Factors” in our Annual Report on Form
10-K for the fiscal year ended December 31, 2017, as modified under the caption “Risk Factors” in our Quarterly Report
on Form 10-Q for the fiscal quarter ended September 30, 2018.
Although we believe the expectations reflected in the forward-looking
statements are reasonable, we cannot guarantee future results, level of activity, performance or achievements. Moreover, neither
we nor any other person assumes responsibility for the accuracy and completeness of any of these forward-looking statements. We
are under no duty to update any of these forward-looking statements after the date of this prospectus to conform our prior statements
to actual results or revised expectations.
PROSPECTUS SUMMARY
Our Company
We are a development stage veterinary diagnostic and pharmaceutical
company creating products for companion animals (canine, feline, and equine) by focusing on the unmet needs of clinical veterinarians.
We believe that we have identified and are developing diagnostics and therapeutics that have the potential to significantly improve
the diagnosis and treatment of various diseases affecting companion animals. We believe that there are significant unmet medical
needs for pets, and that the pet diagnostic and therapeutic segments of the animal health industry are likely to grow substantially
as new diagnostic tools and treatments are identified, developed, and marketed specifically for companion animals.
Together with our strategic partners, we are developing a Bulk Acoustic
Wave sensor-based veterinary point-of-care diagnostic platform for diagnosis and treatment management of disorders such as thyroid
and adrenal abnormalities, a Raman spectroscopy-based point-of-care diagnostic platform for the detection of pathogens, and liquid
biopsy assays for the detection of cancer and related consumables. The regulatory pathway to obtain pre-market regulatory approval
of companion animal diagnostics is significantly shorter than for similar diagnostic products intended for human use. In certain
cases, pre-market regulatory approval may be unnecessary, depending on the intended use of the diagnostic.
We also have identified a number of drugs that have proven safe
and effective in humans that we are developing for use in canines and felines. We believe this development approach enables us
to reduce the risks associated with obtaining regulatory approval for unproven product candidates and shortens the development
timeline necessary to bring our product candidates to market. We have four drug product candidates in early development and have
identified several other potential product candidates for further investigation.
In addition, we are investigating the development of alternative
drug delivery technologies for our drug product candidates. Many of the human-approved therapeutics used in companion animals are
only available in pill or injectable form. However, it can be difficult to give a companion animal an injection or to assure that
the animal has swallowed a pill. As a result, we believe that compliance with treatment regimens is a significant problem for veterinarians
and pet owners. The challenges associated with medicating pets are unique, and we believe that developing product candidates that
can be easily taken by the pet or easily administered by pet owners will help increase compliance.
Corporate Information
Zomedica Pharmaceuticals Corp. (formerly, Wise Oakwood Ventures
Inc.) was originally incorporated as Wise Oakwood Ventures Inc. on January 7, 2013 under the
Business Corporations Act
(Alberta)
(“ABCA”). On October 28, 2013, we completed our initial public offering in Canada and became classified as a Capital
Pool Company, as defined under the rules of the TSX Venture Exchange, or TSX-V. On April 21, 2016, we changed our name to Zomedica
Pharmaceuticals Corp. and consolidated our common shares on a one-for-two and one-half basis. ZoMedica Pharmaceuticals Inc., or
ZoMedica Inc., was incorporated on May 14, 2015 under the ABCA. On April 21, 2016, we completed a qualifying transaction,
or the Qualifying Transaction, under TSX-V Policy 2.4 –
Capital Pool Companies
, consisting of a three-cornered
amalgamation among our company, ZoMedica Inc. and our wholly-owned subsidiary. Under the Qualifying Transaction, ZoMedica Inc.
and our subsidiary were amalgamated to form Zomedica Pharmaceuticals Ltd., or Zomedica Ltd. As consideration for the amalgamation,
shareholders of ZoMedica Inc. became the owners of 97.6% (non-diluted) of our common shares, and ZoMedica Ltd. became our wholly-owned
subsidiary. Subsequent to the Qualifying Transaction, Zomedica Ltd. was vertically amalgamated into our company. We have one wholly-owned
subsidiary, Zomedica Pharmaceuticals, Inc., a Delaware company. Our principal executive offices are located at 100 Phoenix Drive,
Suite 190, Ann Arbor, MI 48108, and our telephone number is (734) 369-2555. Our website address is www.zomedica.com. We have not
incorporated by reference into this prospectus the information on our website, and you should not consider it to be a part of this
document.
Implications of Being an Emerging Growth Company
As a company with less than $1.07 billion in revenue during our
last fiscal year, we qualify as an “emerging growth company” as defined in the Jumpstart Our Business Startups Act,
or JOBS Act, enacted in April 2012. An “emerging growth company” may take advantage of reduced reporting requirements
that are otherwise applicable to public companies. These provisions include, but are not limited to:
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not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley
Act;
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reduced disclosure obligations regarding executive compensation in our periodic reports, proxy
statements and registration statements; and
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exemptions from the requirements of holding a non-binding advisory vote on executive compensation
and shareholder approval of any golden parachute payments not previously approved.
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We may take advantage of these provisions until December 31, 2022.
However, if certain events occur prior to December 31, 2022, including if we become a “large accelerated filer,” our
annual gross revenues exceed $1.07 billion or we issue more than $1.0 billion of non-convertible debt in any three-year period,
we will cease to be an emerging growth company before such date.
In addition, the JOBS Act provides that an emerging growth company
may delay adopting new or revised accounting standards until such time as those standards apply to private companies. We have irrevocably
elected not to avail ourselves of this exemption and, therefore, we will be subject to the same new or revised accounting standards
as other public companies that are not emerging growth companies.
RISK FACTORS
You should carefully consider all of the information in this prospectus
and, in particular, you should evaluate the specific risk factors incorporated by reference herein and included or incorporated
by reference in any applicable prospectus supplement.
USE OF PROCEEDS
Unless otherwise indicated in a prospectus supplement, the net proceeds
from the sale of the securities will be used for working capital and general corporate purposes. When particular securities are
offered, the prospectus supplement relating to that offering will set forth our intended use of the net proceeds received from
the sale of those securities we sell. Pending the application of the net proceeds for these purposes, we expect to invest the proceeds
in short-term, interest-bearing instruments or other investment-grade securities.
DESCRIPTION OF COMMON SHARES
The following is a summary of the rights of our common shares as
set forth in our Articles of Incorporation, as amended, and By-laws, which are included as exhibits to the registration statement
relating to this offering filed by us with the SEC. This summary does not purport to be complete and is qualified in its entirety
by the full text of our aforementioned constating documents and by applicable law.
Our authorized capital consists of an unlimited number of common
shares without nominal or par value and an unlimited number of preferred shares without nominal or par value, which are issuable
in series.
As of September 30, 2018, 94,596,209 common shares were issued and
outstanding as fully paid and non-assessable shares. No preferred shares had been issued as of that date and accordingly, none
were issued and outstanding. In addition, as of September 30, 2018, we had outstanding options to purchase an aggregate of 3,687,004
common shares outstanding with a weighted average exercise price of $1.33 per share.
The additional shares of our authorized stock available for issuance
may be issued at times and under circumstances so as to have a dilutive effect on earnings per share and on the equity ownership
of the holders of our common shares. The ability of our board of directors to issue additional shares could enhance the board’s
ability to negotiate on behalf of the shareholders in a take-over situation but could also be used by the board of directors to
make a change-in-control more difficult, thereby denying shareholders the potential to sell their shares at a premium and entrenching
current management.
Dividend Rights
Subject to any rights, privileges, restrictions and conditions which may apply to any
series of preferred shares that are issued, holders of our common shares are entitled to receive dividends, if, as and when declared
by the board of directors.
Voting Rights
The holders of the common shares are entitled to receive notice
of and attend any meeting of our shareholders and are entitled to cast one vote for each common share held.
No Preemptive, Conversion or Redemption Rights
Holders of our common shares are not entitled to preemptive rights
and our common shares are not subject to conversion or redemption.
Rights upon Liquidation
On the winding-up, liquidation or dissolution of our company or
upon the happening of any other event giving rise to a distribution of our assets other than by way of dividend amongst our shareholders
for the purposes of winding-up our affairs, subject to any rights, privileges, restrictions and conditions which may have been
determined by the directors to attach to any series of preferred shares, the holders of all common shares shall be entitled to
participate pari passu.
Action Necessary to Change the Rights of Holders of our Shares
Under the
Business Corporations Act
(Alberta) (“ABCA”),
a company can amend its articles and governing documents via a special resolution of its shareholders. A “special resolution
”
is a resolution passed by a majority of not less than two-thirds of the votes cast by the shareholders who voted in respect of
that resolution or signed by all the shareholders entitled to vote on that resolution. Items that can be amended via special resolution
include (but are not limited to): a change in our name; changing any maximum number of shares that we are authorized to issue;
creating new classes of shares; reducing or increasing our stated capital; changing the designation of our shares to add, change
or remove any rights, privileges, restrictions and conditions, including rights to accrued dividends, in respect of all or any
of our shares, whether issued or unissued; dividing a class of shares, whether issued or unissued, into series and fixing the number
of shares in each series and the rights, privileges, restrictions and conditions thereof; authorizing the directors to divide any
class of unissued shares into series and to fix the number of shares in each series and the rights, privileges, restrictions and
conditions thereof; authorizing the directors to change the rights, privileges, restrictions and conditions attached to unissued
shares of any series; or adding, changing or removing restrictions on the issue, transfer or ownership of shares.
Shareholder Meetings
Under the ABCA: (1) We must hold an annual meeting of shareholders
not later than 15 months after holding the last preceding annual meeting; (2) the directors may at any time call a special meeting
of shareholders; and (3) the holders of not less than 5% of our issued shares that carry the right to vote at a meeting sought
to be held may requisition the directors to call a meeting of shareholders for the purposes stated in the requisition. The most
recent annual meeting of our shareholders was held on August 15, 2018.
The ABCA requires that notice of the time and place of a meeting
of shareholders shall be sent not less than 21 days and not more than 50 days before the meeting: (1) to each shareholder on record
that is entitled to vote at the meeting; (2) to each director; and (3) to our auditor.
We also comply with certain continuous disclosure obligations of
a reporting issuer in Canada respecting shareholder meetings, in addition to the rules and policies of the TSX-V.
Certain Take-over Bid Requirements
Canadian laws applicable to us provide for early warning disclosure
requirements and for take-over bid rules for bids made to security holders in various jurisdictions in Canada, a summary of which
is set forth below.
In Canada, securities laws are a matter of provincial/territorial
jurisdiction and, as a result, bids are governed by applicable corporate and securities legislation in each province or territory
in addition to policy and instruments implemented by Canadian Securities Administrators.
Under the laws of the Provinces of Alberta and British Columbia,
the jurisdictions in Canada in which we are a reporting issuer (as defined under provincial securities law), when any person (an
“offeror”) acquires, except pursuant to a formal take-over bid, beneficial ownership of, or the power to exercise control
or direction over, or securities convertible into, voting or equity securities of any class of a reporting issuer that, together
with such offeror’s securities of that class, would constitute 10% or more of the outstanding securities of that class, the
offeror must immediately (i) issue and file a press release announcing the acquisition and (ii) file a report of such acquisition
with the applicable securities regulatory authorities within two business days of the acquisition. Once an offeror has filed such
report, the offeror is required to issue further press releases and file further reports each time that the offeror, or any person
acting jointly or in concert with the offeror, acquires beneficial ownership of, or the power to exercise control or direction
over, or securities convertible into, an additional 2% or more of the outstanding securities of the applicable class and upon a
change in any other material fact set out in previous reports. Certain institutional investors may elect an alternative monthly
reporting system.
In Alberta, British Columbia and other Canadian jurisdictions, a
take-over bid is generally defined as an offer to acquire outstanding voting or equity securities of a class made to any holder
in the jurisdiction of securities subject to the offer to acquire, if the securities subject to the offer to acquire, together
with securities held by the offeror and any person acting jointly or in concert with the offeror, constitute in aggregate 20% or
more of the outstanding securities of that class of securities at the date of the offer to acquire. Subject to limited exemptions,
a take-over bid must generally be made to all holders of securities of the class that is subject to the bid who are in the jurisdiction
and must allow such security holders 35 days to accept the bid. Unless exemptions are available, the offeror must deliver to the
security holders a take-over bid circular which describes the terms of the take-over bid and the directors of the reporting issuer
must deliver a directors’ circular not later than 15 days after the date of the bid, either making or declining to make a
recommendation to security holders to accept or reject the bid and the reasons for their making or not making a recommendation.
Whilst provincial securities laws in Canada only regulate offers to residents of the particular province, the Canadian Securities
Administrators have adopted a policy whereby they may issue a cease trade order against a company if a take-over bid is not made
to all Canadian security holders. It should be noted that one exemption from the aforementioned provisions is in the case of a
“foreign take-over bid”. Such an exemption may be available where (among other criteria): (a) security holders whose
last address as shown on the books of the offeree issuer is in Canada hold less than 10% of the outstanding securities of the class
subject to the bid at the commencement of the bid; (b) the offeror reasonably believes that security holders in Canada beneficially
own less than 10% of the outstanding securities of the class subject to the bid at the commencement of the bid; (c) the published
market on which the greatest volume of trading in securities of that class occurred during the 12 months immediately preceding
the commencement of the bid was not in Canada; (d) security holders in the local jurisdiction are entitled to participate in the
bid on terms at least as favourable as the terms that apply to the general body of security holders of the same class; (e) at the
same time as material relating to the bid is sent by or on behalf of the offeror to security holders of the class that is subject
to the bid, the material is filed and sent to security holders whose last address as shown on the books of the offeree issuer is
in the local jurisdiction. For a complete description of the foreign take-over bid exemption, readers are referenced to Multilateral
Instrument 62-104 –
Take-over Bids and Issuer Bids
, issued by the Canadian Securities Administrators.
Transfer Agent and Registrar
The transfer agent and registrar for our common shares is AST Trust
Company (Canada). Our transfer agent’s address is 1 Toronto Street, Suite 1200, Toronto, Ontario M5C 2VC and its telephone
number is (416) 682-3844.
Our co-transfer agent is American Stock Transfer & Trust Company.
Listing
Our common shares are listed on the NYSE American and the TSX Venture
Exchange under the symbol “ZOM.”
DESCRIPTION OF PREFERRED SHARES
Our board of directors is authorized, subject to limitations imposed
by the ABCA and our Articles of Amalgamation, to issue an unlimited number of preferred shares in one or more series, without shareholder
approval, unless shareholder approval is required by applicable law or by the rules of a stock exchange or quotation system on
which any series of our preferred shares may be listed or quoted. Our board is authorized to establish from time to time the number
of shares to be included in each series and to fix the rights, preferences and privileges of the shares of each wholly unissued
series and any of its qualifications, limitations or restrictions.
This prospectus describes certain general terms and provisions of
our preferred shares. When we offer to sell a particular series of preferred shares, we will describe the specific terms of the
securities in a supplement to this prospectus. The prospectus supplement will also indicate which terms and provisions described
in this prospectus apply to the particular series of preferred shares. The terms of the preferred shares will be determined by
a resolution of the directors, following which we shall file Articles of Amendment with the Corporate Registry of the Province
of Alberta. The series of preferred shares will become effective upon the issuance by the foregoing Registry of a Certificate of
Amendment. Copies of the Articles and Certificate of Amendment (which will include a complete description of such share capital
terms), will be posted under our corporate profile on www.sedar.com.
The prospectus supplement will describe the terms of any preferred
shares being offered, including:
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the number of shares and designation or title of the shares;
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any liquidation preference per share;
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any redemption, repayment or sinking fund provisions;
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any dividend rate or rates and the dates of payment (or the method for determining the dividend
rates or dates of payment);
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any restriction on the repurchase or redemption of shares by us while there is any arrearage in
the payment of dividends or sinking fund installments;
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if other than the currency of the United States, the currency or currencies, including composite
currencies, in which the preferred stock is denominated and/or in which payments will or may be payable;
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whether the preferred shares are convertible or exchangeable and, if so, the securities or rights
into which the preferred shares are convertible or exchangeable, and the terms and conditions of conversion or exchange;
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the place or places where dividends and other payments on the preferred shares will be payable;
and
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any additional voting, dividend, liquidation, redemption and other rights, preferences, privileges,
limitations and restrictions.
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All preferred shares offered will be fully paid and non-assessable.
Any preferred shares that are issued will have priority over our common shares with respect to dividend or liquidation rights or
both.
The transfer agent for each series of preferred shares will be described
in the relevant prospectus supplement.
DESCRIPTION OF WARRANTS
We may issue warrants to purchase our debt or equity securities
or securities of third parties or other rights, including rights to receive payment in cash or securities based on the value, rate
or price of one or more specified commodities, currencies, securities or indices, or any combination of the foregoing. Warrants
may be issued independently or together with any other securities and may be attached to, or separate from, such securities. Each
series of warrants will be issued under a separate warrant agreement to be entered into between us and a bank, trust company or
other financial institution, as warrant agent, or we may issue warrants directly to investors. A description of the terms and material
provisions of any warrants we may issue will be set forth in the applicable prospectus supplement.
The applicable prospectus supplement will describe the following
terms of any warrants in respect of which this prospectus is being delivered:
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the title of such warrants;
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the aggregate number of such warrants;
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the price or prices at which such warrants will be issued;
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the currency or currencies in which the price of such warrants will be payable;
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the securities or other rights, including rights to receive payment in cash or securities based
on the value, rate or price of one or more specified commodities, currencies, securities or indices, or any combination of the
foregoing, purchasable upon exercise of such warrants;
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the price at which and the currency or currencies in which the securities or other rights purchasable
upon exercise of such warrants may be purchased;
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the date on which the right to exercise such warrants shall commence and the date on which such
right shall expire;
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if applicable, the minimum or maximum amount of such warrants which may be exercised at any one
time;
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provision for changes to or adjustments in the exercise price of such warrants, if any;
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if applicable, the designation and terms of the securities with which such warrants are issued
and the number of such warrants issued with each such security;
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if applicable, the date on and after which such warrants and the related securities will be separately
transferable;
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information with respect to book-entry procedures, if any;
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if applicable, a discussion of any material United States Federal income tax or foreign income
tax considerations; and
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any other terms of such warrants, including terms, procedures and limitations relating to the exchange
and exercise of such warrants.
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DESCRIPTION OF DEBT SECURITIES
This prospectus describes certain general terms and provisions of
debt securities that we may offer. The debt securities may be issued pursuant to, in the case of senior debt securities, a senior
indenture, and in the case of subordinated debt securities, a subordinated indenture, in each case in the forms filed as exhibits
to this registration statement, which we refer to as the “indentures.” The indentures will be entered into between
us and a trustee to be named prior to the issuance of any debt securities, which we refer to as the “trustee.” The
indentures will not limit the amount of debt securities that can be issued thereunder and will provide that the debt securities
may be issued from time to time in one or more series pursuant to the terms of one or more securities resolutions or supplemental
indentures creating such series.
We have summarized below the material provisions of the indentures
and the debt securities or indicated which material provisions will be described in the related prospectus supplement for any offering
of debt securities. These descriptions are only summaries, and you should refer to the relevant indenture for the particular offering
of debt securities itself which will describe completely the terms and definitions of the offered debt securities and contain additional
information about the debt securities.
All references in this section, “Description of Debt Securities,”
to “Zomedica,” the “Company”, “we”, “us”, “our”, the “registrant”
or similar words are solely to Zomedica Pharmaceuticals Corp., and not to its subsidiaries.
Terms
When we offer to sell a particular series of debt securities, we
will describe the specific terms of the securities in a prospectus supplement. The prospectus supplement will set forth the following
terms, as applicable, of the debt securities offered thereby:
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the designation, aggregate principal amount, currency or composite currency and denominations;
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the price at which such debt securities will be issued and, if an index formula or other method
is used, the method for determining amounts of principal or interest;
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the maturity date and other dates, if any, on which principal will be payable;
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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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the interest rate (which may be fixed or variable), if any;
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the date or dates from which interest will accrue and on which interest will be payable, and the
record dates for the payment of interest;
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the manner of paying principal and interest;
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the place or places where principal and interest will be payable;
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the terms of any mandatory or optional redemption by us or any third party including any sinking
fund;
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the terms of any conversion or exchange;
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the terms of any redemption at the option of holders or put by the holders;
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any tax indemnity provisions;
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if the debt securities provide that payments of principal or interest may be made in a currency
other than that in which debt securities are denominated, the manner for determining such payments;
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the portion of principal payable upon acceleration of a Discounted Debt Security (as defined below);
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whether and upon what terms debt securities may be defeased;
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any events of default or covenants in addition to or in lieu of those set forth in the indentures;
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provisions for electronic issuance of debt securities or for debt securities in uncertificated
form; and
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any additional provisions or other special terms not inconsistent with the provisions of the indentures,
including any terms that may be required or advisable under United States or other applicable laws or regulations, or advisable
in connection with the marketing of the debt securities.
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Debt securities of any series may be issued as registered debt securities
or uncertificated debt securities, in such denominations as specified in the terms of the series.
Securities may be issued under the indentures as Discounted Debt
Securities to be offered and sold at a substantial discount from the principal amount thereof. Special United States federal income
tax and other considerations applicable thereto will be described in the prospectus supplement relating to such Discounted Debt
Securities. “Discounted Debt Security” means a security where the amount of principal due upon acceleration is less
than the stated principal amount.
We are not obligated to issue all debt securities of one series
at the same time and, unless otherwise provided in the prospectus supplement, we may reopen a series, without the consent of the
holders of the debt securities of that series, for the issuance of additional debt securities of that series. Additional debt securities
of a particular series will have the same terms and conditions as outstanding debt securities of such series, except for the date
of original issuance and the offering price, and will be consolidated with, and form a single series with, such outstanding debt
securities.
Ranking
The senior debt securities will rank equally with all of our other
senior and unsubordinated debt. Our secured debt, if any, will be effectively senior to the senior debt securities to the extent
of the value of the assets securing such debt. The subordinated debt securities will be subordinate and junior in right of payment
to all of our present and future senior indebtedness to the extent and in the manner described in the prospectus supplement and
as set forth in the board resolution, officer’s certificate or supplemental indenture relating to such offering.
We have only a stockholder’s claim on the assets of our subsidiaries.
This stockholder’s claim is junior to the claims that creditors of our subsidiaries have against our subsidiaries. Holders
of our debt securities will be our creditors and not creditors of any of our subsidiaries. As a result, all the existing and future
liabilities of our subsidiaries, including any claims of their creditors, will effectively be senior to the debt securities with
respect to the assets of our subsidiaries. In addition, to the extent that we issue any secured debt, the debt securities will
be effectively subordinated to such secured debt to the extent of the value of the assets securing such secured debt.
The debt securities will be obligations exclusively of Zomedica
Pharmaceuticals Corp. To the extent that our ability to service our debt, including the debt securities, may be dependent upon
the earnings of our subsidiaries, our ability to do so will be dependent on the ability of our subsidiaries to distribute those
earnings to us as dividends, loans or other payments.
Certain Covenants
Any covenants that may apply to a particular series of debt securities
will be described in the prospectus supplement relating thereto.
Successor Obligor
The indentures provide that, unless otherwise specified in the securities
resolution or supplemental indenture establishing a series of debt securities, we shall not consolidate with or merge into, or
transfer all or substantially all of our assets to, any person in any transaction in which we are not the survivor, unless:
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the person is organized under the laws of the United States or a jurisdiction within the United
States;
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the person assumes by supplemental indenture all of our obligations under the relevant indenture,
the debt securities and any coupons;
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immediately after the transaction no Default (as defined below) exists; and
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we deliver to the trustee an officers’ certificate and opinion of counsel stating that the
transaction complies with the foregoing requirements.
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In such event, the successor will be substituted for us, and thereafter
all of our obligations under the relevant indenture, the debt securities and any coupons will terminate.
Exchange of Debt Securities
Registered debt securities may be exchanged for an equal aggregate
principal amount of registered debt securities of the same series and date of maturity in such authorized denominations as may
be requested upon surrender of the registered debt securities at an agency of the Company maintained for such purpose and upon
fulfillment of all other requirements of such agent.
Default and Remedies
Unless the securities resolution or supplemental indenture establishing
the series otherwise provides (in which event the prospectus supplement will so state), an “Event of Default” with
respect to a series of debt securities will occur if:
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we default in any payment of interest on any debt securities of such series when the same becomes
due and payable and the default continues for a period of 30 days;
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(2)
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we default in the payment of the principal and premium, if any, of any debt securities of such
series when the same becomes due and payable at maturity or upon redemption, acceleration or otherwise and such default shall continue
for five or more days;
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(3)
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we default in the performance of any of our other agreements applicable to the series and the default
continues for 30 days after the notice specified below;
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a court of competent jurisdiction enters an order or decree under any Bankruptcy Law (as defined
below) that:
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is for relief against us in an involuntary case,
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appoints a Custodian (as defined below) for us or for all or substantially all of our property,
or
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orders the liquidation of us, and the order or decree remains unstayed and in effect for 90 days;
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we pursuant to or within the meaning of any Bankruptcy Law:
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(A)
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commence a voluntary case,
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(B)
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consent to the entry of an order for relief against us in an involuntary case,
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(C)
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consent to the appointment of a Custodian for us or for all or substantially all of our property,
or
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make a general assignment for the benefit of our creditors; or
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there occurs any other Event of Default provided for in such series.
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The term “Bankruptcy Law” means the applicable law as
prescribed under the governing indenture, being: (i) in the United States, Title 11 of the United States Code or any similar Federal
or State law for the relief of debtors; or (ii) in Canada, the
Bankruptcy and Insolvency Act
(Canada). The term “Custodian”
means any receiver, trustee, assignee, liquidator or a similar official under any Bankruptcy Law.
“Default” means any event which is, or after notice
or passage of time would be, an Event of Default. A Default under subparagraph (3) above is not an Event of Default until the trustee
or the holders of at least 25% in principal amount of the series notify us of the Default and we do not cure the Default within
the time specified after receipt of the notice.
The trustee may require indemnity satisfactory to it before it enforces
the indentures or the debt securities of the series. Subject to certain limitations, holders of a majority in principal amount
of the debt securities of the series may direct the trustee in its exercise of any trust or power with respect to such series.
Except in the case of Default in payment on a series, the trustee may withhold from securityholders of such series notice of any
continuing Default if the trustee determines that withholding notice is in the interest of such Securityholders. We are required
to furnish the trustee annually a brief certificate as to our compliance with all conditions and covenants under the indentures.
The indentures do not have cross-default provisions. Thus, a default
by us on any other debt, including any other series of debt securities, would not constitute an Event of Default.
Amendments and Waivers
The indentures and the debt securities or any coupons of the series
may be amended, and any Default may be waived as follows:
Unless the securities resolution or supplemental indenture otherwise
provides (in which event the applicable prospectus supplement will so state), the debt securities and the indentures may be amended
with the consent of the holders of a majority in principal amount of the debt securities of all series affected voting as one class.
Unless the securities resolution or supplemental indenture otherwise provides (in which event the applicable prospectus supplement
will so state), a Default other than a Default in payment on a particular series may be waived with the consent of the holders
of a majority in principal amount of the debt securities of the series. However, without the consent of each securityholder affected,
no amendment or waiver may:
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change the fixed maturity of or the time for payment of interest on any debt security;
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reduce the principal, premium or interest payable with respect to any debt security;
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change the place of payment of a debt security or the currency in which the principal or interest
on a debt security is payable;
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change the provisions for calculating any redemption or repurchase price with respect to any debt
security;
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reduce the amount of debt securities whose holders must consent to an amendment or waiver;
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make any change that materially adversely affects the right to convert any debt security;
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waive any Default in payment of principal of or interest on a debt security; or
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adversely affect any holder’s rights with respect to redemption or repurchase of a debt security.
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Without the consent of any securityholder, the indentures or the
debt securities may be amended to:
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provide for assumption of our obligations to securityholders in the event of a merger or consolidation
requiring such assumption;
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to cure any ambiguity, omission, defect or inconsistency;
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to conform the terms of the debt securities to the description thereof in the prospectus and prospectus
supplement offering such debt securities;
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to create a series and establish its terms;
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to provide for assumption of our obligations to securityholders in the event of a merger or consolidation
requiring such assumption;
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to make any change that does not adversely affect the rights of any securityholder;
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to add to our covenants; or
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to make any other change to the indentures so long as no debt securities are outstanding.
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Conversion Rights
Any securities resolution or supplemental indenture establishing
a series of debt securities may provide that the debt securities of such series will be convertible at the option of the holders
thereof into or for our common shares or other equity or debt instruments. The securities resolution or supplemental indenture
may establish, among other things, (1) the number or amount of shares of common stock or other equity or debt instruments for which
$1,000 aggregate principal amount of the debt securities of the series is convertible, as may be adjusted pursuant to the terms
of the relevant indenture and the securities resolution; and (2) provisions for adjustments to the conversion rate and limitations
upon exercise of the conversion right. The indentures provide that we will not be required to make an adjustment in the conversion
rate unless the adjustment would require a cumulative change of at least 1% in the conversion rate. However, we will carry forward
any adjustments that are less than 1% of the conversion rate and take them into account in any subsequent adjustment of the conversion
rate.
Legal Defeasance and Covenant Defeasance
Debt securities of a series may be defeased in accordance with their
terms and, unless the securities resolution or supplemental indenture establishing the terms of the series otherwise provides,
as set forth below. We at any time may terminate as to a series all of our obligations (except for certain obligations, including
obligations with respect to the defeasance trust and obligations to register the transfer or exchange of a debt security, to replace
destroyed, lost or stolen debt securities and coupons and to maintain paying agencies in respect of the debt securities) with respect
to the debt securities of the series and any related coupons and the relevant indenture, which we refer to as legal defeasance.
We at any time may terminate as to a series our obligations with respect to any restrictive covenants which may be applicable to
a particular series, which we refer to as covenant defeasance.
We may exercise our legal defeasance option notwithstanding our
prior exercise of our covenant defeasance option. If we exercise our legal defeasance option, a series may not be accelerated because
of an Event of Default. If we exercise our covenant defeasance option, a series may not be accelerated by reference to any covenant
which may be applicable to a series.
To exercise either defeasance option as to a series, we must (1)
irrevocably deposit in trust with the trustee (or another trustee) money or U.S. Government Obligations (as defined below), deliver
a certificate from a nationally recognized firm of independent accountants expressing their opinion that the payments of principal
and interest when due on the deposited U.S. Government Obligations, without reinvestment, plus any deposited money without investment
will provide cash at such times and in such amounts as will be sufficient to pay the principal and interest when due on all debt
securities of such series to maturity or redemption, as the case may be; and (2) comply with certain other conditions. In particular,
we must obtain an opinion of tax counsel that the defeasance will not result in recognition of any gain or loss to holders for
federal income tax purposes.
“U.S. Government Obligations” means direct obligations
of the United States or any agency or instrumentality of the United States, the payment of which is unconditionally guaranteed
by the United States, which, in either case, have the full faith and credit of the United States pledged for payment and which
are not callable at the issuer’s option, or certificates representing an ownership interest in such obligations.
Regarding the Trustee
Unless otherwise indicated in a prospectus supplement, the trustee
will also act as depository of funds, transfer agent, paying agent and conversion agent, as applicable, with respect to the debt
securities. We may remove the trustee as the trustee under a given indenture with or without cause if we so notify the trustee
three months in advance and if no Default occurs during the three-month period. The indenture trustee may also provide additional
unrelated services to us as a depository of funds, registrar, trustee and similar services.
Governing Law
The indentures and the debt securities will be governed by New York
law, except to the extent that the Trust Indenture Act of 1939 is applicable.
DESCRIPTION OF SUBSCRIPTION RIGHTS
We may issue subscription rights to purchase our common shares,
preferred shares or debt securities. These subscription rights may be offered independently or together with any other security
offered hereby and may or may not be transferable by the shareholder receiving the subscription rights in such offering. In connection
with any offering of subscription rights, we may enter into a standby arrangement with one or more underwriters or other purchasers
pursuant to which the underwriters or other purchasers may be required to purchase any securities remaining unsubscribed for after
such offering.
The prospectus supplement relating to any subscription rights we
offer, if any, will, to the extent applicable, include specific terms relating to the offering, including some or all of the following:
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the price, if any, for the subscription rights;
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the exercise price payable for our common shares, preferred shares or debt securities upon the
exercise of the subscription rights;
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the number of subscription rights to be issued to each shareholder;
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the number and terms of our common shares, preferred shares or debt securities which may be purchased
per each subscription right;
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the extent to which the subscription rights are transferable;
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any other terms of the subscription rights, including the terms, procedures and limitations relating
to the exchange and exercise of the subscription rights;
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the date on which the right to exercise the subscription rights shall commence, and the date on
which the subscription rights shall expire;
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the extent to which the subscription rights may include an over-subscription privilege with respect
to unsubscribed securities or an over-allotment privilege to the extent the securities are fully subscribed; and
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if applicable, the material terms of any standby underwriting or purchase arrangement which may
be entered into by us in connection with the offering of subscription rights.
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DESCRIPTION OF UNITS
We may issue units comprised of one or more of the other classes
of securities described in this prospectus in any combination. Each unit will be issued so that the holder of the unit is also
the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of
each included security. The units may be issued under unit agreements to be entered into between us and a unit agent, as detailed
in the prospectus supplement relating to the units being offered. The prospectus supplement will describe:
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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 for the issuance, payment, settlement, transfer or exchange of the units or of the
securities comprising the units;
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the terms of the unit agreement governing the units;
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United States federal income tax and/or foreign income tax considerations relevant to the units;
and
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whether the units will be issued in fully registered global form.
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FORMS OF SECURITIES
Each debt security and, to the extent applicable, warrant, subscription
right and unit, will be represented either by a certificate issued in definitive form to a particular investor or by one or more
global securities representing the entire issuance of securities. Certificated securities in definitive form and global securities
will be issued in registered form. Definitive securities name you or your nominee as the owner of the security, and in order to
transfer or exchange these securities or to receive payments other than interest or other interim payments, you or your nominee
must physically deliver the securities to the trustee, registrar, paying agent or other agent, as applicable. Global securities
name a depositary or its nominee as the owner of the debt securities or warrants represented by these global securities. The depositary
maintains a computerized system that will reflect each investor’s beneficial ownership of the securities through an account
maintained by the investor with its broker/dealer, bank, trust company or other representative, as we explain more fully below.
Global Securities
Registered Global Securities
. We may issue the registered
debt securities and, to the extent applicable, warrants, subscription rights and units in the form of one or more fully registered
global securities that will be deposited with a depositary or its nominee identified in the applicable prospectus supplement and
registered in the name of that depositary or nominee. In those cases, one or more registered global securities will be issued in
a denomination or aggregate denominations equal to the portion of the aggregate principal or face amount of the securities to be
represented by registered global securities. Unless and until it is exchanged in whole for securities in definitive registered
form, a registered global security may not be transferred except as a whole by and among the depositary for the registered global
security, the nominees of the depositary or any successors of the depositary or those nominees.
If not described below, any specific terms of the depositary arrangement
with respect to any securities to be represented by a registered global security will be described in the prospectus supplement
relating to those securities. We anticipate that the following provisions will apply to all depositary arrangements.
Ownership of beneficial interests in a registered global security
will be limited to persons, called participants, that have accounts with the depositary or persons that may hold interests through
participants. Upon the issuance of a registered global security, the depositary will credit, on its book-entry registration and
transfer system, the participants’ accounts with the respective principal or face amounts of the securities beneficially
owned by the participants. Any dealers, underwriters or agents participating in the distribution of the securities will designate
the accounts to be credited. Ownership of beneficial interests in a registered global security will be shown on, and the transfer
of ownership interests will be effected only through, records maintained by the depositary, with respect to interests of participants,
and on the records of participants, with respect to interests of persons holding through participants. The laws of some states
may require that some purchasers of securities take physical delivery of these securities in definitive form. These laws may impair
your ability to own, transfer or pledge beneficial interests in registered global securities.
So long as the depositary, or its nominee, is the registered owner
of a registered global security, that depositary or its nominee, as the case may be, will be considered the sole owner or holder
of the securities represented by the registered global security for all purposes under the applicable indenture or warrant agreement.
Except as described below, owners of beneficial interests in a registered global security will not be entitled to have the securities
represented by the registered global security registered in their names, will not receive or be entitled to receive physical delivery
of the securities in definitive form and will not be considered the owners or holders of the securities under the applicable indenture
or warrant agreement. Accordingly, each person owning a beneficial interest in a registered global security must rely on the procedures
of the depositary for that registered global security and, if that person is not a participant, on the procedures of the participant
through which the person owns its interest, to exercise any rights of a holder under the applicable indenture or warrant agreement.
We understand that under existing industry practices, if we request any action of holders or if an owner of a beneficial interest
in a registered global security desires to give or take any action that a holder is entitled to give or take under the applicable
indenture or warrant agreement, the depositary for the registered global security would authorize the participants holding the
relevant beneficial interests to give or take that action, and the participants would authorize beneficial owners owning through
them to give or take that action or would otherwise act upon the instructions of beneficial owners holding through them.
Principal, premium, if any, and interest payments on debt securities
and any payments to holders with respect to warrants represented by a registered global security registered in the name of a depositary
or its nominee will be made to the depositary or its nominee, as the case may be, as the registered owner of the registered global
security. None of Zomedica, the trustees, the warrant agents or any other agent of Zomedica, agent of the trustees or agent of
the warrant agents will have any responsibility or liability for any aspect of the records relating to payments made on account
of beneficial ownership interests in the registered global security or for maintaining, supervising or reviewing any records relating
to those beneficial ownership interests.
We expect that the depositary for any of the securities represented
by a registered global security, upon receipt of any payment of principal, premium, interest or other distribution of underlying
securities or other property to holders on that registered global security, will immediately credit participants’ accounts
in amounts proportionate to their respective beneficial interests in that registered global security as shown on the records of
the depositary. We also expect that payments by participants to owners of beneficial interests in a registered global security
held through participants will be governed by standing customer instructions and customary practices, as is now the case with the
securities held for the accounts of customers in bearer form or registered in “street name,” and will be the responsibility
of those participants.
If the depositary for any of these securities represented by a registered
global security is at any time unwilling or unable to continue as depositary or ceases to be a clearing agency registered under
the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and a successor depositary registered as a clearing
agency under the Exchange Act is not appointed by us within 90 days, we will issue securities in definitive form in exchange for
the registered global security that had been held by the depositary. Any securities issued in definitive form in exchange for a
registered global security will be registered in the name or names that the depositary gives to the relevant trustee or warrant
agent or other relevant agent of ours or theirs. It is expected that the depositary’s instructions will be based upon directions
received by the depositary from participants with respect to ownership of beneficial interests in the registered global security
that had been held by the depositary.
PLAN OF DISTRIBUTION
We may sell the securities being offered hereby in the following
manner or any manner specified in a prospectus supplement:
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directly to purchasers;
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through underwriters; and
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The prospectus supplement will set forth
the terms of the offering of such securities, including:
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the name or names of any underwriters, dealers or agents and the amounts of securities underwritten
or purchased by each of them;
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the initial public offering price of the securities and the proceeds to us and any discounts, commissions
or concessions allowed or reallowed or paid to dealers; and
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any securities exchanges on which the securities may be listed.
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We may directly solicit offers to purchase securities, or agents
may be designated to solicit such offers. We will, in the prospectus supplement relating to such offering, name any agent that
could be viewed as an underwriter under the Securities Act, and describe any commissions that we must pay. 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. Agents, dealers and underwriters may be customers of, engage in transactions with, or perform services
for us in the ordinary course of business.
If any underwriters or agents are utilized in the sale of the securities
in respect of which this prospectus is delivered, we will enter into an underwriting agreement or other agreement with them at
the time of sale to them, and we will set forth in the prospectus supplement relating to such offering the names of the underwriters
or agents and the terms of the related agreement with them.
If a dealer is utilized 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 may then resell such
securities to the public at varying prices to be determined by such dealer at the time of resale.
Remarketing firms, agents, underwriters and dealers may be entitled
under agreements which they may enter into with us to indemnification by us against certain civil liabilities, including liabilities
under the Securities Act, and may be customers of, engage in transactions with or perform services for us in the ordinary course
of business.
In order to facilitate the offering of the 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. 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.
Any underwriter, agent or dealer utilized in the initial offering
of any securities issued hereunder will not confirm sales to accounts over which it exercises discretionary authority without the
prior specific written approval of its customer.
CERTAIN U.S. AND CANADIAN FEDERAL INCOME TAX CONSIDERATIONS
Information regarding material
Canadian and U.S. federal income tax consequences to persons investing in the Securities offered by this Prospectus will be set
forth in an applicable Prospectus Supplement. You are urged to consult your own tax advisors prior to any acquisition of our Securities.
LEGAL MATTERS
Unless otherwise indicated in the applicable prospectus supplement,
the validity of any common shares or preferred shares offered hereby will be passed upon for us by Tingle Merrett LLP, Calgary,
Alberta, Canada. Partners and associates of Tingle Merrett LLP own or exert control or direction over an aggregate of 1,300,000
common shares. Unless otherwise indicated in the applicable prospectus supplement, the validity of the other securities offered
hereby will be passed upon for us by Lowenstein Sandler LLP, New York, New York. Lowenstein Sandler LLP owns 43,613 common shares.
EXPERTS
The consolidated financial statements incorporated in this prospectus
by reference from our Annual Report on Form 10-K have been audited by MNP LLP, an independent registered public accounting firm,
as stated in their report which is incorporated herein by reference. Such consolidated financial statements have been incorporated
herein by reference in reliance on the report of such firm, given upon their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements
and other information with the SEC. You may read or obtain a copy of these reports at the SEC’s public reference room at
100 F Street, N.E., Washington, D.C. 20549, on official business days during the hours of 10:00 am to 3:00 pm. You may obtain information
on the operation of the public reference room and its copy charges by calling the SEC at 1-800-SEC-0330. The SEC maintains a website,
at
http://www.sec.gov
, that contains registration statements, reports, proxy information statements and other information
regarding registrants that file electronically with the SEC, including us. Our website address is
http://www.zomedica.com
.
We have not incorporated by reference into this prospectus the information on our website, and you should not consider it to be
a part of this document.
The SEC allows us to “incorporate by reference” information
that we file with it into this prospectus, which means that we can disclose important information to you by referring you to those
documents. The information incorporated by reference is an important part of this prospectus. The information incorporated by reference
is considered to be a part of this prospectus, and information that we file later with the SEC will automatically update and supersede
information contained in this prospectus and any accompanying prospectus supplement.
We incorporate by reference the documents listed below that we have
previously filed with the SEC, each of which has Exchange Act File No. 000-38298 unless otherwise noted:
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our Annual Report on Form 10-K for the fiscal year ended December 31, 2017, filed with the SEC on February 28, 2018;
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our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2018, June 30, 2018 and September 30, 2018, which were filed with the SEC on May 15, 2018, August 9, 2018 and November 13, 2018, respectively;
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our definitive Proxy Statement on Schedule 14A filed with the SEC on July 5, 2018;
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our Current Reports on Form 8-K filed with the SEC
on May 10, 2018, June 15, 2018, June 19, 2018, June 29, 2018, August 15, 2018, November 28, 2018, and December 20,
2018; and
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the description of our common shares as set forth in our Registration Statement on Form 8-A filed with the SEC on November 15, 2017, including any amendments thereto or reports filed for the purposes of updating this description.
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All reports and other documents that we file with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus but prior to the termination of the offering
of the securities hereunder will also be considered to be incorporated by reference into this prospectus from the date of the filing
of these reports and documents, and will supersede the information herein;
provided, however
, that all reports, exhibits
and other information that we “furnish” to the SEC will not be considered incorporated by reference into this prospectus.
Any statement contained in a document incorporated by reference in this prospectus or any prospectus supplement shall be deemed
to be modified or superseded to the extent that a statement contained herein, therein or in any other subsequently filed document
that also is incorporated by reference herein or therein modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus or any prospectus supplement.
We will provide you without charge, upon your oral or written request,
with a copy of any or all reports, proxy statements and other documents we file with the SEC, as well as any or all of the documents
incorporated by reference in this prospectus or the registration statement (other than exhibits to such documents unless such exhibits
are specifically incorporated by reference into such documents). Requests for such copies should be directed to:
Zomedica Pharmaceuticals Corp.
100 Phoenix Drive, Suite 190
Ann Arbor, Michigan 48108
(734) 369-2555
The information contained in this prospectus is not
complete and may be changed. A registration statement relating to these securities has been filed with the Securities and Exchange
Commission. These securities may not be sold nor may offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus is not an offer to sell these securities, and is not soliciting an offer to buy these securities, nor
shall there be any sale of these securities, in any jurisdiction where such offer, solicitation or sale is not permitted or would
be unlawful prior to registration or qualification under the securities laws of any such jurisdiction.
Subject to completion, dated December 20, 2018
PROSPECTUS
Up to $50,000,000
Common Shares
We have entered into a Controlled Equity Offering
SM
Sales
Agreement, or sales agreement, with Cantor Fitzgerald & Co. relating to our common shares offered by this prospectus. In accordance
with the terms of the sales agreement, we may offer and sell shares of our common stock having an aggregate offering price of up
to $50 million from time to time through Cantor Fitzgerald & Co., acting as sales agent.
Our common shares are listed on the NYSE American and the TSX Venture
Exchange under the symbol “ZOM.” On December 19, 2018, the last reported closing sale price of our common shares
on the NYSE American was $1.18 per share.
We are an “emerging growth company” as that term is
used in the Jumpstart Our Business Startups Act of 2012, as amended, or the JOBS Act, and, as such, we have elected to comply with
certain reduced public company reporting requirements.
Investing in our common shares involves risks. Before buying
any shares, you should read the discussion of material risks of investing in our common shares in “
Risk Factors
”
beginning on page 28 of this prospectus and in the documents incorporated by reference in this prospectus.
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.
Upon delivery of a placement notice, and subject to our instructions
in that notice and the terms and conditions of the sales agreement generally, Cantor Fitzgerald & Co. may sell our common shares
by any method permitted by law deemed to be an “at the market offering” as defined by Rule 415(a)(4) promulgated under
the Securities Act of 1933, as amended, or the Securities Act. Cantor Fitzgerald & Co. is not required to sell any specific
number or dollar amount of securities, but will act as a sales agent using commercially reasonable efforts consistent with its
normal trading and sales practices, on mutually agreed terms between Cantor Fitzgerald & Co. and us. There is no arrangement
for funds to be received in any escrow, trust or similar arrangement.
Cantor Fitzgerald & Co. will be entitled to compensation at
a fixed commission rate equal to 3% of the gross sales price per share sold. In connection with the sale of our common shares on
our behalf, Cantor Fitzgerald & Co. will be deemed to be an “underwriter” within the meaning of the Securities
Act and the compensation of Cantor Fitzgerald & Co. will be deemed to be underwriting commissions or discounts. See “Plan
of Distribution” beginning on page 36 for additional information regarding the compensation to be paid to Cantor Fitzgerald
& Co.
The date of this prospectus is ____,
2018.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of registration statement on Form S-3 that
we have filed with the Securities and Exchange Commission, or the SEC, using a “shelf” registration process. Under
the shelf registration process, we may offer our common shares having an aggregate offering price of up to $50 million from time
to time under this prospectus at prices and on terms to be determined by market conditions at the time of the offering.
We provide information to you about this offering of our common
shares in this at the market sales agreement prospectus, which describes the specific terms of this offering of our common shares.
To the extent there is a conflict between the information contained in this at the market sales agreement prospectus, on the one
hand, and the information contained in any document incorporated by reference that was filed with the SEC before the date of this
prospectus, on the other hand, you should rely on the information in this at the market sales agreement prospectus. If any statement
in one of these documents is inconsistent with a statement in another document having a later date — for example, a document
incorporated by reference in this prospectus — the statement in the document having the later date modifies or supersedes
the earlier statement.
We have not authorized anyone to provide you with information different
from or inconsistent with the information contained in or incorporated by reference in this prospectus. We take no responsibility
for, and can provide no assurance as to the reliability of, any other information that others may give you. You should assume that
the information appearing in this prospectus and the documents incorporated by reference in this prospectus is accurate only as
of the date of those respective documents, regardless of the time of delivery of those respective documents. Our business, financial
condition, results of operations and prospects may have changed since those dates. You should read this prospectus and the documents
incorporated by reference in this prospectus in their entirety before making an investment decision. You should also read and consider
the information in the documents to which we have referred you in the sections of this prospectus entitled “Additional Information”
and “Incorporation of Certain Information by Reference.”
We are offering to sell, and seeking offers to buy, our common shares
only in jurisdictions where offers and sales are permitted. The distribution of this prospectus and the offering of our common
shares in certain jurisdictions may be restricted by law. Persons outside the United States who come into possession of this prospectus
must inform themselves about, and observe any restrictions relating to, the offering of our common shares and the distribution
of this prospectus outside the United States. This prospectus does not constitute, and may not be used in connection with, an offer
to sell, or a solicitation of an offer to buy, any securities offered by this prospectus by any person in any jurisdiction in which
it is unlawful for such person to make such an offer or solicitation.
All references in this prospectus to “Zomedica,” the
“Company,” “we,” “us,” or “our” mean Zomedica Pharmaceuticals Corp. and its subsidiaries
unless we state otherwise or the context otherwise indicates. This prospectus and the information incorporated herein by reference
contain references to trademarks, service marks and trade names owned by us or other companies. Solely for convenience, trademarks,
service marks and trade names referred to in this prospectus and the information incorporated herein, including logos, artwork,
and other visual displays, may appear without the
®
or ™ symbols, but such references are not intended
to indicate, in any way, that we will not assert, to the fullest extent under applicable law, our rights or the rights of the applicable
licensor to these trademarks, service marks and trade names. We do not intend our use or display of other companies’ trade
names, service marks or trademarks to imply a relationship with, or endorsement or sponsorship of us by, any other companies. Other
trademarks, trade names and service marks appearing in this prospectus are the property of their respective owners.
SUMMARY
This summary highlights selected information about us and this
offering of our common shares. This summary is not complete and may not contain all of the information that is important to you.
We encourage you to read this prospectus, including the information under the caption “Risk Factors” and the information
we incorporate by reference, in its entirety.
Overview
We are a development stage veterinary diagnostic and pharmaceutical
company creating products for companion animals (canine, feline, and equine) by focusing on the unmet needs of clinical veterinarians.
We believe that we have identified and are developing diagnostics and therapeutics that have the potential to significantly improve
the diagnosis and treatment of various diseases affecting companion animals. We believe that there are significant unmet medical
needs for pets, and that the pet diagnostic and therapeutic segments of the animal health industry are likely to grow substantially
as new diagnostic tools and treatments are identified, developed, and marketed specifically for companion animals.
Together with our strategic partners, we are developing a Bulk Acoustic
Wave sensor-based veterinary point-of-care diagnostic platform for diagnosis and treatment management of disorders such as thyroid
and adrenal abnormalities, a Raman spectroscopy-based point-of-care diagnostic platform for the detection of pathogens, and liquid
biopsy assays for the detection of cancer and related consumables. The regulatory pathway to obtain pre-market regulatory approval
of companion animal diagnostics is significantly shorter than for similar diagnostic products intended for human use. In certain
cases, pre-market regulatory approval may be unnecessary, depending on the intended use of the diagnostic.
We also have identified a number of drugs that have proven safe
and effective in humans that we are developing for use in canines and felines. We believe this development approach enables us
to reduce the risks associated with obtaining regulatory approval for unproven product candidates and shortens the development
timeline necessary to bring our product candidates to market. We have four drug product candidates in early development and have
identified several other potential product candidates for further investigation.
In addition, we are investigating the development of alternative
drug delivery technologies for our drug product candidates. Many of the human-approved therapeutics used in companion animals are
only available in pill or injectable form. However, it can be difficult to give a companion animal an injection or to assure that
the animal has swallowed a pill. As a result, we believe that compliance with treatment regimens is a significant problem for veterinarians
and pet owners. The challenges associated with medicating pets are unique, and we believe that developing product candidates that
can be easily taken by the pet or easily administered by pet owners will help increase compliance.
Corporate Information
Zomedica Pharmaceuticals Corp. (formerly, Wise Oakwood Ventures
Inc.) was originally incorporated as Wise Oakwood Ventures Inc. on January 7, 2013 under the
Business Corporations Act
(Alberta)
(“ABCA”). On October 28, 2013, we completed our initial public offering in Canada and became classified as a Capital
Pool Company, as defined under the rules of the TSX Venture Exchange, or TSX-V. On April 21, 2016, we changed our name to Zomedica
Pharmaceuticals Corp. and consolidated our common shares on a one-for-two and one-half basis. ZoMedica Pharmaceuticals Inc., or
ZoMedica Inc., was incorporated on May 14, 2015 under the ABCA. On April 21, 2016, we completed a qualifying transaction, or the
Qualifying Transaction, under TSX-V Policy 2.4 – Capital Pool Companies, consisting of a three-cornered amalgamation among
our company, ZoMedica Inc. and our wholly-owned subsidiary. Under the Qualifying Transaction, ZoMedica Inc. and our subsidiary
were amalgamated to form Zomedica Pharmaceuticals Ltd., or Zomedica Ltd. As consideration for the amalgamation, shareholders of
ZoMedica Inc. became the owners of 97.6% (non-diluted) of our common shares, and ZoMedica Ltd. became our wholly-owned subsidiary.
Subsequent to the Qualifying Transaction, Zomedica Ltd. was vertically amalgamated into our company. We have one wholly-owned subsidiary,
Zomedica Pharmaceuticals, Inc., a Delaware company. Our principal executive offices are located at 100 Phoenix Drive, Suite 190,
Ann Arbor, MI 48108, and our telephone number is (734) 369-2555. Our website address is www.zomedica.com. We have not incorporated
by reference into this prospectus the information on our website, and you should not consider it to be a part of this document.
THE OFFERING
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Common shares offered by us
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Common shares having an aggregate offering price of up to $50 million.
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Common shares to be outstanding after this offering
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Up to common shares,
assuming sales of shares in this offering at a public offering price of
$ per share, which was the closing price of our common shares on the NYSE American, on December , 2018. The
actual number of shares issued will vary depending on the sales price under this offering.
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Manner of offering
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“At the market” offering that may be made from
time to time through our sales agent, Cantor Fitzgerald & Co. See “Plan of Distribution” beginning on
page 36 of this prospectus.
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Use of Proceeds
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We currently intend to use the net proceeds from this offering for
the development of our product candidates, the funding of our working capital needs and other general corporate purposes. See “Use
of Proceeds” on page 31 of this prospectus.
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Risk Factors
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Investing in our common shares involves a high degree of risk. See
“Risk Factors” beginning on page 28 of this prospectus and under similar headings in the other documents that
are filed after the date hereof and incorporated by reference in this prospectus for a discussion of factors to consider before
deciding to purchase our common shares.
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NYSE American and TSX-V symbol
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“ZOM”
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The number of common shares to be outstanding after this
offering is based on 97,536,998 common shares outstanding on December 12, 2018 and excludes, as of that date, the following:
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2,462,004 common shares issuable upon the exercise of outstanding options
with a weighted average exercise price of $1.27 per share; and
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7,291,696 common shares available for future issuance under our equity incentive
plan.
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RISK FACTORS
An investment in our shares of common stock involves a high degree
of risk. Prior to making a decision about investing in our common shares, you should carefully consider the risks, uncertainties
and assumptions discussed under Item 1A, “Risk Factors,” in our Annual Report on Form 10-K for the fiscal year ended
December 31, 2017, as such risk factors may be updated in our subsequent reports filed with the Securities and Exchange Commission,
which are incorporated herein by reference and as may be amended, supplemented or superseded from time to time by other reports
we file with the SEC in the future, together with information in this prospectus and any other information incorporated by reference
into this prospectus, including the risk factors set forth below. See the sections of this prospectus entitled “Additional
Information” and “Incorporation of Certain Information by Reference.” Additional risks and uncertainties not
presently known to us, or that we currently see as immaterial, may also harm our business. If any of these risks occur, our business,
financial condition and operating results could be harmed, the trading price of our common shares could decline and you could lose
part or all of your investment.
This prospectus also contains forward-looking statements that
involve risks and uncertainties. Our actual results could differ materially from those anticipated in these forward-looking statements
as a result of certain factors, including the risks faced by us described below and elsewhere in this prospectus. See “Cautionary
Note On Forward-Looking Statements” for information relating to these forward-looking statements.
Risks Relating to this Offering
You may experience immediate and substantial dilution in the
book value per share of the common shares you purchase.
Because the price per share of our common shares being offered may
be higher than the book value per share of our common shares, you may suffer substantial dilution in the net tangible book value
of the common shares you purchase in this offering. See the section entitled “Dilution” below for a more detailed discussion
of the dilution you will incur if you purchase common shares in this offering. In addition, we have a significant number of options
outstanding. If the holders of these securities exercise them you may incur further dilution.
Sales of a significant number of our common shares in the public
markets, or the perception that such sales could occur, could depress the market price of our common shares.
Sales of a significant number of our common shares in the public
markets, or the perception that such sales could occur, could depress the market price of our common shares and impair our ability
to raise capital through the sale of additional equity securities. We have agreed, without the prior written consent of Cantor
Fitzgerald & Co. and subject to certain exceptions set forth in the sales agreement, not to sell or otherwise dispose of any
common shares or securities convertible into or exchangeable for common shares, warrants or any rights to purchase or acquire common
shares during the period beginning on the fifth trading day immediately prior to the delivery of any placement notice delivered
by us to Cantor Fitzgerald & Co. and ending on the fifth trading day immediately following the final settlement date with respect
to the shares sold pursuant to such notice. We have further agreed, subject to certain exceptions set forth in the sales agreement,
not to sell or otherwise dispose of any common shares or securities convertible into or exchangeable for common shares, warrants
or any rights to purchase or acquire common shares in any other “at-the-market” or continuous equity transaction prior
to the termination of the sales agreement with Cantor Fitzgerald & Co. Therefore, it is possible that we could issue and sell
additional common shares in the public markets. We cannot predict the effect that future sales of our common shares would have
on the market price of our common shares.
Our share price has been and could remain volatile.
The market price of our common shares has historically experienced
and may continue to experience significant volatility. From November 21, 2017 through December 19, 2018, the market price of our
common shares has fluctuated from a high of $2.98 per share to a low of $1.08 per share. Our progress in developing and commercializing
our drug candidates and diagnostic products, the impact of government regulations on our drug candidates and diagnostic products
and our industry, the potential sales of common shares by our shareholders, our quarterly operating results, changes in general
conditions in the economy or the financial markets and other developments affecting us or our competitors could cause the market
price of our common shares to fluctuate substantially with significant market losses. If our shareholders sell a substantial number
of our common shares, especially if those sales are made during a short period of time, those sales could adversely affect the
market price of our common shares and could impair our ability to raise capital. In addition, in recent years, the stock market
has experienced significant price and volume fluctuations. This volatility has affected the market prices of securities issued
by many companies for reasons unrelated to their operating performance and may adversely affect the price of our common shares.
In addition, we could be subject to a securities class action litigation as a result of volatility in the price of our common shares,
which could result in substantial costs and diversion of management’s attention and resources and could harm the price of
our common shares, business, prospects, results of operations and financial condition.
Our management may invest or spend the proceeds of this offering
in ways with which you may not agree or in ways which may not yield a significant return.
Our management will have considerable discretion in the application
of the net proceeds of this offering, and you will not have the opportunity, as part of your investment decision, to assess whether
the proceeds are being used appropriately. The net proceeds may be used for corporate purposes that do not increase our operating
results or enhance the value of our common shares. Pending their use, we may invest the net proceeds from this offering in short-term,
investment-grade, interest-bearing securities. These investments may not yield a favorable return to our shareholders. If we do
not invest or apply the net proceeds from this offering in ways that enhance shareholder value, we may fail to achieve expected
financial results, which could cause the price of our common shares to decline.
CAUTIONARY NOTE ON FORWARD-LOOKING STATEMENTS
This prospectus, including the documents incorporated by reference
herein, contains forward-looking statements. In some cases, you can identify these statements by forward-looking words such as
“may,” “might,” “will,” “should,” “expects,” “plans,” “anticipates,”
“believes,” “estimates,” “predicts,” “potential” or “continue,” the
negative or plural of these words and other comparable terminology. Forward-looking statements in this prospectus include, but
are not limited to, statements about:
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the success, cost and timing of our research and development activities, validation studies and
pivotal trials, including with respect to our lead product candidates, ZM-017, ZM-012, ZM-006, ZM-007 and ZM-011;
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our ability to obtain regulatory approval from the Food and Drug Administration’s Center
for Veterinary Medicine and/or the USDA Center for Veterinary Biologics for our pharmaceutical and diagnostic product candidates,
as applicable;
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our ability to obtain funding for our operations;
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the ability of our contract research organizations to appropriately conduct our safety studies
and certain development activities;
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the ability of our contract manufacturing organizations to manufacture and supply our product candidates
in accordance with current Good Manufacturing Practices and our clinical needs;
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our plans to develop and commercialize our product candidates;
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our ability to develop and commercialize product candidates that can compete effectively against
the product candidates developed and commercialized by our competitors or the current standards of care (including human generic
drugs);
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the size and growth of the veterinary diagnostics and therapeutics markets;
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our ability to obtain and maintain intellectual property protection for our current and future
product candidates;
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regulatory developments in the United States;
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the loss of key scientific or management personnel;
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our expectations regarding the period during which we will be an “emerging growth company”
under the JOBS Act;
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the accuracy of our estimates regarding expenses, future revenues, capital requirements and needs
for additional financing; and
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our status as a “passive foreign investment company” for U.S. federal income tax purposes.
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These forward-looking statements, which are subject to risks, uncertainties
and assumptions about us, may include projections of our future financial performance, our anticipated growth strategies and anticipated
trends in our business. These statements are only predictions based on our current expectations and projections about future events.
There are important factors that could cause our actual results, level of activity, performance or achievements to differ materially
from the results, level of activity, performance or achievements expressed or implied by the forward-looking statements, including
those factors discussed under the caption entitled “Risk Factors” in our Annual Report on Form 10-K for the fiscal
year ended December 31, 2017, as modified under the caption “Risk Factors” in our quarterly report on Form 10-Q for
the fiscal quarter ended September 30, 2018.
Although we believe the expectations reflected in the forward-looking
statements are reasonable, we cannot guarantee future results, level of activity, performance or achievements. Moreover, neither
we nor any other person assumes responsibility for the accuracy and completeness of any of these forward-looking statements. We
are under no duty to update any of these forward-looking statements after the date of this prospectus to conform our prior statements
to actual results or revised expectations.
USE OF PROCEEDS
The amount of proceeds from this offering will depend upon the number
of our common shares sold and the market price at which they are sold. There can be no assurance that we will be able to sell any
shares under or fully utilize the sales agreement with Cantor Fitzgerald & Co. as a source of financing. We currently intend
to use the net proceeds from this offering for the development of our product candidates, the funding of our working capital needs
and other general corporate purposes. Until we use the net proceeds of this offering, we intend to invest the funds in short-term,
investment grade, interest-bearing securities.
The amount and timing of actual expenditures for the purposes set
forth above may vary based on several factors, and our management will retain broad discretion as to the ultimate allocation of
the proceeds.
MARKET PRICE OF OUR COMMON SHARES
Our common shares commenced trading on the NYSE American on November
21, 2017 under the symbol “ZOM”. The following table sets forth the high and low sale prices for our common shares
for the periods indicated as reported on the NYSE American:
|
Fiscal Year Ending December 31, 2018
|
High Sales Price
|
Low Sales Price
|
|
Fourth Quarter (through December 19, 2018)
|
$1.97
|
$1.08
|
|
Third Quarter
|
$2.40
|
$1.81
|
|
Second Quarter
|
$2.98
|
$1.75
|
|
First Quarter
|
$2.33
|
$1.79
|
|
|
|
|
|
Fiscal Year Ended December 31, 2017
|
|
|
|
Fourth Quarter (from November 21, 2017)
|
$2.47
|
$1.91
|
DILUTION
If you invest in our common shares in this offering, your ownership
interest will be diluted to the extent of the difference between the price per share you pay in this offering and our as adjusted
net tangible book value per share after this offering. We calculate net tangible book value per share by dividing our net tangible
book value, which is tangible assets less total liabilities, by the number of our common shares outstanding.
Our net tangible book value as of September 30, 2018 was
approximately $2.9 million, or $0.03 per share. Our as adjusted net tangible book value per share after this offering gives
effect to the sale of $50 million of common shares in this offering at an assumed offering price of $ per share, which was
the closing price of our common shares as reported on the NYSE American on December , 2018, after deducting offering
commissions and estimated expenses payable by us. Our as adjusted net tangible book value as of September 30, 2018, after
giving effect to this offering as described above, would have been approximately $ million, or $ per common
share. This represents an immediate increase in as adjusted net tangible book value of $ per share to existing
shareholders and an immediate dilution of $ per share to new investors purchasing our common shares in this
offering. The following table illustrates this per share dilution:
|
Assumed offering price per share
|
|
$
|
|
Net tangible book value per share as of September 30, 2018
|
$0.03
|
|
|
Increase in net tangible book value per share attributable to new
investors
|
$
|
|
|
As adjusted net tangible book value per share as of September 30,
2018 after giving effect to this offering
|
|
$
|
|
Dilution per share to new investors in this offering
|
|
$
|
The above discussion and table are based on 94,596,209 common shares
outstanding as of September 30, 2018 and excludes, as of that date, the following:
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·
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3,687,004 common shares issuable upon the exercise of outstanding options with a weighted average
exercise price of $1.33 per share; and
|
|
|
·
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5,772,616 common shares available for future issuance under our equity incentive plan.
|
To the extent that options are exercised, new options are issued
under our equity incentive plan, or we issue additional common shares in the future, there may be further dilution to investors
participating in this offering. In addition, we may choose to raise additional capital because of market conditions or strategic
considerations, even if we believe that we have sufficient funds for our current or future operating plans. If we raise additional
capital through the sale of equity or convertible debt securities, the issuance of these securities could result in further dilution
to our shareholders.
DESCRIPTION OF COMMON SHARES
The following is a summary of the rights of our common shares as
set forth in our Articles of Incorporation, as amended, and By-laws, which are included as exhibits to the registration statement
relating to this offering filed by us with the SEC. This summary does not purport to be complete and is qualified in its entirety
by the full text of our aforementioned constating documents and by applicable law.
Our authorized capital consists of an unlimited number of common
shares without nominal or par value and an unlimited number of preferred shares without nominal or par value, which are issuable
in series.
As of September 30, 2018, 94,596,209 common shares were issued and
outstanding as fully paid and non-assessable shares. No preferred shares had been issued as of that date and accordingly, none
were issued and outstanding. In addition, as of September 30, 2018, we had outstanding options to purchase an aggregate of 3,687,004
common shares outstanding with a weighted average exercise price of $1.33 per share.
The additional shares of our authorized stock available for issuance
may be issued at times and under circumstances so as to have a dilutive effect on earnings per share and on the equity ownership
of the holders of our common shares. The ability of our board of directors to issue additional shares could enhance the board’s
ability to negotiate on behalf of the shareholders in a take-over situation but could also be used by the board of directors to
make a change-in-control more difficult, thereby denying shareholders the potential to sell their shares at a premium and entrenching
current management.
Dividend Rights
Subject to any rights, privileges, restrictions and conditions which may apply to any
series of preferred shares that are issued, holders of our common shares are entitled to receive dividends, if, as and when declared
by the board of directors.
Voting Rights
The holders of the common shares are entitled to receive notice
of and attend any meeting of our shareholders and are entitled to cast one vote for each common share held.
No Preemptive, Conversion or Redemption Rights
Holders of our common shares are not entitled to preemptive rights
and our common shares are not subject to conversion or redemption.
Rights upon Liquidation
On the winding-up, liquidation or dissolution of our company or
upon the happening of any other event giving rise to a distribution of our assets other than by way of dividend amongst our shareholders
for the purposes of winding-up our affairs, subject to any rights, privileges, restrictions and conditions which may have been
determined by the directors to attach to any series of preferred shares, the holders of all common shares shall be entitled to
participate pari passu.
Action Necessary to Change the Rights of Holders of our Shares
Under the
Business Corporations Act
(Alberta) (“ABCA”),
a company can amend its articles and governing documents via a special resolution of its shareholders. A “special resolution
”
is a resolution passed by a majority of not less than two-thirds of the votes cast by the shareholders who voted in respect of
that resolution or signed by all the shareholders entitled to vote on that resolution. Items that can be amended via special resolution
include (but are not limited to): a change in our name; changing any maximum number of shares that we are authorized to issue;
creating new classes of shares; reducing or increasing our stated capital; changing the designation of our shares to add, change
or remove any rights, privileges, restrictions and conditions, including rights to accrued dividends, in respect of all or any
of our shares, whether issued or unissued; dividing a class of shares, whether issued or unissued, into series and fixing the number
of shares in each series and the rights, privileges, restrictions and conditions thereof; authorizing the directors to divide any
class of unissued shares into series and to fix the number of shares in each series and the rights, privileges, restrictions and
conditions thereof; authorizing the directors to change the rights, privileges, restrictions and conditions attached to unissued
shares of any series; or adding, changing or removing restrictions on the issue, transfer or ownership of shares.
Shareholder Meetings
Under the ABCA: (1) We must hold an annual meeting of shareholders
not later than 15 months after holding the last preceding annual meeting; (2) the directors may at any time call a special meeting
of shareholders; and (3) the holders of not less than 5% of our issued shares that carry the right to vote at a meeting sought
to be held may requisition the directors to call a meeting of shareholders for the purposes stated in the requisition. The most
recent annual meeting of our shareholders was held on August 15, 2018.
The ABCA requires that notice of the time and place of a meeting
of shareholders shall be sent not less than 21 days and not more than 50 days before the meeting: (1) to each shareholder on record
that is entitled to vote at the meeting; (2) to each director; and (3) to our auditor.
We also comply with certain continuous disclosure obligations of
a reporting issuer in Canada respecting shareholder meetings, in addition to the rules and policies of the TSX-V.
Certain Take-over Bid Requirements
Canadian laws applicable to us provide for early warning disclosure
requirements and for take-over bid rules for bids made to security holders in various jurisdictions in Canada, a summary of which
is set forth below.
In Canada, securities laws are a matter of provincial/territorial
jurisdiction and, as a result, bids are governed by applicable corporate and securities legislation in each province or territory
in addition to policy and instruments implemented by Canadian Securities Administrators.
Under the laws of the Provinces of Alberta and British Columbia,
the jurisdictions in Canada in which we are a reporting issuer (as defined under provincial securities law), when any person (an
“offeror”) acquires, except pursuant to a formal take-over bid, beneficial ownership of, or the power to exercise control
or direction over, or securities convertible into, voting or equity securities of any class of a reporting issuer that, together
with such offeror’s securities of that class, would constitute 10% or more of the outstanding securities of that class, the
offeror must immediately (i) issue and file a press release announcing the acquisition and (ii) file a report of such acquisition
with the applicable securities regulatory authorities within two business days of the acquisition. Once an offeror has filed such
report, the offeror is required to issue further press releases and file further reports each time that the offeror, or any person
acting jointly or in concert with the offeror, acquires beneficial ownership of, or the power to exercise control or direction
over, or securities convertible into, an additional 2% or more of the outstanding securities of the applicable class and upon a
change of any other material fact set out in previous reports. Certain institutional investors may elect an alternative monthly
reporting system.
In Alberta, British Columbia and other Canadian jurisdictions, a
take-over bid is generally defined as an offer to acquire outstanding voting or equity securities of a class made to any holder
in the jurisdiction of securities subject to the offer to acquire, if the securities subject to the offer to acquire, together
with securities held by the offeror and any person acting jointly or in concert with the offeror, constitute in aggregate 20% or
more of the outstanding securities of that class of securities at the date of the offer to acquire. Subject to limited exemptions,
a take-over bid must generally be made to all holders of securities of the class that is subject to the bid who are in the jurisdiction
and must allow such security holders 35 days to accept the bid. Unless exemptions are available, the offeror must deliver to the
security holders a take-over bid circular which describes the terms of the take-over bid and the directors of the reporting issuer
must deliver a directors’ circular not later than 15 days after the date of the bid, either making or declining to make a
recommendation to security holders to accept or reject the bid and the reasons for their making or not making a recommendation.
Whilst provincial securities laws in Canada only regulate offers to residents of the particular province, the Canadian Securities
Administrators have adopted a policy whereby they may issue a cease trade order against a company if a take-over bid is not made
to all Canadian security holders. It should be noted that one exemption from the aforementioned provisions is in the case of a
“foreign take-over bid”. Such an exemption may be available where (among other criteria): (a) security holders whose
last address as shown on the books of the offeree issuer is in Canada hold less than 10% of the outstanding securities of the class
subject to the bid at the commencement of the bid; (b) the offeror reasonably believes that security holders in Canada beneficially
own less than 10% of the outstanding securities of the class subject to the bid at the commencement of the bid; (c) the published
market on which the greatest volume of trading in securities of that class occurred during the 12 months immediately preceding
the commencement of the bid was not in Canada; (d) security holders in the local jurisdiction are entitled to participate in the
bid on terms at least as favourable as the terms that apply to the general body of security holders of the same class; (e) at the
same time as material relating to the bid is sent by or on behalf of the offeror to security holders of the class that is subject
to the bid, the material is filed and sent to security holders whose last address as shown on the books of the offeree issuer is
in the local jurisdiction. For a complete description of the foreign take-over bid exemption, readers are referenced to Multilateral
Instrument 62-104 –
Take-over Bids and Issuer Bids
, issued by the Canadian Securities Administrators.
Transfer Agent and Registrar
The transfer agent and registrar for our common shares is AST Trust
Company (Canada). Our transfer agent’s address is 1 Toronto Street, Suite 1200, Toronto, Ontario M5C 2VC and its telephone
number is (416) 682-3844.
Our co-transfer agent is American Stock Transfer & Trust Company.
Listing
Our common shares are listed on the NYSE American and the TSX Venture
Exchange under the symbol “ZOM.”
PLAN OF DISTRIBUTION
We have entered into a Controlled Equity Offering
SM
sales
agreement with Cantor Fitzgerald & Co. pursuant to which we may offer and sell our common shares from time to time through
Cantor Fitzgerald & Co. acting as sales agent, including sales having an aggregate gross sales price of up to $50.0 million
pursuant to this prospectus supplement. This summary of the material provisions of the sales agreement does not purport to be a
complete statement of its terms and conditions. The sales agreement has been filed with the SEC and is included as an exhibit to
the registration statement of which this prospectus is a part.
Upon delivery of a placement notice, and subject to the Company’s
instructions in that notice, and the terms and conditions of the sales agreement generally, Cantor Fitzgerald & Co. may sell
our common shares by any method permitted by law deemed to be an “at the market offering” as defined by Rule 415(a)(4)
promulgated under the Securities Act.
We will pay Cantor Fitzgerald & Co. in cash, upon each sale
of our common shares pursuant to the sales agreement, a commission in an amount equal to 3.0% of the aggregate gross proceeds from
each sale of our common shares. Because there is no minimum offering amount required as a condition to this offering, the actual
total public offering amount, commissions and proceeds to us, if any, are not determinable at this time. We have agreed to reimburse
a portion of Cantor Fitzgerald & Co.’s expenses, including legal fees, in connection with this offering up to a maximum
of $75,000. In accordance with FINRA Rule 5110 these reimbursed fees and expenses are deemed sales compensation to Cantor Fitzgerald
& Co. in connection with this offering. We estimate that the total expenses for the offering, excluding compensation and expense
reimbursement payable to Cantor Fitzgerald & Co. under the terms of the sales agreement, will be approximately $150,000.
Settlement for sales of common shares will occur on the second trading
day following the date on which any sales are made, or on some other date that is agreed upon by us and Cantor Fitzgerald &
Co. in connection with a particular transaction, in return for payment of the net proceeds to us. There is no arrangement for funds
to be received in an escrow, trust or similar arrangement. Sales of our common shares as contemplated in this prospectus will be
settled through the facilities of The Depository Trust Company or by such other means as we and Cantor Fitzgerald & Co. may
agree upon.
Cantor Fitzgerald & Co. will act as sales agent on a commercially
reasonable efforts basis consistent with its normal trading and sales practices and applicable state and federal laws, rules and
regulations and the rules of the NYSE American. In connection with the sale of common shares on our behalf, Cantor Fitzgerald &
Co. will be deemed to be an “underwriter” within the meaning of the Securities Act and the compensation of Cantor Fitzgerald
& Co. will be deemed to be underwriting commissions or discounts. We have agreed to provide indemnification and contribution
to Cantor Fitzgerald & Co. against certain civil liabilities, including liabilities under the Securities Act.
The offering of our common shares pursuant to the sales agreement
will terminate as permitted therein. We or Cantor Fitzgerald & Co. may terminate the sales agreement at any time upon ten (10)
days’ prior notice.
Cantor Fitzgerald & Co. and its affiliates may in the future
provide various investment banking, commercial banking and other financial services for us and our affiliates, for which services
they may in the future receive customary fees.
This prospectus in electronic format may be made available on a
website maintained by Cantor Fitzgerald & Co. and Cantor Fitzgerald & Co. may distribute this prospectus electronically.
MATERIAL UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following summary describes the material U.S. federal income
tax consequences to U.S. Holders (as defined below) of acquiring, owning, and disposing of our common shares acquired pursuant
to this prospectus.
Scope of this Summary
Tax Consequences Not Addressed
This summary does not address all potential U.S. federal income
tax considerations that may be relevant to a particular U.S. Holder. In addition, this summary does not take into account the individual
facts and circumstances that may affect the U.S. federal income tax consequences to a particular U.S. Holder, including specific
tax consequences under an applicable income tax treaty. Accordingly, this summary is not intended to be, and should not be construed
as, legal or U.S. federal income tax advice with respect to any U.S. Holder. This summary does not address any U.S. federal alternative
minimum, U.S. federal estate and gift, U.S. state and local, or non-U.S. tax considerations. Except as specifically set forth below,
this summary does not discuss tax reporting requirements that may be applicable to any particular U.S. Holder. Each prospective
U.S. Holder should consult its own tax advisors regarding the tax consequences of acquiring, owning, and disposing of our common
shares acquired pursuant to this prospectus.
Authorities
This summary is based upon the provisions of the Code, the United
States Treasury Regulations (whether final, temporary, or proposed) promulgated thereunder, the Convention Between Canada and the
United States of America with Respect to Taxes on Income and on Capital, signed September 26, 1980, as amended (the “Canada-U.S.
Tax Convention”), and administrative rulings and judicial decisions interpreting the Code and the United States Treasury
Regulations, all as currently in effect, and all subject to differing interpretations or change, possibly on a retroactive basis.
We have not sought, and will not seek, a ruling from the IRS regarding any matter discussed herein, and no assurance can be given
that the IRS would not assert, or that a court would not sustain, a position that is different from, and contrary to, the positions
taken in this summary.
U.S. Holders
For purposes of this summary, the term “U.S. Holder”
means a beneficial owner of common shares acquired pursuant to this prospectus that is for U.S. federal income tax purposes:
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·
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an individual who is a citizen or resident of the United States (as determined under U.S. federal income tax rules);
|
|
·
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a corporation (or other entity treated as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the United States or of any political subdivision of the United States;
|
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·
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an estate, the income of which is subject to U.S. federal income taxation regardless of its source; or
|
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·
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a trust that (i) is subject to the primary supervision of a court within the United States and the control of one or more U.S. persons for all substantial decisions or (ii) has a valid election in effect under applicable United States Treasury Regulations to be treated as a U.S. person.
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An individual may be a resident for U.S. federal income tax purposes
in any calendar year if the individual was present in the United States for at least 31 days in that calendar year and for an aggregate
of at least 183 days during the three-year period ending with the current calendar year. For purposes of this calculation, all
of the days present in the current year, one-third of the days present in the immediately preceding year, and one-sixth of the
days present in the second preceding year are counted. Residents are taxed for U.S. federal income tax purposes as if they were
U.S. citizens.
Non-U.S. Holders Not Addressed
For purposes of this summary, a “non-U.S. Holder” is
a beneficial owner of common shares that is not a U.S. Holder and is not a partnership for U.S. federal income tax purposes. This
summary does not address the U.S. federal income tax consequences to non-U.S. Holders of acquiring, owning, and disposing of common
shares. Each prospective investor should consult a professional tax advisor with respect to the U.S. federal income, U.S. alternative
minimum, U.S. federal estate and gift, U.S. state and local, and non-U.S. tax consequences of acquiring, owning, and disposing
of our common shares.
Certain U.S. Holders Not Addressed
This summary does not address the U.S. federal income tax considerations
applicable U.S. Holders that are subject to special provisions under the Code, including, but not limited to, U.S. Holders that:
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·
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are tax-exempt organizations, qualified retirement plans, individual retirement accounts, or other tax-deferred accounts;
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are financial institutions, underwriters, insurance companies, real estate investment trusts, or regulated investment companies;
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are broker-dealers, dealers, or traders in securities or currencies that elect to apply a mark-to-market accounting method;
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have a “functional currency” other than the U.S. dollar;
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own common shares as part of a straddle, hedging transaction, conversion transaction, constructive sale, or other arrangement involving more than one position;
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acquired common shares in connection with the exercise of employee stock options or otherwise as compensation for services;
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hold common shares other than as a capital asset within the meaning of section 1221 of the Code (generally, property held for investment purposes);
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are partnerships or other “pass-through” entities for U.S. federal income tax purposes (or investors in such partnerships or entities);
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own, have owned, or will own (directly, indirectly, or by attribution) 10% or more of the total combined voting power or total value of the outstanding shares of our company;
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are U.S. expatriates or former long-term residents of the United States;
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have been, are, or will be residents or deemed to be residents in Canada for purposes of the Income Tax Act (Canada) (the “Tax Act”);
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use or hold, will use or hold, or that are or will be deemed to use or hold common shares in connection with carrying on a business in Canada;
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are persons whose common shares constitute “taxable Canadian property” under the Tax Act; or
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·
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have a permanent establishment in Canada for the purposes of the Canada-U.S. Tax Convention.
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U.S. Holders that are subject to special provisions under the Code,
including, but not limited to, U.S. Holders described immediately above, should consult their own tax advisors regarding the U.S.
federal income, U.S. federal alternative minimum, U.S. federal estate and gift, U.S. state and local, and non-U.S. tax consequences
of acquiring, owning, and disposing of our common shares.
The following summary is not a substitute for careful tax planning
and advice. U.S. Holders of common shares are urged to consult their own tax advisors concerning the U.S. federal income tax consequences
of the issues discussed herein, in light of their particular circumstances, as well as any considerations arising under the laws
of any foreign, state, local, or other taxing jurisdiction.
PFIC Status and Related Tax Consequences
Status as a PFIC
We believe we were classified as a PFIC during our taxable year
ended 2017, and based on current business plans and financial expectations, we believe we will continue to be a PFIC for the current
and future taxable years. As a result, certain potentially adverse rules may affect the U.S. federal income tax consequences to
a U.S. Holder of acquiring, owning, and disposing of our common shares. No opinion of legal counsel or ruling from the IRS concerning
our status as a PFIC has been obtained or is currently planned to be requested. The determination of whether any corporation was,
or will be, a PFIC for a taxable year depends, in part, on the application of complex U.S. federal income tax rules, which are
subject to differing interpretations. In addition, whether any corporation will be a PFIC for any taxable year depends on the assets
and income of such corporation calculated on an annual basis and, as a result, cannot be predicted with certainty as of the date
of this prospectus. Each U.S. Holder should consult its own tax advisors regarding the PFIC status of our company.
A foreign corporation generally will be classified as a PFIC under
Section 1297 of the Code in any taxable year in which either:
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·
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at least 75% of its gross income is “passive income”, or the PFIC Income Test; or
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·
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at least 50% of the gross value of its assets is attributable to assets that produce, or are held for the production of, passive income, based on the quarterly average of the fair market value of such assets, or the PFIC Asset Test.
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For this purpose, passive income generally includes, among other
things, dividends, interest, rents, royalties, gains from the disposition of passive assets and gains from commodities and securities
transactions. Passive assets include cash and liquid securities, even if used as working capital.
If our company is a PFIC for any taxable year during which a U.S.
Holder owns common shares, such U.S. Holder will be subject to different taxation rules with respect to an investment in our common
shares depending on whether such U.S. Holder makes an election to treat our company as a “qualified electing fund”
under Section 1295 of the Code, or a QEF Election or makes a mark-to-market election under Section 1296 of the Code, or a Mark-to-Market
Election. A U.S. Holder that does not make either election is referred to in this summary as a “Non-Electing U.S. Holder.”
Default PFIC Rules
A Non-Electing U.S. Holder will be subject to the rules of Section
1291 of the Code.
Distributions are divided into two categories, “excess distributions”
and others. An excess distribution is the amount received in a taxable year that exceeds 125% of the average annual distributions
paid on our common shares in the three preceding taxable years.
Any gain realized on the sale, exchange or other disposition of
our common shares is also considered an excess distribution.
Under these rules:
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the excess distribution is allocated ratably over the holding period (on a daily basis) for the common shares;
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the amount allocated to prior taxable years is subject to tax at the highest rate of tax applicable to ordinary income in each such year;
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an interest charge for the deemed tax deferral is imposed with respect to the resulting tax attributable to each such prior taxable year. A taxpayer that is not a corporation must treat any such interest paid as “personal interest,” which is not deductible; and
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the amount allocated to the current taxable year is taxed as ordinary income and would not be “qualified dividend income” or long-term capital gain (see “General Rules Applicable to the Ownership and Disposition of Common Shares – Distributions on Common Shares” below).
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In addition, if a Non-Electing U.S. Holder who is an individual
dies while owning our common shares the Non-Electing U.S. Holder’s successor would be ineligible to receive a step-up in
tax basis of the common shares.
To the extent a distribution on our common shares does not constitute
an excess distribution to a Non-Electing U.S. Holder, such Non-Electing U.S. Holder generally will be required to include the amount
of such distribution in gross income as a dividend to the extent of our current or accumulated earnings and profits (as determined
for U.S. federal income tax purposes) that are not allocated to excess distributions, and will not be eligible for the reduced
rates applicable to “qualified dividend income” with respect to such distribution.
Although a determination as to our PFIC status will be made annually,
an initial determination that we are a PFIC will generally apply for subsequent years to a Non-Electing U.S. Holder who held common
shares while we are a PFIC, whether or not we meet the PFIC Income Test or PFIC Asset Test in those subsequent years. Non-Electing
U.S. Holders are encouraged to consult their tax advisors regarding the application of the PFIC rules to their specific situation.
QEF Election
A U.S. Holder that makes a timely and effective QEF Election with
respect to our common shares, referred to in this disclosure as an “Electing U.S. Holder,” will not be subject to the
default PFIC tax, or Section 1291, and interest charge rules (or the denial of basis step-up at death) discussed above with respect
to such shares. Instead, an Electing U.S. Holder must include in income such shareholder’s pro rata share of our ordinary
earnings and net capital gain, if any, for our taxable year that ends with or within the taxable year of the Electing U.S. Holder.
The amount so included in income generally will be treated as ordinary income to the extent of such Electing U.S. Holder’s
allocable share of the PFIC’s ordinary earnings and as long-term capital gain to the extent of such Electing U.S. Holder’s
allocable share of the PFIC’s net capital gains. No portion of any such inclusion of ordinary earnings will be eligible to
be treated as “qualified dividend income.” If an Electing U.S. Holder is an individual, any such net capital gain inclusions
would be eligible for taxation at the preferential capital gain tax rates. Such income inclusions generally will be treated as
income from sources outside the United States for foreign tax credit purposes.
An Electing U.S. Holder will be subject to U.S. federal income tax
on such income inclusions for each taxable year in which we are a PFIC, regardless of whether such amounts are actually distributed
to such Electing U.S. Holder. However, an Electing U.S. Holder may, subject to certain limitations, elect to defer payment of current
U.S. federal income tax on such amounts, subject to an interest charge. If an Electing U.S. Holder is an individual, any such interest
will be treated as non-deductible “personal interest.”
Any net operating loss or net capital loss of a PFIC will not pass
through to the Electing U.S. Holder and will not offset any ordinary earnings or net capital gain of a PFIC recognized by Electing
U.S. Holders in subsequent years (although such losses would ultimately reduce the gain, or increase the loss, recognized by the
Electing U.S. Holder on its disposition of the common shares).
An Electing U.S. Holder generally (i) may receive a tax-free distribution
from our company to the extent that such distribution represents earnings and profits of our company that were previously included
in income by the Electing U.S. Holder because of such QEF Election and (ii) will adjust such Electing U.S. Holder’s tax basis
in the common shares to reflect the amount included in income or allowed as a tax-free distribution because of such QEF Election.
In addition, an Electing U.S. Holder generally will recognize capital gain or loss on the sale, exchange, or other taxable disposition
of common shares.
A U.S. Holder may make a timely QEF Election with respect to its
ownership of our common shares by filing one copy of IRS Form 8621, including a PFIC Annual Information Statement, to a timely
filed United States federal income tax return for the first year in which it holds our common shares. If a U.S. Holder does not
make a timely and effective QEF Election for the first year in the U.S. Holder’s holding period for the common shares, the
U.S. Holder may still be able to make a timely and effective QEF Election in a subsequent year if such U.S. Holder meets certain
requirements and makes a “purging election” pursuant to Section 1291(d) of the Code recognizing gain as if its common
shares were sold for their fair market value on the day the QEF Election is effective (which will be taxed under the default rules
of Section 1291 of the Code discussed above). If a U.S. Holder makes a QEF Election but does not make a “purging election,”
then such U.S. Holder shall not be subject to the QEF Election rules and shall continue to be subject to tax under the rules of
Section 1291 discussed above with respect to its common shares. If a U.S. Holder owns PFIC stock indirectly through another PFIC,
separate QEF Elections must be made for the PFIC in which the U.S. Holder is a direct shareholder and the subsidiary PFIC for the
QEF rules to apply to both PFICs. A QEF Election for a U.S. Holder will be effective only if we agree to provide certain
information to such holder annually. At this time, we intend to provide U.S. Holders with such information as may be required
to make a QEF Election effective, but we cannot guarantee that we will be able to do so.
A QEF Election will apply to the taxable year for which such QEF
Election is timely made and to all subsequent taxable years, unless such QEF Election is invalidated or terminated or the IRS consents
to revocation of such QEF Election. If a U.S. Holder makes a QEF Election and, in a subsequent taxable year we cease to be a PFIC,
the QEF Election will remain in effect (although it will not be applicable) during those taxable years in which we are not a PFIC.
Accordingly, if we become a PFIC in another subsequent taxable year, the QEF Election will be effective and the Electing U.S. Holder
will be subject to the QEF rules described above during any subsequent taxable year in which the Company qualifies as a PFIC.
Each U.S. Holder should consult its own tax advisors regarding tax
consequences of a QEF Election with respect to us and any subsidiary PFIC.
Mark-to-Market Election
Alternatively, if our common shares are “marketable stock,”
a U.S. Holder generally would be permitted to make a Mark-to-Market Election. Generally, stock will be considered “marketable
stock” if it is “regularly traded” on a “qualified exchange” within the meaning of applicable United
States Treasury Regulations. A class of stock is “regularly traded” on an exchange during any calendar year in which
such class of stock is traded, other than in
de minimis
quantities, on at least 15 days during each calendar quarter. A
“qualified exchange” includes: (i) a national securities exchange that is registered with the Securities and Exchange
Commission, (ii) the national market system established pursuant to section 11A of the Securities and Exchange Act of 1934, or
(iii) a foreign securities exchange that is regulated or supervised by a governmental authority of the country in which the market
is located, provided that (a) such foreign exchange has trading volume, listing, financial disclosure, and surveillance requirements,
and meets other requirements and the laws of the country in which such foreign exchange is located, together with the rules of
such foreign exchange, ensure that such requirements are actually enforced and (b) the rules of such foreign exchange effectively
promote active trading of listed stocks.
If a Mark-to-Market Election is made, the U.S. Holder generally
would include as ordinary income in each taxable year the excess, if any, of the fair market value of the common shares at the
end of the taxable year over such U.S. Holder’s adjusted tax basis in the common shares. The U.S. Holder would also be permitted
an ordinary loss in respect of the excess, if any, of the U.S. Holder’s adjusted tax basis in the common shares over their
fair market value at the end of the taxable year, but only to the extent of the net amount previously included in income as a result
of the Mark-to-Mark Election. A U.S. Holder’s tax basis in the common shares would be adjusted to reflect the amount included
in gross income or allowed as a deduction because of the Mark-to-Market Election. Gain realized on the sale, exchange, or other
disposition of the common shares would be treated as ordinary income, and any loss realized on the sale, exchange, or other disposition
of the common shares would be treated as ordinary loss to the extent that such loss does not exceed the net mark-to-market gains
previously included in income by the U.S. Holder. Losses that exceed this limitation are subject to the rules generally applicable
to losses provided in the Code and Treasury Regulations (see “General Rules Applicable to the Ownership and Disposition of
Common Shares – Sale or Other Taxable Disposition of Common Shares” below). Amounts treated as ordinary income are
not eligible for the preferential tax rates applicable to “qualified dividend income” or long-term capital gains.
A U.S. Holder makes a Mark-to-Market Election by attaching a completed
IRS Form 8621 to a timely filed United States federal income tax return. A Mark-to-Market Election applies to the taxable year
in which such Mark-to-Market Election is made and to each subsequent taxable year, unless the common shares cease to be marketable
stock or the IRS consents to revocation of such election. If a U.S. Holder does not make a Mark-to-Market Election beginning in
the first taxable year of such U.S. Holder’s holding period for the common shares for which we are a PFIC and such U.S. Holder
has not made a timely QEF Election, the rules of Section 1291 of the Code discussed above will apply to certain dispositions of,
and distributions on, the common shares. Each U.S. Holder should consult its own tax advisors regarding the availability of, and
procedure for making, a Mark-to-Market Election.
Although a U.S. Holder may be eligible to make a Mark-to-Market
Election with respect to the common shares, no such election may be made with respect to the stock of any subsidiary PFIC that
a U.S. Holder is treated as owning, because such stock is not marketable. Hence, the Mark-to-Market Election will not be effective
to avoid the application of the default rules of Section 1291 of the Code described above with respect to deemed dispositions of
subsidiary PFIC stock or excess distributions from a subsidiary PFIC to its shareholder.
Other PFIC Rules
Under Section 1291(f) of the Code, the IRS has issued proposed Treasury
Regulations that, subject to certain exceptions, would cause a U.S. Holder that had not made a timely QEF Election to recognize
gain (but not loss) upon certain transfers of common shares that would otherwise be tax-deferred (e.g., gifts and exchanges pursuant
to corporate reorganizations). However, the specific U.S. federal income tax consequences to a U.S. Holder may vary based on the
manner in which common shares are transferred.
Certain additional adverse rules may apply with respect to a U.S.
Holder if we are a PFIC, regardless of whether such U.S. Holder makes a QEF Election. For example, under Section 1298(b)(6) of
the Code, a U.S. Holder that uses our common shares as security for a loan will, except as may be provided in Treasury Regulations,
be treated as having made a taxable disposition of such common shares. Special rules also apply to the amount of foreign tax credit
that a U.S. Holder may claim on a distribution from a PFIC. In addition, if a U.S. Holder owns common shares during any taxable
year that we are treated as a PFIC, it will be required to file IRS Form 8621 (regardless of whether a QEF or Mark-to-Market Election
is made). There are certain
de minimis
exceptions to this requirement.
Lastly, if we are not treated as a PFIC, and you paid taxes as if
we were a PFIC, then you may be able to claim a refund for taxes you paid in excess of the taxes you actually owed. If you do not
timely make such a refund claim, then your refund will be disallowed and you will bear more taxes than you actually owe.
The rules dealing with PFICs and with the QEF and Mark-to-Market
Election are very complex and are affected by various factors in addition to those described above. Prospective investors should
consult their own tax advisors regarding the application of the PFIC rules to our common shares, the availability and advisability
of making a QEF or Mark-to-Market Election and the application of the reporting rules to your particular situation.
General Rules Applicable to the Ownership and Disposition of
Common Shares
The following discussion describes the general rules applicable
to the ownership and disposition of the common shares but is subject in its entirety to the special rules described above under
the heading “PFIC Status and Related Tax Consequences.”
Distributions on Common Shares
The gross amount of any distribution (including amounts, if any,
withheld in respect of Canadian withholding tax) actually or constructively received by a U.S. Holder with respect to our common
shares will be taxable to the U.S. Holder as a dividend to the extent of our current or accumulated earnings and profits as determined
under U.S. federal income tax principles. Distributions to a U.S. Holder in excess of earnings and profits will be treated first
as a return of capital that reduces a U.S. Holder’s tax basis in such common shares (thereby increasing the amount of gain
or decreasing the amount of loss that a U.S. Holder would recognize on a subsequent disposition of our common shares), and then
as gain from the sale or exchange of such common shares (see “Sale or Other Taxable Disposition of Common Shares”).
The amount of any distribution of property other than cash will be the fair market value of that property on the date of distribution.
In the event we make distributions to holders of common shares, we may or may not calculate our earnings and profits under U.S.
federal income tax principles. If we do not do so, any distribution may be required to be regarded as a dividend, even if that
distribution would otherwise be treated as a non-taxable return of capital or as capital gain. The amount of the dividend will
generally be treated as foreign-source dividend income to U.S. Holders.
Non-corporate U.S. Holders, including individuals, will generally
be eligible for the preferential U.S. federal rate on “qualified dividend income,” provided that we are a “qualified
foreign corporation,” the stock on which the dividend is paid is held for a minimum holding period, and other requirements
are satisfied. A “qualified foreign corporation” includes a foreign corporation that is not a PFIC in the year of the
distribution or in the prior taxable year and that is eligible for the benefits of an income tax treaty with the United States
that contains an exchange of information provision and has been determined by the United States Treasury Department to be satisfactory
for purposes of the legislation (such as the Canada-U.S. Tax Convention).
Distributions to U.S. Holders generally will not be eligible for
the “dividends received deduction” generally allowed to U.S. corporations in respect of dividends received from other
U.S. corporations.
Sale or Other Taxable Disposition of Common Shares
Upon the sale, exchange, or other taxable disposition of common
shares, a U.S. Holder generally will recognize gain or loss equal to the difference between the amount realized upon the sale,
exchange, or other disposition and such U.S. Holder's tax basis in such common shares sold or otherwise disposed of. If the U.S.
holder receives Canadian dollars in the transaction, the amount realized will be the U.S. dollar value of the Canadian dollars
received, which is determined for cash basis taxpayers on the settlement date for the transaction and for accrual basis taxpayers
on the trade date (although accrual basis taxpayers can also elect the settlement date). A U.S. Holder’s tax basis in common
shares generally will be such holder’s U.S. dollar cost for such common shares. Gain or loss recognized on such sale or other
disposition generally will be long-term capital gain or loss if, at the time of the sale or other disposition, the common shares
have been held for more than one year.
Preferential tax rates currently apply to long-term capital gain
of a U.S. Holder that is an individual, estate, or trust. There are currently no preferential tax rates for long-term capital gain
of a corporate U.S. Holder. Deductions for capital losses are subject to significant limitations under the Code. The gain or loss
will generally be U.S.-source gain or loss for foreign tax credit purposes.
Additional Considerations
Additional Medicare Tax on Net Investment Income
Certain U.S. Holders that are individuals, estates, or trusts (other
than trusts that are exempt from tax) are subject to a tax of 3.8% on “net investment income” (or undistributed “net
investment income,” in the case of estates and trusts) for each taxable year, with such tax applying to the lesser of such
income or the excess of such person’s adjusted gross income (with certain adjustments) over a specified amount. Net investment
income includes dividends on the common shares and net gains from the disposition of the common shares.
Further, excess distributions treated as dividends, gains treated
as excess distributions under the PFIC rules discussed above, and mark-to-market inclusions and deductions are all included in
the calculation of net investment income. United States Treasury Regulations provide, subject to the election described in the
following paragraph, that solely for purposes of this additional tax, distributions of previously taxed income will be treated
as dividends and included in net investment income subject to the additional 3.8% tax. Additionally, to determine the amount of
any capital gain from the sale or other taxable disposition of common shares that will be subject to the additional tax on net
investment income, a U.S. Holder who has made a QEF Election will be required to recalculate its basis in the common shares excluding
QEF basis adjustments. Alternatively, a U.S. Holder may make an election which will be effective with respect to all interests
in a PFIC for which a QEF Election has been made and which is held in that year or acquired in future years. Under this election,
a U.S. Holder pays the additional 3.8% tax on QEF income inclusions and on gains calculated after giving effect to related tax
basis adjustments.
U.S. Holders that are individuals, estates, or trusts should consult
their own tax advisors regarding the applicability of this tax to any of their income or gains in respect of the common shares.
Receipt of Foreign Currency
The amount of any distribution paid to a U.S. Holder in foreign
currency, or on the sale, exchange, or other taxable disposition of common shares, generally will be equal to the U.S. dollar value
of such foreign currency based on the exchange rate applicable on the date of receipt (regardless of whether such foreign currency
is converted into U.S. dollars at that time). If the foreign currency received is not converted into U.S. dollars on the date of
receipt, a U.S. Holder will have a tax basis in the foreign currency equal to its U.S. dollar value on the date of receipt. Any
U.S. Holder who converts or otherwise disposes of the foreign currency after the date of receipt may have a foreign currency exchange
gain or loss that would be treated as ordinary income or loss, and generally will be U.S. source income or loss for foreign tax
credit purposes. Different rules apply to U.S. Holders who use the accrual method of tax accounting. Each U.S. Holder should consult
its own U.S. tax advisors regarding the U.S. federal income tax consequences of receiving, owning, and disposing of foreign currency.
Foreign Tax Credit
Subject to the PFIC rules discussed above, a U.S. Holder that pays
(whether directly or through withholding) Canadian income tax with respect to dividends paid on the common shares generally will
be entitled, at the election of such U.S. Holder, to receive either a deduction or a credit for such Canadian income tax paid.
Generally, a credit will reduce a U.S. Holder’s U.S. federal income tax liability on a dollar-for-dollar basis, whereas a
deduction will reduce a U.S. Holder’s income that is subject to U.S. federal income tax. This election is made on a year-by-year
basis and applies to all creditable foreign taxes paid (whether directly or through withholding) by a U.S. Holder during a year.
Complex limitations apply to the foreign tax credit, including the
general limitation that the credit cannot exceed the proportionate share of a U.S. Holder’s U.S. federal income tax liability
that such U.S. Holder’s “foreign source” taxable income bears to such U.S. Holder’s worldwide taxable income.
In applying this limitation, a U.S. Holder’s various items of income and deduction must be classified, under complex rules,
as either “foreign source” or “U.S. source.” Generally, dividends paid by a foreign corporation (including
constructive dividends) should be treated as foreign source for this purpose, and gains recognized on the sale of stock of a foreign
corporation by a U.S. Holder should be treated as U.S. source for this purpose, except as otherwise provided in an applicable income
tax treaty, and if an election is properly made under the Code. However, the amount of a distribution with respect to the common
shares that is treated as a “dividend” may be lower for U.S. federal income tax purposes than it is for Canadian federal
income tax purposes, resulting in a reduced foreign tax credit allowance to a U.S. Holder. In addition, this limitation is calculated
separately with respect to specific categories of income. The foreign tax credit rules are complex, and each U.S. Holder should
consult its own U.S. tax advisors regarding the foreign tax credit rules.
Information Reporting and Backup Withholding
Under U.S. federal income tax law, certain categories of U.S. Holders
must file information returns with respect to their investment in, or involvement in, a foreign corporation. For example, certain
U.S. Holders who hold certain “specified foreign financial assets” that exceed certain thresholds are required to report
information relating to such assets. The definition of “specified foreign financial assets” generally includes not
only financial accounts maintained in foreign financial institutions, but also, unless held in accounts maintained by a financial
institution, any stock or security issued by a non-U.S. person, any financial instrument or contract held for investment that has
an issuer or counterparty other than a U.S. person, and any interest in a foreign entity. U.S. Holders may be subject to these
reporting requirements unless their common shares are held in an account at certain financial institutions. Significant penalties
may apply for failure to satisfy applicable reporting obligations.
Distributions paid with respect to common shares and proceeds from
a sale, exchange, or redemption of common shares made within the United States or through certain U.S.-related financial intermediaries
may be subject to information reporting to the IRS and possible U.S. backup withholding (at a rate of 24%). Backup withholding
will not apply, however, to a U.S. Holder who furnishes a correct U.S. taxpayer identification number and makes any other required
certification on IRS Form W-9 or that is a corporation or other entity that is otherwise exempt from backup withholding. Each U.S.
Holder should consult its own tax advisors regarding the application of the U.S. information reporting and backup withholding rules.
Backup withholding is not an additional tax. Amounts withheld as backup withholding may be credited against a holder’s U.S.
federal income tax liability, and such holder may obtain a refund of any excess amounts withheld under the backup withholding rules
by filing an appropriate claim for refund with the IRS and furnishing any required information in a timely manner.
The discussion of reporting requirements set forth above is not
intended to constitute a complete description of all reporting requirements that may apply to a U.S. Holder. A failure to satisfy
certain reporting requirements may result in an extension of the time period during which the IRS can assess a tax and, under certain
circumstances, such an extension may apply to assessments of amounts unrelated to any unsatisfied reporting requirement. U.S. Holders
should consult with their own tax advisors regarding their reporting obligations, if any, as a result of their acquisition, ownership,
or disposition of our common shares.
CERTAIN CANADIAN INCOME TAX CONSIDERATIONS
The following is, as of the date of this prospectus, a summary of
the principal Canadian federal income tax considerations pursuant to the Income Tax Act (Canada) and the regulations thereunder
(the “Tax Act”) that generally apply to the acquisition, holding and disposition of common shares by a person who is
neither resident nor deemed to be resident in Canada for purposes of the Tax Act, is a resident of the U.S. for purposes of the
Canada - U.S. Income Tax Convention (“Treaty”) and acquires a beneficial interest in the common shares (a “U.S.
Holder”).
This summary applies only to a U.S. Holder who, at all relevant
times, for purposes of the Tax Act:
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holds the common shares as capital property;
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does not, and is not deemed to, use or hold the common shares in the course of carrying on a business in Canada;
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deals at arm’s length and is not affiliated with us; and
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is a “qualifying person” or otherwise entitled to benefits under the Treaty.
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Special rules, which are not discussed in this summary, may apply
to a U.S. Holder that is an insurer that carries on an insurance business in Canada and elsewhere.
This summary is based on the current provisions of the Tax Act,
all specific proposals to amend the Tax Act publicly announced by or on behalf of the Minister of Finance (Canada) prior to the
date hereof (“Tax Proposals”), and an understanding of the current administrative policies and assessing practices
of the Canada Revenue Agency (the “CRA”) made publicly available prior to the date hereof. This summary assumes the
Tax Proposals will be enacted in the form proposed, however, no assurance can be given that the Tax Proposals will be enacted in
the form proposed, or at all. Except for the Tax Proposals, this summary does not take into account or anticipate any changes in
law or administrative policies or assessing practices of the CRA, whether by legislative, governmental or judicial action, nor
does it take into account other federal or any provincial, territorial or foreign income tax legislation or considerations, which
may differ significantly from those discussed herein.
This summary is not exhaustive of all possible Canadian federal
income tax considerations that apply to an investment in common shares. Moreover, the income and other tax consequences of acquiring,
holding or disposing of common shares will vary depending on an investor’s particular circumstances. Accordingly, this summary
is of a general nature only and is not intended to be, nor should it be construed to be, legal or tax advice to any investor. Consequently,
investors should consult their own tax advisors for advice with respect to the income tax consequences of an investment in common
shares based on their particular circumstances.
Dividends on Common Shares
Dividends paid or credited on the common shares (or deemed to be
paid or credited on the common shares) to a U.S. Holder will generally be subject to Canadian withholding tax at the rate of 15%.
Dispositions of Common Shares
A U.S. Holder will not be subject to tax under the Tax Act on any
capital gain realized on a disposition or deemed disposition of common shares (other than a disposition to us, unless purchased
by us in the open market in the manner in which shares are normally purchased by any member of the public in the open market, in
which case other considerations may arise), unless the common shares are “taxable Canadian property” of the U.S. Holder
for purposes of the Tax Act and the U.S. Holder is not entitled to relief under the Treaty.
Generally, the common shares will not constitute “taxable
Canadian property” of a U.S. Holder at a particular time provided that the common shares are listed at that time on a “designated
stock exchange” for purposes of the Tax Act (which currently includes the TSX-V and NYSE American), unless at any particular
time during the 60-month period that ends at that time both of the following are true:
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1.
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(a) the U.S. Holder, (b) persons with whom the U.S. Holder does not deal with at arm’s length
(for purposes of the Tax Act), (c) partnerships in which the U.S. Holder or a person described in (b) holds an interest directly
or indirectly through one or more partnerships, or (d) any combination of (a) to (c) owned 25% or more of the issued shares of
any class or series of our capital stock; and
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2.
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more than 50% of the fair market value of the common shares was derived directly or indirectly
from one or any combination of: (a) real or immovable properties situated in Canada, (b) “Canadian resource properties”
(as defined in the Tax Act), (c) “timber resource properties” (as defined in the Tax Act), and (d) options in respect
of, or interests in, or for civil law rights in, property in any of the foregoing whether or not the property exists.
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Notwithstanding the foregoing, in certain circumstances set out
in the Tax Act, common shares may be deemed to be taxable Canadian property. U.S. Holders whose common shares may constitute taxable
Canadian property should consult their own tax advisors.
LEGAL MATTERS
The validity of the common shares being offered will be passed upon
for us by Tingle Merrett LLP, Calgary, Alberta, Canada. Partners and associates of Tingle Merrett LLP own or exert control or direction
over an aggregate of 1,300,000 common shares. Lowenstein Sandler LLP, New York, New York has acted as our United States counsel
in connection with this offering. Lowenstein Sandler LLP owns 43,613 common shares. Covington & Burling LLP, New York, New
York is counsel for Cantor Fitzgerald & Co. in connection with this offering.
EXPERTS
The consolidated financial statements incorporated in this prospectus
by reference from our Annual Report on Form 10-K have been audited by MNP LLP, an independent registered public accounting firm,
as stated in their report which is incorporated herein by reference. Such consolidated financial statements have been incorporated
herein by reference in reliance on the report of such firm, given upon their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements
and other information with the SEC. You may read or obtain a copy of these reports at the SEC’s public reference room at
100 F Street, N.E., Washington, D.C. 20549, on official business days during the hours of 10:00 am to 3:00 pm. You may obtain information
on the operation of the public reference room and its copy charges by calling the SEC at 1-800-SEC-0330. The SEC maintains a website,
at
http://www.sec.gov
, that contains registration statements, reports, proxy information statements and other information
regarding registrants that file electronically with the SEC, including us. Our website address is
http://www.zomedica.com
.
We have not incorporated by reference into this prospectus the information on our website, and you should not consider it to be
a part of this document.
The SEC allows us to “incorporate by reference” information
that we file with it into this prospectus, which means that we can disclose important information to you by referring you to those
documents. The information incorporated by reference is an important part of this prospectus. The information incorporated by reference
is considered to be a part of this prospectus, and information that we file later with the SEC will automatically update and supersede
information contained in this prospectus and any accompanying prospectus supplement.
We incorporate by reference the documents listed below that we have
previously filed with the SEC, each of which has Exchange Act File No. 000-38298 unless otherwise noted:
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our Annual Report on Form 10-K for the fiscal year ended December 31, 2017, filed with the SEC on February 28, 2018;
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our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2018, June 30, 2018 and September 30, 2018, which were filed with the SEC on May 15, 2018, August 9, 2018 and November 13, 2018, respectively;
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our definitive Proxy Statement on Schedule 14A filed with the SEC on July 5, 2018;
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our Current Reports on Form 8-K filed with the SEC
on May 10, 2018, June 15, 2018, June 19, 2018, June 29, 2018, August 15, 2018, November 28, 2018, and December 20,
2018; and
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the description of our common shares as set forth in our Registration Statement on Form 8-A filed with the SEC on November 15, 2017, including any amendments thereto or reports filed for the purposes of updating this description.
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All reports and other documents that we file with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus but prior to the termination of the offering
of the securities hereunder will also be considered to be incorporated by reference into this prospectus from the date of the filing
of these reports and documents, and will supersede the information herein;
provided, however
, that all reports, exhibits
and other information that we “furnish” to the SEC will not be considered incorporated by reference into this prospectus.
Any statement contained in a document incorporated by reference in this prospectus or any prospectus supplement shall be deemed
to be modified or superseded to the extent that a statement contained herein, therein or in any other subsequently filed document
that also is incorporated by reference herein or therein modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus or any prospectus supplement.
We will provide you without charge, upon your oral or written request,
with a copy of any or all reports, proxy statements and other documents we file with the SEC, as well as any or all of the documents
incorporated by reference in this prospectus or the registration statement (other than exhibits to such documents unless such exhibits
are specifically incorporated by reference into such documents). Requests for such copies should be directed to:
Zomedica Pharmaceuticals Corp.
100 Phoenix Drive, Suite 190
Ann Arbor, Michigan 48108
(734) 369-2555
Up to $50,000,000
Common Shares
PROSPECTUS
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the costs and expenses payable in
connection with the sale and distribution of the securities being registered hereby.
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EXPENSE
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AMOUNT
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SEC Registration Fee
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$
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36,360
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Legal Fees and Expenses
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*
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Accounting Fees and Expenses
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*
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Trustee Fees
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*
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Printing
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*
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Miscellaneous
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*
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Total
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$
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*
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*
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Estimated fees and expenses are not presently known. The foregoing sets forth the general categories
of fees and expenses (other than underwriting discounts and commissions) that we anticipate we will incur in connection with the
offering of securities under this registration statement. An estimate of the aggregate fees and expenses in connection with the
issuance and distribution of the securities being offered will be included in the applicable prospectus supplement.
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Item 15. Indemnification of Directors and Officers.
Under the
Business Corporations Act
(Alberta), or ABCA,
except in respect of an action by or on behalf of the company to procure a judgment in its favor, we may indemnify a director or
officer of the company, a former director or officer of the company or a person who acts or acted at the company’s request
as a director or officer of a body corporate of which the company is or was a shareholder or creditor, and the director’s
or officer’s heirs and legal representatives, against all costs, charges and expenses, including an amount paid to settle
an action or satisfy a judgment, reasonably incurred by the director or officer in respect of any civil, criminal or administrative
action or proceeding to which the director or officer is made a party by reason of being or having been a director or officer of
that company or body corporate, if:
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(i)
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was substantially successful on the merits in the person’s defence of the action or proceeding,
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(ii)
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fulfils the conditions set out in paragraphs (a) and (b) above, and
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(iii)
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is fairly and reasonably entitled to indemnity.
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The ABCA provides that we may advance funds to a person in order
to defray the costs, charges and expenses of a proceeding referred to above, but if the person does not meet the conditions of
paragraphs (i), (ii) and (iii) above he or she shall repay the funds advanced.
In accordance with the ABCA, we may purchase and maintain insurance
for the benefit of any director or officer of the company, a former director or officer of the company or a person who acts or
acted at the company’s request as a director or officer of a body corporate of which the company is or was a shareholder
or creditor, and the director’s or officer’s heirs and legal representatives against any liability incurred by the
person:
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(a)
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in the person’s capacity as a director or officer of the company, except when the liability
relates to the person’s failure to act honestly and in good faith with a view to the best interests of the company; or
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(b)
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in the person’s capacity as a director or officer of another body corporate if the person
acts or acted in that capacity at the company’s request, except when the liability relates to the person’s failure
to act honestly and in good faith with a view to the best interests of the body corporate.
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In addition to the foregoing provisions of the ABCA, our by-laws
require us to indemnify each of our directors, officers, former directors and officers and persons who act or acted at our request
as a director or officer, or in a similar capacity, of a body corporate of which the company is or was a shareholder or creditor,
and his heirs and legal representatives, against all costs, charges and expenses, including an amount paid to settle an action
or satisfy a judgment, reasonably incurred by him in respect of any civil, criminal or administrative action or proceeding to which
the individual is made a party by reason of being or having been a director of officer of us or such body corporate, provided that
he:
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·
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acted honestly and in good faith with a view to our best interests, or the best interests of the
other entity for which the individual acted as director or officer or in a similar capacity at our request; and
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·
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in the case of a criminal or administrative action or proceeding that is enforced by a monetary
penalty, the individual had reasonable grounds for believing that his or her conduct was lawful.
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Our by-laws authorize us, with the approval of our board of directors,
to purchase and maintain insurance for the benefit of each of our current or former directors or officers and each person who acts
or acted at our request as a director or officer of another entity, against any liability incurred by him or her. We currently
maintain insurance policies in the amount of $3.75 million per covered person.
The employment agreements for our chief financial officer, Shameze
Rampertab, and our chief executive officer, Gerald Solensky contain an indemnification provision pursuant to which we agree to
indemnify, hold harmless and pay advancements on any expenses either officer may sustain before or after termination in relation
to our affairs and his duties as an officer or director of us to the maximum extent allowed under Alberta law.
Item 16. Exhibits
The Index to Exhibits listing the exhibits required by Item 601
of Regulation S-K is located on the page immediately following the signature page to this registration statement.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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(a)
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To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
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(b)
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To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
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(c)
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To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
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Provided
,
however
, that paragraphs (1)(a),
(1)(b) and (1)(c) above do not apply if the information required to be included in a post-effective amendment by those paragraphs
is contained in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the registration statement.
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(2)
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That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(3)
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To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
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(4)
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That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
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(a)
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Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
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(b)
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Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
Provided, however
, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
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(5)
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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 registrant undertakes that in a primary offering of securities of the 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 registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
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(a)
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Any preliminary prospectus or prospectus of the registrant relating to the offering required to be filed pursuant to Rule 424;
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(b)
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Any free writing prospectus relating to the offering prepared by or on behalf of the registrant or used or referred to by the registrant;
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(c)
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The portion of any other free writing prospectus relating to the offering containing material information about registrant or its securities provided by or on behalf of the registrant; and
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(d)
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Any other communication that is an offer in the offering made by a registrant to the purchaser.
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(6)
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That, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(7)
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Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the forgoing provisions,
or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
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(8)
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The undersigned hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Act.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Ann Arbor, State of Michigan, on December 20, 2018.
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ZOMEDICA PHARMACEUTICALS CORP.
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By:
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/s/ Gerald Solensky, Jr.
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Gerald Solensky, Jr.
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Chairman of the Board, President and Chief Executive Officer
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KNOW ALL MEN BY THESE PRESENTS
, that we, the undersigned
officers and directors of Zomedica Pharmaceuticals Corp., a corporation organized under the laws of Alberta, Canada (the “
Company
”),
do hereby constitute and appoint each of Gerald Solensky, Jr. and Shameze Rampertab as his or her true and lawful attorney-in-fact
and agent, with full power of substitution and re-substitution, for him or her and in his or her name, place, and stead, in any
and all capacities, to sign any and all amendments (including post-effective amendments, exhibits thereto and other documents in
connection therewith) to this registration statement and any subsequent registration statement filed by the registrant pursuant
to Rule 462(b) of the Securities Act of 1933, as amended, which relates to this registration statement, and to file the same, with
all exhibits thereto, and other 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 connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that each said attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
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/
Gerald Solensky, Jr.
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Chairman of the Board, President, Chief Executive Officer
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December 20, 2018
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Gerald Solensky, Jr.
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(
Principal Executive Officer
)
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/s/
Shameze Rampertab
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Chief Financial Officer, Corporate Secretary and Director
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December 20, 2018
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Shameze Rampertab
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(
Principal Financial and Accounting Officer
)
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/s/
James LeBar
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Director
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December 20, 2018
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James LeBar
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*
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Director
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Rodney Williams
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/s/
Jeffrey Rowe
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Director
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December 20, 2018
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Jeffrey Rowe
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*By:
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/s/ Gerald Solensky, Jr.
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Gerald Solensky, Jr.
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Attorney-in-fact
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EXHIBIT INDEX
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*
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To be filed, if applicable, as an exhibit to a post-effective amendment to this registration
statement or as an exhibit to a report filed under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934,
as amended, and incorporated herein by reference.
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**
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To be filed pursuant to Section 305 (b)(2) of the Trust Indenture Act of 1939, as
amended.
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Exhibit 1.1
Zomedica Pharmaceuticals Corp.
Shares of Common Stock
(no par value)
Controlled Equity Offering
SM
Sales Agreement
December 19, 2018
Cantor Fitzgerald & Co.
499 Park Avenue
New York, NY 10022
Ladies and Gentlemen:
Zomedica Pharmaceuticals Corp., a corporation
organized under the laws of Alberta, Canada (the “
Company
”), confirms its agreement (this “
Agreement
”)
with Cantor Fitzgerald & Co. (the “
Agent
”), as follows:
1.
Issuance and Sale of Shares
. The Company agrees that, from time to time during the term of this Agreement, on the
terms and subject to the conditions set forth herein, it may issue and sell through the Agent, common shares (the “
Placement
Shares
”), no par value, of the Company (the “
Common Stock
”);
provided
,
however
,
that in no event shall the Company issue or sell through the Agent such number or dollar amount of Placement Shares that would
(a) exceed the number or dollar amount of shares of Common Stock registered on the effective Registration Statement (defined below)
pursuant to which the offering is being made, (b) exceed the number of authorized but unissued shares of Common Stock (less shares
of Common Stock issuable upon exercise, conversion or exchange of any outstanding securities of the Company or otherwise reserved
from the Company’s authorized capital stock), (c) exceed the number or dollar amount of shares of Common Stock permitted
to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (d) exceed the number or dollar amount
of shares of Common Stock for which the Company has filed a prospectus or prospectus supplement relating to the Placement Shares
(the lesser of (a), (b), (c) and (d), the “
Maximum Amount
”). Notwithstanding anything to the contrary
contained herein, the parties hereto agree that compliance with the limitations set forth in this
Section 1
on the amount
of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company and that the Agent shall
have no obligation in connection with such compliance; provided that the Agent follows, in all material respects, the trading instructions
provided pursuant to any Placement Notice (as defined below). The offer and sale of Placement Shares through the Agent will be
effected pursuant to the Registration Statement (as defined below) to be filed by the Company and only after such Registration
Statement has been declared effective by the Securities and Exchange Commission (the “
Commission
”), although
nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue Common Stock.
The Company has prepared and has filed or will
file, in accordance with the provisions of the Securities Act of 1933, as amended (the “
Securities Act
”),
and the rules and regulations thereunder (the “
Securities Act Regulations
”), with the Commission a registration
statement on Form S-3, including a base prospectus, relating to certain securities, as well as a prospectus relating specifically
to the Placement Shares to be issued from time to time by the Company through the Agent, and which incorporates by reference documents
that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended (the
“
Exchange Act
”), and the rules and regulations thereunder. The Company will furnish to the Agent, for
use by the Agent, copies of the Prospectus relating to the Placement Shares to be issued from time to time by the Company. The
Company may file one or more additional registration statements from time to time that will contain a prospectus relating to the
Placement Shares, or a base prospectus and prospectus supplement relating to the Placement Shares. Except where the context otherwise
requires, all such registration statement(s), as any of them may be amended from time to time, including all documents filed as
part thereof or incorporated by reference therein, and including any information contained in a prospectus or a prospectus supplement
relating to the Placement Shares subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act Regulations
or deemed to be a part of such registration statement(s) pursuant to Rule 430B of the Securities Act Regulations, is herein
called the “
Registration Statement
.” The base prospectus and prospectus supplement relating to the Placement
Shares, or the prospectus relating to the Placement Shares (as the case may be), including all documents incorporated therein by
reference, included in the Registration Statement, as any such prospectus or prospectus supplement may be supplemented, in the
form in which such prospectus or prospectus supplement has most recently been filed by the Company with the Commission pursuant
to Rule 424(b) under the Securities Act Regulations, is herein called the “
Prospectus
.”
Any reference herein to the Registration Statement,
any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus (defined below) shall be deemed to refer to and include
the documents, if any, incorporated by reference therein (the “
Incorporated Documents
”), including, unless
the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to
the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement,
any Prospectus Supplement, Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing
of any document under the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of
the Prospectus Supplement, Prospectus or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference.
For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement
thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis
and Retrieval system, or if applicable, the Interactive Data Electronic Application system when used by the Commission (collectively,
“
EDGAR
”).
2.
Placements
. Each time that the Company wishes to issue and sell Placement Shares hereunder (each, a “
Placement
”),
it will notify the Agent by email notice (or other method mutually agreed to by the parties) of the number of Placement Shares
to be issued, the time period during which sales are requested to be made, any limitation on the number of Placement Shares that
may be sold in any one day and any minimum price below which sales may not be made (a “
Placement Notice
”),
the form of which is attached hereto as
Schedule 1
. The Placement Notice shall originate from any of the individuals from
the Company set forth on
Schedule 3
(with a copy to each of the other individuals from the Company listed on such schedule),
and shall be addressed to each of the individuals from the Agent set forth on
Schedule 3
, as such
Schedule 3
may
be amended from time to time. The Placement Notice shall be effective unless and until (i) the Agent declines to accept the
terms contained therein for any reason, in its sole discretion, (ii) the entire amount of the Placement Shares thereunder
have been sold, (iii) the Company suspends or terminates the Placement Notice or (iv) this Agreement has been terminated
under the provisions of
Section 12
. The amount of any discount, commission or other compensation to be paid by the Company
to the Agent in connection with the sale of the Placement Shares shall be calculated in accordance with the terms set forth in
Schedule 2
. It is expressly acknowledged and agreed that neither the Company nor the Agent will have any obligation whatsoever
with respect to a Placement or any Placement Shares unless and until the Company delivers a Placement Notice to the Agent and the
Agent does not decline such Placement Notice pursuant to the terms set forth above, and then only upon the terms specified therein
and herein. In the event of a conflict between the terms of this Agreement and the terms of a Placement Notice, the terms of the
Placement Notice will control.
3.
Sale of Placement Shares by Agent
. Subject to the provisions of
Section 5(a)
, the Agent, for the period specified
in the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales practices and
applicable state and federal laws, rules and regulations and the rules of the NYSE American (the “
Exchange
”),
to sell the Placement Shares up to the amount specified, and otherwise in accordance with the terms of such Placement Notice. The
Agent will provide written confirmation to the Company no later than the opening of the Trading Day (as defined below) immediately
following the Trading Day on which it has made sales of Placement Shares hereunder setting forth the number of Placement Shares
sold on such day, the compensation payable by the Company to the Agent pursuant to
Section 2
with respect to such sales,
and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by the Agent (as set
forth in
Section 5(b)
) from the gross proceeds that it receives from such sales. Subject to the terms of the Placement Notice,
the Agent may sell Placement Shares by any method permitted by law deemed to be an “at the market offering” as defined
in Rule 415(a)(4) of the Securities Act Regulations, including sales made directly on or through the Exchange or any other
existing U.S. trading market for the Common Stock, in negotiated transactions at market prices prevailing at the time of sale or
at prices related to such prevailing market prices and/or any other method permitted by law. “
Trading Day
”
means any day on which Common Stock is traded on the Exchange.
4.
Suspension of Sales
. The Company or the Agent may, upon notice to the other party in writing (including by email
correspondence to each of the individuals of the other party set forth on
Schedule 3
, if receipt of such correspondence
is actually acknowledged by any of the individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed
immediately by verifiable facsimile transmission or email correspondence to each of the individuals of the other party set forth
on
Schedule 3
), suspend any sale of Placement Shares (a “
Suspension
”);
provided
,
however
,
that such Suspension shall not affect or impair any party’s obligations with respect to any Placement Shares sold hereunder
prior to the receipt of such notice. While a Suspension is in effect any obligation under
Sections 7(l)
,
7(m)
, and
7(n)
with respect to the delivery of certificates, opinions, or comfort letters to the Agent, shall be waived. Each of the
parties agrees that no such notice under this
Section 4
shall be effective against any other party unless it is made to
one of the individuals named on
Schedule 3
hereto, as such Schedule may be amended from time to time.
5.
Sale and Delivery to the Agent; Settlement
.
(a)
Sale of Placement Shares
.
On the basis of the representations and warranties herein contained and subject
to the terms and conditions herein set forth, upon the Agent’s acceptance of the terms of a Placement Notice, and unless
the sale of the Placement Shares described therein has been declined, suspended, or otherwise terminated in accordance with the
terms of this Agreement, the Agent, for the period specified in the Placement Notice, will use its commercially reasonable efforts
consistent with its normal trading and sales practices and applicable law and regulations to sell such Placement Shares up to the
amount specified, and otherwise in accordance with the terms of such Placement Notice. The Company acknowledges and agrees that
(i) there can be no assurance that the Agent will be successful in selling Placement Shares, (ii) the Agent will incur no liability
or obligation to the Company or any other person or entity if it does not sell Placement Shares for any reason other than a failure
by the Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law
and regulations to sell such Placement Shares as required under this Agreement and (iii) the Agent shall be under no obligation
to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by the Agent and the Company.
(b)
Settlement of Placement Shares
.
Unless otherwise specified in the applicable Placement Notice, settlement
for sales of Placement Shares will occur on the second (2nd) Trading Day (or such earlier day as is industry practice for regular-way
trading) following the date on which such sales are made (each, a “
Settlement Date
”). The Agent shall
notify the Company of each sale of Placement Shares no later than the opening of the Trading Day immediately following the Trading
Day on which it has made sales of Placement Shares hereunder. The amount of proceeds to be delivered to the Company on a Settlement
Date against receipt of the Placement Shares sold (the “
Net Proceeds
”) will be equal to the aggregate
sales price received by the Agent, after deduction for (i) the Agent’s commission, discount or other compensation for such
sales payable by the Company pursuant to
Section 2
hereof, and (ii) any transaction fees imposed by any governmental or
self-regulatory organization in respect of such sales.
(c)
Delivery of Placement Shares
. On or before each Settlement Date, the Company will, or will cause its transfer agent
to, electronically transfer the Placement Shares being sold by crediting the Agent’s or its designee’s account (provided
the Agent shall have given the Company written notice of such designee at least one Trading Day prior to the Settlement Date) at
The Depository Trust Company through its Deposit and Withdrawal at Custodian System or by such other means of delivery as may be
mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good
deliverable form. On each Settlement Date, the Agent will deliver the related Net Proceeds in same day funds to an account designated
by the Company on, or prior to, the Settlement Date. The Company agrees that if the Company, or its transfer agent (if applicable),
defaults in its obligation to deliver Placement Shares on a Settlement Date, through no fault of the Agent, the Company agrees
that, in addition to and in no way limiting the rights and obligations set forth in
Section 10(a)
hereto, it will (i) hold
the Agent harmless against any loss, claim, damage, or expense (including reasonable legal fees and expenses), as incurred, arising
out of or in connection with such default by the Company or its transfer agent (if applicable) and (ii) pay to the Agent any commission,
discount, or other compensation to which it would otherwise have been entitled absent such default.
(d)
Denominations; Registration
.
Certificates for the Placement Shares, if any, shall be in such denominations
and registered in such names as the Agent may request in writing at least one full Business Day (as defined below) before the Settlement
Date. The certificates for the Placement Shares, if any, will be made available by the Company for examination and packaging by
the Agent in The City of New York not later than noon (New York time) on the Business Day prior to the Settlement Date.
(e)
Limitations on Offering Size
.
Under no circumstances shall the Company cause or request the offer or sale
of any Placement Shares if, after giving effect to the sale of such Placement Shares, the aggregate gross sales proceeds of Placement
Shares sold pursuant to this Agreement would exceed the lesser of (A) together with all sales of Placement Shares under this
Agreement, the Maximum Amount, (B) the amount available for offer and sale under the then currently effective Registration Statement
and (C) the amount authorized from time to time to be issued and sold under this Agreement by the Company’s board of
directors, a duly authorized committee thereof or a duly authorized executive committee, and notified to the Agent in writing.
Under no circumstances shall the Company cause or request the offer or sale of any Placement Shares pursuant to this Agreement
at a price lower than the minimum price authorized from time to time by the Company’s board of directors, a duly authorized
committee thereof or a duly authorized executive committee, and notified to the Agent in writing.
6.
Representations and Warranties of the Company
. The Company represents and warrants to, and agrees with Agent that
as of the date of this Agreement and as of each Applicable Time (as defined below), unless such representation, warranty or agreement
speaks as of a different time:
(a)
Registration Statement and Prospectus
. The Company and the transactions contemplated by this Agreement meet the requirements
for and comply with the applicable conditions set forth in Form S-3 (including General Instructions I.A and I.B) under the Securities
Act. The Registration Statement has been filed with the Commission and will be declared effective by the Commission under the Securities
Act prior to the issuance of any Placement Notices by the Company. The Prospectus will name the Agent as the agent in the section
entitled “Plan of Distribution.” The Company has not received, and has no notice of, any order of the Commission preventing
or suspending the use of the Registration Statement, or threatening or instituting proceedings for that purpose. Assuming compliance
by the Agent with the provisions of Section 3, the Registration Statement and the offer and sale of Placement Shares as contemplated
hereby meet the requirements of Rule 415 under the Securities Act and comply in all material respects with said Rule. Any
statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus
or to be filed as exhibits to the Registration Statement have been so described or filed. Copies of the Registration Statement,
the Prospectus, and any such amendments or supplements and all documents incorporated by reference therein that were filed with
the Commission on or prior to the date of this Agreement have been delivered, or are available through EDGAR, to the Agent and
its counsel. The Company has not distributed and, prior to the later to occur of each Settlement Date and completion of the distribution
of the Placement Shares, will not distribute any offering material in connection with the offering or sale of the Placement Shares
other than the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus (as defined below) to which the Agent
has consented. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is currently listed on the Exchange
under the trading symbol “ZOM.” The Company has taken no action designed to, or likely to have the effect of, terminating
the registration of the Common Stock under the Exchange Act, delisting the Common Stock from the Exchange, nor has the Company
received any notification that the Commission or the Exchange is contemplating terminating such registration or listing. To the
Company’s knowledge, it is in compliance with all applicable listing requirements of the Exchange.
(b)
No Misstatement or Omission
. The Registration Statement, when it became or becomes effective, and the Prospectus,
and any amendment or supplement thereto, on the date of such Prospectus or amendment or supplement, conformed and will conform
in all material respects with the requirements of the Securities Act. At each Settlement Date, the Registration Statement and the
Prospectus, as of such date, will conform in all material respects with the requirements of the Securities Act. The Registration
Statement, when it became or becomes effective, did not, and will not, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus
and any amendment and supplement thereto, on the date thereof and at each Applicable Time (defined below), did not or will not
include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading. The documents incorporated by reference in the Prospectus or any
Prospectus Supplement as of their respective dates did not, and any further documents filed and incorporated by reference therein
will not, when filed with the Commission, contain an untrue statement of a material fact or omit to state a material fact required
to be stated in such document or necessary to make the statements in such document, in light of the circumstances under which they
were made, not misleading. The foregoing shall not apply to statements in, or omissions from, any such document made in reliance
upon, and in conformity with, information furnished to the Company by Agent specifically for use in the preparation thereof.
(c)
Conformity with Securities Act and Exchange Act
. The Registration Statement, the Prospectus, any Issuer Free Writing
Prospectus or any amendment or supplement thereto, and the documents incorporated by reference in the Registration Statement, the
Prospectus or any amendment or supplement thereto, when such documents were or are filed with the Commission under the Securities
Act or the Exchange Act or became or become effective under the Securities Act, as the case may be, conformed or will conform in
all material respects with the requirements of the Securities Act and the Exchange Act, as applicable.
(d)
Financial Information
. The consolidated financial statements of the Company included or incorporated by reference
in the Registration Statement, the Prospectus and the Issuer Free Writing Prospectuses, if any, together with the related notes
and schedules, present fairly, in all material respects, the consolidated financial position of the Company and the Subsidiaries
(as defined below) as of the dates indicated and the consolidated results of operations, cash flows and changes in shareholders’
equity of the Company for the periods specified and have been prepared in compliance with the requirements of the Securities Act
and Exchange Act and in conformity with GAAP (as defined below) applied on a consistent basis during the periods involved (subject,
in the case of quarterly financial statements, to normal, recurring year-end adjustments; the other financial and statistical data
with respect to the Company and the Subsidiaries (as defined below) contained or incorporated by reference in the Registration
Statement, the Prospectus and the Issuer Free Writing Prospectuses, if any, are accurately and fairly presented, in all material
respects, and prepared on a basis consistent with the financial statements and books and records of the Company; there are no financial
statements (historical or pro forma) that are required to be included or incorporated by reference in the Registration Statement,
or the Prospectus that are not included or incorporated by reference as required; the Company and the Subsidiaries (as defined
below) do not have any material liabilities or obligations, direct or contingent (including any off-balance sheet obligations),
not described in the Registration Statement (including the Incorporated Documents but excluding the exhibits thereto) to the extent
that such description is required by the Securities Act and the Securities Act Rules and Regulations, and the Prospectus; and all
disclosures contained or incorporated by reference in the Registration Statement, the Prospectus and the Issuer Free Writing Prospectuses,
if any, regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission)
comply with Regulation G of the Exchange Act and Item 10 of Regulation S-K under the Securities Act, to the extent applicable.
The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement
and the Prospectus fairly presents, in all material respects, the information called for in all material respects and has been
prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(e)
Conformity with EDGAR Filing
. The Prospectus delivered to the Agent for use in connection with the sale of the Placement
Shares pursuant to this Agreement will be identical to the versions of the Prospectus created to be transmitted to the Commission
for filing via EDGAR, except to the extent permitted by Regulation S-T.
(f)
Organization
. The Company and each of its Subsidiaries are duly organized, validly existing as a corporation and
in good standing under the laws of their respective jurisdictions of organization. The Company and each of its Subsidiaries are
duly licensed or qualified as a foreign corporation for transaction of business and in good standing under the laws of each other
jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such
license or qualification, and have all corporate power and authority necessary to own or hold their respective properties and to
conduct their respective businesses as described in the Registration Statement and the Prospectus, except where the failure to
be so qualified or in good standing or have such power or authority would not, individually or in the aggregate, have a material
adverse effect or would reasonably be expected to have a material adverse effect on or affecting the assets, business, operations,
earnings, properties, condition (financial or otherwise), prospects, stockholders’ equity or results of operations of the
Company and the Subsidiaries taken as a whole, or prevent or materially interfere with consummation of the transactions contemplated
hereby (a “
Material Adverse Effect
”).
(g)
Subsidiaries
. The subsidiaries set forth on
Schedule 4
(collectively, the “
Subsidiaries
”),
are the Company’s only significant subsidiaries (as such term is defined in Rule 1-02 of Regulation S-X promulgated by the
Commission). Except as set forth in the Registration Statement and in the Prospectus, the Company owns, directly or indirectly,
all of the equity interests of the Subsidiaries free and clear of any lien, charge, security interest, encumbrance, right of first
refusal or other restriction, and all the equity interests of the Subsidiaries are validly issued and are fully paid, nonassessable
and free of preemptive and similar rights. No Subsidiary is currently prohibited, directly or indirectly, from paying any dividends
to the Company, from making any other distribution on such Subsidiary’s capital stock, from repaying to the Company any loans
or advances to such Subsidiary from the Company or from transferring any of such Subsidiary’s property or assets to the Company
or any other Subsidiary of the Company.
(h)
No Violation or Default
. Neither the Company nor any of its Subsidiaries is (i) in violation of its charter
or by-laws or similar organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time
or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its Subsidiaries
is a party or by which the Company or any of its Subsidiaries is bound or to which any of the property or assets of the Company
or any of its Subsidiaries are subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation
of any court or arbitrator or governmental or regulatory authority, except, in the case of each of clauses (ii) and (iii) above,
for any such violation or default that could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect. To the Company’s knowledge, no other party under any material contract or other agreement to which it or any of its
Subsidiaries is a party is in default in any respect thereunder where such default could reasonably be expected to have a Material
Adverse Effect.
(i)
No Material Adverse Change
. Subsequent to the respective dates as of which information is given in the Registration
Statement, the Prospectus and the Free Writing Prospectuses, if any (including any document deemed incorporated by reference therein),
there has not been (i) any Material Adverse Effect or the occurrence of any development that the Company reasonably expects will
result in a Material Adverse Effect, (ii) any transaction which is material to the Company and the Subsidiaries taken as a whole,
(iii) any obligation or liability, direct or contingent (including any off-balance sheet obligations), incurred by the Company
or any Subsidiary, which is material to the Company and the Subsidiaries taken as a whole, (iv) any material change in the capital
stock or outstanding long-term indebtedness of the Company or any of its Subsidiaries or (v) any dividend or distribution of any
kind declared, paid or made on the capital stock of the Company or any Subsidiary, other than in each case above in the ordinary
course of business or as otherwise disclosed in the Registration Statement or Prospectus (including any document deemed incorporated
by reference therein).
(j)
Capitalization
. The issued and outstanding shares of capital stock of the Company have been validly issued, are fully
paid and nonassessable and, other than as disclosed in the Registration Statement or the Prospectus, are not subject to any preemptive
rights, rights of first refusal or similar rights. The Company has an authorized, issued and outstanding capitalization as set
forth in the Registration Statement and the Prospectus as of the dates referred to therein (other than the grant of additional
options under the Company’s existing stock option plans, or changes in the number of outstanding shares of Common Stock of
the Company due to the issuance of shares upon the exercise or conversion of securities exercisable for, or convertible into, Common
Stock outstanding on the date hereof) and such authorized capital stock conforms to the description thereof set forth in the Registration
Statement and the Prospectus. The description of the securities of the Company in the Registration Statement and the Prospectus
is complete and accurate in all material respects. Except as disclosed in or contemplated by the Registration Statement or the
Prospectus, as of the date referred to therein, the Company does not have outstanding any options to purchase, or any rights or
warrants to subscribe for, or any securities or obligations convertible into, or exchangeable for, or any contracts or commitments
to issue or sell, any shares of capital stock or other securities.
(k)
Authorization
. The Company has the corporate power to enter into this Agreement and perform the transactions contemplated
hereby. This Agreement has been duly authorized, executed and delivered by the Company.
(l)
Authorization of Placement Shares
. The Placement Shares, when issued and delivered pursuant to the terms approved
by the board of directors of the Company or a duly authorized committee thereof, or a duly authorized executive committee, against
payment therefor as provided herein, will be duly and validly authorized and issued and fully paid and nonassessable, free and
clear of any pledge, lien, encumbrance, security interest or other claim, including any statutory or contractual preemptive rights,
resale rights, rights of first refusal or other similar rights, and will be registered pursuant to Section 12 of the Exchange Act.
The Placement Shares, when issued, will conform to the description thereof set forth in or incorporated into the Prospectus.
(m)
No Consents Required
. No consent, approval, authorization, order, registration or qualification of or with any court
or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Company of
this Agreement, the issuance and sale by the Company of the Placement Shares, except for such consents, approvals, authorizations,
orders and registrations or qualifications as may be required under applicable state securities laws or by the by-laws and rules
of the Financial Industry Regulatory Authority (“
FINRA
”) or the Exchange in connection with the sale
of the Placement Shares by the Agent.
(n)
No Preferential Rights
. Except as described in the Registration Statement and the Prospectus, (i) no person,
as such term is defined in Rule 1-02 of Regulation S-X promulgated under the Securities Act (each, a “
Person
”),
has the right, contractual or otherwise, to cause the Company to issue or sell to such Person any Common Stock or shares of any
other capital stock or other securities of the Company, (ii) no Person has any preemptive rights, resale rights, rights of
first refusal, rights of co-sale, or any other rights (whether pursuant to a “poison pill” provision or otherwise)
to purchase any Common Stock or shares of any other capital stock or other securities of the Company, (iii) no Person has
the right to act as an underwriter or as a financial advisor to the Company in connection with the offer and sale of the Placement
Shares, and (iv) no Person has the right, contractual or otherwise, to require the Company to register under the Securities
Act any Common Stock or shares of any other capital stock or other securities of the Company, or to include any such shares or
other securities in the Registration Statement or the offering contemplated thereby, whether as a result of the filing or effectiveness
of the Registration Statement or the sale of the Placement Shares as contemplated thereby or otherwise.
(o)
Independent Public Accounting Firm
. MNP LLP (the “
Accountant
”), whose report on the consolidated
financial statements of the Company is filed with the Commission as part of the Company’s most recent Annual Report on Form
10-K filed with the Commission and incorporated by reference into the Registration Statement and the Prospectus, are and, during
the periods covered by their report, were an independent registered public accounting firm within the meaning of the Securities
Act and the Public Company Accounting Oversight Board (United States). To the Company’s knowledge, the Accountant is not
in violation of the auditor independence requirements of the Sarbanes-Oxley Act of 2002 (the “
Sarbanes-Oxley Act
”)
with respect to the Company.
(p)
Enforceability of Agreements
. All agreements between the Company and third parties expressly referenced in the Prospectus
are legal, valid and binding obligations of the Company enforceable in accordance with their respective terms, except to the extent
that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’
rights generally and by general equitable principles and (ii) the indemnification provisions of certain agreements may be
limited by federal or state securities laws or public policy considerations in respect thereof.
(q)
No Litigation
. Except as set forth in the Registration Statement or the Prospectus there are no pending legal, governmental
or regulatory actions, suits, proceedings, audits or investigations to which the Company or a Subsidiary is a party or to which
any property of the Company or any of its Subsidiaries is the subject that, individually or in the aggregate, if determined adversely
to the Company or a Subsidiary, would have a Material Adverse Effect and, to the Company’s knowledge, no such actions, suits,
proceedings, audits or investigations are threatened or contemplated by any legal, governmental or regulatory authority or threatened
by others, and there are no current or pending legal, governmental or regulatory audits or investigations, actions, suits
or proceedings that are required under the Securities Act to be described in the Prospectus that are not so described; and (ii) there
are no contracts or other documents that are required under the Securities Act to be filed as exhibits to the Registration Statement
that are not so filed.
(r)
Consents and Permits
. Except as disclosed in the Registration Statement and the Prospectus, the Company and its Subsidiaries
have made all filings, applications and submissions required by, and possesses all approvals, licenses, certificates, certifications,
clearances, consents, grants, exemptions, marks, notifications, orders, permits and other authorizations issued by, the appropriate
federal, state or foreign governmental or regulatory authorities (including, without limitation, the United States Food and Drug
Administration (the “
FDA
”), the United States Department of Agriculture (the “
USDA
”),
the United States Drug Enforcement Administration or any other foreign, federal, state, provincial, court or local government or
regulatory authorities including self-regulatory organizations engaged in the regulation of clinical trials, pharmaceuticals, biologics
or biohazardous substances or materials) necessary for the ownership or lease of their respective properties or to conduct its
businesses as described in the Registration Statement and the Prospectus (collectively, “
Permits
”), except
for such Permits the failure of which to possess, obtain or make the same would not have a Material Adverse Effect; the Company
and its Subsidiaries are in compliance with the terms and conditions of all such Permits, except where the failure to be in compliance
would not have a Material Adverse Effect; all of the Permits are valid and in full force and effect, except where any invalidity,
individually or in the aggregate, would not be reasonably expected to have a Material Adverse Effect; and neither the Company nor
any of its Subsidiaries has received any written notice relating to the limitation, revocation, cancellation, suspension, modification
or non-renewal of any such Permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a Material Adverse Effect, or has any reason to believe that any such license, certificate, permit or authorization
will not be renewed in the ordinary course. To the extent required by applicable laws and regulations of the FDA or USDA, the Company
or the applicable Subsidiary has submitted to the FDA or USDA, as applicable, an Investigational New Animal Drug Application (or
other relevant application) or amendment or supplement thereto for each clinical trial it has conducted or sponsored or is conducting
or sponsoring; all such submissions were in material compliance with applicable laws and rules and regulations when submitted and
no material deficiencies have been asserted by the FDA or USDA with respect to any such submissions. The Company and each Subsidiary
possess such valid and current certificates, authorizations or permits issued by the appropriate state, federal or foreign regulatory
agencies or bodies necessary to conduct their respective businesses, and neither the Company nor any Subsidiary has received, or
has any reason to believe that it will receive, any notice of proceedings relating to the revocation or modification of, or non-compliance
with, any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, could result in a Material Adverse Effect.
(s)
Regulatory Matters
. The Company and each of its Subsidiaries are in compliance with all applicable laws, regulations
and statutes (including all environmental laws and regulations) in the jurisdictions in which it carries on business; the Company
has not received a notice of non-compliance, nor knows of, nor has reasonable grounds to know of, any facts that could give rise
to a notice of non-compliance with any such laws, regulations and statutes, and is not aware of any pending change or contemplated
change to any applicable law or regulation or governmental position; in each case that would have a Material Adverse Effect on
the business of the Company or the business or legal environment under which the Company operates. Except as described in the Registration
Statement and the Prospectus, and except as would not, individually or in the aggregate, have or reasonably be expected to have
a Material Adverse Effect: (i) neither the Company nor any of its subsidiaries has received any notice of adverse filing,
warning letter, untitled letter or other correspondence or notice from the Center for Veterinary Medicine of the U.S. Food and
Drug Administration or the Center for Veterinary Biologics of the U.S. Department of Agriculture, or any other court or arbitrator
or federal, state, local or foreign governmental or regulatory authority, alleging or asserting noncompliance with the Federal
Food, Drug, and Cosmetic Act (21 U.S.C. § 301 et seq.) (the “
FFDCA
”), the Animal Drug User Fee Act
(“
ADUFA
”) or similar law; (ii) the Company and its subsidiaries are and have been in compliance
with applicable health care laws, including without limitation, the FFDCA, the ADUFA and the federal Anti-Kickback Statute (42
U.S.C. § 1320a-7b(b)), and the regulations promulgated pursuant to such laws, and comparable state laws, and all other local,
state, federal, national, supranational and foreign laws, manual provisions, policies and administrative guidance relating to the
regulation of the Company and its subsidiaries (collectively, “
Health Care Laws
”); (iii) the Company
and its subsidiaries possess all licenses, certificates, approvals, clearances, authorizations, permits and supplements or amendments
thereto required by any such Health Care Laws and/or to carry on its businesses as now or proposed to be conducted (“
Authorizations
”)
and such Authorizations are valid and in full force and effect and the Company and its subsidiaries are not in violation of any
term of any such Authorizations; (iv) the Company and its subsidiaries have not received notice of any ongoing claim, action, suit,
proceeding, hearing, enforcement, investigation, arbitration or other action from any U.S. or non-U.S. federal, state, local or
other governmental or regulatory authority, governmental or regulatory agency or body, court, arbitrator or self-regulatory organization
(each, a “
Governmental Authority
”) or third party alleging that any product operation or activity is
in violation of any Health Care Laws or Authorizations or has any knowledge that any such Governmental Authority or third party
is considering any such claim, litigation, arbitration, action, suit, investigation or proceeding; (v) the Company and its
subsidiaries have not received notice that any Governmental Authority has taken, is taking or intends to take action to limit,
suspend, modify or revoke any Authorizations or has any knowledge that any such Governmental Authority is considering such action;
(vi) the Company and its subsidiaries have filed, obtained, maintained or submitted all reports, documents, forms, notices,
applications, records, claims, submissions and supplements or amendments as required by any Health Care Laws or Authorizations
and that all such reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments
were complete, correct and not misleading on the date filed (or were corrected or supplemented by a subsequent submission); (vii) the
Company and its subsidiaries have not, either voluntarily or involuntarily, initiated, conducted, or issued or caused to be initiated,
conducted or issued, any recall, market withdrawal or replacement, safety alert, post-sale warning, “dear doctor” letter,
or other notice or action relating to the alleged lack of safety or efficacy of any product or any alleged product defect or violation
and, to the Company’s knowledge, no third party has initiated or conducted any such notice or action and (viii) the Company
is and at all times has been in compliance with all statutes, rules, or regulations applicable to the ownership, testing, development,
manufacture, packaging, processing, use, distribution, marketing, labeling, promotion, sale, offer for sale, storage, import, export
or disposal of any product manufactured or distributed by the Company or its Subsidiaries, except as could not, individually or
in the aggregate, reasonably be expected to result in a Material Adverse Effect.
(t)
Intellectual Property
. Except as disclosed in the Registration Statement and the Prospectus, the Company and its
Subsidiaries own, possess, license or have other rights to use all foreign and domestic patents, patent applications, trade and
service marks, trade and service mark registrations, trade names, copyrights, licenses, inventions, trade secrets, technology,
Internet domain names, know-how and other intellectual property (collectively, the “
Intellectual Property
”),
necessary for the conduct of their respective businesses as now conducted except to the extent that the failure to own, possess,
license or otherwise hold adequate rights to use such Intellectual Property would not, individually or in the aggregate, have a
Material Adverse Effect. Except as disclosed in the Registration Statement and the Prospectus (i) there are no rights of third
parties to any such Intellectual Property owned by the Company and its Subsidiaries; (ii) to the Company’s knowledge, there
is no infringement by third parties of any Intellectual Property owned by the Company and its Subsidiaries; (iii) there is no pending
or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the Company’s and
its Subsidiaries’ rights in or to any such Intellectual Property, and the Company is unaware of any facts which could form
a reasonable basis for any such action, suit, proceeding or claim; (iv) there is no pending or, to the Company’s knowledge,
threatened action, suit, proceeding or claim by others challenging the validity or scope of any such Intellectual Property; (v)
there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others that the Company
and its Subsidiaries infringe or otherwise violate any patent, trademark, copyright, trade secret or other proprietary rights of
others; (vi) to the Company’s knowledge, there is no third-party U.S. patent or published U.S. patent application which contains
claims for which an Interference Proceeding (as defined in 35 U.S.C. § 135) has been commenced against any patent or patent
application described in the Prospectus as being owned by or licensed to the Company and its Subsidiaries; and (vii) the Company
and its Subsidiaries have complied in all material respects with the terms of each agreement pursuant to which Intellectual Property
has been licensed to the Company or such Subsidiary, and, to the Company’s knowledge, all such agreements are in full force
and effect, except, in the case of any of clauses (i)-(vii) above, for any such infringement by third parties or any such pending
or threatened suit, action, proceeding or claim as would not, individually or in the aggregate, result in a Material Adverse Effect.
(u)
Clinical Studies
. Except as would not, individually or in the aggregate, have or reasonably be expected to have a
Material Adverse Effect, (i) the material research, studies and tests conducted by or on behalf of the Company and its
Subsidiaries have been and, if still pending, are being conducted with reasonable care and in accordance with experimental protocols,
procedures and controls pursuant to all Health Care Laws and Authorizations; (ii) the descriptions of the results of such research,
studies and tests contained in the Registration Statement and the Prospectus are accurate and complete in all material respects
and fairly present in all material respects the data derived from such research, studies, and tests; (iii) except to
the extent disclosed in the Registration Statement and the Prospectus, the Company is not aware of any research, studies or tests,
the results of which the Company believes reasonably call into question in any material respect the material research,
study or test results described or referred to in the Registration Statement and the Prospectus when viewed in the context in which
such results are described; and (iv) except to the extent disclosed in the Registration Statement and the Prospectus, neither
the Company nor any of its subsidiaries has received any notices or correspondence from any Governmental Authority requiring the
termination, suspension or material modification of any material research, study or test conducted by or on behalf of
the Company or any of its subsidiaries. To the knowledge of the Company, there have been no adverse events or complications resulting
from any material research, study or test conducted by or on behalf of the Company or any of its subsidiaries, except
as would not reasonably be expected to have a Material Adverse Effect and except to the extent disclosed in the Registration Statement
and the Prospectus.
(v)
Market Capitalization
. At the time the Registration Statement was or will be originally declared effective, and at
the time the Company’s most recent Annual Report on Form 10-K was filed with the Commission, the Company met or will meet
the then applicable requirements for the use of Form S-3 under the Securities Act, including, but not limited to, General Instruction
I.B.1 of Form S-3. The aggregate market value of the outstanding voting and non-voting common equity (as defined in Securities
Act Rule 405) of the Company held by persons other than affiliates of the Company (pursuant to Securities Act Rule 144, those that
directly, or indirectly through one or more intermediaries, control, or are controlled by, or are under common control with, the
Company) (the “
Non-Affiliate Shares
”), was equal to or greater than $75 million (calculated
by multiplying (x) the highest price at which the common equity of the Company closed on the Exchange within 60 days of the date
of the filing of the Registration Statement times (y) the number of Non-Affiliate Shares). The Company is not a shell company (as
defined in Rule 405 under the Securities Act) and has not been a shell company for at least 12 calendar months previously and if
it has been a shell company at any time previously, has filed current Form 10 information (as defined in Instruction I.B.6 of Form
S-3) with the Commission at least 12 calendar months previously reflecting its status as an entity that is not a shell company.
(w)
No Material Defaults
. Neither the Company nor any of the Subsidiaries has defaulted on any installment on indebtedness
for borrowed money or on any rental on one or more long-term leases, which defaults, individually or in the aggregate, would have
a Material Adverse Effect. The Company has not filed a report pursuant to Section 13(a) or 15(d) of the Exchange Act since the
filing of its last Annual Report on Form 10-K, indicating that it (i) has failed to pay any dividend or sinking fund installment
on preferred stock or (ii) has defaulted on any installment on indebtedness for borrowed money or on any rental on one or
more long-term leases, which defaults, individually or in the aggregate, would have a Material Adverse Effect.
(x)
Certain Market Activities
. Neither the Company, nor any of the Subsidiaries, nor any of their respective directors,
officers or controlling persons has taken, directly or indirectly, any action designed, or that has constituted or might reasonably
be expected to cause or result in, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Placement Shares.
(y)
Broker/Dealer Relationships
. Neither the Company nor any of the Subsidiaries (i) is required to register with
the Commission as a “broker” or “dealer” in accordance with the provisions of the Exchange Act or (ii) directly
or indirectly through one or more intermediaries, controls or is a “person associated with a member” or “associated
person of a member” (within the meaning set forth in the FINRA Manual).
(z)
No Reliance
. The Company has not relied upon the Agent or legal counsel for the Agent for any legal, tax or accounting
advice in connection with the offering and sale of the Placement Shares.
(aa)
Taxes
. The Company and each of its Subsidiaries have filed all federal, state, local and foreign tax returns which
have been required to be filed and paid all taxes shown thereon through the date hereof, to the extent that such taxes have become
due and are not being contested in good faith, except where the failure to so file or pay would not have a Material Adverse Effect.
Except as otherwise disclosed in or contemplated by the Registration Statement or the Prospectus, no tax deficiency has been determined
adversely to the Company or any of its Subsidiaries which has had, or would have, individually or in the aggregate, a Material
Adverse Effect. The Company has no knowledge of any federal, state or other governmental tax deficiency, penalty or assessment
which has been or would reasonably be expected to be asserted against it which would have a Material Adverse Effect.
(bb)
Title to Real and Personal Property
. The Company owns no real property and the Company and its subsidiaries have
valid rights to lease or otherwise use, all items of real and personal property that are material to the respective businesses
of the Company and its Subsidiaries, in each case free and clear of all liens, encumbrances, claims and defects and imperfections
of title except those that (i) do not materially interfere with the use made and proposed to be made of such property by the Company
and any of its Subsidiaries or (ii) would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(cc)
Environmental Laws
. Except as set forth in the Registration Statement or the Prospectus, the Company and its Subsidiaries
(i) are in compliance with any and all applicable federal, state, local and foreign laws, rules, regulations, decisions and
orders relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants
or contaminants (collectively, “
Environmental Laws
”); (ii) have received and are in compliance with
all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses
as described in the Registration Statement and the Prospectus; and (iii) have not received notice of any actual or potential
liability for the investigation or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants
or contaminants, except, in the case of any of clauses (i), (ii) or (iii) above, for any such failure to comply or failure to receive
required permits, licenses, other approvals or liability as would not, individually or in the aggregate, have a Material Adverse
Effect.
(dd)
Disclosure Controls
. The Company and each of its Subsidiaries maintain systems of internal accounting controls sufficient
to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific
authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company’s
internal control over financial reporting is effective and the Company is not aware of any material weaknesses in its internal
control over financial reporting (other than as set forth in the Prospectus). Since the date of the latest audited financial statements
of the Company included in the Prospectus, there has been no change in the Company’s internal control over financial reporting
that has materially and adversely affected, or is reasonably likely to materially and adversely affect, the Company’s internal
control over financial reporting (other than as set forth in the Prospectus). The Company has established disclosure controls and
procedures (as defined in Exchange Act Rules 13a-15 and 15d-15) for the Company and designed such disclosure controls and procedures
to ensure that material information relating to the Company and each of its Subsidiaries is made known to the certifying officers
by others within those entities, particularly during the period in which the Company’s Annual Report on Form 10-K or Quarterly
Report on Form 10-Q, as the case may be, is being prepared. The Company’s certifying officers have evaluated the effectiveness
of the Company’s disclosure controls and procedures as of a date within 90 days prior to the filing date of the Form 10-K
for the fiscal year most recently ended (such date, the
“
Evaluation Date
”). The Company presented in
its Form 10-K for the fiscal year most recently ended the conclusions of the certifying officers about the effectiveness of the
disclosure controls and procedures based on their evaluations as of the Evaluation Date and the disclosure controls and procedures
are effective. Since the Evaluation Date, there have been no significant changes in the Company’s internal controls (as such
term is defined in Item 307(b) of Regulation S-K under the Securities Act) or, to the Company’s knowledge, in other factors
that could significantly affect the Company’s internal controls.
(ee)
Sarbanes-Oxley
. There is and has been no failure on the part of the Company or any of the Company’s directors
or officers, in their capacities as such, to comply in all material respects with any applicable provisions of the Sarbanes-Oxley
Act and the rules and regulations promulgated thereunder. Each of the principal executive officer and the principal financial officer
of the Company (or each former principal executive officer of the Company and each former principal financial officer of the Company
as applicable) has made all certifications required by Sections 302 and 906 of the Sarbanes-Oxley Act with respect to all reports,
schedules, forms, statements and other documents required to be filed by it or furnished by it to the Commission. For purposes
of the preceding sentence, “principal executive officer” and “principal financial officer” shall have the
meanings given to such terms in the Sarbanes-Oxley Act.
(ff)
Finder’s Fees
. Neither the Company nor any of the Subsidiaries has incurred any liability for any finder’s
fees, brokerage commissions or similar payments in connection with the transactions herein contemplated, except as may otherwise
exist with respect to the Agent pursuant to this Agreement.
(gg)
Labor Disputes
. No labor disturbance by or dispute with employees of the Company or any of its Subsidiaries exists
or, to the knowledge of the Company, is threatened which would result in a Material Adverse Effect.
(hh)
Investment Company Act
. Neither the Company nor any of the Subsidiaries is or, after giving effect to the offering
and sale of the Placement Shares, will be an “investment company” or an entity “controlled” by an “investment
company,” as such terms are defined in the Investment Company Act of 1940, as amended (the “
Investment Company
Act
”).
(ii)
Operations
. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance
with applicable financial record keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970,
as amended, the money laundering statutes of all jurisdictions to which the Company or its Subsidiaries are subject, the rules
and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “
Money Laundering Laws
”), except as would not result in a Material
Adverse Effect; and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator
involving the Company or any of its Subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the
Company, threatened.
(jj)
Off-Balance Sheet Arrangements
. There are no transactions, arrangements and other relationships between and/or among
the Company, and/or any of its affiliates and any unconsolidated entity, including, but not limited to, any structural finance,
special purpose or limited purpose entity (each, an “
Off-Balance Sheet Transaction
”) that could reasonably
be expected to affect materially the Company’s liquidity or the availability of or requirements for its capital resources,
including those Off-Balance Sheet Transactions described in the Commission’s Statement about Management’s Discussion
and Analysis of Financial Conditions and Results of Operations (Release Nos. 33-8056; 34-45321; FR-61), required to be described
in the Prospectus which have not been described as required.
(kk)
Underwriter Agreements
. The Company is not a party to any agreement with an agent or underwriter for any other “at
the market” or other similar continuous equity transaction.
(ll)
ERISA
. To the knowledge of the Company, each material employee benefit plan, within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended (“
ERISA
”), that is maintained, administered
or contributed to by the Company or any of its affiliates for employees or former employees of the Company and any of its Subsidiaries
has been maintained in material compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations,
including but not limited to ERISA and the Internal Revenue Code of 1986, as amended (the “
Code
”); no
prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred which would result
in a material liability to the Company with respect to any such plan excluding transactions effected pursuant to a statutory or
administrative exemption; and for each such plan that is subject to the funding rules of Section 412 of the Code or Section 302
of ERISA, no “accumulated funding deficiency” as defined in Section 412 of the Code has been incurred, whether or not
waived, and the fair market value of the assets of each such plan (excluding for these purposes accrued but unpaid contributions)
exceeds the present value of all benefits accrued under such plan determined using reasonable actuarial assumptions.
(mm)
Forward-Looking Statements
. No forward-looking statement (within the meaning of Section 27A of the Securities Act
and Section 21E of the Exchange Act) (a “
Forward-Looking Statement
”) contained in the Registration Statement
and the Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(nn)
Agent Purchases
. The Company acknowledges and agrees that Agent has informed the Company that the Agent may, to the
extent permitted under the Securities Act and the Exchange Act, purchase and sell Common Stock for its own account while this Agreement
is in effect,
provided
, that (i) no such purchase or sales shall take place while a Placement Notice is in effect (except
to the extent the Agent may engage in sales of Placement Shares purchased or deemed purchased from the Company as a “riskless
principal” or in a similar capacity) and (ii) the Company shall not be deemed to have authorized or consented to any
such purchases or sales by the Agent.
(oo)
Margin Rules
. Neither the issuance, sale and delivery of the Placement Shares nor the application of the proceeds
thereof by the Company as described in the Registration Statement and the Prospectus will violate Regulation T, U or X of the Board
of Governors of the Federal Reserve System or any other regulation of such Board of Governors.
(pp)
Insurance
. The Company and each of its Subsidiaries carry, or are covered by, insurance in such amounts and covering
such risks as the Company and each of its Subsidiaries reasonably believe are adequate for the conduct of their properties.
(qq)
No Improper Practices
. (i) Neither the Company nor the Subsidiaries, nor to the Company’s knowledge, any
of their respective executive officers has, in the past five years, made any unlawful contributions to any candidate for any political
office (or failed fully to disclose any contribution in violation of law) or made any contribution or other payment to any official
of, or candidate for, any federal, state, municipal, or foreign office or other person charged with similar public or quasi-public
duty in violation of any law or of the character required to be disclosed in the Prospectus; (ii) no relationship, direct
or indirect, exists between or among the Company or any Subsidiary or any affiliate of any of them, on the one hand, and the directors,
officers and shareholders of the Company or any Subsidiary, on the other hand, that is required by the Securities Act to be described
in the Registration Statement and the Prospectus that is not so described; (iii) no relationship, direct or indirect, exists
between or among the Company or any Subsidiary or any affiliate of them, on the one hand, and the directors, officers, or shareholders
of the Company or any Subsidiary, on the other hand, that is required by the rules of FINRA to be described in the Registration
Statement and the Prospectus that is not so described; (iv) except as described in the Registration Statement and the Prospectus,
there are no material outstanding loans or advances or material guarantees of indebtedness by the Company or any Subsidiary to
or for the benefit of any of their respective officers or directors or any of the members of the families of any of them; and (v)
the Company has not offered, or caused any placement agent to offer, Common Stock to any person with the intent to influence unlawfully
(A) a customer or supplier of the Company or any Subsidiary to alter the customer’s or supplier’s level or type
of business with the Company or any Subsidiary or (B) a trade journalist or publication to write or publish favorable information
about the Company or any Subsidiary or any of their respective products or services, and, (vi) neither the Company nor any Subsidiary
nor, to the Company’s knowledge, any employee or agent of the Company or any Subsidiary has made any payment of funds of
the Company or any Subsidiary or received or retained any funds in violation of any law, rule or regulation (including, without
limitation, the Foreign Corrupt Practices Act of 1977), which payment, receipt or retention of funds is of a character required
to be disclosed in the Registration Statement or the Prospectus.
(rr)
Status Under the Securities Act
. The Company is an ineligible issuer as defined in Rule 405 under the Securities
Act as of the date hereof.
(ss)
No Misstatement or Omission in an Issuer Free Writing Prospectus
. Each Issuer Free Writing Prospectus, if any, as
of its issue date and as of each Applicable Time (as defined in
Section 23
below), did not, does not and will not include
any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the
Prospectus, including any incorporated document deemed to be a part thereof that has not been superseded or modified. The foregoing
sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with
written information furnished to the Company by the Agent specifically for use therein.
(tt)
No Conflicts
. Neither the execution of this Agreement, nor the issuance, offering or sale of the Placement Shares,
nor the consummation of any of the transactions contemplated herein, nor the compliance by the Company with the terms and provisions
hereof will conflict with, or will result in a breach of, any of the terms and provisions of, or has constituted or will constitute
a default under, or has resulted in or will result in the creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company pursuant to the terms of any contract or other agreement to which the Company may be bound or to which
any of the property or assets of the Company is subject, except (i) such conflicts, breaches or defaults as may have been waived
and (ii) such conflicts, breaches and defaults that could not reasonably be expected to have a Material Adverse Effect; nor will
such action result (x) in any violation of the provisions of the organizational or governing documents of the Company, or (y) in
any material violation of the provisions of any statute or any order, rule or regulation applicable to the Company or of any court
or of any federal, state or other regulatory authority or other government body having jurisdiction over the Company.
(uu)
Sanctions
. (i) The Company represents that, neither the Company nor any of its Subsidiaries (collectively,
the “
Entity
”), or any director, officer or, to the knowledge of the Company, any employee, agent, affiliate
or representative of the Entity, is a government, individual, or entity (in this paragraph (uu), “
Person
”)
that is, or is owned or controlled by a Person that is:
(A) the subject of any sanctions
administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control, the United Nations Security
Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively, “
Sanctions
”),
nor
(B) located, organized or
resident in a country or territory that is the subject of Sanctions (including, without limitation, Burma/Myanmar, Cuba, Iran,
North Korea, Sudan and Syria).
(ii) The Entity represents
and covenants that it will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate
any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation,
is the subject of Sanctions; or
(B) in any other manner that
will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter,
advisor, investor or otherwise).
(iii) The Entity represents
and covenants that, except as described in the Registration Statement and the Prospectus, for the past 5 years, it has not engaged
in, is not now engaging in, and will not engage in, any dealings or transactions with any Person, or in any country or territory,
that at the time of the dealing or transaction is or was the subject of Sanctions.
(vv)
Stock Transfer Taxes
. On each Settlement Date, all stock transfer or other taxes (other than income taxes) which
are required to be paid in connection with the sale and transfer of the Placement Shares to be sold hereunder will be, or will
have been, fully paid or provided for by the Company and all laws imposing such taxes will be or will have been fully complied
with.
(ww)
Statistical and Market-Related Data
. The statistical, demographic and market-related data included in the Registration
Statement and Prospectus are based on or derived from sources that the Company believes to be reliable and accurate or represent
the Company’s good faith estimates that are made on the basis of data derived from such sources.
(xx)
Emerging Growth Company Status
. From the time of the initial filing of the Company’s first registration statement
with the Commission through the date hereof, the Company has been and is an “emerging growth company,” as defined in
Section 2(a) of the Securities Act (an “
Emerging Growth Company
”).
Any certificate signed by an officer of the
Company and delivered to the Agent or to counsel for the Agent pursuant to or in connection with this Agreement shall be deemed
to be a representation and warranty by the Company, as applicable, to the Agent as to the matters set forth therein.
7.
Covenants of the Company
. The Company covenants and agrees with Agent that:
(a)
Registration Statement Amendments
. After the date of this Agreement and during any period in which a Prospectus relating
to any Placement Shares is required to be delivered by the Agent under the Securities Act (including in circumstances where such
requirement may be satisfied pursuant to Rule 172 under the Securities Act or similar rule), (i) the Company will notify the
Agent promptly of the time when any subsequent amendment to the Registration Statement, other than documents incorporated by reference,
has been filed with the Commission and/or has become effective or any subsequent supplement to the Prospectus has been filed and
of any request by the Commission for any amendment or supplement to the Registration Statement or Prospectus or for additional
information, (ii) the Company will prepare and file with the Commission, promptly upon the Agent’s request, any amendments
or supplements to the Registration Statement or Prospectus that, in the Agent’s reasonable opinion, may be necessary or advisable
in connection with the distribution of the Placement Shares by the Agent (
provided
,
however
, that the failure of
the Agent to make such request shall not relieve the Company of any obligation or liability hereunder, or affect the Agent’s
right to rely on the representations and warranties made by the Company in this Agreement and
provided
,
further
,
that the only remedy the Agent shall have with respect to the failure to make such filing shall be to cease making sales under
this Agreement until such amendment or supplement is filed); (iii) the Company will not file any amendment or supplement to
the Registration Statement or Prospectus relating to the Placement Shares unless a copy thereof has been submitted to Agent within
a reasonable period of time before the filing and the Agent has not reasonably objected thereto (
provided
,
however
,
that the failure of the Agent to make such objection shall not relieve the Company of any obligation or liability hereunder, or
affect the Agent’s right to rely on the representations and warranties made by the Company in this Agreement and
provided
,
further
, that the only remedy the Agent shall have with respect to the failure by the Company to obtain such consent shall
be to cease making sales under this Agreement) and the Company will furnish to the Agent at the time of filing thereof a copy of
any document that upon filing is deemed to be incorporated by reference into the Registration Statement or Prospectus, except for
those documents available via EDGAR; and (iv) the Company will cause each amendment or supplement to the Prospectus to be
filed with the Commission as required pursuant to the applicable paragraph of Rule 424(b) of the Securities Act or, in the case
of any document to be incorporated therein by reference, to be filed with the Commission as required pursuant to the Exchange Act,
within the time period prescribed (the determination to file or not file any amendment or supplement with the Commission under
this
Section 7(a)
, based on the Company’s reasonable opinion or reasonable objections, shall be made exclusively by
the Company).
(b)
Notice of Commission Stop Orders
. The Company will advise the Agent, promptly after it receives notice or obtains
knowledge thereof, (i) of any order of the Commission declaring the Registration Statement to be effective, (ii) of the issuance
or threatened issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, and (iii)
of the suspension of the qualification of the Placement Shares for offering or sale in any U.S. jurisdiction, or of the initiation
or threatening of any proceeding for any such purpose; and it will promptly use its commercially reasonable efforts to prevent
the issuance of any stop order suspending the effectiveness of the Registration Statement and to obtain its withdrawal if such
a stop order should be issued. The Company will advise the Agent promptly after it receives any request by the Commission for any
amendments to the Registration Statement or any amendment or supplements to the Prospectus or any Issuer Free Writing Prospectus
or for additional information related to the offering of the Placement Shares.
(c)
Delivery of Prospectus; Subsequent Changes
. During any period in which a Prospectus relating to the Placement Shares
is required to be delivered by the Agent under the Securities Act with respect to the offer and sale of the Placement Shares, (including
in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act or similar rule), the Company
will comply in all material respects with all requirements imposed upon it by the Securities Act, as from time to time in force,
and to file on or before their respective due dates all reports and any definitive proxy or information statements required to
be filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or any other provision of or under the
Exchange Act. If the Company has omitted any information from the Registration Statement pursuant to Rule 430B under the Securities
Act, it will use its commercially reasonable efforts to comply with the provisions of and make all requisite filings with the Commission
pursuant to said Rule 430B and to notify the Agent promptly of all such filings. If during such period any event occurs as a result
of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or if
during such period it is necessary to amend or supplement the Registration Statement or Prospectus to comply with the Securities
Act, the Company will promptly notify the Agent to suspend the offering of Placement Shares during such period and the Company
will promptly amend or supplement the Registration Statement or Prospectus (at the expense of the Company) so as to correct such
statement or omission or effect such compliance;
provided however
, that the Company may delay any such amendment or supplement,
if, in the reasonable judgment of the Company, it is in the best interests of the Company to do so.
(d)
Listing of Placement Shares
. Prior to the date of the first Placement Notice, the Company will use its commercially
reasonable efforts to cause the Placement Shares to be listed on the Exchange.
(e)
Delivery of Registration Statement and Prospectus
. The Company will furnish to the Agent and its counsel (at the
expense of the Company) copies of the Registration Statement, the Prospectus (including all documents incorporated by reference
therein) and all amendments and supplements to the Registration Statement or Prospectus that are filed with the Commission during
any period in which a Prospectus relating to the Placement Shares is required to be delivered under the Securities Act (including
all documents filed with the Commission during such period that are deemed to be incorporated by reference therein), in each case
as soon as reasonably practicable and in such quantities as the Agent may from time to time reasonably request and, at the Agent’s
request, will also furnish copies of the Prospectus to each U.S. exchange or market on which sales of the Placement Shares may
be made;
provided
,
however
, that the Company shall not be required to furnish any document (other than the Prospectus)
to the Agent to the extent such document is available on EDGAR.
(f)
Earning Statement
. The Company will make generally available to its security holders as soon as practicable, but
in any event not later than 15 months after the end of the Company’s current fiscal quarter, an earning statement covering
a 12-month period that satisfies the provisions of Section 11(a) and Rule 158 of the Securities Act.
(g)
Use of Proceeds
. The Company will use the Net Proceeds as described in the Prospectus in the section entitled “Use
of Proceeds.”
(h)
Notice of Other Sales
. Without the prior written consent of the Agent, the Company will not, directly or indirectly,
offer to sell, sell, contract to sell, grant any option to sell or otherwise dispose of any Common Stock (other than the Placement
Shares offered pursuant to this Agreement) or securities convertible into or exchangeable for Common Stock, warrants or any rights
to purchase or acquire, Common Stock during the period beginning on the fifth (5
th
) Trading Day immediately prior to
the date on which any Placement Notice is delivered to Agent hereunder and ending on the fifth (5th) Trading Day immediately
following the final Settlement Date with respect to Placement Shares sold pursuant to such Placement Notice (or, if the Placement
Notice has been terminated or suspended prior to the sale of all Placement Shares covered by a Placement Notice, the date of such
suspension or termination); and will not directly or indirectly in any other “at the market” or other similar continuous
equity transaction offer to sell, sell, contract to sell, grant any option to sell or otherwise dispose of any Common Stock (other
than the Placement Shares offered pursuant to this Agreement) prior to the later of the termination of this Agreement and the sixtieth
(60
th
) day immediately following the final Settlement Date with
respect to Placement Shares sold pursuant to such Placement Notice;
provided
,
however
, that such restrictions will
not be required in connection with the Company’s issuance or sale of (i) Common Stock, options to purchase Common Stock
or Common Stock issuable upon the exercise of options or any other type of stock-based award, pursuant to any employee or director
stock option or benefits plan, stock ownership plan or dividend reinvestment plan (but not Common Stock subject to a waiver to
exceed plan limits in its dividend reinvestment plan) of the Company whether now in effect or hereafter implemented, (ii) Common
Stock issuable upon conversion of securities or the exercise of warrants, options or other rights in effect or outstanding, and
disclosed in filings by the Company available on EDGAR or otherwise in writing to the Agent and (iii) Common Stock or securities
convertible into or exchangeable for shares of Common Stock as consideration for mergers, acquisitions, other business combinations,
license agreements, collaboration agreements, co-development agreements or other strategic alliances which are not issued for capital
raising purposes.
(i)
Change of Circumstances
. The Company will, at any time during the pendency of a Placement Notice advise the Agent
promptly after it shall have received notice or obtained knowledge thereof, of any information or fact that would alter or affect
in any material respect any opinion, certificate, letter or other document required to be provided to the Agent pursuant to this
Agreement.
(j)
Due Diligence Cooperation
. The Company will cooperate with any reasonable due diligence review conducted by the Agent
or its representatives in connection with the transactions contemplated hereby, including, without limitation, providing information
and making available documents and senior corporate officers, during regular business hours and at the Company’s principal
offices, as the Agent may reasonably request.
(k)
Required Filings Relating to Placement of Placement Shares
. The Company agrees that on such dates as, and to the
extent that, the Securities Act shall require in connection with certain sales of Placement Shares, the Company will (A) file
a prospectus supplement with the Commission under the applicable paragraph of Rule 424(b) under the Securities Act (each and every
filing date under Rule 424(b), a “
Filing Date
”), which prospectus supplement will set forth, within the
relevant period, the amount of Placement Shares sold through the Agent, the Net Proceeds to the Company and the compensation payable
by the Company to the Agent with respect to such Placement Shares, and (B) deliver such number of copies of each such prospectus
supplement to each U.S. exchange or market on which such sales were effected as may be required by the rules or regulations of
such exchange or market.
(l)
Representation Dates; Certificate
. (1) Prior to the date of the first Placement Notice and (2) each time the Company:
(i) files the Prospectus relating to
the Placement Shares or amends or supplements (other than a prospectus supplement relating solely to an offering of securities
other than the Placement Shares) the Registration Statement or the Prospectus relating to the Placement Shares by means of a post-effective
amendment, sticker, or supplement but not by means of incorporation of documents by reference into the Registration Statement or
the Prospectus relating to the Placement Shares;
(ii) files an annual report on Form
10-K under the Exchange Act (including any Form 10-K/A containing amended financial information or a material amendment to the
previously filed Form 10-K);
(iii) files its quarterly reports on
Form 10-Q under the Exchange Act; or
(iv) files a current report on Form
8-K containing amended financial information (other than information “furnished” pursuant to Items 2.02 or 7.01 of
Form 8-K or to provide disclosure pursuant to Item 8.01 of Form 8-K relating to the reclassification of certain properties
as discontinued operations in accordance with Statement of Financial Accounting Standards No. 144) under the Exchange Act (each
date of filing of one or more of the documents referred to in clauses (i) through (iv) shall be a “
Representation Date
”);
the Company shall furnish the Agent (but in the
case of clause (iv) above only if the Agent reasonably determines that the information contained in such Form 8-K is material)
with a certificate dated the Representation Date, in the form and substance satisfactory to the Agent and its counsel, substantially
similar to the form previously provided to the Agent and its counsel, modified, as necessary, to relate to the Registration Statement
and the Prospectus as amended or supplemented. The requirement to provide a certificate under this
Section 7(l)
shall be
waived for any Representation Date occurring at a time when a Suspension is in effect or there is no Placement Notice pending (the
“
Waiver Period
”), which waiver shall continue until the earlier to occur of the date the Company delivers
instructions for the sale of Placement Shares hereunder (which for such calendar quarter shall be considered a Representation Date)
and the next occurring Representation Date. Notwithstanding the foregoing, if the Company subsequently decides to sell Placement
Shares following a Representation Date during a Waiver Period and did not provide the Agent with a certificate under this
Section
7(l)
, then before the Company delivers the instructions for the sale of Placement Shares or the Agent sells any Placement Shares
pursuant to such instructions, the Company shall provide the Agent with a certificate in conformity with this
Section 7(l)
dated as of the date that the instructions for the sale of Placement Shares are issued.
(m)
Legal
Opinion
. (1) Prior to the date of the first Placement Notice and (2) within five (5) Trading Days of each
Representation Date with respect to which the Company is obligated to deliver a certificate pursuant to
Section 7(l)
for which no Waiver Period is applicable and excluding the date of this Agreement, the Company shall cause to be furnished to
the Agent a written opinion and 10b-5 statement of Lowenstein Sandler LLP (“
U.S. Company Counsel
”),
or other counsel satisfactory to the Agent, in form and substance satisfactory to Agent and its counsel, substantially
similar to the form previously provided to the Agent and its counsel, modified, as necessary, to relate to the Registration
Statement and the Prospectus as then amended or supplemented, a written opinion of Tingle Merrett LLP (“
Canadian
Company Counsel
”), or other counsel satisfactory to the Agent, in form and substance satisfactory to Agent and
its counsel, substantially similar to the form previously provided to the Agent and its counsel, modified, as necessary, to
relate to the Registration Statement and the Prospectus as then amended or supplemented and a written opinion of Casimir
Jones, S.C. (“
Company IP Counsel
”), or other counsel satisfactory to the Agent, in form and
substance satisfactory to Agent and its counsel, substantially similar to the form previously provided to the Agent and its
counsel, modified, as necessary, to relate to the Registration Statement and the Prospectus as then amended or supplemented;
provided
,
however
,
the Company shall be required to furnish to the Agent no more than one opinion from each counsel hereunder per calendar
quarter;
provided
,
further
, that in lieu of such opinions for subsequent periodic filings under the Exchange
Act, counsel may furnish the Agent with a letter (a “
Reliance Letter
”) to the effect that the Agent
may rely on a prior opinion delivered under this
Section 7(m)
to the same extent as if it were dated the date of such
letter (except that statements in such prior opinion shall be deemed to relate to the Registration Statement and the
Prospectus as amended or supplemented as of the date of the Reliance Letter).
(n)
Comfort Letter
. (1) Prior to the date of the first Placement Notice and (2) within five (5) Trading Days of each
Representation Date with respect to which the Company is obligated to deliver a certificate pursuant to
Section 7(l)
for
which no Waiver Period is applicable and excluding the date of this Agreement, the Company shall cause its independent registered
public accounting firm to furnish the Agent letters (the “
Comfort Letters
”), dated the date the Comfort
Letter is delivered, which shall meet the requirements set forth in this
Section 7(n)
;
provided
, that if requested
by the Agent, the Company shall cause a Comfort Letter to be furnished to the Agent within ten (10) Trading Days of the date of
occurrence of any material transaction or event, including the restatement of the Company’s financial statements. The Comfort
Letter from the Company’s independent registered public accounting firm shall be in a form and substance reasonably satisfactory
to the Agent, (i) confirming that they are an independent registered public accounting firm within the meaning of the Securities
Act and the PCAOB, (ii) stating, as of such date, the conclusions and findings of such firm with respect to the financial information
and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered
public offerings (the first such letter, the “
Initial Comfort Letter
”) and (iii) updating the Initial
Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date
and modified as necessary to relate to the Registration Statement and the Prospectus, as amended and supplemented to the date of
such letter.
(o)
Market Activities
. The Company will not, directly or indirectly, (i) take any action designed to cause or result
in, or that constitutes or would reasonably be expected to constitute, the stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Placement Shares or (ii) sell, bid for, or purchase Common Stock in
violation of Regulation M, or pay anyone any compensation for soliciting purchases of the Placement Shares other than the Agent.
(p)
Investment Company Act
. The Company will conduct its affairs in such a manner so as to reasonably ensure that neither
it nor any of its Subsidiaries will be or become, at any time prior to the termination of this Agreement, required to register
as an “investment company,” as such term is defined in the Investment Company Act.
(q)
No Offer to Sell
. Other than an Issuer Free Writing Prospectus approved in advance by the Company and the Agent in
its capacity as agent hereunder, neither the Agent nor the Company (including its agents and representatives, other than the Agent
in its capacity as such) will make, use, prepare, authorize, approve or refer to any written communication (as defined in Rule
405 under the Securities Act), required to be filed with the Commission, that constitutes an offer to sell or solicitation of an
offer to buy Placement Shares hereunder.
(r)
Blue Sky and Other Qualifications
.
The Company will use its commercially reasonable efforts, in cooperation
with the Agent, to qualify the Placement Shares for offering and sale, or to obtain an exemption for the Placement Shares to be
offered and sold, under the applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Agent
may designate and to maintain such qualifications and exemptions in effect for so long as required for the distribution of the
Placement Shares (but in no event for less than one year from the date of this Agreement);
provided
,
however
, that
the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or
as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject;
provided further
that no Placement Shares shall be
sold on any Canadian exchange. In each jurisdiction in which the Placement Shares have been so qualified or exempt, the Company
will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification or exemption,
as the case may be, in effect for so long as required for the distribution of the Placement Shares (but in no event for less than
one year from the date of this Agreement).
(s)
Sarbanes-Oxley Act
. The Company and the Subsidiaries will maintain and keep accurate books and records reflecting
their assets and maintain internal accounting controls in a manner designed to provide reasonable assurance regarding the reliability
of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted
accounting principles and including those policies and procedures that (i) pertain to the maintenance of records that in reasonable
detail accurately and fairly reflect the transactions and dispositions of the assets of the Company, (ii) provide reasonable
assurance that transactions are recorded as necessary to permit the preparation of the Company’s consolidated financial statements
in accordance with generally accepted accounting principles, (iii) that receipts and expenditures of the Company are being
made only in accordance with management’s and the Company’s directors’ authorization, and (iv) provide reasonable
assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets
that could have a material effect on its financial statements. The Company and the Subsidiaries will maintain such controls and
other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act, and the applicable
regulations thereunder that are designed to ensure that information required to be disclosed by the Company in the reports that
it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in
the Commission’s rules and forms, including, without limitation, controls and procedures designed to ensure that information
required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated
to the Company’s management, including its principal executive officer and principal financial officer, or persons performing
similar functions, as appropriate to allow timely decisions regarding required disclosure and to ensure that material information
relating to the Company or the Subsidiaries is made known to them by others within those entities, particularly during the period
in which such periodic reports are being prepared.
(t)
Secretary’s Certificate; Further Documentation
. Prior to the date of the first Placement Notice, the Company
shall deliver to the Agent a certificate of the Secretary of the Company and attested to by an executive officer of the Company,
dated as of such date, certifying as to (i) the Articles of Incorporation of the Company, (ii) the By-laws of the Company, (iii)
the resolutions of the Board of Directors of the Company authorizing the execution, delivery and performance of this Agreement
and the issuance of the Placement Shares and (iv) the incumbency of the officers duly authorized to execute this Agreement and
the other documents contemplated by this Agreement. Within five (5) Trading Days of each Representation Date, unless a Waiver Period
is in effect, the Company shall have furnished to the Agent such further information, certificates and documents as the Agent may
reasonably request.
(u)
Emerging Growth Company Status
. The Company will promptly notify the Agent if the Company ceases to be an Emerging
Growth Company at any time during the term of this Agreement.
8.
Payment of Expenses
. The Company will pay all expenses incident to the performance of its obligations under this
Agreement, including (i) the preparation and filing of the Registration Statement, including any fees required by the Commission,
and the printing or electronic delivery of the Prospectus as originally filed and of each amendment and supplement thereto, in
such number as the Agent shall deem reasonably necessary, (ii) the printing and delivery to the Agent of this Agreement and such
other documents as may be required in connection with the offering, purchase, sale, issuance or delivery of the Placement Shares,
(iii) the preparation, issuance and delivery of the certificates, if any, for the Placement Shares to the Agent, including
any stock or other transfer taxes and any capital duties, stamp duties or other duties or taxes payable upon the sale, issuance
or delivery of the Placement Shares to the Agent, (iv) the fees and disbursements of the counsel, accountants and other advisors
to the Company, (v) the fees and expenses of the Agent including but not limited to the fees and expenses of the counsel to
the Agent, payable upon the execution of this Agreement, in an amount not to exceed $75,000, (vi) the qualification or exemption
of the Placement Shares under state securities laws in accordance with the provisions of
Section 7(r)
hereof, including
filing fees, but excluding fees of the Agent’s counsel, (vii) the printing and delivery to the Agent of copies of any
Permitted Issuer Free Writing Prospectus and the Prospectus and any amendments or supplements thereto in such number as the Agent
shall deem necessary, (viii) the preparation, printing and delivery to the Agent of copies of the blue sky survey, (ix) the
fees and expenses of the transfer agent and registrar for the Common Stock, (x) the filing and other fees incident to any
review by FINRA of the terms of the sale of the Placement Shares including the fees of the Agent’s counsel (subject to the
cap, set forth in clause (v) above), and (xi) the fees and expenses incurred in connection with the listing of the Placement
Shares on the Exchange.
9.
Conditions to Agent’s Obligations
. The obligations of the Agent hereunder with respect to a Placement will
be subject to the continuing accuracy and completeness of the representations and warranties made by the Company herein, to the
due performance by the Company of its obligations hereunder, to the completion by the Agent of a due diligence review satisfactory
to it in its reasonable judgment, and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following
additional conditions:
(a)
Registration Statement Effective
. The Registration Statement shall have become effective and shall be available for
the sale of all Placement Shares to be sold by the Agent hereunder.
(b)
No Material Notices
. None of the following events shall have occurred and be continuing: (i) receipt by the
Company of any request for additional information from the Commission or any other federal or state Governmental Authority during
the period of effectiveness of the Registration Statement, the response to which would require any post-effective amendments or
supplements to the Registration Statement or the Prospectus; (ii) the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; (iii) receipt by the
Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Placement
Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) the occurrence
of any event that makes any material statement made in the Registration Statement or the Prospectus or any material document incorporated
or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in
the Registration Statement, the Prospectus or documents so that, in the case of the Registration Statement, it will not contain
any materially untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading and, that in the case of the Prospectus, it will not contain any materially untrue
statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus only, in the light of the circumstances under which they were made) not misleading.
(c)
No Misstatement or Material Omission
. The Agent shall not have advised the Company that the Registration Statement
or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact that in the Agent’s reasonable
opinion is material, or omits to state a fact that in the Agent’s reasonable opinion is material and is required to be stated
therein or is necessary to make the statements therein (in the case of the Prospectus only, in the light of the circumstances under
which they were made) not misleading.
(d)
Material Changes
. Except as contemplated in the Prospectus, or disclosed in the Company’s reports filed with
the Commission, there shall not have been any Material Adverse Effect or any development that could, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, or a downgrading in or withdrawal of the rating assigned to any of the
Company’s securities (other than asset backed securities) by any rating organization or a public announcement by any rating
organization that it has under surveillance or review its rating of any of the Company’s securities (other than asset backed
securities), the effect of which, in the case of any such action by a rating organization described above, in the reasonable judgment
of the Agent (without relieving the Company of any obligation or liability it may otherwise have), is so material as to make it
impracticable or inadvisable to proceed with the offering of the Placement Shares on the terms and in the manner contemplated in
the Prospectus.
(e)
Legal Opinions
. The Agent shall have received the opinions of Company Counsel required to be delivered pursuant to
Section 7(m)
on or before the date on which such delivery of such opinions is required pursuant to
Section 7(m)
.
(f)
Comfort Letter
. The Agent shall have received the Comfort Letter required to be delivered pursuant to
Section
7(n)
on or before the date on which such delivery of such Comfort Letter is required pursuant to
Section 7(n)
.
(g)
Representation Certificate
. The Agent shall have received the certificate required to be delivered pursuant to
Section
7(l)
on or before the date on which delivery of such certificate is required pursuant to
Section 7(l)
.
(h)
No Suspension
. Trading in the Common Stock shall not have been suspended on the Exchange and the Common Stock shall
not have been delisted from the Exchange.
(i)
Other Materials
. On each date on which the Company is required to deliver a certificate pursuant to
Section 7(l)
,
the Company shall have furnished to the Agent such appropriate further information, opinions, certificates, letters and other documents
as the Agent may reasonably request. All such opinions, certificates, letters and other documents will be in compliance with the
provisions hereof.
(j)
Securities Act Filings Made
. All filings with the Commission required by Rule 424 under the Securities Act to have
been filed prior to the issuance of any Placement Notice hereunder shall have been made within the applicable time period prescribed
for such filing by Rule 424.
(k)
Approval for Listing
. The Placement Shares shall either have been (i) approved for listing on the Exchange, subject
only to notice of issuance, or (ii) the Company shall have filed an application for listing of the Placement Shares on the Exchange
at, or prior to, the issuance of any Placement Notice and the Exchange shall have reviewed such application and not provided any
objections thereto.
(l)
FINRA
. If applicable, FINRA shall have raised no objection to the terms of this offering and the amount of compensation
allowable or payable to the Agent as described in the Prospectus.
(m)
No Termination Event
. There shall not have occurred any event that would permit the Agent to terminate this Agreement
pursuant to
Section 12(a)
.
If any condition specified in this Section
9 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Agent by notice from the Agent
to the Company at any time, which termination shall be without liability on the part of any party to any other party, except that
Section 8
,
Section 10
,
Section 11
,
Section 17
and
Section 18
shall at all times be effective
and shall survive such termination.
10.
Indemnification and Contribution
.
(a)
Company Indemnification
. The Company agrees to indemnify and hold harmless the Agent, its affiliates and their respective
partners, members, directors, officers, employees and agents and each person, if any, who controls the Agent or any affiliate within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act as follows:
(i)
against any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, arising out of
or based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any
amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary
to make the statements therein not misleading, or arising out of any untrue statement or alleged untrue statement of a material
fact included in any related Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii)
against any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, to the extent
of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged
untrue statement or omission;
provided
that (subject to
Section 10(d)
below) any such settlement is effected
with the written consent of the Company, which consent shall not unreasonably be delayed, conditioned or withheld; and
(iii)
against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel), reasonably incurred
in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged
untrue statement or omission (whether or not a party), to the extent that any such expense is not paid under (i) or (ii) above;
and
(iv)
against any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, arising out of
or based upon any breach of a representation, warranty or covenant made by the Company in this Agreement.
provided
,
however
, that this indemnity
agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or
omission or alleged untrue statement or omission made solely in reliance upon and in conformity with the Agent Information (as
defined below).
(b)
Agent
Indemnification
. Agent agrees to indemnify and hold harmless the Company and its directors and each officer of the
Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and
expense described in the indemnity contained in
Section 10(a)
, as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendments thereto), the
Prospectus (or any amendment or supplement thereto) or any Issuer Free Writing Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with information relating to the Agent and furnished to the Company in writing by
the Agent expressly for use therein. The Company hereby acknowledges that the only information that the Agent has furnished
to the Company expressly for use in the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus (or any
amendment or supplement thereto) are the statements set forth in the seventh and eighth paragraphs under the caption
“Plan of Distribution” in the Prospectus (the “
Agent Information
”).
(c)
Procedure
. Any party that proposes to assert the right to be indemnified under this
Section 10
will, promptly
after receipt of notice of commencement of any action against such party in respect of which a claim is to be made against an indemnifying
party or parties under this
Section 10
, notify each such indemnifying party of the commencement of such action, enclosing
a copy of all papers served, but the omission so to notify such indemnifying party will not relieve the indemnifying party from
(i) any liability that it might have to any indemnified party otherwise than under this
Section 10
and (ii) any
liability that it may have to any indemnified party under the foregoing provision of this
Section 10
unless, and only to
the extent that, such omission results in the forfeiture of substantive rights or defenses by the indemnifying party. Upon request
of the indemnified party, the indemnifying party shall retain counsel reasonably satisfactory to the indemnified party to represent
the indemnified party that the indemnified party may designate in such proceeding and shall pay the actual and reasonable fees
and disbursements of such counsel related to such proceeding as incurred. If any such action is brought against any indemnified
party and it notifies the indemnifying party of its commencement, the indemnifying party will be entitled to participate in and,
to the extent that it elects by delivering written notice to the indemnified party promptly after receiving notice of the commencement
of the action from the indemnified party, jointly with any other indemnifying party similarly notified, to assume the defense of
the action, with counsel reasonably satisfactory to the indemnified party, and after notice from the indemnifying party to the
indemnified party of its election to assume the defense, the indemnifying party will not be liable to the indemnified party for
any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred
by the indemnified party in connection with the defense. The indemnified party will have the right to employ its own counsel in
any such action, but the fees, expenses and other charges of such counsel will be at the expense of such indemnified party unless
(1) the employment of counsel by the indemnified party has been authorized in writing by the indemnifying party, (2) the
indemnified party has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other
indemnified parties that are different from or in addition to those available to the indemnifying party, (3) a conflict or
potential conflict exists (based on advice of counsel to the indemnified party) between the indemnified party and the indemnifying
party (in which case the indemnifying party will not have the right to direct the defense of such action on behalf of the indemnified
party) or (4) the indemnifying party has not in fact employed counsel to assume the defense of such action or counsel reasonably
satisfactory to the indemnified party, in each case, within a reasonable time after receiving notice of the commencement of the
action; in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the indemnifying
party or parties. It is understood that the indemnifying party or parties shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate
firm (plus local counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties.
All such fees, disbursements and other charges will be reimbursed by the indemnifying party promptly after the indemnifying party
receives a written invoice relating to fees, disbursements and other charges in reasonable detail. An indemnifying party will not,
in any event, be liable for any settlement of any action or claim effected without its written consent. No indemnifying party shall,
without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment in any
pending or threatened claim, action or proceeding relating to the matters contemplated by this
Section 10
(whether or not
any indemnified party is a party thereto), unless such settlement, compromise or consent (1) includes an unconditional release
of each indemnified party, in form and substance reasonably satisfactory to such indemnified party, from all liability arising
out of such litigation, investigation, proceeding or claim and (2) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d)
Settlement Without Consent if Failure to Reimburse
.
If an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for reasonable fees and expenses of counsel, such indemnifying party agrees that it shall
be liable for any settlement of the nature contemplated by
Section 10(a)(ii)
effected without its written consent if
(1) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (2) such
indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered
into and (3) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior
to the date of such settlement.
(e)
Contribution
. In order to provide for just and equitable contribution in circumstances in which the indemnification
provided for in the foregoing paragraphs of this
Section 10
is applicable in accordance with its terms but for any reason
is held to be unavailable or insufficient from the Company or the Agent, the Company and the Agent will contribute to the total
losses, claims, liabilities, expenses and damages (including any investigative, legal and other expenses reasonably incurred in
connection with, and any amount paid in settlement of, any action, suit or proceeding or any claim asserted, but after deducting
any contribution received by the Company from persons other than the Agent, such as persons who control the Company within the
meaning of the Securities Act, officers of the Company who signed the Registration Statement and directors of the Company, who
also may be liable for contribution) to which the Company and the Agent may be subject in such proportion as shall be appropriate
to reflect the relative benefits received by the Company on the one hand and the Agent on the other hand. The relative benefits
received by the Company on the one hand and the Agent on the other hand shall be deemed to be in the same proportion as the total
net proceeds from the sale of the Placement Shares (before deducting expenses) received by the Company bear to the total compensation
received by the Agent (before deducting expenses) from the sale of Placement Shares on behalf of the Company. If, but only if,
the allocation provided by the foregoing sentence is not permitted by applicable law, the allocation of contribution shall be made
in such proportion as is appropriate to reflect not only the relative benefits referred to in the foregoing sentence but also the
relative fault of the Company, on the one hand, and the Agent, on the other hand, with respect to the statements or omission that
resulted in such loss, claim, liability, expense or damage, or action in respect thereof, as well as any other relevant equitable
considerations with respect to such offering. Such relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information
supplied by the Company or the Agent, the intent of the parties and their relative knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the Agent agree that it would not be just and equitable if contributions
pursuant to this
Section 10(e)
were to be determined by pro rata allocation or by any other method of allocation that does
not take into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, liability, expense, or damage, or action in respect thereof, referred to above in this
Section 10(e)
shall be deemed to include, for the purpose of this
Section 10(e)
, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action or claim to the extent consistent with
Section
10(c)
hereof. Notwithstanding the foregoing provisions of this
Section 10(e)
, the Agent shall not be required to contribute
any amount in excess of the commissions received by it under this Agreement and no person found guilty of fraudulent misrepresentation
(within the meaning of
Section 11(f)
of the Securities Act) will be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this
Section 10(e)
, any person who controls a party to this
Agreement within the meaning of the Securities Act, and any officers, directors, partners, employees or agents of the Agent, will
have the same rights to contribution as that party, and each director of the Company and each officer of the Company who signed
the Registration Statement will have the same rights to contribution as the Company, subject in each case to the provisions hereof.
Any party entitled to contribution, promptly after receipt of notice of commencement of any action against such party in respect
of which a claim for contribution may be made under this
Section 10(e)
, will notify any such party or parties from whom
contribution may be sought, but the omission to so notify will not relieve that party or parties from whom contribution may be
sought from any other obligation it or they may have under this
Section 10(e)
except to the extent that the failure to so
notify such other party materially prejudiced the substantive rights or defenses of the party from whom contribution is sought.
Except for a settlement entered into pursuant to the last sentence of
Section 10(c)
hereof, no party will be liable for
contribution with respect to any action or claim settled without its written consent if such consent is required pursuant to
Section
10(c)
hereof.
(f)
Non-Exclusive Remedies
. The remedies provided for in this Section 10 are not exclusive and shall not limit any rights
or remedies which may otherwise be available to any indemnified party at law or in equity.
11.
Representations and Agreements to Survive Delivery
. The indemnity and contribution agreements contained in
Section
10
of this Agreement and all representations and warranties of the Company herein or in certificates delivered pursuant hereto
shall survive, as of their respective dates, regardless of (i) any investigation made by or on behalf of the Agent, any controlling
persons, or the Company (or any of their respective officers, directors or controlling persons), (ii) delivery and acceptance
of the Placement Shares and payment therefor or (iii) any termination of this Agreement.
12.
Termination
.
(a)
The Agent may terminate this Agreement, by notice to the Company, as hereinafter specified at any time (1) if there
has been, since the time of execution of this Agreement or since the date as of which information is given in the Prospectus, any
change, or any development or event or condition of the type described in Section 6(i), whether or not arising in the ordinary
course of business, which individually or in the aggregate, in the sole judgment of the Agent is material and adverse and makes
it impractical or inadvisable to market the Placement Shares or to enforce contracts for the sale of the Placement Shares, (2) if
there has occurred any material adverse change in the financial markets in the United States or the international financial markets,
any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective
change in national or international political, financial or economic conditions, in each case the effect of which is such as to
make it, in the judgment of the Agent, impracticable or inadvisable to market the Placement Shares or to enforce contracts for
the sale of the Placement Shares, (3) if trading in the Common Stock has been suspended or limited by the Commission or the
Exchange, or if trading generally on the Exchange has been suspended or limited, or minimum prices for trading have been fixed
on the Exchange, (4) if any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market
shall have occurred and be continuing (other than a voluntary suspension of trading or withdrawal of the Company’s listing
on the TSX Venture Exchange), (5) if a major disruption of securities settlements or clearance services in the United States shall
have occurred and be continuing, or (6) if a banking moratorium has been declared by either U.S. Federal or New York authorities.
Any such termination shall be without liability of any party to any other party except that the provisions of
Section 8
(Payment of Expenses),
Section 10
(Indemnification and Contribution),
Section 11
(Representations and Agreements
to Survive Delivery),
Section 17
(Governing Law and Time; Waiver of Jury Trial) and
Section 18
(Consent to Jurisdiction)
hereof shall remain in full force and effect notwithstanding such termination. If the Agent elects to terminate this Agreement
as provided in this
Section 12(a)
, the Agent shall provide the required notice as specified in
Section 13
(Notices).
(b)
The Company shall have the right to terminate this Agreement in its sole discretion (i) at any time prior to the initial
effectiveness of the Registration Statement by giving one (1) day’s notice as specified herein, or (ii) at any time after
the date of this Agreement by giving ten (10) days’ written notice as specified herein. Any such termination shall be without
liability of any party to any other party except that the provisions of
Section 8
,
Section 10
,
Section 11
,
Section 17
and
Section 18
hereof shall remain in full force and effect notwithstanding such termination.
(c)
The Agent shall have the right to terminate this Agreement in its sole discretion (i) at any time prior to the initial effectiveness
of the Registration Statement by giving one (1) day’s notice as specified herein, or (ii) at any time after the date of this
Agreement by giving ten (10) days’ notice as specified herein. Any such termination shall be without liability of any party
to any other party except that the provisions of
Section 8
,
Section 10
,
Section 11
,
Section 17
and
Section 18
hereof shall remain in full force and effect notwithstanding such termination. The Agent shall have the right
to terminate this Agreement as specified in
Section 9
.
(d)
This Agreement shall remain in full force and effect unless terminated pursuant to
Sections 12(a)
,
(b)
, or
(c)
above or otherwise by mutual agreement of the parties;
provided
,
however
, that any such termination by
mutual agreement shall in all cases be deemed to provide that
Section 8
,
Section 10
,
Section 11
,
Section
17
and
Section 18
shall remain in full force and effect.
(e)
Any termination of this Agreement shall be effective on the date specified in such notice of termination;
provided
,
however
, that such termination shall not be effective until the close of business on the date of receipt of such notice
by the Agent or the Company, as the case may be. If such termination shall occur prior to the Settlement Date for any sale of Placement
Shares, such Placement Shares shall settle in accordance with the provisions of this Agreement.
13.
Notices
. All notices or other communications required or permitted to be given by any party to any other party pursuant
to the terms of this Agreement shall be in writing, unless otherwise specified, and if sent to the Agent, shall be delivered to:
Cantor Fitzgerald & Co.
499 Park Avenue
New York, NY 10022
|
Attention:
|
|
Capital Markets/Jeffrey Lumby
|
|
Facsimile:
|
|
(212) 307-3730
|
and:
Cantor Fitzgerald & Co.
499 Park Avenue
New York, NY 10022
|
Attention:
|
|
General Counsel
|
|
Facsimile:
|
|
(212) 829-4708
|
with a copy to:
Covington & Burling LLP
620 Eighth Avenue
|
Attention:
|
|
Brian Rosenzweig
|
|
Facsimile:
|
|
646-441-9108
|
and if to the Company, shall be delivered
to:
Zomedica Pharmaceuticals Corp
100 Phoenix Drive
Suite 190
Ann Arbor, Michigan 48108
|
Attention:
|
|
Gerald A. Solensky, Jr.
|
|
Facsimile:
|
|
(734) 436-8680
|
with a copy to:
Lowenstein Sandler LLP
1251 Avenue of the Americas
New York, NY 10020
|
Attention:
|
|
John Hogoboom
|
|
Facsimile:
|
|
(973) 597-2383
|
Each party to this Agreement may change such
address for notices by sending to the parties to this Agreement written notice of a new address for such purpose. Each such notice
or other communication shall be deemed given (i) when delivered personally or by verifiable facsimile transmission (with an
original to follow) on or before 6:00 p.m., New York City time, on a Business Day or, if such day is not a Business Day, on the
next succeeding Business Day, (ii) on the next Business Day after timely delivery to a nationally-recognized overnight courier
and (iii) on the Business Day actually received if deposited in the U.S. mail (certified or registered mail, return receipt
requested, postage prepaid). For purposes of this Agreement, “
Business Day
” shall mean any day on which
the Exchange and commercial banks in the City of New York are open for business.
An electronic communication (“
Electronic
Notice
”) shall be deemed written notice for purposes of this Section 13 if sent to the electronic mail address specified
by the receiving party under separate cover. Electronic Notice shall be deemed received at the time the party sending Electronic
Notice receives verification of receipt by the receiving party. Any party receiving Electronic Notice may request and shall be
entitled to receive the notice on paper, in a nonelectronic form (“
Nonelectronic Notic
e
”) which shall
be sent to the requesting party within ten (10) days of receipt of the written request for Nonelectronic Notice.
14.
Successors and Assigns
. This Agreement shall inure to the benefit of and be binding upon the Company and the Agent
and their respective successors and the parties referred to in Section 10 hereof. References to any of the parties contained in
this Agreement shall be deemed to include the successors and permitted assigns of such party. Nothing in this Agreement, express
or implied, is intended to confer upon any party other than the parties hereto or their respective successors and permitted assigns
any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party;
provided
,
however
, that the Agent may assign its rights and obligations hereunder to an affiliate thereof without obtaining the Company’s
consent.
15.
Adjustments for Stock Splits
. The parties acknowledge and agree that all share-related numbers contained in this
Agreement shall be adjusted to take into account any stock split, stock dividend or similar event effected with respect to the
Placement Shares.
16.
Entire Agreement; Amendment; Severability; Waiver
. This Agreement (including all schedules and exhibits attached
hereto and Placement Notices issued pursuant hereto) constitutes the entire agreement and supersedes all other prior and contemporaneous
agreements and undertakings, both written and oral, among the parties hereto with regard to the subject matter hereof. Neither
this Agreement nor any term hereof may be amended except pursuant to a written instrument executed by the Company and the Agent.
In the event that any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid,
illegal or unenforceable as written by a court of competent jurisdiction, then such provision shall be given full force and effect
to the fullest possible extent that it is valid, legal and enforceable, and the remainder of the terms and provisions herein shall
be construed as if such invalid, illegal or unenforceable term or provision was not contained herein, but only to the extent that
giving effect to such provision and the remainder of the terms and provisions hereof shall be in accordance with the intent of
the parties as reflected in this Agreement. No implied waiver by a party shall arise in the absence of a waiver in writing signed
by such party. No failure or delay in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power,
or privilege hereunder.
17.
GOVERNING LAW AND TIME; WAIVER OF JURY TRIAL
. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS. SPECIFIED TIMES OF DAY REFER TO NEW
YORK CITY TIME. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
18.
CONSENT TO JURISDICTION
. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND
FEDERAL COURTS SITTING IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION
WITH ANY TRANSACTION CONTEMPLATED HEREBY, AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING,
ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT
IN AN INCONVENIENT FORUM OR THAT THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES
PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF
(CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED) TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT
AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN
SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW.
19.
Counterparts
. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument. Delivery of an executed Agreement by one party to the other
may be made by facsimile or electronic transmission.
20.
Construction
. The section and exhibit headings herein are for convenience only and shall not affect the construction
hereof. References herein to any law, statute, ordinance, code, regulation, rule or other requirement of any Governmental Authority
shall be deemed to refer to such law, statute, ordinance, code, regulation, rule or other requirement of any Governmental Authority
as amended, reenacted, supplemented or superseded in whole or in part and in effect from time to time and also to all rules and
regulations promulgated thereunder.
21.
Permitted Free Writing Prospectuses
. The Company represents, warrants and agrees that, unless it obtains the prior
written consent of the Agent, and the Agent represents, warrants and agrees that, unless it obtains the prior written consent of
the Company, it has not made and will not make any offer relating to the Placement Shares that would constitute an Issuer Free
Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required
to be filed with the Commission. Any such free writing prospectus consented to by the Agent or by the Company, as the case may
be, is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents and warrants that it
has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,”
as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted
Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. For the purposes
of clarity, the parties hereto agree that all free writing prospectuses, if any, listed in
Exhibit 21
hereto are Permitted
Free Writing Prospectuses.
22.
Absence of Fiduciary Relationship
. The Company acknowledges and agrees that:
(a)
the Agent is acting solely as agent in connection with the public offering of the Placement Shares and in connection with
each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship
between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any
other party, on the one hand, and the Agent, on the other hand, has been or will be created in respect of any of the transactions
contemplated by this Agreement, irrespective of whether or not the Agent has advised or is advising the Company on other matters,
and the Agent has no obligation to the Company with respect to the transactions contemplated by this Agreement except the obligations
expressly set forth in this Agreement;
(b)
it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions
contemplated by this Agreement;
(c)
neither the Agent nor its affiliates have provided any legal, accounting, regulatory or tax advice with respect to the transactions
contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has
deemed appropriate;
(d)
it is aware that the Agent and its affiliates are engaged in a broad range of transactions which may involve interests that
differ from those of the Company and the Agent and its affiliates have no obligation to disclose such interests and transactions
to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; and
(e)
it waives, to the fullest extent permitted by law, any claims it may have against the Agent or its affiliates for breach
of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and
agrees that the Agent and its affiliates shall not have any liability (whether direct or indirect, in contract, tort or otherwise)
to it in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on its behalf or in right of
it or the Company, employees or creditors of Company.
23.
Definitions
. As used in this Agreement, the following terms have the respective meanings set forth below:
“
Applicable Time
”
means (i) each Representation Date, (ii) the time of each sale of any Placement Shares pursuant to this Agreement and (iii) each
Settlement Date.
“
Governmental Authority
”
means (i) any federal, provincial, state, local, municipal, national or international government or governmental authority, regulatory
or administrative agency, governmental commission, department, board, bureau, agency or instrumentality, court, tribunal, arbitrator
or arbitral body (public or private); (ii) any self-regulatory organization; or (iii) any political subdivision of any of the foregoing.
“
Issuer Free Writing Prospectus
”
means any “issuer free writing prospectus,” as defined in Rule 433, relating to the Placement Shares that (1) is
required to be filed with the Commission by the Company, (2) is a “road show” that is a “written communication”
within the meaning of Rule 433(d)(8)(i) whether or not required to be filed with the Commission, or (3) is exempt from
filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Placement Shares or of the offering that does
not reflect the final terms, in each case in the form filed or required to be filed with the Commission or, if not required to
be filed, in the form retained in the Company’s records pursuant to Rule 433(g) under the Securities Act Regulations.
“
Rule 164
,” “
Rule
172
,” “
Rule 405
,” “
Rule 415
,” “
Rule 424
,”
“
Rule 424(b)
,” “
Rule 430B
,” and “
Rule 433
”
refer to such rules under the Securities Act Regulations.
All references in this Agreement to financial
statements and schedules and other information that is “contained,” “included” or “stated”
in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information that is incorporated by reference in the Registration Statement or
the Prospectus, as the case may be.
All references in this Agreement to the Registration
Statement, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with
the Commission pursuant to EDGAR; and all references in this Agreement to any Issuer Free Writing Prospectus (other than any Issuer
Free Writing Prospectuses that, pursuant to Rule 433, are not required to be filed with the Commission) shall be deemed to
include the copy thereof filed with the Commission pursuant to EDGAR.
[
Signature Page Follows
]
If the foregoing correctly sets forth the understanding
between the Company and the Agent, please so indicate in the space provided below for that purpose, whereupon this letter shall
constitute a binding agreement between the Company and the Agent.
|
|
Very truly yours,
|
|
|
|
|
|
ZOMEDICA PHARMACEUTICALS CORP.
|
|
|
|
|
|
By:
|
|
|
|
|
Name: Gerald Solensky, Jr.
|
|
|
|
Title: Chairman and CEO
|
|
|
ACCEPTED as of the date first-above written:
|
|
|
|
|
|
CANTOR FITZGERALD & CO.
|
|
|
|
|
|
By:
|
|
|
|
|
Name: Jeffrey Lumby
|
|
|
|
Title: Senior Managing Director
|
SCHEDULE 1
__________________________
Form of Placement Notice
__________________________
|
|
From:
|
Zomedica Pharmaceuticals Corp.
|
|
|
To:
|
Cantor Fitzgerald & Co.
Attention: [•]
|
|
|
Subject:
|
Placement Notice
|
Ladies and Gentlemen:
Pursuant to the terms and subject to the conditions
contained in the Sales Agreement between Zomedica Pharmaceuticals Corp., a corporation organized under the laws of Alberta, Canada
(the “
Company
”), and Cantor Fitzgerald & Co. (“
Agent
”), dated [•],
2018, the Company hereby requests that the Agent sell up to [•] of the Company’s common shares, no par value, at a minimum
market price of $[•] per share, during the time period beginning [month, day, time] and ending [month, day, time].
SCHEDULE 2
__________________________
Compensation
__________________________
The Company shall pay to the Agent in cash,
upon each sale of Placement Shares pursuant to this Agreement, an amount equal to 3.0% of the aggregate gross proceeds from each
sale of Placement Shares.
SCHEDULE 3
__________________________
Notice Parties
__________________________
The Company
Gerald Solensky, Jr. (jsolensky@zomedica.com)
Shameze Rampertab (srampertab@zomedica.com)
The Agent
Jeffrey Lumby (jlumby@cantor.com)
Joshua Feldman (jfeldman@cantor.com)
Sameer Vasudev (svasudev@cantor.com)
With copies to:
CFControlledEquityOffering@cantor.com
SCHEDULE 4
__________________________
Subsidiaries
__________________________
Incorporated by reference to Exhibit 21.1 of the Company’s most
recently filed Form 10-K.
Form of Representation Date Certificate Pursuant
to Section 7(l)
The undersigned, the duly qualified and elected [•], of Zomedica
Pharmaceuticals Corp, a corporation organized under the laws of Alberta, Canada (the “
Company
”), does hereby
certify in such capacity and on behalf of the Company and not in his or her individual capacity, pursuant to
Section 7(l)
of the Sales Agreement, dated [•], 2018 (the “
Sales Agreement
”), between the Company and Cantor Fitzgerald &
Co., that to the best of the knowledge of the undersigned:
(i) The representations and warranties of the Company in
Section 6
of the Sales Agreement (A) to the extent such representations and warranties are subject to qualifications and exceptions contained
therein relating to materiality or Material Adverse Effect, are true and correct on and as of the date hereof with the same force
and effect as if expressly made on and as of the date hereof, except for those representations and warranties that speak solely
as of a specific date and which were true and correct as of such date, and (B) to the extent such representations and warranties
are not subject to any qualifications or exceptions, are true and correct in all material respects as of the date hereof as if
made on and as of the date hereof;
provided
,
however
, that such representations and warranties also shall be qualified
by the disclosure included or incorporated by reference in the Registration Statement and Prospectus; and
(ii) The Company has complied in all material respects with all
agreements and satisfied in all material respects all conditions on its part to be performed or satisfied pursuant to the Sales
Agreement at or prior to the date hereof.
Capitalized terms used herein without definition
shall have the meanings given to such terms in the Sales Agreement.
|
|
ZOMEDICA PHARMACEUTICALS CORP
|
|
|
By:
|
|
|
|
Name:
|
|
|
|
Title:
|
|
Date: [•]
Form of Legal Opinion Pursuant to Section
7(m)
Capitalized terms used and not defined herein shall have the meanings
ascribed to them in the Sales Agreement.
1. The
Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of Alberta, Canada.
The Company has the corporate power and authority to own, lease and operate its properties and assets and to carry on its business
as now conducted (as described in the Registration Statement and the Prospectus).
2. The
Sales Agreement has been duly and validly authorized, executed and delivered by the Company.
3. The
Placement Shares have been duly authorized and, when issued and paid for pursuant to the terms of the Sales Agreement, will be
validly issued, fully paid and nonassessable and free of any preemptive or similar rights arising by operation of the Company’s
Articles of Incorporation or bylaws or the [insert name of corporate laws of Alberta] or, to our knowledge, rights of first refusal
or other similar rights to subscribe for the Placement Shares under any material agreement listed in the exhibit index to (i) the
Annual Report on Form 10-K (the “Form 10-K”), (ii) a Quarterly Report on Form 10-Q filed after the Form 10-K, or (iii)
a Current Report on Form 8-K filed after the Form 10-K (a “Material Agreement”).
4. The
Registration Statement filed with the Commission (No. 333-[•]) which registers the sale of the Placement Shares has been declared
effective by the Commission under the Securities Act of 1933, as amended (the “Securities Act”), and (based solely
on a review of the Commission’s web page of stop orders) no stop order suspending the effectiveness of the Registration Statement
under the Securities Act has been issued. To our knowledge, no proceedings for that purpose have been instituted or threatened.
Any required filing of the Prospectus pursuant to Rule 424(b) under the Securities Act has been made in the manner and within the
time required by Rule 424(b).
The Registration Statement and the Prospectus
(other than the financial statements and schedules and other financial data included or incorporated by reference therein, as to
which we express no opinion), appeared on their face to comply in all material respects as to form with the requirements of the
Securities Act and the rules and regulations of the Commission promulgated thereunder.
6. Each
of the Incorporated Documents, when it was filed with the Commission, appeared on its face to comply in all material respects as
to form with the requirements of the Exchange Act and the rules and regulations of the Commission promulgated thereunder.
7. The
execution, delivery and performance by the Company of, and the compliance by the Company with the terms of, the Sales Agreement
and the issuance, sale and delivery of the Placement Shares pursuant to the Sales Agreement do not (a) conflict with or result
in a violation of any provision of law, rule or regulation applicable to the Company or of the Articles of Incorporation or bylaws
of the Company, (b) result in a breach of or constitute a default (or an event which with notice or lapse of time or both would
become a default) under a Material Agreement, (c) result in any breach or violation of or constitute a default under any order,
writ, judgment or decree known to us to which the Company is a party or is subject
8. To
our knowledge, except as set forth in the Company’s filings with the Commission, there is (i) no claim, action, suit, proceeding,
arbitration, investigation or inquiry, pending or threatened, before any court or governmental or administrative body or agency,
or any private arbitration tribunal, against the Company, or any of its officers, directors or employees (in connection with the
discharge of their duties as officers, directors and employees), of the Company, or affecting any of its properties or assets and
(ii) no indenture, contract, lease, mortgage, deed of trust, note agreement, loan or other agreement or instrument of a character
required to be filed as an exhibit to the Registration Statement, which is not filed as required by the Securities Act and the
rules thereunder.
9. In
connection with the valid execution, delivery and performance by the Company of the Sales Agreement, or the offer, sale, issuance
or delivery of the Placement Shares or the consummation of the transactions contemplated thereby, no consent, license, permit,
waiver, approval or authorization of, or designation, declaration, registration or filing with, any governmental or regulatory
authority, self-regulatory organization, or court is required, other than registration pursuant to the Securities Act, approval
for listing of the Placement Shares on the Exchange and any approval required under the rules and regulations of FINRA, as to which
no opinion is given.
10. The
Company is not, and after giving effect to the offering and sale of the Placement Shares and the application of the proceeds thereof
as described in the Prospectus will not be, required to register as an Investment Company within the meaning of the Investment
Company Act of 1940, as amended.
11. The information included
in the Registration Statement and the Prospectus under the caption “Description of [Capital/Common] Stock,” to the
extent that it constitutes matters of law, summaries of legal matters, documents referred to therein or legal conclusions, has
been reviewed by us and fairly summarizes the matters set forth therein in all material respects.
The opinion of U.S. counsel will be accompanied by a standard Rule
10b-5 negative assurance letter, including the following:
Based on our participation, review and reliance
as described above, we advise you that no facts came to our attention that caused us to believe that:
·
the Registration Statement, as of its latest effective date, including the information deemed to be a part of the Registration
Statement pursuant to Rule 430B under the Securities Act (together with the Incorporated Documents at that time), contained an
untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; or
·
the Prospectus, as of its date or as of the date hereof (together with the Incorporated Documents at those dates), contained
or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
it being understood that we express no belief with respect to
the financial statements and schedules, or other financial or accounting data included or incorporated by reference in, or
omitted from, the Registration Statement, the Prospectus or the Incorporated Documents.
Exhibit 21
Permitted Free Writing Prospectus
[None.]
Exhibit 4.2
|
ZOMEDICA
PHARMACEUTICALS CORP., as Issuer
and
[●],
as Trustee
INDENTURE
Dated
as of [●]
Senior
Debt Securities
|
CROSS REFERENCE SHEET
1
Between
Provisions of the Trust Indenture Act of 1939 and the Indenture
to be dated as of _________, 20___ between and ___________________, as Trustee:
|
Section of the Act
|
|
Section of Indenture
|
|
310(a)(1) and (2)
|
|
5.08
|
|
310(a)(3) and (4)
|
|
Inapplicable
|
|
310(b)
|
|
5.09(a), (b) and (d)
|
|
310(c)
|
|
Inapplicable
|
|
311(a)
|
|
Inapplicable
|
|
311(b)
|
|
Inapplicable
|
|
311(c)
|
|
Inapplicable
|
|
312(a)
|
|
3.05
|
|
312(b)
|
|
3.05
|
|
312(c)
|
|
4.02(c)
|
|
313(a)
|
|
5.12
|
|
313(b)(1)
|
|
5.12
|
|
313(b)(2)
|
|
5.12
|
|
313(c)
|
|
5.12
|
|
313(d)
|
|
5.12
|
|
314(a)
|
|
3.06
|
|
314(b)
|
|
Inapplicable
|
|
314(c)(1) and (2)
|
|
10.05
|
|
314(c)(3)
|
|
Inapplicable
|
|
314(d)
|
|
Inapplicable
|
|
314(e)
|
|
10.05
|
|
314(f)
|
|
Inapplicable
|
|
315(a), (c) and (d)
|
|
5.01
|
|
315(b)
|
|
4.11
|
|
315(e)
|
|
4.12
|
|
316(a)(1)
|
|
4.09
|
|
316(a)(2)
|
|
Not required
|
|
316(a) (last sentence)
|
|
6.04
|
|
316(b)
|
|
4.07
|
|
317(a)
|
|
4.02
|
|
317(b)
|
|
3.03(a) and (b)
|
|
318(a)
|
|
10.07
|
|
1
|
This Cross Reference Sheet is not part of the Indenture.
|
TABLE
OF CONTENTS
|
|
Page
|
|
Article 1 DEFINITIONS
|
1
|
|
Section 1.01 Certain Terms Defined
|
1
|
|
Article 2 SECURITIES
|
8
|
|
Section 2.01 Forms Generally
|
8
|
|
Section 2.02 Form of Trustee’s Certification of Authentication
|
8
|
|
Section 2.03 Amount Unlimited; Issuable in Series
|
9
|
|
Section 2.04 Authentication and Delivery of Securities
|
10
|
|
Section 2.05 Execution of Securities
|
11
|
|
Section 2.06 Certificate of Authentication
|
12
|
|
Section 2.07 Denomination and Date of Securities; Payments of Interest
|
12
|
|
Section 2.08 Registration, Transfer and Exchange
|
12
|
|
Section 2.09 Mutilated, Defaced, Destroyed, Lost and Stolen Securities
|
15
|
|
Section 2.10 Cancellation of Securities; Destruction Thereof
|
16
|
|
Section 2.11 Temporary Securities
|
16
|
|
Section 2.12 Computation of Interest
|
16
|
|
Section 2.13 CUSIP Numbers
|
16
|
|
Article 3 COVENANTS OF THE ISSUER AND THE TRUSTEE
|
17
|
|
Section 3.01 Payment of Principal and Interest
|
17
|
|
Section 3.02 Offices for Payments, etc
|
17
|
|
Section 3.03 Paying Agents
|
18
|
|
Section 3.04 Certificate of the Issuer
|
18
|
|
Section 3.05 List of Securityholders
|
19
|
|
Section 3.06 Reports by the Issuer
|
19
|
|
Section 3.07 Corporate Existence
|
20
|
|
Section 3.08 Restrictions on Mergers, Sales and Consolidations
|
20
|
|
Section 3.09 Further Assurances
|
20
|
|
Article 4 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
|
20
|
|
Section 4.01 Event of Default Defined; Acceleration of Maturity; Waiver of Default
|
20
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Section 4.02 Collection of Indebtedness by Trustee; Trustee May Prove Debt
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Section 4.03 Application of Proceeds
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24
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Section 4.04 Suits for Enforcement
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25
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Section 4.05 Restoration of Rights on Abandonment of Proceedings
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25
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Section 4.06 Limitations on Suits by Securityholder
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25
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Section 4.07 Unconditional Right of Securityholders to Institute Certain Suits
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26
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Section 4.08 Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default
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26
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Section 4.09 Control by Securityholders
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26
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Section 4.10 Waiver of Past Defaults
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26
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Section 4.11 Trustee to Give Notice of Default, But May Withhold in Certain Circumstances
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27
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Section 4.12 Right of Court to Require Filing of Undertaking to Pay Costs
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27
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Article 5 CONCERNING THE TRUSTEE
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27
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Section 5.01 Duties and Responsibilities of the Trustee
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27
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Section 5.02 Certain Rights of the Trustee
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29
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Section 5.03 Trustee Not Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof
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30
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Section 5.04 Trustee and Agents May Hold Securities; Collections, etc
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Section 5.05 Monies Held by Trustee
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30
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Section 5.06 Compensation and Indemnification of Trustee and Its Prior Claim
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Section 5.07 Right of Trustee to Rely on Officers’ Certificate, etc
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Section 5.08 Persons Eligible for Appointment as Trustee
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Section 5.09 Resignation and Removal; Appointment of Successor Trustee
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Section 5.10 Acceptance of Appointment by Successor
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Section 5.11 Merger, Conversion, Consolidation or Succession to Business of Trustee
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Section 5.12 Reports to the Trustee
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Article 6 CONCERNING THE SECURITYHOLDERS
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34
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Section 6.01 Evidence of Action Taken by Securityholders
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Section 6.02 Proof of Execution of Instruments and of Holding of Securities; Record Date
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Section 6.03 Holders to be Treated as Owners
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Section 6.04 Securities Owned by Issuer Deemed Not Outstanding
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Section 6.05 Right of Revocation of Action Taken
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Article 7 SUPPLEMENTAL INDENTURES
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Section 7.01 Supplemental Indentures Without Consent of Securityholders
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Section 7.02 Supplemental Indentures With Consent of Securityholders
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Section 7.03 Effect of Supplemental Indenture
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Section 7.04 Documents to Be Given to Trustee
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Section 7.05 Notation on Securities in Respect of Supplemental Indentures
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Article 8 CONSOLIDATION, MERGER, SALE OR CONVEYANCE
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Section 8.01 Issuer May Consolidate, etc., on Certain Terms
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Section 8.02 Successor Corporation Substituted
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Article 9 DISCHARGE OF INDENTURE
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Section 9.01 Defeasance Within One Year of Payment
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Section 9.02 Defeasance
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Section 9.03 Covenant Defeasance
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Section 9.04 Application of Trust Money
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Section 9.05 Repayment to Issuer
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Article 10 MISCELLANEOUS PROVISIONS
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Section 10.01 Incorporators, Stockholders, Officers and Directors Exempt from Individual Liability
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Section 10.02 Provisions of Indenture for the Sole Benefit of Parties and Securityholders
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Section 10.03 Successors and Assigns of Issuer Bound by Indenture
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Section 10.04 Notices and Demands on Issuer, Trustee and Securityholders
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Section 10.05 Officers’ Certificates and Opinions of Counsel; Statements to be Contained Therein
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Section 10.06 Payments Due on Saturdays, Sundays and Holidays
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Section 10.07 Conflict of Any Provision of Indenture with Trust Indenture Act of 1939
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Section 10.08 New York Law to Govern
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Section 10.09 Counterparts
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Section 10.10 Effect of Headings
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Article 11 REDEMPTION OF SECURITIES
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Section 11.01 Applicability of Article
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Section 11.02 Notice of Redemption; Partial Redemptions
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Section 11.03 Payment of Securities Called for Redemption
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Section 11.04 Exclusion of Certain Securities from Eligibility for Selection for Redemption
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Section 11.05 Conversion Arrangement On Call For Redemption
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Article 12 CONVERSION OF SECURITIES
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Section 12.01 Applicability of Article
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Section 12.02 Right of Securityholders to Convert Securities
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Section 12.03 Issuance of Shares of Capital Stock on Conversion
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Section 12.04 No Payment or Adjustment for Interest or Dividends
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Section 12.05 Adjustment of Conversion Rate
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Section 12.06 No Fractional Shares to Be Issued
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Section 12.07 Preservation of Conversion Rights Upon Consolidation, Merger, Sale or Conveyance
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Section 12.08 Notice to Security Holders of a Series Prior to Taking Certain Types of Action
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55
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Section 12.09 Covenant to Reserve Shares for Issuance on Conversion of Securities
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Section 12.10 Compliance with Governmental Requirements
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Section 12.11 Payment of Taxes Upon Certificates for Shares Issued Upon Conversion
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Section 12.12 Trustee’s Duties with Respect to Conversion Provisions
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THIS INDENTURE, dated
as of , between ZOMEDICA PHARMACEUTICALS CORP., a corporation organized under the laws of Alberta, Canada (the “
Issuer
”)
and ●, a ● corporation, as trustee (the “
Trustee
”).
W I T N E S S E T H:
WHEREAS, the Issuer
has duly authorized the issue from time to time of its senior debentures, notes or other evidences of indebtedness to be issued
in one or more series (the “Securities”) up to such principal amount or amounts as may from time to time be authorized
in accordance with the terms of this Indenture and to provide, among other things, for the authentication, delivery and administration
thereof, the Issuer has duly authorized the execution and delivery of this Indenture; and
WHEREAS, all things
necessary to make this Indenture a valid indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of
the premises and the purchases of the Securities by the Holders thereof, the Issuer and the Trustee mutually covenant and agree
for the equal and proportionate benefit of the respective Holders from time to time of the Securities as follows:
Article
1
DEFINITIONS
Section 1.01
Certain Terms Defined
. The following terms (except as otherwise expressly provided or unless the context otherwise
clearly requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings
specified in this Section. All other terms used in this Indenture that are defined in the Trust Indenture Act of 1939 or the definitions
of which in the Securities Act of 1933 are referred to in the Trust Indenture Act of 1939, as amended, including terms defined
therein by reference to the Securities Act of 1933, as amended, (except as herein otherwise expressly provided or unless the context
otherwise clearly 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 this Indenture. All accounting terms used herein and not expressly defined shall have the meanings
assigned to such terms in accordance with GAAP. The words “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.
The terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular.
“
Affiliate
”
of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition, “control” when used with respect to
any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled”
have meanings correlative to the foregoing.
“
Authorized
Newspaper
” means a newspaper in the English language or in an official language of the country of publication, customarily
printed on each Business Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation in the place
in connection with which the term is used or in the financial community of such place. If, because of temporary suspension of publication
or general circulation of any newspaper or for any other reason, it is impossible or impracticable to make any publication of any
notice required by this Indenture in the manner herein provided, such publication or other notice in lieu thereof which is made
at the written direction of the Issuer by the Trustee shall constitute a sufficient publication of such notice.
“
Board of
Directors
” means either the Board of Directors of the Issuer or any committee of such Board duly authorized to act hereunder.
“
Business
Day
” means, with respect to any Security, a day that in the city (or in all of the cities, if more than one) in which
amounts are payable, as specified in the form of such Security, is not a day on which banking institutions are authorized by law
or regulation to close.
“
Capitalized
Lease
” means, as applied to any Person, any lease of any property (whether real, personal, or mixed) of which the discounted
present value of the rental obligations of such Person as lessee, in conformity with GAAP, is required to be capitalized on the
balance sheet of such Person; and “
Capitalized Lease Obligation
” is defined to mean the rental obligations,
as aforesaid, under such lease.
“
Capital Stock
”
means any and all shares, interests, participations or other equivalents (however designated, whether voting or non-voting) of
the Issuer’s capital stock or other ownership interests, whether now outstanding or issued after the date of this Indenture,
including, without limitation, all Common Stock and Preferred Stock.
“
Closing Price
”
on any day when used with respect to any class of Capital Stock means the closing sale price per share (or if no closing sale price
is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the
average ask prices) on that date as reported by NYSE American
or, if such Capital Stock
is not listed on NYSE American, then on the principal U.S. national or regional securities exchange on which such Capital Stock
is then listed. If such Capital Stock is not listed on either NYSE American or on any U.S. national or regional securities exchange
on the relevant date, the Closing Price will be the last quoted bid price for the Company’s Common Stock in the over-the-counter
market on the relevant date as reported by the OTC Markets Group Inc. or similar organization. In the event that no such quotation
is available for any day, the Board of Directors shall be entitled to determine in good faith the current market price on the basis
of such quotations as it considers appropriate.
“
Commission
”
means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934,
or if at any time after the execution and delivery of this Indenture such Commission is not existing and performing the duties
now assigned to it under the Trust Indenture Act, then the body performing such duties on such date.
“
Common Stock
”
means any and all shares, interests, participations or other equivalents (however designated, whether voting or non-voting) of
the Issuer’s common stock, without nominal or par value, whether now outstanding or issued after the date of the Indenture,
including, without limitation, all series and classes of such common stock.
“
Corporate
Trust Office
” means the office of the Trustee at which the corporate trust business of the Trustee shall, at any particular
time, be principally administered, which office is, at the date as of which this Indenture is dated, located at
[
●].
“
Currency
Agreement
” means any foreign exchange contract, currency swap agreement, or other similar agreement or arrangement designed
to protect against the fluctuation in currency values.
“
Default
”
means any Event of Default as defined in Section 4.01 and any event that is, or after notice or passage of time or both would be,
an Event of Default.
“
Depositary
”
means, with respect to the Securities of any series issuable or issued in the form of one or more Registered Global Securities,
the Person designated as Depositary by the Issuer pursuant to Section 2.03 until a successor Depositary shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter “Depositary” shall mean or include each Person
who is then a Depositary hereunder, and if at any time there is more than one such Person, “Depositary” as used with
respect to the Securities of any such series shall mean the Depositary with respect to the Registered Global Securities of that
series.
“
Determination
Date
” has the meaning specified in Section 12.05.
“
Event of
Default
” has the meaning specified in Section 4.01.
“
GAAP
”
means generally accepted accounting principles in the United States of America as in effect as of the date of determination, including,
without limitation, those set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute
of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the accounting profession. All ratios and computations
contained in this Indenture shall be computed in conformity with GAAP applied on a consistent basis.
“
Guarantee
”
means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness or other obligation
of any other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise,
of such Person:
(i) to purchase or
pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation of such other Person (whether
arising by virtue of partnership arrangements, or by agreement to keep-well, to purchase assets, goods, securities, or services,
to take-or-pay, or to maintain financial statement conditions or otherwise); or
(ii) entered into for
purposes of assuring in any other manner the obligee of such Indebtedness or other obligation of the payment thereof or to protect
such obligee against loss in respect thereof (in whole or in part);
provided
, that the term “
Guarantee
”
shall not include endorsements for collection or deposit in the ordinary course of business. The term “
Guarantee
”
used as a verb has a corresponding meaning.
“
Holder
”,
“
Securityholder
” or other similar terms mean the registered holder of any Security.
“
Indebtedness
”
means, with respect to any Person at any date of determination (without duplication):
(i) all indebtedness
of such Person for borrowed money;
(ii) all obligations
of such Person evidenced by bonds, debentures, notes, or other similar instruments, in each case, for value received or settlement
of claims;
(iii) all obligations
of such Person in respect of letters of credit or other similar instruments (including reimbursement obligations with respect thereto);
(iv) all obligations
of such Person to pay the deferred and unpaid purchase price of property or services (but excluding trade accounts payable or accrued
liabilities arising in the ordinary course of business);
(v) all obligations
of such Person as lessee under Capitalized Leases;
(vi) all Indebtedness
of other Persons secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person;
provided
that the amount of such Indebtedness shall be the lesser of:
(1) the fair market value
of such asset at such date of determination; and
(2) the amount of such
Indebtedness;
(vii) all Indebtedness
of other Persons to the extent Guaranteed by such Person; and
(viii) to the extent
not otherwise included in this definition, obligations under Currency Agreements and Interest Rate Agreements.
Notwithstanding the
foregoing, in no event shall the term “Indebtedness” be deemed to include letters of credit or bonds that secure performance
or surety bonds or similar instruments that are issued in the ordinary course of business.
The amount of Indebtedness
of any Person at any date shall be the outstanding balance at such date of all unconditional obligations as described above and,
with respect to contingent obligations, the maximum liability upon the occurrence of the contingency giving rise to the obligation;
provided that:
(x) the amount outstanding
at any time of any Indebtedness issued with original issue discount is the face amount of such Indebtedness less the remaining
unamortized portion of the original issue discount of such Indebtedness at such time as determined in conformity with GAAP; and
(y) Indebtedness shall
not include any liability for federal, state, local, or other taxes.
“
Indenture
”
means this instrument as originally executed and delivered or, if amended or supplemented as herein provided, as so amended or
supplemented or both, and shall include the forms and terms of particular series of Securities established as contemplated hereunder.
“
Interest
”
means, when used with respect to non-interest bearing Securities, interest payable after maturity. “Interest Rate Agreement”
means any obligation of any Person pursuant to any interest rate swap, cap, collar or similar arrangement providing protection
against fluctuations in interest rates. For purposes of the Indenture, the amount of such obligation shall be the amount determined
in respect thereof as of the end of the then most recently ended fiscal quarter of such Person, based on the assumption that such
obligation had terminated at the end of such fiscal quarter, and in making such determination, if any agreement relating to such
obligation provides for the netting of amounts payable by and to such Person thereunder or if any such agreement provides for the
simultaneous payment of amounts by and to such Person, then in each such case, the amount of such obligation shall be the net amount
so determined, plus any premium due upon default by such Person.
“
Issuer
”
means the Person identified as “Issuer” in the first paragraph hereof and, subject to Article 8, its successors and
assigns.
“
Lien
”
means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind, or any other
type of preferential arrangement that has the practical effect of creating a security interest, in respect of such asset. For the
purposes of this Indenture, the Issuer shall be deemed to own subject to a Lien any asset that it has acquired or holds subject
to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement relating
to such asset.
“
Officers’
Certificate
” means a certificate signed by the chairman of the Issuer’s Board of Directors, its president or any
vice president, and by its treasurer, any assistant treasurer, its secretary or any assistant secretary of the Issuer, and delivered
to the Trustee. Each such certificate shall comply with Section 314 of the Trust Indenture Act of 1939 and include the statements
provided for in Section 10.05.
“
Opinion of
Counsel
” means an opinion in writing signed by legal counsel who may be an employee of or counsel to the Issuer and who
shall be satisfactory to the Trustee. Each such opinion shall comply with Section 314 of the Trust Indenture Act of 1939 and include
the statements provided for in Section 10.05, if and to the extent required hereby.
“
Original
Issue Date
” of any Security (or portion thereof) means the earlier of (i) the date of such Security or (ii) the date
of any Security (or portion thereof) for which such Security was issued (directly or indirectly) on registration of transfer, exchange
or substitution.
“
Original
Issue Discount Security
” means any Security that provides for an amount less than the Principal amount thereof to be
due and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 4.01.
“
Outstanding
”,
when used with reference to Securities, shall, subject to the provisions of Section 6.04, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture, except:
(i) Securities theretofore
canceled by the Trustee or delivered to the Trustee for cancellation;
(ii) Securities, or
portions thereof, for the payment or redemption of which monies in the necessary amount shall have been deposited in trust with
the Trustee or with any paying agent (other than the Issuer) or shall have been set aside, segregated and held in trust by the
Issuer for the Holders of such Securities (if the Issuer shall act as its own paying agent), provided that if such Securities,
or portions thereof, are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as herein
provided, or provision satisfactory to the Trustee shall have been made for giving such notice; and
(iii) Securities in
substitution for which other Securities shall have been authenticated and delivered, or which shall have been paid, pursuant to
the terms of Section 2.09 (except with respect to any such Security as to which proof satisfactory to the Trustee is presented
that such Security is held by a person in whose hands such Security is a legal, valid and binding obligation of the Issuer).
In determining whether
the Holders of the requisite Principal amount of Outstanding Securities of any or all series have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the Principal amount of an Original Issue Discount Security that shall be deemed
to be Outstanding for such purposes shall be the amount of the Principal thereof that would be due and payable as of the date of
such determination upon a declaration of acceleration of the maturity thereof pursuant to Section 4.01.
“
Person
”
means any individual, corporation, partnership, limited liability company, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision thereof or any other entity.
“
Preferred
Stock
” means any and all shares, interests, participations or other equivalents (however designated, whether voting or
non-voting) of the Issuer’s preferred stock, without nominal or par value, whether now outstanding or issued after the date
of the Indenture, including, without limitation, all series and classes of such preferred stock.
“
Principal
”
means, with respect to the Securities or any Security or any portion thereof, the principal amount of such Securities, Security
or portion thereof, and shall be deemed to include “and premium, if any”.
“
record date
”
as used with respect to any interest payment date (except a date for payment of defaulted interest), has the meaning specified
in Section 2.07.
“
Registered
Global Security
” means a Security evidencing all or a part of a series of Registered Securities, issued to the Depositary
for such series in accordance with Section 2.04, and bearing the legend prescribed in Section 2.04.
“
Registered
Security
” means any Security registered on the register maintained by the Issuer pursuant to Section 2.08.
“
Responsible
Officer
” when used with respect to the Trustee means any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer
of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the administration of this Indenture.
“
Security
”
or “
Securities
” has the meaning stated in the first recital of this Indenture, or, as the case may be, Securities
that have been authenticated and delivered under this Indenture.
“
Subsidiary
”
means, with respect to any Person, any corporation, association or other business entity of which more than 50% of all votes represented
by all classes of outstanding Voting Stock is owned, directly or indirectly, by such Person and one or more other Subsidiaries
of such Person.
“
Trustee
”
means the Person identified as “
Trustee
” in the first paragraph hereof and, subject to the provisions of Article
5, shall also include any successor trustee.
“
Trust Indenture
Act of 1939
” (except as otherwise provided in Section 7.01 and 7.02) means the Trust Indenture Act of 1939 as in force
at the date as of which this Indenture was originally executed.
“
UCC
”
means the Uniform Commercial Code, as in effect in each applicable jurisdiction.
“
Unregistered
Security
” means any Security other than a Registered Security.
“
U.S. Government
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 an agency of instrumentality of the United States of America the payment
of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, and shall also include
a depository receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder
of a depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from
the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of interest on or principal of the U.S. Government Obligation evidenced by such depository receipt.
“
Voting Stock
”
means, with respect to any Person, capital stock of any class or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
“
vice president
”
when used with respect to the Issuer or the Trustee, means any vice president, whether or not designated by a number or a word
or words added before or after the title of “
vice president
”.
“
Wholly-Owned
”
is defined to mean, with respect to any Subsidiary of any Person, such Subsidiary if all of the outstanding common stock or other
similar equity ownership interests (but not including preferred stock) in such Subsidiary (other than any director’s qualifying
shares or investments by foreign nationals mandated by applicable law) is owned directly or indirectly by such Person.
“
Yield to
Maturity
” means the yield to maturity on a series of securities, calculated at the time of issuance of such series, or,
if applicable, at the most recent redetermination of interest on such series, and calculated in accordance with accepted financial
practice.
Article
2
SECURITIES
Section 2.01
Forms Generally
. The Securities of each series shall be substantially in such form (not inconsistent with this Indenture)
as shall be established by or pursuant to a resolution of the Board of Directors or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this
Indenture and may have imprinted or otherwise reproduced thereon such legend or legends, not inconsistent with the provisions of
this Indenture, as may be required to comply with any law or with any rules or regulations pursuant thereto, or with any rules
of any securities exchange or to conform to general usage, all as may be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. The Issuer shall furnish any such legends to the Trustee in writing.
The definitive Securities
shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of such Securities.
Section 2.02
Form of Trustee’s Certification of Authentication
. The Trustee’s certificate of authentication on all
Securities shall be in substantially the following form:
This is one of the
Securities of the series designated herein and referred to in the within-mentioned Indenture.
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as Trustee
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By:
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Authorized Signatory:
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Section 2.03
Amount Unlimited; Issuable in Series
. The aggregate Principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may
be issued in one or more series. There shall be established in or pursuant to a resolution of the Board of Directors and set forth
in an Officers’ Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities
of any series:
(a)
the title of the Securities of the series (which shall distinguish the Securities of the series from all other Securities);
(b)
any limit upon the aggregate Principal amount of the Securities of the 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 the series pursuant to Section 2.08, 2.09, 2.11 or Section 12.03);
(c)
the date or dates on which the Principal of the Securities of the series is payable;
(d)
the rate or rates at which the Securities of the series shall bear interest, if any, or the method by which such rate shall
be determined, the date or dates from which such interest shall accrue, the interest payment dates on which such interest shall
be payable and the record dates for the determination of Holders to whom interest is payable;
(e)
the place or places where the Principal of and any interest on Securities of the series shall be payable (if other than
as provided in Section 3.02);
(f)
the price or prices at which, the period or periods within 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 Issuer;
(g)
the obligation, if any, of the Issuer to redeem, purchase or repay Securities of the series at the option of a Holder thereof
and the price or prices at which, the period or periods within which and the terms and conditions upon which Securities of the
series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
(h)
the obligation, if any, of the Issuer to permit the conversion of the Securities of such series into Capital Stock, and
the terms and conditions upon which such conversion shall be effected (including, without limitation, the initial conversion price
or rate, the conversion period and any other provision in addition to or in lieu of those set forth in this Indenture relative
to such obligation);
(i)
if other than denominations of $1,000 and any multiple thereof, the denominations in which Securities of the series shall
be issuable;
(j)
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 4.01 or provable in bankruptcy pursuant
to Section 4.02;
(k)
if the Securities of the series are issuable in whole or in part as one or more Registered Global Securities, the identity
of the Depositary for such Registered Global Security or Securities;
(l)
any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture); and
(m)
any trustees, authenticating or paying agents, transfer agents or registrar or any other agents with respect to the Securities
of such series.
All Securities of any
one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to
such resolution of the Board of Directors or in any such indenture supplemental hereto.
Section 2.04
Authentication and Delivery of Securities
. At any time and from time to time after the execution and delivery of
this Indenture, the Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication, and the
Trustee shall thereupon authenticate and deliver such Securities to or upon the written order of the Issuer, such order to be signed
by both (a) the chairman of its Board of Directors, its president or any vice president and by its treasurer, any assistant treasurer,
its secretary or any assistant secretary, without any further action by the Issuer. In authenticating such Securities and accepting
the additional responsibilities under this Indenture in relation to such Securities the Trustee shall receive, and (subject to
Section 5.01) shall be fully protected in relying upon:
(a)
a certified copy of any resolution or resolutions of the Board of Directors authorizing the action taken pursuant to the
resolution or resolutions delivered under clause (b) below;
(b)
a copy of any resolution or resolutions of the Board of Directors relating to such series, in each case certified by the
secretary or an assistant secretary of the Issuer;
(c)
an executed supplemental indenture, if any, and the documentation required to be delivered pursuant to Section 7.04;
(d)
an Officers’ Certificate setting forth the form and terms of the Securities as required pursuant to Section 2.01 and
2.03, respectively and prepared in accordance with Section 10.05;
(e)
an Opinion of Counsel, prepared in accordance with Section 10.05, to the effect:
(i)
that the form or forms and terms of such Securities have been established by or pursuant to a resolution of the Board of
Directors or by a supplemental indenture as permitted by Section 2.01 and 2.03 in conformity with the provisions of this Indenture;
and
(ii)
that such Securities, when authenticated and delivered by the Trustee and issued by the Issuer in the manner and subject
to any conditions specified in such Opinion of Counsel, will constitute valid and binding obligations of the Issuer enforceable
against the Issuer in accordance with their terms, except to the extent that enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or similar laws now or hereafter in effect relating to creditors’
rights generally, and general principles of equity (regardless of whether enforceability is considered in a proceeding in equity
or at law).
The Trustee shall have
the right to decline to authenticate and deliver any Securities under this section if the Trustee, being advised by counsel, determines
that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of
trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such
action would expose the Trustee to personal liability.
If the Issuer shall
establish pursuant to Section 2.03 that the Securities of a series or a portion thereof are to be issued in the form of one or
more Registered Global Securities, then the Issuer shall execute (in accordance with Section 2.05) and the Trustee shall authenticate
and make available for delivery one or more Registered Global Securities that (i) shall represent and shall be denominated in an
amount equal to the aggregate Principal amount of all of the Securities of such series issued in such form and not yet canceled,
(ii) shall be registered in the name of the Depositary for such Registered Global Security or Securities or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such Depositary or its custodian or pursuant to such Depositary’s
instructions and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole
or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depositary
to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.”
Section 2.05
Execution of Securities
. The Securities shall be signed on behalf of the Issuer by the chairman of its Board of Directors,
its president, any vice president, its treasurer or any assistant treasurer, under its corporate seal and attested by its secretary
or any assistant secretary. Such signatures may be the manual or facsimile signatures of the present or any future such officers.
The seal of the Issuer may be in the form of a facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced
on the Securities. Typographical and other minor errors or defects in any such reproduction of the seal or any such signature shall
not affect the validity or enforceability of any Security that has been duly authenticated and delivered by the Trustee.
In case any officer
of the Issuer who shall have signed any of the Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Issuer, such Security nevertheless may be authenticated and delivered
or disposed of as though the person who signed such Security had not ceased to be such officer of the Issuer; and any Security
may be signed on behalf of the Issuer by such persons as, at the actual date of the execution of such Security, shall be the proper
officers of the Issuer, although at the date of the execution and delivery of this Indenture any such person was not such an officer.
Section 2.06
Certificate of Authentication
. Only such Securities as shall bear thereon a certificate of authentication substantially
in the form hereinbefore recited, executed by the Trustee by the manual signature of one of its authorized signatories, shall be
entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee upon any
Security executed by the Issuer shall be conclusive evidence that the Security so authenticated has been duly authenticated and
delivered hereunder and that the Holder is entitled to the benefits of this Indenture.
Section 2.07
Denomination and Date of Securities; Payments of Interest
. The Securities shall be issuable as registered securities
without coupons and in denominations as shall be specified as contemplated by Section 2.03. In the absence of any such specification
with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $1,000 and any
multiple thereof. The Securities shall be numbered, lettered, or otherwise distinguished in such manner or in accordance with such
plan as the officers of the Issuer executing the same may determine as evidenced by the execution and authentication thereof.
Each Security shall
be dated the date of its authentication, shall bear interest, if any, from the date and shall be payable on the dates, in each
case, which shall be specified as contemplated by Section 2.03.
The person in whose
name any Security of any series is registered at the close of business on any record date applicable to a particular series with
respect to any interest payment date for such series shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Security subsequent to the record date and prior to such interest
payment date, except if and to the extent the Issuer shall default in the payment of the interest due on such interest payment
date for such series, in which case such defaulted interest shall be paid to the persons in whose names Outstanding Securities
for such series are registered at the close of business on a subsequent record date (which shall be not less than five Business
Days prior to the date of payment of such defaulted interest) established by notice given by mail by or on behalf of the Issuer
to the Holders of Securities not less than 15 days preceding such subsequent record date. The term “
record date
”
as used with respect to any interest payment date (except a date for payment of defaulted interest) shall mean the date specified
as such in the terms of the Securities of any particular series, or, if no such date is so specified, if such interest payment
date is the first day of a calendar month, the fifteenth day of the next preceding calendar month or, if such interest payment
date is the fifteenth day of a calendar month, the first day of such calendar month, whether or not such record date is a Business
Day.
Section 2.08
Registration, Transfer and Exchange
. The Issuer will keep or cause to be kept at each office or agency to be maintained
for the purpose as provided in Section 3.02 a register or registers in which, subject to such reasonable regulations as it may
prescribe, it will register, and will register the transfer of, Securities as in this Article provided. Such register shall be
in written form in the English language or in any other form capable of being converted into such form within a reasonable time.
At all reasonable times such register or registers shall be open for inspection by the Trustee.
At the option of the
Holder thereof, Registered Securities of any series (other than a Registered Global Security, except as set forth below) may be
exchanged for a Registered Security or Registered Securities of such series and tenor having authorized denominations and an equal
aggregate Principal amount, upon surrender of such Registered Securities to be exchanged at the agency of the Issuer that shall
be maintained for such purpose in accordance with Section 3.02 and upon payment, if the Issuer shall so require, of the charges
hereinafter provided. If the Securities of any series are issued in both registered and unregistered form, except as otherwise
established pursuant to Section 2.03, at the option of the Holder thereof, Unregistered Securities of any series may be exchanged
for Registered Securities of such series and tenor having authorized denominations and an equal aggregate Principal amount, upon
surrender of such Unregistered Securities to be exchanged at the agency of the Issuer that shall be maintained for such purpose
in accordance with Section 3.02 and upon payment, if the Issuer shall so require, of the charges hereinafter provided. At the option
of the Holder thereof, if Unregistered Securities of any series, maturity date, interest rate and Original Issue Date are issued
in more than one authorized denomination, except as otherwise established pursuant to Section 2.03, such Unregistered Securities
may be exchanged for Unregistered Securities of such series and tenor having authorized denominations and an equal aggregate Principal
amount, upon surrender of such Unregistered Securities to be exchanged at the agency of the Issuer that shall be maintained for
such purpose in accordance with Section 3.02 and upon payment, if the Issuer shall so require, of the charges hereinafter provided.
Registered Securities of any series may not be exchanged for Unregistered Securities of such series. Whenever any Securities are
so surrendered for exchange, the Issuer shall execute, and the Trustee shall authenticate and make available for delivery, the
Securities which the Holder making the exchange is entitled to receive.
All Registered Securities
presented for registration of transfer, exchange, redemption, conversion or payment shall be duly endorsed by, or be accompanied
by a written instrument or instruments of transfer in form satisfactory to the Issuer and the Trustee duly executed by, the Holder
or his attorney duly authorized in writing.
The Issuer may require
payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities. No service charge shall be made for any such transaction.
Notwithstanding any
other provision of this Section 2.08, unless and until it is exchanged in whole or in part for Securities in definitive registered
form, a Registered Global Security representing all or a portion of the Securities of a series may not be transferred except as
a whole by the Depositary for such series to a nominee of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee to a successor Depositary for such series or a
nominee of such successor Depositary.
If at any time the
Depositary for any Registered Global Securities of any series notifies the Issuer that it is unwilling or unable to continue as
Depositary for such Registered Global Securities or if at any time the Depositary for such Registered Global Securities shall no
longer be eligible under applicable law, the Issuer shall appoint a successor Depositary eligible under applicable law with respect
to such Registered Global Securities. If a successor Depositary eligible under applicable law for such Registered Global Securities
is not appointed by the Issuer within 90 days after the Issuer receives such notice or becomes aware of such ineligibility, the
Issuer will execute, and the Trustee, upon receipt of the Issuer’s order for the authentication and delivery of definitive
Registered Securities of such series and tenor, will authenticate and make available for delivery Registered Securities of such
series and tenor, in any authorized denominations, in an aggregate Principal amount equal to the Principal amount of such Registered
Global Securities, in exchange for such Registered Global Securities.
The Issuer may at any
time and in its sole discretion determine that any Registered Global Securities of any series shall no longer be maintained in
global form. In such event, or in the event that there shall have occurred and be continuing an Event of Default with respect to
a series of Securities, the Issuer will, upon the request of any Holder, execute, and the Trustee, upon receipt of the Issuer’s
order for the authentication and delivery of definitive Registered Securities of such series and tenor, will authenticate and make
available for delivery, Registered Securities of such series and tenor in any authorized denominations, in an aggregate Principal
amount equal to the Principal amount of such Registered Global Securities, in exchange for such Registered Global Securities.
Any time the Registered
Securities of any series are not in the form of Registered Global Securities pursuant to the preceding two paragraphs, the Issuer
agrees to supply the Trustee with a reasonable supply of certificated Registered Securities without the legend required by Section
2.04 and the Trustee agrees to hold such Registered Securities in safekeeping until authenticated and delivered pursuant to the
terms of this Indenture.
If established by the
Issuer pursuant to Section 2.03 with respect to any Registered Global Security, the Depositary for such Registered Global Security
may surrender such Registered Global Security in exchange in whole or in part for Registered Securities of the same series and
tenor in definitive registered form on such terms as are acceptable to the Issuer and such Depositary. Thereupon, the Issuer shall
execute, and the Trustee shall authenticate and make available for delivery, without service charge,
(i)
to the Person specified by such Depositary new Registered Securities of the same series and tenor, of any authorized denominations
as requested by such Person, in an aggregate Principal amount equal to and in exchange for such Person’s beneficial interest
in the Registered Global Security; and
(ii)
to such Depositary a new Registered Global Security in a denomination equal to the difference, if any, between the Principal
amount of the surrendered Registered Global Security and the aggregate Principal amount of Registered Securities authenticated
and delivered pursuant to clause (i) above.
Registered Securities
issued in exchange for a Registered Global Security pursuant to this Section 2.08 shall be registered in such names and in such
authorized denominations as the Depositary for such Registered Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or an agent of the Issuer or the Trustee. The Trustee or such agent shall
deliver such Securities to or as directed by the Persons in whose names such Securities are so registered.
All Securities issued
upon any transfer or exchange of Securities shall be valid obligations of the Issuer, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Securities surrendered upon such transfer or exchange.
Notwithstanding anything
herein or in the forms or terms of any Securities to the contrary, none of the Issuer, the Trustee or any agent of the Issuer or
the Trustee shall be required to exchange any Unregistered Security for a Registered Security if such exchange would result in
adverse Federal income tax consequences to the Issuer (such as, for example, the inability of the Issuer to deduct from its income,
as computed for Federal income tax purposes, the interest payable on the Unregistered Securities) under then applicable United
States Federal income tax laws. The Trustee and any such agent shall be entitled to rely on an Officers’ Certificate or an
Opinion of Counsel in determining such result.
Neither the Registrar
nor the Issuer shall be required (i) to issue, authenticate, register the transfer of or exchange Securities of any series for
a period of 15 days before the mailing of a notice of redemption of such Securities to be redeemed or (ii) to register the transfer
of or exchange any Security selected for redemption in whole or in part.
Section 2.09
Mutilated, Defaced, Destroyed, Lost and Stolen Securities
. In case any temporary or definitive Security shall become
mutilated or defaced and shall be surrendered to the Trustee, the Issuer shall execute, and the Trustee shall authenticate and
deliver, a new Security of the same series, bearing a number not contemporaneously outstanding, in exchange and substitution for
the mutilated or defaced Security. If the Holder of any Security claims that the Security has been lost, destroyed or wrongfully
taken, the Issuer shall execute, and the Trustee shall authenticate and deliver, a new Security of the same series, bearing a number
not contemporaneously outstanding, in exchange and substitution for the lost, destroyed or wrongfully taken Security, if the applicant
so requests before the Issuer has notice that the Security has been acquired by a protected purchaser, and the applicant furnishes
to the Issuer and to the Trustee and any agent of the Issuer or the Trustee such security or indemnity as may be required by them
to indemnify and defend and to save each of them harmless and the applicant satisfies other reasonable requirements imposed by
the Issuer.
Upon the issuance of
any substitute Security, the Issuer 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 and its counsel) connected
therewith. In case any Security which has matured or is about to mature or has been called for redemption in full shall become
mutilated or defaced or be destroyed, lost or stolen, the Issuer 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 or defaced Security), if the applicant for
such payment shall furnish to the Issuer and to the Trustee and any agent of the Issuer or the Trustee such security or taking,
the applicant shall also furnish to the Issuer and the Trustee and any agent of the Issuer or the Trustee evidence to their satisfaction
of the destruction, loss or wrongful taking of such Security and of the ownership thereof.
Every substitute Security
of any series issued pursuant to the provisions of this section by virtue of the fact that any such Security is destroyed, lost
or stolen shall constitute an additional contractual obligation of the Issuer, whether or not the destroyed, lost or wrongfully
taken Security shall be at any time enforceable by anyone and shall be entitled to all the benefits of (but shall be subject to
all the limitations of rights set forth in) this Indenture equally and proportionately with any and all other Securities of such
series duly authenticated and delivered hereunder. All Securities shall be held and owned upon the express condition that, to the
extent permitted by law, the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, defaced
or destroyed, lost or wrongfully taken Securities and shall preclude any and all other rights or remedies.
Section 2.10
Cancellation of Securities; Destruction Thereof
. All Securities surrendered for payment, redemption, repurchase,
conversion, registration of transfer or exchange, if surrendered to the Issuer or any agent of the Issuer or the Trustee, shall
be delivered to the Trustee for cancellation or, if surrendered to the Trustee, shall be canceled by it; and no Securities shall
be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture. The Trustee shall dispose of
canceled Securities held by it in accordance with the record retention policies of the Trustee in effect from time to time and,
if such canceled certificates are destroyed, shall deliver a certificate of destruction to the Issuer. If the Issuer shall acquire
any of the Securities, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such
Securities unless and until the same are delivered to the Trustee for cancellation.
Section 2.11
Temporary Securities
. Pending the preparation of definitive Securities for any series, the Issuer may execute and
the Trustee shall authenticate and deliver temporary Securities for such series (printed, lithographed, typewritten or otherwise
reproduced, in each case in form satisfactory to the Trustee). Temporary Securities of any series shall be issuable as registered
Securities without coupons, of any authorized denomination, and substantially in the form of the definitive Securities of such
series but with such omissions, insertions and variations as may be appropriate for temporary Securities, all as may be determined
by the Issuer with the concurrence of the Trustee. Temporary Securities may contain such reference to any provisions of this Indenture
as may be appropriate. Every temporary Security shall be executed by the Issuer and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like effect, as the definitive Securities. Without unreasonable delay
the Issuer shall execute and shall furnish definitive Securities of such series and thereupon temporary Securities of such series
may be surrendered in exchange therefor without charge at each office or agency to be maintained by the Issuer for that purpose
pursuant to Section 3.02, and the Trustee shall authenticate and deliver in exchange for such temporary Securities of such series
a like aggregate Principal amount of definitive Securities of the same series of authorized denominations. Until so exchanged,
the temporary Securities of any series shall be entitled to the same benefits under this Indenture as definitive Securities of
such series.
Section 2.12
Computation of Interest
. Except as otherwise specified in the Securities of a series, interest shall be computed
on the basis of a 360-day year of twelve 30-day months.
Section 2.13
CUSIP Numbers
. The Issuer in issuing the Securities may use “CUSIP” numbers (if then generally in use),
and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders; provided that
any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities
or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed
on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer will
notify the Trustee of any change in the “CUSIP” numbers.
Article
3
COVENANTS OF THE ISSUER AND THE TRUSTEE
Section 3.01
Payment of Principal and Interest
. The Issuer covenants and agrees for the benefit of each series of Securities that
it will duly and punctually pay or cause to be paid the Principal of, and interest on, each of the Securities of such series at
the place or places, at the respective times and in the manner provided in such Securities. Each installment of interest on the
Securities of any series may be paid by mailing checks for such interest payable to or upon the written order of the Holders of
Securities entitled thereto as they shall appear on the registry books of the Issuer.
Notwithstanding any
provisions of this Indenture and the Securities of any series to the contrary, if the Issuer and a Holder of any Registered Security
so agree or if expressly provided pursuant to Section 2.03, payments of interest on, and any portion of the Principal of, such
Holder’s Registered Security shall be made by the paying agent, upon receipt from the Issuer of immediately available funds
by 11:00 a.m., New York City time (or such other time as may be agreed to between the Issuer and the paying agent) or the Issuer,
directly to the Holder of such Security (by wire transfer of Federal funds or immediately available funds or otherwise) if the
Holder has delivered written instructions to the Trustee 15 days prior to such payment date requesting that such payment will be
so made and designating the bank account to which such payments shall be so made and, in the case of payments of Principal, surrenders
the same to the Trustee. The Trustee shall be entitled to rely on the last instruction delivered by the Holder pursuant to this
Section 3.01 unless a new instruction is delivered 15 days prior to a payment date. The Issuer will indemnify and hold each of
the Trustee and any paying agent harmless against any loss, liability or expense (including attorneys’ fees and expenses)
resulting from any act or omission to act on the part of the Issuer or any such Holder in connection with any such agreement or
from making any payment in accordance with any such agreement.
Section 3.02
Offices for Payments, etc
. So long as any of the Securities remain outstanding, the Issuer will maintain in the Borough
of Manhattan, The City of New York an office or agency (n) where the Securities may be presented for payment, (o) where the Securities
may be presented for registration of transfer and for exchange as in this Indenture provided, (p) where notices and demands to
or upon the Issuer in respect of the Securities or of this Indenture may be served and (q) for Securities of each series that is
convertible, where such Securities may be presented for conversion. The Issuer will give to the Trustee written notice of the location
of any such office or agency and of any change of location thereof. Unless otherwise specified in accordance with Section 2.03,
the Issuer hereby initially designates the Corporate Trust Office of Trustee as the office to be maintained by it for each such
purpose. In case the Issuer shall fail to so designate or maintain any such office or agency or shall fail to give such notice
of the location or of any change in the location thereof, presentations and demands may be made and notices may be served at the
Corporate Trust Office.
Section 3.03
Paying Agents
. Whenever the Issuer shall appoint a paying agent other than the Trustee with respect to the Securities
of any series, it will cause 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:
(a)
that it will hold all sums received by it as such agent for the payment of the Principal of or interest on the Securities
of such series (whether such sums have been paid to it by the Issuer or by any other obligor on the Securities of such series)
in trust for the benefit of the Holders of the Securities of such series or of the Trustee;
(b)
that it will give the Trustee notice of any failure by the Issuer (or by any other obligor on the Securities of such series)
to make any payment of the Principal of or interest on the Securities of such series when the same shall be due and payable; and
during the continuance of the failure referred to in clause Section 3.03(b) above.
The Issuer will, on
or prior to each due date of the Principal of or interest on the Securities of such series, deposit with the paying agent a sum
sufficient to pay such Principal or interest so becoming due, and (unless such paying agent is the Trustee) the Issuer will promptly
notify the Trustee of any failure to take such action.
If the Issuer shall
act as its own paying agent with respect to the Securities of any Series, it will, on or before each due date of the Principal
of or interest on the Securities of such series, set aside, segregate and hold in trust for the benefit of the Holders of the Securities
of such series a sum sufficient to pay such Principal or interest so becoming due. The Issuer will promptly notify the Trustee
of any failure to take such action.
Whenever the Issuer
shall have one or more paying agents for any series of Securities, it will, on or before each due date of the Principal of or interest
on any Securities of such series, deposit with the paying agent or agents for the Securities of such series a sum, by 11:00 a.m.
New York City time in immediately available funds on the payment date, sufficient to pay the Principal or interest so becoming
due with respect to the Securities of such series, and (unless such paying agent is the Trustee) the Issuer will promptly notify
the Trustee in writing of any failure so to act.
Anything in this section
to the contrary notwithstanding, the Issuer may at any time, for the purpose of obtaining a satisfaction and discharge with respect
to one or more or all series of Securities hereunder, or for any other reason, pay or cause to be paid to the Trustee all sums
held in trust for any such series by the Issuer or any paying agent hereunder, as required by this Section, such sums to be held
by the Trustee upon the trusts herein contained.
Anything in this Section
3.03 to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section 3.03 is subject to the provisions
of Section 9.05.
Section 3.04
Certificate of the Issuer
. Within 120 days after the close of the fiscal year ended
[
●], and within
120 days after the close of each fiscal year thereafter, the Issuer will furnish to the Trustee a brief certificate (which need
not comply with Section 10.05) from the principal executive, financial or accounting officer of the Issuer as to his or her knowledge
of the Issuer’s compliance with all conditions and covenants under the Indenture (such compliance to be determined without
regard to any period of grace or requirement of notice provided under the Indenture).
At the time such certificate
is filed, the Issuer will also file with the Trustee a letter or statement of the independent accountants who shall have certified
the financial statements of the Issuer for its preceding fiscal year to the effect that, in making the examination necessary for
certification of such financial statements, they have obtained no knowledge of any default by the Issuer in the performance or
fulfillment of any covenant, agreement or condition contained in this Indenture, which default remains uncured at the date of such
letter or statement, or, if they shall have obtained knowledge of any such uncured default, specifying in such letter or statement
such default or defaults and the nature and status thereof, it being understood that such accountants shall not be liable directly
or indirectly for failure to obtain knowledge of any such default or defaults, and that nothing contained in this Section 3.04
shall be construed to require such accountants to make any investigation beyond the scope required in connection with such examination.
Section 3.05
List of Securityholders
. If and so long as the Trustee shall not be the Security registrar for the Securities of
any series, the Issuer will furnish or cause to be furnished to the Trustee a list in such form as the Trustee may reasonably require
of the names and addresses of the Holders of the Securities of such series pursuant to Section 312 of the Trust Indenture Act of
1939 (a) semi-annually not more than 10 days after each record date for the payment of interest on such Securities, as hereinabove
specified, as of such record date and on dates to be determined pursuant to Section 2.03 for non-interest bearing Securities in
each year and (b) at such other times as the Trustee may request in writing, within 30 days after receipt by the Issuer of any
such request as of a date not more than 10 days prior to the time such information is furnished.
Section 3.06
Reports by the Issuer
. The Issuer covenants to:
(a)
file, whether or not required to do so under applicable law, with the Trustee, within 15 days after the Issuer files the
same with the Commission:
(i)
copies of the annual reports and of the information, documents, and other reports which the Issuer files with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934; and
(ii)
such additional information, documents and reports with respect to compliance by the Issuer with the conditions and covenants
provided for in this Indenture as the Issuer may from time to time file with the Commission; and
(b)
transmit to the Securityholders, in the manner and to the extent provided in Section 10.04, such summaries of any information,
documents and reports required to be filed with the Trustee pursuant to the provisions of subdivision (a) of this Section 3.06
as may be required by the rules and regulations of the Commission.
Delivery of such reports,
information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute
constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s
compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
Section 3.07
Corporate Existence
. So long as any of the Securities remain unpaid, the Issuer will at all times (except as otherwise
provided or permitted elsewhere in this Indenture) do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence.
Section 3.08
Restrictions on Mergers, Sales and Consolidations
. So long as any of the Securities remain unpaid, the Issuer will
not consolidate or merge with or sell, convey or lease all or substantially all of its property to any other corporation except
as permitted in Article 8 hereof.
Section 3.09
Further Assurances
. From time to time whenever requested by the Trustee, the Issuer will execute and deliver such
further instruments and assurances and do such further acts as may be reasonably necessary or proper to carry out more effectually
the purposes of this Indenture or to secure the rights and remedies hereunder of the Holders of the Securities of any series.
Article
4
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section 4.01
Event of Default Defined; Acceleration of Maturity; Waiver of Default
. “
Event of Default
” with
respect to Securities of any series wherever used herein, means any one of the following events which shall have occurred and be
continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental
body):
(a)
default by the Issuer in the payment of any installment of interest upon any of the Securities of such series as and when
the same shall become due and payable, and continuance of such default for a period of 30 days;
(b)
default by the Issuer in the payment of all or any part of the Principal on any of the Securities of such series as and
when the same shall become due and payable either at maturity, upon redemption, by declaration or otherwise, and continuance of
such default for a period of five days;
(c)
default by the Issuer in the performance, or breach by the Issuer, of any of its covenants or agreements in respect of the
Securities of such series (other than a covenant or agreement in respect of the Securities of such series a default in whose performance
or whose breach is elsewhere in this section specifically dealt with), and continuance of such default or breach for a period of
30 consecutive days after there has been given, by registered or certified mail, to the Issuer by the Trustee or to the Issuer
and the Trustee by the Holders of at least 25% in Principal amount of the Outstanding Securities of all series affected thereby,
a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a notice of
default hereunder;
(d)
the entry by a court having jurisdiction in the premises of a decree or order for relief in respect of the Issuer in an
involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or the appointment
of a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of the Issuer or for any substantial
part of the Issuer’s property and assets or the ordering of the winding up or liquidation of the Issuer’s affairs,
and the continuance of any such decree or order unstayed and in effect for a period of 90 consecutive days;
(e)
the commencement by the Issuer of a voluntary case under any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect, or the consent by the Issuer to the entry of an order for relief in an involuntary case under any such
law, or the consent by the Issuer to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee
or sequestrator (or similar official) of the Issuer or for any substantial part of the Issuer’s property, or the making of
any general assignment by the Issuer for the benefit of creditors; or
(f)
any other Event of Default provided in the supplemental indenture or resolution of the Board of Directors under which such
series of Securities is issued or in the form of Security for such series.
If an Event of Default
described in clauses 4.01(a), 4.01(b), 4.01(c) or 4.01(f) occurs and is continuing, then, and in each and every such case, unless
the Principal of all of the Securities of such series shall have already become due and payable, either the Trustee or the Holders
of not less than 25% in aggregate Principal amount of the Securities of any affected series then Outstanding hereunder (each such
series voting as a separate class) by notice in writing to the Issuer (and to the Trustee if given by Securityholders), may declare
the entire Principal (or, if the Securities of such series are Original Issue Discount Securities, such portion of the Principal
amount as may be specified in the terms of such series) of all Securities of such series and the interest accrued thereon, if any,
to be due and payable immediately, and upon any such declaration the same shall become immediately due and payable. If an Event
of Default described in clauses Section 4.01(d) or Section 4.01(e) occurs and is continuing, then the Principal amount of all the
Securities then Outstanding and interest accrued thereon, if any, shall be and become immediately due and payable, without any
notice or other action by any Holder or the Trustee, to the full extent permitted by applicable law.
The foregoing provisions,
however, are subject to the condition that if, at any time after the Principal (or, if the Securities are Original Issue Discount
Securities, such portion of the Principal as may be specified in the terms thereof) of the Securities of any series (or of all
the Securities, as the case may be) shall have been so declared due and payable, and before any judgment or decree for the payment
of the monies due shall have been obtained or entered as hereinafter provided, the Issuer shall pay or shall deposit with the Trustee
a sum sufficient to pay all matured installments of interest upon all the Securities of such series (or of all the Securities,
as the case may be) and the Principal of any and all Securities of such series (or of all the Securities, as the case may be) which
shall have become due otherwise than by acceleration (with interest upon such Principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of interest, at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of such series (or at the respective
rates of interest or Yields to Maturity of all the Securities, as the case may be) to the date of such payment or deposit) and
such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel, and all
other expenses and liabilities incurred, and all advances made, by the Trustee except as a result of negligence or bad faith, and
if any and all Events of Default under the Indenture, other than the non-payment of the Principal of Securities which shall have
become due by acceleration, shall have been cured, waived or otherwise remedied as provided herein, then and in every such case
the Holders of a majority in aggregate Principal amount of all the then Outstanding Securities of all such series that have been
accelerated, each such series voting as a separate class, by written notice to the Issuer and to the Trustee, may waive all defaults
with respect to such series (or with respect to all the Securities, as the case may be) and rescind and annul such declaration
and its consequences, but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or
shall impair any right consequent thereon.
For all purposes under
this Indenture, if a portion of the Principal of any Original Issue Discount Securities shall have been accelerated and declared
due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded
and annulled, the Principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be
such Portion of the Principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion
of the Principal thereof as shall be due and payable as a result of such acceleration, together with interest, if any, thereon
and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.
Section 4.02
Collection of Indebtedness by Trustee; Trustee May Prove Debt
. The Issuer covenants that (h) in case default shall
be made in the payment of any installment of interest on any of the Securities of any series when such interest shall have become
due and payable, and such default shall have continued for a period of 30 days or (i) in case default shall be made in the payment
of all or any part of the Principal of any of the Securities of any series when the same shall have become due and payable, whether
upon maturity of the Securities of such series or upon any redemption or by declaration or otherwise, then in each case upon demand
of the Trustee, the Issuer will pay to the Trustee for the benefit of the Holders of the Securities of such series (x) the whole
amount that then shall have become due and payable on all Securities of such series for Principal or interest, as the case may
be (with interest to the date of such payment upon the overdue Principal and, to the extent that payment of such interest is enforceable
under applicable law, on overdue installments of interest at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the Securities of such series) and (y) in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection, including reasonable compensation to the Trustee and
each predecessor Trustee, their respective agents and counsel, and any expenses and liabilities incurred, and all advances made,
by the Trustee and each predecessor Trustee except as a result of its negligence or bad faith.
Until such demand is
made by the Trustee, the Issuer may pay the Principal of and interest on the Securities of any series to the registered Holders,
whether or not the Principal of and interest on the Securities of such series be overdue.
In case the Issuer
shall fail forthwith to pay such amounts 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 proceedings to judgment or final decree, and may enforce any such judgment or final
decree against the Issuer or other obligor upon such Securities and collect in the manner provided by law out of the property of
the Issuer or other obligor upon such Securities, wherever situated, the monies adjudged or decreed to be payable.
In case there shall
be pending proceedings relative to the Issuer or any other obligor upon the Securities under Title 11 of the United States Code
or any other applicable Federal or state bankruptcy, insolvency or other similar law, or in case a receiver, assignee or trustee
in bankruptcy or reorganization, liquidator, sequestrator or similar official shall have been appointed for or taken possession
of the Issuer or its property or such other obligor, or in case of any other comparable judicial proceedings relative to the Issuer
or other obligor upon the Securities of any series, or to the creditors or property of the Issuer or such other obligor, the Trustee,
irrespective of whether the Principal of any Securities shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section, shall
be entitled and empowered, by intervention in such proceedings or otherwise:
(a)
to file and prove a claim or claims for the whole amount of Principal and interest (or, if the Securities of any series
are Original Issue Discount Securities, such portion of the Principal amount as may be specified in the terms of such series) owing
and unpaid in respect of the Securities of any series, and to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for reasonable compensation to the Trustee and each predecessor
Trustee, and their respective agents, attorneys and counsel, and for reimbursement of all expenses and liabilities incurred, and
all advances made, by the Trustee and each predecessor Trustee, except as a result of negligence or bad faith) and of the Securityholders
allowed in any judicial proceedings relative to the Issuer or other obligor upon the Securities of any series, or to the creditors
or property of the Issuer or such other obligor;
(b)
unless prohibited by applicable law and regulations, to vote on behalf of the Holders of the Securities of any series in
any election of a trustee or a standby trustee in arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings
or person performing similar functions in comparable proceedings; and
(c)
to collect and receive any monies or other property payable or deliverable on any such claims, and to distribute all amounts
received with respect to the claims of the Securityholders and of the Trustee on their behalf; and any trustee, receiver, or liquidator,
custodian or other similar official is hereby authorized by each of the Securityholders to make payments to the Trustee, and, in
the event that the Trustee shall consent to the making of payments directly to the Securityholders, to pay to the Trustee such
amounts as shall be sufficient to cover reasonable compensation to the Trustee, each predecessor Trustee and their respective agents,
attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor
Trustee except as a result of negligence or bad faith and all other amounts due to the Trustee or any predecessor Trustee pursuant
to Section 5.06.
Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or vote for or accept or adopt on behalf of any Securityholder
any plan of reorganization, arrangement, adjustment or composition affecting the Securities of any 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 except,
as aforesaid, to vote for the election of a trustee in bankruptcy or similar person.
All rights of action
and of asserting claims under this Indenture, or under any of the Securities, may be enforced by the Trustee without the possession
of any of the Securities or the production thereof on any trial or other proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment, subject
to the payment of the expenses, disbursements and compensation of the Trustee, each predecessor Trustee and their respective agents
and attorneys, shall be for the ratable benefit of the Holders of the Securities in respect of which such action was taken.
In any proceedings
brought by the Trustee (and also any proceedings involving the interpretation of any provision of this Indenture to which the Trustee
shall be a party) the Trustee shall be held to represent all the Holders of the Securities in respect to which such action was
taken, and it shall not be necessary to make any Holders of such Securities parties to any such proceedings.
Section 4.03
Application of Proceeds
. Any monies collected by the Trustee pursuant to this Article in respect of any series shall
be applied in the following order at the date or dates fixed by the Trustee and, in case of the distribution of such monies on
account of Principal or interest, upon presentation of the several Securities in respect of which monies have been collected and
stamping (or otherwise noting) thereon the payment, or issuing Securities of such series in reduced Principal amounts in exchange
for the presented Securities of like series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To
the payment of costs and expenses applicable to such series in respect of which monies have been collected, including reasonable
compensation to the Trustee and each predecessor Trustee and their respective agents and attorneys and of all expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor Trustee except as a result of negligence or bad faith, and
all other amounts due to the Trustee or any predecessor Trustee pursuant to Section 5.06;
SECOND: In
case the Principal of the Securities of such series in respect of which monies have been collected shall not have become and be
then due and payable, to the payment of interest on the Securities of such series in default in the order of the maturity of the
installments of such interest, with interest (to the extent that such interest has been collected by the Trustee) upon the overdue
installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in such Securities, such payments to be made ratably to the persons entitled thereto, without discrimination
or preference;
THIRD: In
case the Principal of the Securities of such series in respect of which monies have been collected shall have become and shall
be then due and payable, to the payment of the whole amount then owing and unpaid upon all the Securities of such series for Principal
and interest, with interest upon the overdue Principal, and (to the extent that such interest has been collected by the Trustee)
upon overdue installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of such series; and in case such monies shall be insufficient to pay in full the
whole amount so due and unpaid upon the Securities of such series, then to the payment of such Principal and interest or yield
to maturity, without preference or priority of Principal over interest or yield to maturity, or of interest or yield to maturity
over Principal, or of any installment of interest over any other installment of interest, or of any Security of such series over
any other Security of such series, ratably to the aggregate of such Principal and accrued and unpaid interest or yield to maturity;
and
FOURTH: To
the payment of the remainder, if any, to the Issuer or any other person lawfully entitled thereto.
Section 4.04
Suits for Enforcement
. In case an Event of Default has occurred, has not been waived and is continuing, the Trustee
may proceed to protect and enforce the rights vested in it by this Indenture, 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.
Section 4.05
Restoration of Rights on Abandonment of Proceedings
. In case the Trustee shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee, then and in every such case the Issuer and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the Issuer, the Trustee and the Securityholders shall continue
as though no such proceedings had been taken.
Section 4.06
Limitations on Suits by Securityholder
. 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 action or proceeding at law or in equity or in bankruptcy or otherwise
upon or under or with respect to this Indenture, or for the appointment of a trustee, receiver, liquidator, custodian or other
similar official or for any other remedy hereunder, unless such Holder previously shall have given to the Trustee written notice
of an Event of Default and of the continuance thereof, as hereinbefore provided, and unless also the Holders of not less than 25%
in aggregate Principal amount of the Securities of such series then outstanding shall have made written request upon the Trustee
to institute such action or proceedings in respect of such Event of Default in its own name as trustee hereunder and shall have
offered to the Trustee indemnity satisfactory to the Trustee against the costs, expenses and liabilities to be incurred therein
or thereby and the Trustee for 60 days after its receipt of such notice, request and offer of indemnity shall have failed to institute
any such action or proceeding and no direction inconsistent with such written request shall have been given to the Trustee pursuant
to Section 4.09; it being understood and intended, and being expressly covenanted by the Holder of every Security with every other
Holder and the Trustee, that no one or more Holders of Securities of any series shall have any right in any manner whatever by
virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of any other such Holder of
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 the
applicable 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 4.07
Unconditional Right of Securityholders to Institute Certain Suits
. Notwithstanding any other provision in this Indenture
and any provision of any Security, the right of any Holder of any Security to receive payment of the Principal of or interest on
such Security on or after the respective due dates expressed in such Security, or to institute suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
Section 4.08
Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default
. Except as provided in Section 4.06, no right
or remedy herein conferred upon or reserved to the Trustee or to the Securityholders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right
or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
No delay or omission
of the Trustee or of any Securityholder 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 Event of Default or an acquiescence
therein; and, subject to Section 4.06, every power and remedy given by this Indenture or by law to the Trustee or to the Securityholders
may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Securityholders.
Section 4.09
Control by Securityholders
. The Holders of a majority in aggregate Principal amount of the Securities of each series
affected (with each series voting as a separate class) at the time outstanding shall have the right to direct the time, method,
and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the
Trustee with respect to the Securities of such series by this Indenture; provided that such direction shall not be otherwise than
in accordance with law and the provisions of this Indenture and provided further that (subject to the provisions of Section 5.01)
the Trustee shall have the right to decline to follow any such direction if the Trustee, being advised by counsel, shall determine
that the action or proceeding so directed may not lawfully be taken or if the Trustee in good faith by its board of directors,
the executive committee, or a trust committee of directors or Responsible Officers of the Trustee shall determine that the action
or proceedings so directed would subject the Trustee to personal liability or if the Trustee in good faith shall so determine that
the actions or forbearances specified in or pursuant to such direction would be unduly prejudicial to the interests of Holders
of the Securities of all series so affected not joining in the giving of said direction.
Nothing in this Indenture
shall impair the right of the Trustee to take any action which is not inconsistent with such direction or directions by Securityholders.
Section 4.10
Waiver of Past Defaults
. Prior to a declaration of the acceleration of the maturity of the Securities of any series
as provided in Section 4.01, the Holders of a majority in aggregate Principal amount of the Securities of such series at the time
Outstanding (each such series voting as a separate class) may on behalf of the Holders of all the Securities of such series waive
an existing default or Event of Default, except a default in the payment of Principal of or interest on any Security as specified
in clauses (a) or (b) of Section 4.01 or in respect of a covenant or provision hereof which cannot be modified or amended without
the consent of each Holder affected as provided in Section 7.02. In the case of any such waiver, the Issuer, the Trustee and the
Holders of the Securities of each series affected shall be restored to their former positions and rights hereunder, respectively.
Upon any such waiver,
such default shall cease to exist and be deemed to have been cured and not to have occurred, and any Event of Default arising therefrom
shall be deemed to have been cured, and not to have occurred for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other default or Event of Default or impair any right consequent thereon.
Section 4.11
Trustee to Give Notice of Default, But May Withhold in Certain Circumstances
. The Trustee shall give to the Securityholders
of any series, as the names and addresses of such Holders appear on the registry books, notice by mail of all defaults known to
Responsible Officers of the Trustee which have occurred with respect to such series, such notice to be transmitted within 90 days
after the occurrence thereof, unless such defaults shall have been cured before the giving of such notice (the term “default”
or “defaults” for the purposes of this section being hereby defined to mean any event or condition which is, or with
notice or lapse of time or both would become, an Event of Default);
provided
that, except in the case of default in the
payment of the Principal of or interest on any of the Securities of such series, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee, or a trust committee of directors or trustees and/or
Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interests of the Securityholders
of such series.
Section 4.12
Right of Court to Require Filing of Undertaking to Pay Costs
. All parties to this Indenture agree, and each Holder
of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken, suffered
or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, 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;
provided that the provisions of this Section 4.12 shall not apply to (i) any suit instituted by the Trustee, (ii) any suit instituted
by any Securityholder or group of Securityholders of any series holding in the aggregate more than 10% in aggregate Principal amount
of the Securities of such series or (iii) any suit instituted by a Holder pursuant to Section 4.07.
Article
5
CONCERNING THE TRUSTEE
Section 5.01
Duties and Responsibilities of the Trustee
. With respect to the Holders of any series of Securities issued hereunder,
the Trustee, prior to the occurrence of an Event of Default with respect to the Securities of a particular series and after the
curing or waiving of all Events of Default which may have occurred with respect to such series, undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture. In case an Event of Default with respect to the Securities
of a series has occurred (which has not been cured or waived) the Trustee shall exercise 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 person would exercise or use under
the circumstances in the conduct of such person’s own affairs.
(a)
Prior to the occurrence of an Event of Default with respect to the Securities of any series and after the curing or waiving
of all such Events of Default with respect to such series which may have occurred:
(i)
the duties and obligations of the Trustee with respect to the Securities of any Series shall be determined solely by the
express provisions of this Indenture, and the Trustee shall not be liable 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
(ii)
in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of any such statements, certificates or opinions which by any
provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this Indenture.
(b)
No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(i)
this subsection (b) shall not be construed to limit the effect of subsection (a) of this Section 5.01;
(ii)
the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officers
of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and
(iii)
the Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the Holders 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.
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 shall be reasonable ground
for believing that the repayment of such funds or adequate indemnity against such liability is not reasonably assured to it.
The provisions of this
Section 5.01 are in furtherance of and subject to Sections 315 and 316 of the Trust Indenture Act of 1939.
Whether or not therein
expressly provided, every provision of this Indenture relating to the conduct of, affecting the liability of or affording protection
to the Trustee shall be subject to the provisions of this Section 5.01.
Section 5.02
Certain Rights of the Trustee
. In furtherance of and subject to the Trust Indenture Act of 1939, and subject to Section
5.01:
(a)
In the absence of bad faith on its part, the Trustee may conclusively rely and shall be protected in acting or refraining
from acting upon any resolution, Officers’ Certificate or any other certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, coupon, security or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or parties;
(b)
any request, direction, order or demand of the Issuer mentioned herein shall be sufficiently evidenced by an Officers’
Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any resolution of the Board of Directors
may be evidenced to the Trustee by a copy thereof certified by the secretary or an assistant secretary of the Issuer;
(c)
the Trustee may consult with counsel of its selection and any advice or Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted to be taken by it hereunder in good faith and in accordance
with such advice or Opinion of Counsel;
(d)
the Trustee shall be under no obligation to exercise any of the trusts 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 which might be incurred
by it in connection with such request, order or direction;
(e)
the Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized
or within the discretion, rights or powers conferred upon it by this Indenture;
(f)
prior to the occurrence of an Event of Default hereunder and after the curing or waiving of all Events of Default, 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, appraisal, bond, debenture, note, coupon, security, or other paper
or document unless requested in writing so to do by the Holders of not less than a majority in aggregate Principal amount of the
Securities of all series affected then outstanding; provided 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 indemnity
satisfactory to it against such expenses or liabilities as a condition to proceeding, and the reasonable expenses of every such
investigation shall be paid by the Issuer or, if paid by the Trustee or any predecessor trustee, shall be repaid by the Issuer
upon demand;
(g)
the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through
agents or attorneys not regularly in its employ and the Trustee shall not be responsible for any misconduct or negligence on the
part of any such agent or attorney appointed with due care by it hereunder;
(h)
the Trustee shall not be liable for any action taken, suffered or omitted in good faith and believed by it to be authorized
or within the discretion, rights or powers conferred upon it by this Indenture;
(i)
the Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee
has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at
the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture;
(j)
the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right
to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent,
custodian and other Person employed to act hereunder; and
(k)
the Trustee may request that the Issuer deliver an Officers’ Certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate
may be signed by any person authorized to sign an Officers’ Certificate, including any person specified as so authorized
in any such certificate previously delivered and not superseded.
Section 5.03
Trustee Not Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof
. The recitals
contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements
of the Issuer, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representation as
to the validity or sufficiency of this Indenture or the Securities. The Trustee shall not be accountable for the use or application
by the Issuer of any of the Securities or of the proceeds thereof.
Section 5.04
Trustee and Agents May Hold Securities; Collections, etc
. The Trustee or any agent of the Issuer or the Trustee,
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 the Trustee or such agent and may otherwise deal with the Issuer and receive, collect, hold and retain collections from
the Issuer with the same rights it would have if it were not the Trustee or such agent.
Section 5.05
Monies Held by Trustee
. All monies received by the Trustee in trust hereunder need not be segregated from other funds
except to the extent required by mandatory provisions of law. Neither the Trustee nor any agent of the Issuer or the Trustee shall
be under any liability for interest on any monies received by it hereunder.
Section 5.06
Compensation and Indemnification of Trustee and Its Prior Claim
. The Issuer covenants and agrees to pay to the Trustee
from time to time, and the Trustee shall be entitled to, such compensation as shall be agreed in writing from time to time by the
Issuer and the Trustee (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express
trust) and the Issuer covenants and agrees to pay or reimburse the Trustee and each predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by or on behalf of it 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 agents and
other persons not regularly in its employ) except to the extent any such expense, disbursement or advance may arise from its negligence
or bad faith. The Issuer also covenants and agrees to indemnify the Trustee and each predecessor Trustee for, and to hold it harmless
against, any loss, liability or expense arising out of or in connection with the acceptance or administration of this Indenture
or the trusts hereunder and the performance of its duties hereunder, including the costs and expenses of defending itself against
or investigating any claim of liability (whether asserted by the Issuer, a Holder or any other Person) in the premises, except
to the extent such loss, liability or expense is due to the negligence or bad faith of the Trustee or such predecessor Trustee.
The obligations of the Issuer under this section to compensate and indemnify the Trustee and each predecessor Trustee and to pay
or reimburse the Trustee and each predecessor Trustee for expenses, disbursements and advances shall constitute additional indebtedness
hereunder and shall survive the satisfaction and discharge of this Indenture or the resignation or removal of the Trustee. Such
additional indebtedness shall be a senior claim and lien 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, and the Securities
are hereby subordinated to such senior claim. The parties agree that if the Trustee renders services following an Event of Default
under Section 4.01(d) or 4.01(e), compensation for such services is intended to constitute administrative expense under any bankruptcy
law.
Section 5.07
Right of Trustee to Rely on Officers’ Certificate, etc
. Subject to Section 5.01 and 5.02, whenever in the administration
of the trusts 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 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 by it under the
provisions of this Indenture upon the faith thereof.
Section 5.08
Persons Eligible for Appointment as Trustee
. The Trustee for each series of Securities hereunder shall at all times
be a corporation which is eligible in accordance with the provisions of Section 310(a) of the Trust Indenture Act of 1939 and which
has (or which is a Wholly-Owned Subsidiary, directly or indirectly, of a bank holding company which has) a combined capital and
surplus of $50,000,000. If such corporation or holding company publishes reports of condition at least annually, pursuant to law
or to the requirements of a Federal, State or District of Columbia supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such corporation or holding company shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
Section 5.09
Resignation and Removal; Appointment of Successor Trustee
. (a) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign with respect to one or more or all series of Securities by giving written notice of resignation
to the Issuer. Upon receiving such notice of resignation, the Issuer shall promptly appoint a successor trustee or trustees with
respect to the applicable series by written instrument in duplicate, executed by authority of the Board of Directors, one copy
of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee or trustees. If no successor
Trustee shall have been so appointed with respect to any series and have accepted appointment within 30 days after the mailing
of such notice of resignation, the resigning Trustee may petition, at the expense of the Issuer, any court of competent jurisdiction
for the appointment of a successor Trustee, or any Securityholder who has been a bona fide Holder of a Security or Securities of
the applicable series for at least six months may, subject to the provisions of Section 4.12, on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor Trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, appoint a successor Trustee.
(b)
In case at any time any of the following shall occur:
(i)
the Trustee shall fail to comply with the provisions of Section 310(b) of the Trust Indenture Act of 1939 with respect to
any series of Securities after written request therefor by the Issuer or by any Securityholder who has been a bona fide Holder
of a Security or Securities of such series for at least six months;
(ii)
the Trustee shall cease to be eligible in accordance with the provisions of Section 310(a) of the Trust Indenture Act of
1939 and shall fail to resign after written request therefor by the Issuer or by any Securityholder; or
(iii)
the Trustee shall become incapable of acting with respect to any series of Securities, or shall be adjudged a bankrupt or
insolvent, or a receiver or liquidator of the Trustee or of its property shall be appointed, 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 Issuer may remove the Trustee with respect to the applicable series of Securities and appoint a successor trustee
for such series by written instrument, in duplicate, executed by order of the Board of Directors of the Issuer, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to the successor Trustee, or, subject to Section 315(e) of
the Trust Indenture Act of 1939, any Securityholder who has been a bona fide Holder of a Security or Securities of such series
for at least six months may on behalf of himself and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor trustee with respect to such series. Such court may thereupon,
after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c)
The Holders of a majority in aggregate Principal amount of the Securities of each series at the time outstanding may at
any time remove the Trustee with respect to Securities of such series and appoint a successor Trustee with respect to the Securities
of such series by delivering to the Trustee so removed, to the successor Trustee so appointed and to the Issuer the evidence provided
in Section 6.01 of the action in that regard taken by the Securityholders.
(d)
Any resignation or removal of the Trustee with respect to any series and any appointment of a successor trustee with respect
to such series pursuant to any of the provisions of this Section 5.09 shall become effective upon acceptance of appointment by
the successor trustee as provided in Section 5.10.
Section 5.10
Acceptance of Appointment by Successor
. Any successor Trustee appointed as provided in Section 5.09 shall execute
and deliver to the Issuer and to its predecessor Trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Trustee with respect to all or any applicable series shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as if originally named as Trustee for such series hereunder.
On the written request of the Issuer or of the successor Trustee, upon payment of its charges then unpaid, the Trustee ceasing
to act shall, subject to Section 5.06, pay over to the successor Trustee all monies at the time held by it hereunder and shall
execute and deliver an instrument transferring to such successor Trustee all such rights, powers, duties and obligations. Upon
request of any such successor Trustee, the Issuer shall execute any and all instruments in writing for more fully and certainly
vesting in and confirming to such successor Trustee all such rights and powers. Any Trustee ceasing to act shall, nevertheless,
retain a prior claim upon all property or funds held or collected by such Trustee to secure any amounts then due it pursuant to
the provisions of Section 5.06.
If a successor Trustee
is appointed with respect to the Securities of one or more (but not all) series, the Issuer, the predecessor Trustee and each successor
Trustee with respect to the Securities of any applicable series shall execute and deliver an indenture supplemental hereto which
shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties
of the predecessor Trustee with respect to the Securities of any series as to which the predecessor Trustee is not retiring shall
continue to be vested in the predecessor Trustee, and 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 and that each
such Trustee shall be Trustee of a trust or trusts under separate indentures.
Upon acceptance of
appointment by any successor Trustee as provided in this Section 5.10, the Issuer shall mail notice thereof by first-class mail
to the Holders of Securities of any series for which such successor Trustee is acting as Trustee at their last addresses as they
shall appear in the Security register. If the acceptance of appointment is substantially contemporaneous with the resignation,
then the notice called for by the preceding sentence may be combined with the notice called for by Section 5.09. If the Issuer
fails to mail such notice within 10 days after acceptance of appointment by the successor Trustee, the successor Trustee shall
cause such notice to be mailed at the expense of the Issuer.
Section 5.11
Merger, Conversion, Consolidation or Succession to Business of Trustee
. 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 all or substantially all the corporate trust business of
the Trustee, shall be the successor of the Trustee hereunder, provided that such corporation shall be eligible under the provisions
of Section 5.08, 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 at the time
such successor to the Trustee shall succeed to the trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor
Trustee and deliver such Securities so authenticated; and, in case at that time any of the Securities of any series shall not have
been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder
or in the name of the successor Trustee; and in all such cases such certificate shall have the full force which it is anywhere
in the Securities of such series or in this Indenture provided that the certificate of the Trustee shall have; provided, that the
right to adopt the certificate of authentication of any predecessor Trustee or to authenticate Securities of any series in the
name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation.
Section 5.12
Reports to the Trustee
. The Trustee shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto.
If required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within sixty days after each May 15 following the
date of the initial issuance of Securities under this Indenture deliver to Holders a brief report, dated as of such May 15, which
complies with the provisions of such Section 313(a).
A copy of each such
report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange, if any, upon which
the Securities are listed, with the Commission and with the Issuer. The Issuer will promptly notify the Trustee when the Securities
are listed on any stock exchange and of any delisting thereof.
Article
6
CONCERNING THE SECURITYHOLDERS
Section 6.01
Evidence of Action Taken by Securityholders
. Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by a specified percentage in Principal amount of the Securityholders
of any or all series may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such
specified percentage of Securityholders in person or by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments are delivered to the Trustee. Proof of execution
of any instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject
to Section 5.01 and 5.02) conclusive in favor of the Trustee and the Issuer, if made in the manner provided in this Article.
Section 6.02
Proof of Execution of Instruments and of Holding of Securities; Record Date
. Subject to Section 5.01 and 5.02, the
execution of any instrument by a Securityholder or his agent or proxy may be proved by the certificate of any notary public or
other officer authorized to take acknowledgment of deeds, that the Person executing such instrument acknowledged to such notary
public or other such officer the execution thereof, or by an affidavit of a witness to such execution sworn to before any such
notary public or other officer. Where such execution is by an officer of a corporation or association or a member of a partnership
on behalf of such corporation, association or partnership, as the case may be, or by any other Person acting in a representative
capacity, such certificate or affidavit shall also constitute sufficient proof of such Person’s authority. The holding of
Securities shall be proved by the Security register or by a certificate of the registrar thereof. The Issuer may set a record date
for purposes of determining the identity of Holders of Securities of any series entitled to vote or consent to any action referred
to in Section 6.01, which record date may be set at any time or from time to time by notice to the Trustee, for any date or dates
(in the case of any adjournment or reconsideration) not more than 60 days nor less than five days prior to the proposed date of
such vote or consent, and thereafter, notwithstanding any other provisions hereof, only Holders of Securities of such series of
record on such record date shall be entitled to so vote or give such consent or revoke such vote or consent.
Section 6.03
Holders to be Treated as Owners
. Prior to due presentment of a Security for registration of transfer, the Issuer,
the Trustee and any agent of the Issuer or the Trustee may deem and treat the person in whose name any Security shall be registered
upon the Security register for such series as the absolute owner of such Security (whether or not such Security shall be overdue
and notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving payment of or on account of
the Principal of and, subject to the provisions of this Indenture, interest on such Security and for all other purposes, and neither
the Issuer nor the Trustee nor any agent of the Issuer or the Trustee shall be affected by any notice to the contrary. All such
payments so made to any such person, or upon his order, shall be valid, and, to the extent of the sum or sums so paid, effectual
to satisfy and discharge the liability for monies payable upon any such Security.
Section 6.04
Securities Owned by Issuer Deemed Not Outstanding
. In determining whether the Holders of the requisite aggregate
Principal amount of Outstanding Securities of any or all series have concurred in any direction, consent or waiver under this Indenture,
Securities which are owned by the Issuer or any other obligor on the Securities with respect to which such determination is being
made or by any person directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer
or any other obligor on the Securities with respect to which such determination is being made 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 as to which the Trustee has received written notice
are so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding
if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities
and that the pledgee is not the Issuer or any other obligor upon the Securities or any person directly or indirectly controlling
or controlled by or under direct or indirect common control with the Issuer or any other obligor on the Securities. In case of
a dispute as to such right, the advice of counsel shall be full protection in respect of any decision made by the Trustee in accordance
with such advice. Upon request of the Trustee, the Issuer shall furnish to the Trustee promptly an Officers’ Certificate
listing and identifying all Securities, if any, known by the Issuer to be owned or held by or for the account of any of the above-described
persons; and, subject to Section 5.01 and 5.02, the Trustee shall be entitled to accept such Officers’ Certificate as conclusive
evidence of the facts therein set forth and of the fact that all Securities not listed therein are Outstanding for the purpose
of any such determination.
Section 6.05
Right of Revocation of Action Taken
. At any time prior to (but not after) the evidencing to the Trustee, as provided
in Section 6.01, of the taking of any action by the Holders of the percentage in aggregate Principal amount of the Securities of
any or all series, as the case may be, specified in this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial numbers of the Securities the Holders of which
have consented to such action may, by filing written notice at the Corporate Trust Office and upon proof of holding as provided
in this Article, 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
Securities issued in exchange or substitution therefor, irrespective of whether or not any notation in regard thereto is made upon
any such Security. Any action taken by the Holders of the percentage in aggregate Principal amount of the Securities of any or
all series, as the case may be, specified in this Indenture in connection with such action shall be conclusively binding upon the
Issuer, the Trustee and the Holders of all the Securities affected by such action.
Article
7
SUPPLEMENTAL INDENTURES
Section 7.01
Supplemental Indentures Without Consent of Securityholders
. The Issuer, when authorized by a resolution of its Board
of Directors certified to the Trustee, and the Trustee may from time to time and at any time enter into an indenture or indentures
supplemental hereto for one or more of the following purposes:
(a)
to evidence the succession of another corporation to the Issuer, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Issuer pursuant to Article 8;
(b)
(i) to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture which
may be defective or inconsistent with any other provision contained herein or in any supplemental indenture, (ii) to conform the
terms of Securities to the description thereof in the prospectus and prospectus supplement (or similar offering document) offering
such Securities or (iii) to make such other provisions in regard to matters or questions arising under this Indenture or under
any supplemental indenture as the Board of Directors may deem necessary or desirable and which shall not adversely affect the interests
of the Holders of the Securities in any material respect;
(c)
to establish the form or terms of Securities of any series as permitted by Section 2.01 and 2.03;
(d)
to evidence and provide for the acceptance of appointment hereunder by a successor trustee with respect to the Securities
of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one trustee, pursuant to the requirements of Section 5.10;
(e)
to comply with any requirements of the Commission in connection with the qualification of this Indenture under the Trust
Indenture Act of 1939;
(f)
to provide for uncertificated or Unregistered Securities and to make all appropriate changes for such purpose;
(g)
to make any change that would not reasonably be expected to adversely affect the rights of any Holder in any material respect;
(h)
to add to the covenants of the Issuer such new covenants, restrictions, conditions or provisions as its Board of Directors
shall consider to be for the protection of the Holders of Securities, and with respect to which the Trustee has received an Opinion
of Counsel to a similar effect, and to make the occurrence, or the occurrence and continuance, of a default in any such additional
covenants, restrictions, conditions or provisions an Event of Default; provided, that in respect of any such additional covenant,
restriction, condition or provision such supplemental indenture may provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate enforcement upon
such an Event of Default or may limit the remedies available to the Trustee upon such an Event of Default or may limit the right
of the Holders of a majority in aggregate Principal amount of the Securities of such series to waive such an Event of Default;
or
(i)
to make any change so long as no Securities are Outstanding.
The Trustee is hereby
authorized to join with the Issuer in the execution of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any such supplemental indenture which 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 without the consent of the Holders of any of the Securities at the
time outstanding, notwithstanding any of the provisions of Section 7.02.
Section 7.02
Supplemental Indentures With Consent of Securityholders
. With the consent (evidenced as provided in Article 6) of
the Holders of not less than a majority in aggregate Principal amount of the Securities at the time Outstanding of all series affected
by such supplemental indenture (voting as one class), the Issuer, when authorized by a resolution of its Board of Directors, and
the Trustee may, from time to time and at any time, enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the Holders of the Securities of each such series; provided, that no such
supplemental indenture shall without the consent of each Holder affected thereby:
(a)
change the stated maturity of the Principal of, or the time of payment of any installment of interest on, such Holder’s
Security;
(b)
reduce the Principal thereof or the rate of interest thereon, or any premium payable with respect thereto;
(c)
change any place of payment where, or the currency in which, any Security or any premium or the interest thereon is payable;
(d)
change the provisions for calculating any redemption or repurchase price, including the definitions relating thereto;
(e)
make any change to Section 4.07 or Section 4.10 (except to include other provisions subject to Section 4.10);
(f)
reduce the percentage in Principal amount of outstanding Securities of the relevant series the consent of whose Holders
is required for any such supplemental indenture, for any waiver of compliance with any provisions of this Indenture or any defaults
and their consequences provided for in this Indenture;
(g)
alter or impair the right to convert any Security at the rate and upon the terms provided in Article 12;
(h)
waive a default in the payment of Principal of or interest on any Security of such Holder (except pursuant to a rescission
of acceleration pursuant to Section 4.01);
(i)
adversely affect the rights of such Holder under any mandatory redemption or repurchase provision or any right of redemption
or repurchase at the option of such Holder;
(j)
modify any of the provisions of this Section 7.02, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of the Holder of each outstanding Security affected
thereby; or
(k)
change or waive any provision that, pursuant to a board resolution or indenture supplemental hereto establishing the terms
of one or more series of Securities, is prohibited to be so changed or waived.
Upon the written request
of the Issuer, accompanied by a copy of a resolution of the Board of Directors certified by the secretary or an assistant secretary
of the Issuer authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of
the consent of Securityholders as aforesaid and other documents, if any, required by Section 6.01, the Trustee shall join with
the Issuer 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.
It shall not be necessary
for the consent of the Securityholders 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.
Promptly after the
execution by the Issuer and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Issuer shall
mail a notice thereof by first class mail to the Holders of Securities of each series affected thereby at their addresses as they
shall appear on the registry books of the Issuer, setting forth in general terms the substance of such supplemental indenture.
Any failure of the Issuer to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity
of any such supplemental indenture.
Section 7.03
Effect of Supplemental Indenture
. Upon the execution of any supplemental indenture pursuant to the provisions hereof,
this Indenture shall 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 Issuer and the Holders of Securities of
each 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 7.04
Documents to Be Given to Trustee
. The Trustee, subject to the provisions of Section 5.01 and 5.02, may receive an
Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant
to this Article 7 complies with the applicable provisions of this Indenture.
Section 7.05
Notation on Securities in Respect of Supplemental Indentures
. Securities of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to the provisions of this Article may bear a notation in form approved
by the Trustee for such series as to any matter provided for by such supplemental indenture or as to any action taken at any such
meeting. If the Issuer or the Trustee shall so determine, new Securities of any series so modified as to conform, in the opinion
of the Trustee and the Board of Directors, to any modification of this Indenture contained in any such supplemental indenture may
be prepared by the Issuer, authenticated by the Trustee and delivered in exchange for the Securities of such series then outstanding.
Article
8
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 8.01
Issuer May Consolidate, etc., on Certain Terms
. The Issuer covenants that it will not merge or consolidate with any
other Person or sell, convey, transfer, lease or otherwise dispose of all or substantially all of its property and assets to any
Person (other than a consolidation with or merger with or into or a sale, conveyance, transfer, lease or other disposition to a
Wholly-Owned Subsidiary with a positive net worth;
provided
that, in connection with any such merger of the Issuer with
a Wholly-Owned Subsidiary, no consideration (other than common stock) in the surviving person or the Issuer shall be issued or
distributed to the stockholders of the Issuer), unless (xiv) either (x) the Issuer shall be the continuing corporation, or the
successor corporation or (y) the Person formed by such consolidation or into which the Issuer is merged or that acquires by sale
or conveyance substantially all the assets of the Issuer (if other than the Issuer) shall be a corporation or limited liability
company organized and validly existing under the laws of the United States of America or any jurisdiction thereof and shall expressly
assume the due and punctual payment of the Principal of and interest on all the Securities, according to their tenor, and the due
and punctual performance and observance of all of the covenants and conditions of this Indenture to be performed or observed by
the Issuer, by supplemental indenture satisfactory to the Trustee, executed and delivered to the Trustee by such Person, (xv) immediately
after giving effect to such transaction, no default or Event of Default shall have occurred and be continuing and (xvi) the Issuer
delivers to the Trustee an Officers’ Certificate and Opinion of Counsel, in each case stating that such consolidation, merger
or transfer and such supplemental indenture complies with this Section 8.01 and that all conditions precedent provided for herein
relating to such transaction have been complied with;
provided
,
however
, that the foregoing limitations shall not
apply if, in the good faith determination of the Board of Directors, whose determination shall be evidenced by a board resolution
certified to the Trustee, the principal purpose of such transaction is to change the state of incorporation of the Issuer; and
provided further
that any such transaction shall not have as one of its purposes the evasion of the foregoing limitations.
Section 8.02
Successor Corporation Substituted
. In case of any such consolidation, merger, sale, conveyance, transfer, lease or
other disposition, and following such an assumption by the successor Person, such successor Person shall succeed to and be substituted
for the Issuer, with the same effect as if it had been named herein. Such successor Person may cause to be signed, and may issue
either in its own name or in the name of the Issuer prior to such succession any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Issuer and delivered to the Trustee; and, upon the order of such successor Person
instead of the Issuer and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee, pursuant
to the terms hereof, shall authenticate and shall deliver any Securities which previously shall have been signed and delivered
by the officers of the Issuer to the Trustee for authentication, and any Securities which such successor Person thereafter shall
cause to be signed and delivered to the Trustee for that purpose. All of the Securities so issued shall in all respects have the
same legal rank and benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with the terms
of this Indenture as though all of such Securities had been issued at the date of the execution hereof.
In case of any such
consolidation, merger, sale, conveyance, transfer, lease 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.
Upon the assumption
by the successor Person in the manner described in this Article, the Issuer shall be discharged from all obligations and covenants
under this Indenture and the Securities.
Article
9
DISCHARGE OF INDENTURE
Section 9.01
Defeasance Within One Year of Payment
. Except as otherwise provided in this Section 9.01, the Issuer may terminate
its obligations under the Securities of any series and this Indenture with respect to Securities of such series if:
(a)
all Securities of such series previously authenticated and delivered (other than destroyed, lost or wrongfully taken Securities
of such series that have been replaced or Securities of such series for whose payment money or securities have theretofore been
held in trust and thereafter repaid to the Issuer, as provided in Section 9.05) have been delivered to the Trustee for cancellation
and the Issuer has paid all sums payable by it hereunder; or
(b)
(xviii) (A) the Securities of such series mature within one year or all of them are to be called for redemption within one
year under arrangements satisfactory to the Trustee for giving the notice of redemption, (B) the Issuer irrevocably deposits in
trust with the Trustee, as trust funds solely for the benefit of the Holders of such Securities for that purpose, money or U.S.
Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee), without
consideration of any reinvestment and after payment of all Federal, state and local taxes or other charges and assessments in respect
thereof payable by the Trustee, to pay Principal of and interest on the Securities of such series to maturity or redemption, as
the case may be, and to pay all other sums payable by it hereunder and (C) the Issuer delivers to the Trustee an Officers’
Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the satisfaction
and discharge of this Indenture with respect to the Securities of such series have been complied with.
With respect to the
foregoing clause (i), only the Issuer’s obligations under Sections 5.06 and 9.05 in respect of the Securities of such series
shall survive. With respect to the foregoing clause (ii), only the Issuer’s obligations in Section 2.03 through 2.11, 3.02,
5.06, 5.09 and 9.05 in respect of the Securities of such series shall survive until such Securities of such series are no longer
outstanding. Thereafter, only the Issuer’s obligations in Section 5.06 and 9.05 in respect of the Securities of such series
shall survive. After any such irrevocable deposit, the Trustee shall acknowledge in writing the discharge of the Issuer’s
obligations under the Securities of such series and this Indenture with respect to the Securities of such series except for those
surviving obligations specified above.
Section 9.02
Defeasance
. Except as provided below, the Issuer will be deemed to have paid and will be discharged from any and
all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with
respect to the Securities of such series (and the Trustee, at the expense of the Issuer, shall execute instruments in form and
substance satisfactory to the Issuer and the Trustee acknowledging the same) if the following conditions shall have been satisfied:
(a)
the Issuer has irrevocably deposited in trust with the Trustee as trust funds specifically pledged as security for, and
dedicated solely to, Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of
such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money,
in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered
to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges
and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding
Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee),
as the case may be;
(b)
such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material
agreement or instrument to which the Issuer is a party or by which it is bound;
(c)
no default or Event of Default with respect to the Securities of such series shall have occurred and be continuing on the
date of such deposit;
(d)
the Issuer shall have delivered to the Trustee (1) either (x) a ruling directed to the Trustee received from the Internal
Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for Federal
income tax purposes as a result of the Issuer’s exercise of its option under this Section 9.02 and will be subject to federal
income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance
had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and based upon a change
in law and (2) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest
in the trust funds subject to no prior liens under the UCC; and
(e)
the Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that
all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of
such series have been complied with.
The Issuer’s
obligations in Section 2.03 through 2.11, 3.02, 5.06, 5.09 and 9.05 with respect to the Securities of such series shall survive
until such Securities are no longer outstanding. Thereafter, only the Issuer’s obligations in Section 5.06 and 9.05 shall
survive.
Section 9.03
Covenant Defeasance
. The Issuer may omit to comply with any term, provision or condition set forth in Section 3.04,
3.06 or 3.08 (or any other specific covenant relating to the Securities of any series provided for in a Board Resolution or supplemental
indenture pursuant to Section 2.03 which may by its terms be defeased pursuant to this Section 9.03), and such omission shall be
deemed not to be an Event of Default under clause (c) of Section 4.01, with respect to the outstanding Securities of such series
if:
(a)
the Issuer has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the
Securities of such series, for payment of the Principal of and interest, if any, on the Securities of such series, money or U.S.
Government Obligations or a combination thereof in an amount sufficient (unless such funds consist solely of money, in the opinion
of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the
Trustee) without consideration of any reinvestment and after payment of all Federal, state and local taxes or other charges and
assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and interest on the outstanding Securities
of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as
the case may be;
(b)
such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material
agreement or instrument to which the Issuer is a party or by which it is bound;
(c)
no default or Event of Default with respect to the Securities of such series shall have occurred and be continuing on the
date of such deposit;
(d)
the Issuer has delivered to the Trustee an Opinion of Counsel to the effect that (A) the Holders of the Securities of such
series have a valid security interest in the trust funds subject to no prior liens under the UCC and (B) such Holders will not
recognize income, gain or loss for Federal income tax purposes as a result of such deposit and covenant defeasance and will be
subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such
deposit and defeasance had not occurred; and
(e)
the Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that
all conditions precedent provided for herein relating to the covenant defeasance contemplated by this Section 9.03 of the Securities
of such series have been complied with.
Section 9.04
Application of Trust Money
. Subject to Section 9.05, the Trustee or Paying Agent shall hold in trust money or U.S.
Government Obligations deposited with it pursuant to 9.01, 9.02, or 9.03, as the case may be, in respect of the Securities of any
series and shall apply the deposited money and the proceeds from deposited U.S. Government Obligations in accordance with the Securities
of such series and this Indenture to the payment of Principal of and interest on the Securities of such series; provided that such
money need not be segregated from other funds except to the extent required by law. The Issuer shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to 9.01,
9.02, or 9.03, as the case may be, or the Principal and interest received in respect thereof, other than any such tax, fee or other
charge that by law is for the account of the Holders.
Section 9.05
Repayment to Issuer
. Subject to Section 5.06, 9.01, the Trustee and the Paying Agent shall promptly pay to the Issuer
upon request set forth in an Officers’ Certificate any money held by them at any time and not required to make payments hereunder
and thereupon shall be relieved from all liability with respect to such money. Subject to applicable escheat or abandoned property
laws, the Trustee and the Paying Agent shall pay to the Issuer upon written request any money held by them and required to make
payments hereunder under this Indenture that remains unclaimed for two years;
provided
that the Trustee or such Paying Agent
before being required to make any payment shall cause to be published at the expense of the Issuer once in an Authorized Newspaper
or mail to each Holder entitled to such money at such Holder’s address (as set forth in the register) notice that such money
remains unclaimed and that after a date specified therein (which shall be at least 30 days from the date of such publication or
mailing) any unclaimed balance of such money then remaining will be repaid to the Issuer. After payment to the Issuer, Holders
entitled to such money must look to the Issuer for payment as general creditors unless an abandoned property law designates another
Person, and all liability of the Trustee and such Paying Agent with respect to such money shall cease.
Article
10
MISCELLANEOUS PROVISIONS
Section 10.01
Incorporators, Stockholders, Officers and Directors Exempt from Individual Liability
. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture or in any Security, or because of any indebtedness evidenced thereby,
shall be had against any incorporator, as such, or against any past, present or future stockholder, officer, director or employee,
as such, of the Issuer or of any successor Person thereof, either directly or through the Issuer or any successor Person thereof,
under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Securities by the Holders
thereof and as part of the consideration for the issue of the Securities.
Section 10.02
Provisions of Indenture for the Sole Benefit of Parties and Securityholders
. Nothing in this Indenture or in the
Securities, expressed or implied, shall give or be construed to give to any person, firm or corporation, other than the parties
hereto and their successors and the Holders of the Securities, any legal or equitable right, remedy or claim under this Indenture
or under any covenant or provision herein contained, all such covenants and provisions being for the sole benefit of the parties
hereto and their successors and of the Holders of the Securities.
Section 10.03
Successors and Assigns of Issuer Bound by Indenture
. All the covenants, stipulations, promises and agreements contained
in this Indenture by or on behalf of the Issuer shall bind its successors and assigns, whether so expressed or not.
Section 10.04
Notices and Demands on Issuer, Trustee and Securityholders
. Any notice or demand which 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 Issuer may be given
or served by being deposited postage prepaid, first-class mail (except as otherwise specifically provided herein) addressed (until
another address of the Issuer is filed by the Issuer with the Trustee) to Zomedica Pharmaceuticals Corp. at 100 Phoenix Drive,
Suite 190, Ann Arbor, Michigan 48108, Attention: Chief Financial Officer. Any notice, direction, request or demand by the Issuer
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 at the Corporate Trust Office.
Where this Indenture
provides for notice to Holders, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder entitled thereto, at such Holder’s last address as it appears in
the Security register. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect
in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where
this Indenture provides for notice in any manner, such notice may be waived in writing by the person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be
filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon
such waiver.
In case, by reason
of the suspension of or irregularities in regular mail service, it shall be impracticable to mail notice to the Issuer and Securityholders
when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as
shall be satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice.
Section 10.05
Officers’ Certificates and Opinions of Counsel; Statements to be Contained Therein
. Upon any application or
demand by the Issuer to the Trustee to take any action under any of the provisions of this Indenture, the Issuer 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.
Each certificate or
opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided
for in this Indenture shall include (a) a statement that the person making such certificate or opinion has read such covenant or
condition, (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based, (c) a statement that, in the opinion of such person, he has made such examination
or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has
been complied with and (d) a statement as to whether or not, in the opinion of such person, such condition or covenant has been
complied with.
Any certificate, statement
or opinion of an officer of the Issuer may be based, insofar as it relates to legal matters, upon a certificate or opinion of or
representations by counsel, unless such officer knows that the certificate or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care
should know that the same are erroneous. Any certificate, statement or opinion of counsel may be based, insofar as it relates to
factual matters, information with respect to which is in the possession of the Issuer, upon the certificate, statement or opinion
of or representations by an officer or officers of the Issuer, unless such counsel knows that the certificate, statement or opinion
or representations with respect to the matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement
or opinion of an officer of the Issuer or of counsel may be based, insofar as it relates to accounting matters, upon a certificate
or opinion of or representations by an accountant or firm of accountants in the employ of the Issuer, unless such officer or counsel,
as the case may be, knows that the certificate or opinion or representations with respect to the accounting matters upon which
his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know
that the same are erroneous.
Any certificate or
opinion of any independent firm of public accountants filed with the Trustee shall contain a statement that such firm is independent.
Section 10.06
Payments Due on Saturdays, Sundays and Holidays
. If the date of maturity of interest on or Principal of the Securities
of any series or the date fixed for redemption or repayment of any such Security shall not be a Business Day, then payment of interest
or Principal need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect
as if made on the date of maturity or the date fixed for redemption, and no interest shall accrue for the period after such date.
Section 10.07
Conflict of Any Provision of Indenture with Trust Indenture Act of 1939
. If and to the extent that any provision
of this Indenture limits, qualifies or conflicts with another provision incorporated in this Indenture by operation of Sections
310 to 317, inclusive, of the Trust Indenture Act of 1939, such incorporated provision shall control.
Section 10.08
New York Law to Govern
. This Indenture and each Security shall be deemed to be a contract under the laws of the State
of New York, and for all purposes shall be construed in accordance with the laws of such State.
Section 10.09
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 10.10
Effect of Headings
. The Article and Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Article
11
REDEMPTION OF SECURITIES
Section 11.01
Applicability of Article
. The provisions of this Article shall be applicable to the Securities of any series which
are redeemable before their maturity except as otherwise specified as contemplated by Section 2.03 for Securities of such series.
Section 11.02
Notice of Redemption; Partial Redemptions
. Notice of redemption to the Holders of Securities of any series to be
redeemed as a whole or in part at the option of the Issuer shall be given by mailing notice of such redemption by first class mail,
postage prepaid, at least 30 days and not more than 60 days prior to the date fixed for redemption to such Holders of Securities
of such series at their last addresses as they shall appear upon the registry books. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not the Holder receives the notice. Failure to give
notice by mail, or any defect in the notice to the Holder of any Security of a series designated for redemption as a whole or in
part shall not affect the validity of the proceedings for the redemption of any other Security of such series.
The notice of redemption
to each such Holder shall specify the CUSIP numbers of such Securities to be redeemed, the Principal amount of each Security of
such series held by such Holder to be redeemed, the date fixed for redemption, the redemption price, the place or places of payment,
that payment will be made upon presentation and surrender of such Securities, that interest accrued to the date fixed for redemption
will be paid as specified in such notice and that on and after said date interest thereon or on the portions thereof to be redeemed
will cease to accrue. In case any Security of a series is to be redeemed in part only the notice of redemption shall state the
portion of the Principal amount thereof to be redeemed, the method the Trustee shall use to determine such Securities to be redeemed
as specified in the last paragraph of this Section 11.02, if applicable, and shall state that on and after the date fixed for redemption,
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.
The notice of redemption
of Securities of any series to be redeemed at the option of the Issuer shall be given by the Issuer or, at the Issuer’s written
request, by the Trustee in the name and at the expense of the Issuer.
By 11:00 a.m. (New
York City time) on the redemption date specified in the notice of redemption given as provided in this Section, the Issuer will
deposit with the Trustee or with one or more paying agents (or, if the Issuer is acting as its own paying agent, set aside, segregate
and hold in trust as provided in Section 3.03) an amount of money sufficient to redeem on the redemption date all the Securities
of such series so called for redemption at the appropriate redemption price, together with accrued interest to the date fixed for
redemption. If less than all the outstanding Securities of a series are to be redeemed, the Issuer will deliver to the Trustee
at least 70 days (unless a shorter period shall be satisfactory to the Trustee) prior to the date fixed for redemption an Officers’
Certificate stating the aggregate Principal amount of Securities to be redeemed.
In the case of the
redemption of all of the Securities of a series outstanding, the Issuer shall notify the Trustee in writing of the redemption date
45 days (unless a shorter period shall be satisfactory to the Trustee) prior to the redemption date.
If less than all the
Securities of a series are to be redeemed, the Trustee shall select, pro rata or by lot or in such manner as it shall deem appropriate
and fair, Securities of such series to be redeemed in whole or in part. Securities of a series may be redeemed in part in multiples
equal to the minimum authorized denomination for Securities of such series or any multiple thereof. The Trustee shall promptly
notify the Issuer in writing of the Securities of such series selected for redemption and, in the case of any Securities of such
series selected for partial redemption, the Principal amount thereof to be redeemed. For all purposes of this Indenture, unless
the context otherwise requires, all provisions relating to the redemption of Securities of any series shall relate, in the case
of any Security redeemed or to be redeemed only in part, to the portion of the Principal amount of such Security which has been
or is to be redeemed.
Section 11.03
Payment of Securities Called for Redemption
. If notice of redemption has been given as above provided, the Securities
or portions of Securities 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 on and after said date
(unless the Issuer shall default in the payment of such Securities at the redemption price, together with interest accrued to said
date) interest on the Securities or portions of Securities so called for redemption shall cease to accrue and, except as provided
in Section 5.05 and 9.04, such Securities shall cease from and after the date fixed for redemption to be entitled to any benefit
or security under this Indenture, and the Holders thereof shall have no right in respect of such Securities except the right to
receive the redemption price thereof and unpaid interest to the date fixed for redemption. On presentation and surrender of such
Securities at a place of payment specified in said notice, said Securities or the specified portions thereof shall be paid and
redeemed by the Issuer at the applicable redemption price, together with interest accrued thereon to the date fixed for redemption;
provided that any semiannual payment of interest becoming due on the date fixed for redemption shall be payable to the Holders
of such Securities registered as such on the relevant record date subject to the terms and provisions of Section 2.07 hereof.
If any Security called
for redemption shall not be so paid upon surrender thereof for redemption, the Principal shall, until paid or duly provided for,
bear interest from the date fixed for redemption at the rate of interest or Yield to Maturity (in the case of an Original Issue
Discount Security) borne by the Security.
Upon presentation of
any Security redeemed in part only, the Issuer shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Issuer, a new Security or Securities of such series, of authorized denominations,
in Principal amount equal to the unredeemed portion of the Security so presented, pursuant to Section 2.04, 2.05 and 2.06.
Section 11.04
Exclusion of Certain Securities from Eligibility for Selection for Redemption
. Securities shall be excluded from
eligibility for selection for redemption if they are identified by registration and certificate number in a written statement signed
by an authorized officer of the Issuer and delivered to the Trustee at least 40 days prior to the last date on which notice of
redemption may be given as being owned of record and beneficially by, and not pledged or hypothecated by either (a) the Issuer
or (b) an entity specifically identified in such written statement directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer.
Section 11.05
Conversion Arrangement On Call For Redemption
. In connection with any redemption of Securities, the Issuer shall
deposit the amount due in connection with such redemption as required by Section 11.02 or it may arrange for the purchase and conversion
of any Securities called for redemption by an agreement with one or more investment bankers or other purchasers to purchase such
Securities and to make the deposit required of it by Section 11.02 on its behalf by paying to the Trustee or the Paying Agent in
trust for the Securityholders, on or before 10:00 a.m. New York time on the redemption date, an amount no less than the redemption
price, together with interest, if any, accrued to the redemption date of such Securities, in immediately available funds. Notwithstanding
anytime to the contrary contained in this Article 11, the obligation of the Issuer to pay the redemption price of such Securities,
including all accrued interest, if any, shall be deemed to be satisfied and discharged to the extent such amount is so paid by
such purchasers. If such an agreement is entered into, any Securities not duly surrendered for conversion by the Holders thereof
may, at the option of the Issuer, be deemed, to the fullest extent permitted by law, acquired by such purchasers from such Holders
and (notwithstanding anything to the contrary contained in Article 12) surrendered by such purchasers for conversion, all as of
immediately prior to the close of business on the last day on which Securities of such series called for redemption may be converted
in accordance with this Indenture and the terms of such Securities, subject to payment of the above amount aforesaid. The Trustee
or the Paying Agent shall hold and pay to the Securityholders whose Securities are selected for redemption any such amount paid
to it in the same manner as it would monies deposited with it by the Issuer for the redemption of Securities. Without the Trustee’s
and the Paying Agent’s prior written consent, no arrangement between the Issuer and such purchasers for the purchase and
conversion of any Securities shall increase or otherwise affect any of the powers, duties, responsibilities or obligations of the
Trustee as set forth in this Indenture, and the Issuer agrees to indemnify the Trustee from, and hold it harmless against, any
loss, liability or expense arising out of or in connection with any such arrangement for the purchase and conversion of any Securities
between the Issuer and such purchasers, including the costs and expenses incurred by the Trustee and the Paying Agent in the defense
of any claim or liability arising out of or in connection with the exercise or performance of any of its powers, duties, responsibilities
or obligations under this Indenture.
Article
12
CONVERSION OF SECURITIES
Section 12.01
Applicability of Article
. Securities of any series which are convertible into Capital Stock at the option of the
Securityholder shall be convertible in accordance with their terms and (unless otherwise specified as contemplated by Section 2.03
for Securities of any series) in accordance with this Article. Each reference in this Article 12 to “a Security” or
“the Securities” refers to the Securities of the particular series that is convertible into Capital Stock. Each reference
in this Article to “Capital Stock” into which Securities of any series are convertible refers to the class of Capital
Stock into which the Securities of such series are convertible in accordance with their terms (as specified as contemplated by
Section 2.03). If more than one series of Securities with conversion privileges are outstanding at any time, the provisions of
this Article 12 shall be applied separately to each such series.
Section 12.02
Right of Securityholders to Convert Securities
. Subject to and upon compliance with the terms of the Securities and
the provisions of Section 11.05 and this Article 12, at the option of the Holder thereof, any Security of any series of any authorized
denomination, or any portion of the Principal amount thereof which is $1,000 or any integral multiple of $1,000, may, at any time
during the period specified in the Securities of such series, or in case such Security or portion thereof shall have been called
for redemption, then in respect of such Security or portion thereof until and including, but not after (unless the Issuer shall
default in payment due upon the redemption thereof) the close of business on the Business Day prior to the date fixed for redemption
except that in the case of redemption at the option of the Securityholder, if specified in the terms of such Securities, such right
shall terminate upon receipt of written notice of the exercise of such option, be converted into duly authorized, validly issued,
fully paid and nonassessable shares of Capital Stock, as specified in such Security, at the conversion rate for each $1,000 Principal
amount of Securities (such initial conversion rate reflecting an initial conversion price specified in such Security) in effect
on the conversion date, or, in case an adjustment in the conversion rate has taken place pursuant to the provisions of Section
12.05, then at the applicable conversion rate as so adjusted, upon surrender of the Security or Securities, the Principal amount
of which is so to be converted, to the Issuer at any time during usual business hours at the office or agency to be maintained
by it in accordance with the provisions of Section 3.02, accompanied by a written notice of election to convert as provided in
Section 12.03 and, if so required by the Issuer and the Trustee, by a written instrument or instruments of transfer in form satisfactory
to the Issuer and the Trustee duly executed by the registered Holder or his attorney duly authorized in writing. All Securities
surrendered for conversion shall, if surrendered to the Issuer or any conversion agent, be delivered to the Trustee for cancellation
and cancelled by it, or shall, if surrendered to the Trustee, be cancelled by it, as provided in Section 2.10.
The initial conversion
price or conversion rate in respect of a series of Securities shall be as specified in the Securities of such series. The conversion
price or conversion rate will be subject to adjustment on the terms set forth in Section 12.05 or such other or different terms,
if any, as may be specified by Section 2.03 for Securities of such series. Provisions of this Indenture that apply to conversion
of all of a Security also apply to conversion of a portion of it.
Section 12.03
Issuance of Shares of Capital Stock on Conversion
. As promptly as practicable after the surrender, as herein provided,
of any Security or Securities for conversion, the Issuer shall deliver or cause to be delivered at its said office or agency to
or upon the written order of the Holder of the Security or Securities so surrendered a certificate or certificates representing
the number of duly authorized, validly issued, fully paid and nonassessable shares of Capital Stock into which such Security or
Securities may be converted in accordance with the terms thereof and the provisions of this Article 12. Prior to delivery of such
certificate or certificates, the Issuer shall require a written notice at its said office or agency from the Holder of the Security
or Securities so surrendered stating that the Holder irrevocably elects to convert such Security or Securities, or, if less than
the entire Principal amount thereof is to be converted, stating the portion thereof to be converted. Such notice shall also state
the name or names (with address and social security or other taxpayer identification number) in which said certificate or certificates
are to be issued. Such conversion shall be deemed to have been made at the time that such Security or Securities shall have been
surrendered for conversion and such notice shall have been received by the Issuer or the Trustee, the rights of the Holder of such
Security or Securities as a Securityholder shall cease at such time, the person or persons entitled to receive the shares of Capital
Stock upon conversion of such Security or Securities shall be treated for all purposes as having become the record holder or holders
of such shares of Capital Stock at such time and such conversion shall be at the conversion rate in effect at such time. In the
case of any Security of any series which is converted in part only, upon such conversion, the Issuer shall execute and the Trustee
shall authenticate and deliver to the Holder thereof, as requested by such Holder, a new Security or Securities of such series
of authorized denominations in aggregate Principal amount equal to the unconverted portion of such Security.
If the last day on
which a Security may be converted is not a Business Day in a place where a conversion agent is located, the Security may be surrendered
to that conversion agent on the next succeeding day that is a Business Day.
The Issuer will not
be required to deliver certificates for shares of Capital Stock upon conversion while its stock transfer books are closed for a
meeting of shareholders or for the payment of dividends or for any other purpose, but certificates for shares of Capital Stock
shall be delivered as soon as the stock transfer books shall again be opened.
Section 12.04
No Payment or Adjustment for Interest or Dividends
. Unless otherwise specified as contemplated by Section 2.03 for
Securities of such series, Securities surrendered for conversion during the period from the close of business on any regular record
date (or special record date for payment of defaulted interest) next preceding any interest payment date to the opening of business
on such interest payment date (except Securities called for redemption on a redemption date within such period) when surrendered
for conversion must be accompanied by payment of an amount equal to the interest thereon which the registered Holder is to receive
on such interest payment date. Payment of interest shall be made, as of such interest payment date or such date, as the case may
be, to the Holder of record of the Securities as of such regular, or special record date, as applicable. Except where Securities
surrendered for conversion must be accompanied by payment as described above, no interest on converted Securities will be payable
by the Issuer on any interest payment date subsequent to the date of conversion. No other payment or adjustment for interest or
dividends is to be made upon conversion. Notwithstanding the foregoing, upon conversion of any Original Issue Discount Security,
the fixed number of shares of Capital Stock into which such Security is convertible delivered by the Issuer to the Holder thereof
shall be applied, first, to pay the accrued original issue discount attributable to the period from the date of issuance to the
date of conversion of such Security, and, second, to pay the balance of the Principal amount of such Security.
Section 12.05
Adjustment of Conversion Rate
. Unless otherwise specified as contemplated by Section 2.03 for Securities of such
series, the conversion rate for Securities in effect at any time shall be subject to adjustment as follows:
(a)
In case the Issuer shall (i) declare a dividend or make a distribution on the class of Capital Stock into which Securities
of such series are convertible in shares of its Capital Stock, (ii) subdivide the outstanding shares of the class of Capital Stock
into which Securities of such series are convertible into a greater number of shares, (iii) combine the outstanding shares of the
class of Capital Stock into which Securities of such series are convertible into a smaller number of shares or (iv) issue by reclassification
of the shares of the class of Capital Stock into which Securities of such series are convertible (including any such reclassification
in connection with a consolidation or merger in which the Issuer is the continuing corporation) any shares, the conversion rate
for the Securities of such series in effect at the time of the record subdivision, combination or reclassification, shall be proportionately
adjusted so that the Holder of any Security of such series surrendered for conversion after such time shall be entitled to receive
the number and kind of shares which he would have owned or have been entitled to receive had such Security been converted immediately
prior to such time. Similar adjustments shall be made whenever any event listed above shall occur.
(b)
In case the Issuer shall fix a record date for the issuance of rights or warrants to all holders of the class of Capital
Stock into which Securities of such series are convertible entitling them (for a period expiring within 45 days after such record
date) to subscribe for or purchase shares of such class of Capital Stock (or securities convertible into shares of such class of
Capital Stock) at a price per share (or, in the case of a right or warrant to purchase securities convertible into such class of
Capital Stock, having a conversion price per share, after adding thereto the exercise price, computed on the basis of the maximum
number of shares of such class of Capital Stock issuable upon conversion of such convertible securities, per share of such class
of Capital Stock, so issuable) less than the current market price per share of such class of Capital Stock (as defined in subsection
(e) below) on the date on which such issuance was declared or otherwise announced by the Issuer (the “
Determination Date
”),
the number of shares of such class of Capital Stock into which each $1,000 Principal amount of Securities shall be convertible
after such record date shall be determined by multiplying the number of shares of such class of Capital Stock into which such Principal
amount of Securities was convertible immediately prior to such record date by a fraction, of which the numerator shall be the number
of shares of such class of Capital Stock outstanding on the Determination Date plus the number of additional shares of such class
of Capital Stock offered for subscription or purchase (or in the case of a right or warrant to purchase securities convertible
into such class of Capital Stock, the aggregate number of additional shares of such class of Capital Stock into which the convertible
securities so offered are initially convertible), and of which the denominator shall be the number of shares of such class of Capital
Stock outstanding on the Determination Date plus the number of shares of such class of Capital Stock obtained by dividing the aggregate
offering price of the total number of shares so offered (or, in the case of a right or warrant to purchase securities convertible
into such class of Capital Stock, the aggregate initial conversion price of the convertible securities so offered, after adding
thereto the aggregate exercise price of such rights or warrants computed on the basis of the maximum number of shares of such class
of Capital Stock issuable upon conversion of such convertible securities) by such current market price. Shares of such class of
Capital Stock of the Issuer owned by or held for the account of the Issuer shall not be deemed outstanding for the purpose of any
such computation. Such adjustment shall be made successively whenever such a record date is fixed; and to the extent that shares
of such class of Capital Stock are not delivered (or securities convertible into shares of such class of Capital Stock are not
delivered) after the expiration of such rights or warrants (or, in the case of rights or warrants to purchase securities convertible
into such class of Capital Stock once exercised, the expiration of the conversion right of such securities) the conversion rate
shall be readjusted to the conversion rate which would then be in effect had the adjustments made upon the issuance of such rights
or warrants (or securities convertible into shares) been made upon the basis of delivery of only the number of shares actually
delivered. In the event that such rights or warrants are not so issued, the conversion rate shall again be adjusted to be the conversion
rate which would then be in effect if such record date had not been fixed.
(c)
In case the Issuer shall fix a record date for the making of a distribution to all holders of the class of Capital Stock
into which Securities of such series are convertible (including any such distribution made in connection with a consolidation or
merger in which the Issuer is the continuing corporation) of evidences of its indebtedness or assets (excluding any cash dividends
paid from retained earnings and dividends payable in Capital Stock for which adjustment is made pursuant to subsection (a) above
or (d) below) or subscription rights or warrants (excluding subscription rights or warrants to purchase the class of Capital Stock
into which Securities of such series are convertible), the number of shares of such class of Capital Stock into which each $1,000
Principal amount of Securities of such series shall be convertible after such record date shall be determined by multiplying the
number of shares of such class of Capital Stock into which such Principal amount of Securities was convertible immediately prior
to such record date by a fraction, of which the numerator shall be the fair market value of the assets of the Issuer, after deducting
therefrom all liabilities of the Issuer and all preferences (including accrued but unpaid dividends) in respect of classes of Capital
Stock having a preference with respect to the assets of the Issuer over such class of Capital Stock (all as determined by the Board
of Directors, whose determination shall be conclusive, and described in a certificate signed by chairman of the Issuer’s
Board of Directors, its president, any vice president, its treasurer, any assistant treasurer, its secretary or any assistant secretary,
filed with the Trustee and each conversion agent) on such record date, and of which the denominator shall be such fair market value
after deducting therefrom such liabilities and preferences, less the fair market value (as determined by the Board of Directors,
whose determination shall be conclusive, and described in a statement filed with the Trustee and each conversion agent) of the
assets or evidences of indebtedness, so distributed or of such subscription rights or warrants applicable, so distributed. Such
adjustment shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made,
the conversion rate shall again be adjusted to the conversion rate which would then be in effect if such record date had not been
fixed.
(d)
In case the Issuer shall, by dividend or otherwise, distribute to all holders of its Capital Stock cash (excluding any dividend
or distribution in connection with the liquidation, dissolution or winding up of the Issuer, whether voluntary or involuntary),
then, in such case, unless the Issuer elects to reserve such cash for distribution to the Holders of the Securities upon the conversion
of the Securities so that any such Holder converting Securities will receive upon such conversion, in addition to the shares of
Capital Stock to which such Holder is entitled, the amount of cash which such Holder would have received if such Holder had, immediately
prior to the record date for such distribution of cash, converted its Securities into Capital Stock, the conversion rate shall
be adjusted so that the same shall equal the rate determined by multiplying the conversion rate in effect immediately prior to
the record date by a fraction of which the denominator shall be the current market price of the Capital Stock (determined as provided
in Section 12.05(e) on the record date less the amount of cash so distributed (and not excluded as provided above) applicable to
one share of Capital Stock and the numerator shall be such current market price of the Capital Stock (determined as provided in
Section 12.05(e)), such adjustment to be effective immediately prior to the opening of business on the day following the record
date; provided, however, that in the event the portion of the cash so distributed applicable to one share of Capital Stock is equal
to or greater than the current market price of the Capital Stock (determined as provided in Section 12.05(e)) on the record date,
in lieu of the foregoing adjustment, adequate provision shall be made so that each Securityholder shall have the right to receive
upon conversion the amount of cash such Holder would have received had such Holder converted each Security on the record date.
If such dividend or distribution is not so paid or made, the conversion rate shall again be adjusted to be the conversion rate
which would then be in effect if such dividend or distribution had not been declared.
(e)
For the purpose of any computation under subsections (b) and (d) above and Section 12.06, the current market price per share
of the Capital Stock on any date as of which such price is to be computed shall mean the average of the Closing Prices for the
30 consecutive Business Days commencing 45 Business Days before such date.
(f)
No adjustment in the conversion rate shall be required unless such adjustment would require a cumulative increase or decrease
of at least 1% in such rate;
provided
,
however
, that any adjustments which by reason of this subsection (f) are not
required to be made shall be carried forward and taken into account in any subsequent adjustment; and
provided further
,
that adjustments shall be required and made in accordance with the provisions of this Article 12 (other than this subsection (f))
not later than such time as may be required in order to preserve the tax-free nature of a States income tax purposes to the Holders
of Securities or the class of Capital Stock into which such Securities are convertible. All calculations under this Article 12
shall be made to the nearest cent or to the nearest one-thousandth of a share, as the case may be. Anything in this Section 12.05
to the contrary notwithstanding, the Issuer shall be entitled to make such adjustments in the conversion rate, in addition to those
required by this Section 12.05, as it in its discretion shall determine to be advisable in order that any stock dividend, subdivision
of shares, distribution of rights to purchase stock or securities, or distribution of securities convertible into or exchangeable
for stock hereafter made by the Issuer to its shareholders shall not be taxable for United States income tax purposes.
(g)
Whenever the conversion rate is adjusted, as herein provided, the Issuer shall promptly file with the Trustee and with the
office or agency maintained by the Issuer for the conversion of Securities of such series pursuant to Section 3.02, a certificate
of a firm of independent public accountants of recognized national standing selected by the Board of Directors (who may be the
regular accountants employed by the Issuer) setting forth the conversion rate after such adjustment and setting forth a brief statement
of the facts requiring such adjustment and a computation thereof. Such certificate shall be conclusive evidence of the correctness
of such adjustment. Neither the Trustee nor any conversion agent shall be under any duty or responsibility with respect to any
such certificate or any facts or computations set forth therein, except to exhibit said certificate from time to time to any Securityholder
of such series desiring to inspect the same. The Issuer shall promptly cause a notice setting forth the adjusted conversion rate
to be mailed to the Holders of Securities of such series, as their names and addresses appear upon the register of the Issuer.
(h)
In the event that at any time, as a result of shares of any other class of Capital Stock becoming issuable in exchange or
substitution for or in lieu of shares of the class of Capital Stock into which such Securities are convertible or as a result of
an adjustment made pursuant to subsection (a) above, the Holder of any Security of such series thereafter surrendered for conversion
shall become entitled to receive any shares of the Issuer other than shares of the class of Capital Stock into which the Issuer
of such series are convertible, thereafter the number of such other shares so receivable upon conversion of any Security shall
be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with
respect to the class of Capital Stock into which the Securities of such series are convertible contained in subsections (a) to
(f), inclusive, above, and the provisions of this Article 12 with respect to the class of Capital Stock into which the Securities
of such series are convertible shall apply on like terms to any such other shares.
(i)
The conversion rate with respect to any Original Issue Discount Security, the terms of which provide for convertibility,
shall not be adjusted during the term of such Original Issue Discount Security for accrued original issue discount.
(j)
In the event that the Securities of any series are convertible into more than one class of Capital Stock, the provisions
of this Section 12.05 shall apply separately to events affecting each such class.
Section 12.06
No Fractional Shares to Be Issued
. No fractional shares of Capital Stock shall be issued upon conversions of Securities.
If more than one Security of any series shall be surrendered for conversion at one time by the same Holder, the number of full
shares which shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Principal amount of the
Securities of such series (or specified portions thereof to the extent permitted hereby) so surrendered. Instead of a fraction
of a share of Capital Stock which would otherwise be issuable upon conversion of any Security or Securities (or specified portions
thereof), the Issuer shall pay a cash adjustment in respect of such fraction of a share in an amount equal to the same fractional
interest of the current market price (as defined in Section 12.05) per share of Capital Stock on the Business Day next preceding
the day of conversion.
Section 12.07
Preservation of Conversion Rights Upon Consolidation, Merger, Sale or Conveyance
. In case of any consolidation of
the Issuer with, or merger of the Issuer into, any other corporation (other than a consolidation or merger in which the Issuer
is the continuing corporation), or in the case of any sale or transfer of all or substantially all of the assets of the Issuer,
the corporation formed by such consolidation or the corporation into which the Issuer shall have been merged or the corporation
which shall have acquired such assets, as the case may be, shall execute and deliver to the Trustee, a supplemental indenture,
subject to the provisions of Article 7 and 8 as they relate to supplemental indentures, providing that the Holder of each Security
then Outstanding of a series which was convertible into Capital Stock shall have the right thereafter to convert such Security
into the kind and amount of shares of stock and other securities and property, including cash, receivable upon such consolidation,
merger, sale or transfer by a holder of the number of shares of Capital Stock of the Issuer into which such Securities might have
been converted immediately prior to such consolidation, merger, sale or transfer. Such supplemental indenture shall conform to
the provisions of the Trust Indenture Act of 1939 as then in effect and shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Article 12. Neither the Trustee nor any conversion agent
shall be under any responsibility to determine the correctness of any provision contained in any such supplemental indenture relating
either to the kind or amount of shares of stock or other securities or property receivable by Securityholders upon the conversion
of their Securities after any such consolidation, merger, sale or transfer, or to any adjustment to be made with respect there
to and, subject to the provisions of Article 5, may accept as conclusive evidence of the correctness of any such provisions, and
shall be protected in relying upon, an Opinion of Counsel with respect thereto. If in the case of any such consolidation, merger,
sale or transfer, the stock or other securities and property receivable by a Holder of the Securities includes stock or other securities
and property of a corporation other than the successor or purchasing corporation, then such supplemental indenture shall also be
executed by such other corporation and shall contain such additional provisions to protect the interests of the Holders of the
Securities as the Board of Directors shall reasonably consider necessary. The above provisions of this Section 12.07 shall similarly
apply to successive consolidations, mergers, sales or transfers.
Section 12.08
Notice to Security Holders of a Series Prior to Taking Certain Types of Action
. With respect to the Securities of
any series, in case:
(a)
the Issuer shall authorize the issuance to all holders of the class of Capital Stock into which Securities of such series
are convertible of rights or warrants to subscribe for or purchase shares of its Capital Stock or of any other right;
(b)
the Issuer shall authorize the distribution to all holders of the class of Capital Stock into which Securities of such series
are convertible of evidences of its indebtedness or assets (except for the exclusions with respect to certain dividends set forth
in Section 12.05(c));
(c)
of any subdivision, combination or reclassification of the class of Capital Stock into which Securities of such series are
convertible or of any consolidation or merger to which the Issuer is a party and for which approval by the shareholders of the
Issuer is required, or of the sale or transfer of all or substantially all of the assets of the Issuer; or
(d)
of the voluntary or involuntary dissolution, liquidation or winding up of the Issuer;
then the Issuer shall cause to be filed
with the Trustee and at the office or agency maintained for the purpose of conversion of Securities of such series pursuant to
Section 3.02, and shall cause to be mailed to the Holders of Securities of such series, at their last addresses as they shall appear
upon the register of the Issuer, at least 10 days prior to the applicable record date hereinafter specified, a notice stating (i)
the date as of which the holders of such class of Capital Stock to be entitled to receive any such rights, warrants or distribution
are to be determined, or (ii) the date on which any such subdivision, combination, reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation, winding up or other action is expected to become effective, and the date as of which it is
expected that holders of record of such class of Capital Stock shall be entitled to exchange their Capital Stock of such class
for securities or other property, if any, deliverable upon such subdivision, combination, reclassification, consolidation, merger,
sale, transfer, dissolution, liquidation, winding up or other action. The failure to give the notice required by this Section 12.08
or any defect therein shall not affect the legality or validity of any distribution, right, warrant, subdivision, combination,
reclassification, consolidation, merger, sale, transfer, dissolution, liquidation, winding up or other action, or the vote upon
any of the foregoing. Such notice shall also be published by and at the expense of the Issuer not later than the aforesaid filing
date at least once in an Authorized Newspaper.
Section 12.09
Covenant to Reserve Shares for Issuance on Conversion of Securities
. The Issuer covenants that at all times it will
reserve and keep available out of each class of its authorized Capital Stock, free from preemptive rights, solely for the purpose
of issue upon conversion of Securities of any series as herein provided, such number of shares of Capital Stock of such class as
shall then be issuable upon the conversion of all Outstanding Securities of such series. The Issuer covenants that an shares of
Capital Stock which shall be so issuable shall, when issued or delivered, be duly and validly issued shares of the class of authorized
Capital Stock into which Securities of such series are convertible, and shall be fully paid and nonassessable, free of all liens
and charges and not subject to preemptive rights and that, upon conversion, the appropriate capital stock accounts of the Issuer
will be duly credited.
Section 12.10
Compliance with Governmental Requirements
. The Issuer covenants that if any shares of Capital Stock required to be
reserved for purposes of conversion of Securities hereunder require registration or listing with or approval of any governmental
authority under any Federal or State law, pursuant to the Securities Act of 1933, as amended, or the Securities Exchange Act of
1934, as amended, or any national or regional securities exchange on which such Capital Stock is listed at the time of delivery
of any shares of such Capital Stock, before such shares may be issued upon conversion, the Issuer will use reasonable efforts to
cause such shares to be duly registered, listed or approved, as the case may be.
Section 12.11
Payment of Taxes Upon Certificates for Shares Issued Upon Conversion
. The issuance of certificates for shares of
Capital Stock upon the conversion of Securities shall be made without charge to the converting Securityholders for any tax (including,
without limitation, all documentary and stamp taxes) in respect of the issuance and delivery of such certificates, and such certificates
shall be issued in the respective names of, or in such names as may be directed by, the Holders of the Securities converted; provided,
however, that the Issuer shall not be required to pay any tax which may be payable in respect of any transfer involved in the issuance
and delivery of any such certificate in a name other than that of the Holder of the Security converted, and the Issuer shall not
be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have
paid to the Issuer the amount of such tax or shall have established to the satisfaction of the Issuer that such tax has been paid.
Section 12.12
Trustee’s Duties with Respect to Conversion Provisions
. The Trustee and any conversion agent shall not at any
time be under any duty or responsibility to any Securityholder to determine whether any facts exist which may require any adjustment
of the conversion rate or conversion price, or with respect to the nature or extent of any such adjustment when made, or with respect
to the method employed, or herein or in any supplemental indenture provided to be employed, in making the same. Neither the Trustee
nor any conversion agent shall be accountable with respect to the registration under securities laws, listing, validity or value
(or the kind or amount) of any shares of Capital Stock, or of any other securities or property, which may at any time be issued
or delivered upon the conversion of any Security; and neither the Trustee nor any conversion agent makes any representation with
respect thereto. Neither the Trustee nor any conversion agent shall be responsible for any failure of the Issuer to make any cash
payment or to issue, transfer or deliver any shares of stock or stock certificates or other securities or property upon the surrender
of any Security for the purpose of conversion; and the Trustee, subject to the provisions of Article 5, and any conversion agent
shall not be responsible for any failure of the Issuer to comply with any of the covenants of the Issuer contained in this Article
12.
IN WITNESS WHEREOF,
the parties hereto have caused this Indenture to be duly executed, as of the first date written above.
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ZOMEDICA PHARMACEUTICALS CORP., as Issuer
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By:
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Name:
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Title:
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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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FORM OF NOTE
UNLESS AND UNTIL IT
IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE REGISTERED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF
THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS
THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“
DTC
”),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
ZOMEDICA PHARMACEUTICALS CORP.
[
●] % Senior Note Due
[
●]
No.
[
●] CUSIP No.:
[
●]
$
[
●]
ZOMEDICA PHARMACEUTICALS
CORP., a corporation organized under the laws of Alberta, Canada (“
Issuer
”, which term includes any successor
corporation), for value received promises to pay to CEDE & CO. or its registered assigns, the principal sum of
[
●]
on
[
●].
Interest Payment Dates:
[
●] and
[
●] (each, an “
Interest Payment Date
”), commencing on
[
●]. Interest
Record Dates:
[
●] and
[
●] (each, an “
Interest Record Date
”).
Reference is made to
the further provisions of this Security contained herein, which will for all purposes have the same effect as if set forth at this
place.
IN WITNESS WHEREOF,
the Issuer has caused this Security to be signed manually or by facsimile by its duly authorized officer.
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ZOMEDICA PHARMACEUTICALS CORP.
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By:
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This is one of the
series designated herein and referred to in the within-mentioned Indenture.
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[
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By:
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Authorized Signatory
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(REVERSE OF SECURITY)
ZOMEDICA PHARMACEUTICALS CORP.
[
●]%
Senior Note Due
[
●]
ZOMEDICA PHARMACEUTICALS
CORP., a corporation organized under the laws of Alberta, Canada (the “Issuer”), promises to pay interest on the Principal
amount of this Security at the rate per annum shown above. Cash interest on the Securities will accrue from the most recent date
to which interest has been paid or, if no interest has been paid, from
[
●]. The Issuer will pay interest semi-annually
in arrears on each Interest Payment Date, commencing
[
●]. Interest will be computed on the basis of a 360-day year
of twelve 30-day months.
The Issuer shall pay
interest on overdue Principal from time to time on demand at the rate borne by the Securities and on overdue installments of interest
(without regard to any applicable grace periods) to the extent lawful.
The Issuer shall pay
interest on the Securities (except defaulted interest) to the persons who are the registered Holders at the close of business on
the Interest Record Date immediately preceding the Interest Payment Date notwithstanding any transfer or exchange of such Security
subsequent to such Interest Record Date and prior to such Interest Payment Date. Holders must surrender Securities to the Trustee
to collect Principal payments. The Issuer shall pay Principal and interest in money of the United States that at the time of payment
is legal tender for payment of public and private debts (“
U.S. Legal Tender
”). However, the payments of interest,
and any portion of the Principal (other than interest payable at maturity or on any redemption or repayment date or the final payment
of Principal) shall be made by the Paying Agent, upon receipt from the Issuer of immediately available funds by 11:00 a.m., New
York City time (or such other time as may be agreed to between the Issuer and the Paying Agent or the Issuer), directly to a Holder
(by Federal funds wire transfer or otherwise) if the Holder has delivered written instructions to the Trustee 15 days prior to
such payment date requesting that such payment will be so made and designating the bank account to which such payments shall be
so made and in the case of payments of Principal surrenders the same to the Trustee in exchange for a Security or Securities aggregating
the same principal amount as the unredeemed Principal amount of the Securities surrendered.
Initially,
[
●]
(the “
Trustee
”) will act as Paying Agent. The Issuer may change any Paying Agent without notice to the Holders.
The Issuer issued the
Securities under an Indenture, dated as of
[
●] (the “
Indenture
”), between the Issuer and the Trustee.
Capitalized terms herein are used as defined in the Indenture unless otherwise defined herein. The terms of the Securities include
those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) (the “
TIA
”), as in effect on the date of the Indenture until such time as the Indenture is qualified
under the TIA, and thereafter as in effect on the date on which the Indenture is qualified under the TIA. Notwithstanding anything
to the contrary herein, the Securities are subject to all such terms, and Holders of Securities are referred to the Indenture and
the TIA for a statement of them. To the extent the terms of the Indenture and this Security are inconsistent, the terms of the
Indenture shall govern.
|
|
5.
|
Denominations; Transfer; Exchange.
|
The Securities are
in registered form, without coupons, in denominations of $1,000 and multiples of $1,000. A Holder shall register the transfer of
or exchange Securities in accordance with the Indenture. The Issuer may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay certain transfer taxes or similar governmental charges payable in connection therewith
as permitted by the Indenture. The Issuer need not issue, authenticate, register the transfer of or exchange any Securities or
portions thereof for a period of fifteen (15) days before such series is selected for redemption, nor need the Issuer register
the transfer or exchange of any security selected for redemption in whole or in part.
|
|
6.
|
Persons Deemed Owners.
|
The registered Holder
of a Security shall be treated as the owner of it for all purposes.
If funds for the payment
of Principal or interest remain unclaimed for two years, the Trustee and the Paying Agent will repay the funds to the Issuer at
its written request. After that, all liability of the Trustee and such Paying Agent with respect to such funds shall cease.
|
|
8.
|
Legal Defeasance and Covenant Defeasance.
|
The Issuer may be discharged
from its obligations under the Securities and under the Indenture with respect to the Securities except for certain provisions
thereof, and may be discharged from obligations to comply with certain covenants contained in the Securities and in the Indenture
with respect to the Securities, in each case upon satisfaction of certain conditions specified in the Indenture.
|
|
9.
|
Amendment; Supplement; Waiver.
|
Subject to certain
exceptions, the Securities and the provisions of the Indenture relating to the Securities may be amended or supplemented with the
written consent of the Holders of at least a majority in aggregate Principal amount of the Securities then outstanding, and any
existing Default or Event of Default or compliance with certain provisions may be waived with the consent of the Holders of a majority
in aggregate Principal amount of the Securities then outstanding. Without notice to or consent of any Holder, the parties thereto
may amend or supplement the Indenture and the Securities to, among other things, cure any ambiguity, defect or inconsistency, provide
for uncertificated Securities in addition to or in place of certificated Securities or comply with any requirements of the Commission
in connection with the qualification of the Indenture under the Trust Indenture Act, or make any other change that does not adversely
affect the rights of any Holder of a Security.
|
|
10.
|
Defaults and Remedies.
|
If an Event of Default
(other than certain bankruptcy Events of Default with respect to the Issuer) occurs and is continuing, the Trustee or the Holders
of at least 25% in aggregate Principal amount of Securities then outstanding may declare all of the Securities to be due and payable
immediately in the manner and with the effect provided in the Indenture. If a bankruptcy Event of Default with respect to the Issuer
occurs and is continuing, all the Securities shall be immediately due and payable immediately in the manner and with the effect
provided in the Indenture without any notice or other action on the part of the Trustee or any Holder. Holders of Securities may
not enforce the Indenture or the Securities except as provided in the Indenture. The Trustee is not obligated to enforce the Indenture
or the Securities unless it has received indemnity satisfactory to it. The Indenture permits, subject to certain limitations therein
provided, Holders of a majority in aggregate Principal amount of the Securities then outstanding to direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Holders of Securities notice of certain continuing Defaults or Events of Default
if it determines that withholding notice is in their interest.
Reference is made to
the Indenture, including, without limitation, provisions giving the Holder of this Security the right to convert this Security
into Capital Stock of the Issuer on the terms and subject to the limitations as more fully specified in the Indenture. The initial
conversion rate for this Security is
[
●]. This conversion rate is subject to modification as provided in the Indenture.
Such further provisions shall for all purposes have the same effect as though fully set forth at this place.
|
|
12.
|
Trustee Dealings with Issuer.
|
The Trustee under the
Indenture, in its individual or any other capacity, may become the owner or pledgee of Securities and may otherwise deal with the
Issuer as if it were not the Trustee.
|
|
13.
|
No Recourse Against Others.
|
No stockholder, director,
officer, employee or incorporator, as such, of the Issuer or any successor Person thereof shall have any liability for any obligation
under the Securities or the Indenture or for any claim based on, in respect of or by reason of, such obligations or their creation.
Each Holder of a Security by accepting a Security waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Securities.
This Security shall
not be valid until the Trustee manually signs the certificate of authentication on this Security.
|
|
15.
|
Abbreviations and Defined Terms.
|
Customary abbreviations
may be used in the name of a Holder of a Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by
the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification Procedures, the Issuer has caused CUSIP numbers to be printed on
the Securities as a convenience to the Holders of the Securities. No representation is made as to the accuracy of such numbers
as printed on the Securities and reliance may be placed only on the other identification numbers printed hereon.
The laws of the State
of New York shall govern the Indenture and this Security thereof.
ASSIGNMENT FORM
|
I or we assign and transfer this Security to
|
|
(Print or type name, address and zip code of assignee or transferee)
|
|
(Insert Social Security or other identifying number of assignee
or transferee)
|
and irrevocably appoint ___________________ agent to transfer
this Security on the books of the Issuer. The agent may substitute another to act for him.
|
Dated:
|
|
|
Signed:
|
|
|
|
|
|
|
(Signed exactly as name appears on the other side of this Security)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Signature Guarantee:
|
|
|
|
|
|
|
Participant in a recognized Signature
Guarantee Medallion Program (or other signature guarantor program reasonably acceptable to the Trustee)
|
Exhibit 4.3
|
ZOMEDICA
PHARMACEUTICALS CORP., as Issuer
and
[
●],
as Trustee
INDENTURE
Dated
as of
[
●]
Subordinated
Debt Securities
|
CROSS REFERENCE SHEET
1
Between
Provisions of the Trust Indenture
Act of 1939 and the Indenture to be dated as of _________, 20___ between
ZOMEDICA PHARMACEUTICALS CORP.
and
___________________, as Trustee:
|
Section of the Act
|
|
Section of Indenture
|
|
310(a)(1) and (2)
|
|
5.08
|
|
310(a)(3) and (4)
|
|
Inapplicable
|
|
310(b)
|
|
5.09(a), (b) and (d)
|
|
310(c)
|
|
Inapplicable
|
|
311(a)
|
|
Inapplicable
|
|
311(b)
|
|
Inapplicable
|
|
311(c)
|
|
Inapplicable
|
|
312(a)
|
|
3.05
|
|
312(b)
|
|
3.05
|
|
312(c)
|
|
4.02(c)
|
|
313(a)
|
|
5.12
|
|
313(b)(1)
|
|
5.12
|
|
313(b)(2)
|
|
5.12
|
|
313(c)
|
|
5.12
|
|
313(d)
|
|
5.12
|
|
314(a)
|
|
3.06
|
|
314(b)
|
|
Inapplicable
|
|
314(c)(1) and (2)
|
|
10.05
|
|
314(c)(3)
|
|
Inapplicable
|
|
314(d)
|
|
Inapplicable
|
|
314(e)
|
|
10.05
|
|
314(f)
|
|
Inapplicable
|
|
315(a), (c) and (d)
|
|
5.01
|
|
315(b)
|
|
4.11
|
|
315(e)
|
|
4.12
|
|
316(a)(1)
|
|
4.09
|
|
316(a)(2)
|
|
Not required
|
|
316(a) (last sentence)
|
|
6.04
|
|
316(b)
|
|
4.07
|
|
317(a)
|
|
4.02
|
|
317(b)
|
|
3.03(a) and (b)
|
|
318(a)
|
|
10.07
|
|
1
|
This Cross Reference Sheet is not part of the Indenture.
|
Table of Contents
|
|
Page
|
|
|
|
|
ARTICLE 1 DEFINITIONS
|
1
|
|
Section 1.01 Certain Terms Defined
|
1
|
|
ARTICLE 2 SECURITIES
|
8
|
|
Section 2.01 Forms Generally
|
8
|
|
Section 2.02 Form of Trustee’s Certification of Authentication
|
8
|
|
Section 2.03 Amount Unlimited; Issuable in Series
|
9
|
|
Section 2.04 Authentication and Delivery of Securities
|
10
|
|
Section 2.05 Execution of Securities
|
11
|
|
Section 2.06 Certificate of Authentication
|
12
|
|
Section 2.07 Denomination and Date of Securities; Payments of Interest
|
12
|
|
Section 2.08 Registration, Transfer and Exchange
|
13
|
|
Section 2.09 Mutilated, Defaced, Destroyed, Lost and Stolen Securities
|
15
|
|
Section 2.10 Cancellation of Securities; Destruction Thereof
|
16
|
|
Section 2.11 Temporary Securities
|
16
|
|
Section 2.12 Computation of Interest
|
17
|
|
Section 2.13 CUSIP Numbers
|
17
|
|
ARTICLE 3 COVENANTS OF THE ISSUER AND THE TRUSTEE
|
17
|
|
Section 3.01 Payment of Principal and Interest
|
17
|
|
Section 3.02 Offices for Payments, etc
|
18
|
|
Section 3.03 Paying Agents
|
18
|
|
Section 3.04 Certificate of the Issuer
|
19
|
|
Section 3.05 List of Securityholders
|
19
|
|
Section 3.06 Reports by the Issuer
|
19
|
|
Section 3.07 Corporate Existence
|
20
|
|
Section 3.08 Restrictions on Mergers, Sales and Consolidations
|
20
|
|
Section 3.09 Further Assurances
|
20
|
|
ARTICLE 4 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
|
20
|
|
Section 4.01 Event of Default Defined; Acceleration of Maturity; Waiver of Default
|
20
|
Table of Contents
(continued)
|
|
Page
|
|
|
|
|
Section 4.02 Collection of Indebtedness by Trustee; Trustee May Prove Debt
|
22
|
|
Section 4.03 Application of Proceeds
|
24
|
|
Section 4.04 Suits for Enforcement
|
25
|
|
Section 4.05 Restoration of Rights on Abandonment of Proceedings
|
25
|
|
Section 4.06 Limitations on Suits by Securityholder
|
26
|
|
Section 4.07 Unconditional Right of Securityholders to Institute Certain Suits
|
26
|
|
Section 4.08 Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default
|
26
|
|
Section 4.09 Control by Securityholders
|
27
|
|
Section 4.10 Waiver of Past Defaults
|
27
|
|
Section 4.11 Trustee to Give Notice of Default, But May Withhold in Certain Circumstances
|
27
|
|
Section 4.12 Right of Court to Require Filing of Undertaking to Pay Costs
|
28
|
|
ARTICLE 5 CONCERNING THE TRUSTEE
|
28
|
|
Section 5.01 Duties and Responsibilities of the Trustee
|
28
|
|
Section 5.02 Certain Rights of the Trustee
|
29
|
|
Section 5.03 Trustee Not Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof
|
31
|
|
Section 5.04 Trustee and Agents May Hold Securities; Collections, etc
|
31
|
|
Section 5.05 Monies Held by Trustee
|
31
|
|
Section 5.06 Compensation and Indemnification of Trustee and Its Prior Claim
|
31
|
|
Section 5.07 Right of Trustee to Rely on Officers’ Certificate, etc
|
32
|
|
Section 5.08 Persons Eligible for Appointment as Trustee
|
32
|
|
Section 5.09 Resignation and Removal; Appointment of Successor Trustee
|
32
|
|
Section 5.10 Acceptance of Appointment by Successor
|
33
|
|
Section 5.11 Merger, Conversion, Consolidation or Succession to Business of Trustee
|
34
|
|
Section 5.12 Reports to the Trustee
|
34
|
Table of Contents
(continued)
|
|
Page
|
|
|
|
|
ARTICLE 6 CONCERNING THE SECURITYHOLDERS
|
35
|
|
Section 6.01 Evidence of Action Taken by Securityholders
|
35
|
|
Section 6.02 Proof of Execution of Instruments and of Holding of Securities; Record Date
|
35
|
|
Section 6.03 Holders to be Treated as Owners
|
35
|
|
Section 6.04 Securities Owned by Issuer Deemed Not Outstanding
|
36
|
|
Section 6.05 Right of Revocation of Action Taken
|
36
|
|
ARTICLE 7 SUPPLEMENTAL INDENTURES
|
37
|
|
Section 7.01 Supplemental Indentures Without Consent of Securityholders
|
37
|
|
Section 7.02 Supplemental Indentures With Consent of Securityholders
|
38
|
|
Section 7.03 Effect of Supplemental Indenture
|
39
|
|
Section 7.04 Documents to Be Given to Trustee
|
39
|
|
Section 7.05 Notation on Securities in Respect of Supplemental Indentures
|
40
|
|
ARTICLE 8 CONSOLIDATION, MERGER, SALE OR CONVEYANCE
|
40
|
|
Section 8.01 Issuer May Consolidate, etc
|
40
|
|
Section 8.02 Successor Corporation Substituted
|
40
|
|
ARTICLE 9 DISCHARGE OF INDENTURE
|
41
|
|
Section 9.01 Defeasance Within One Year of Payment
|
41
|
|
Section 9.02 Defeasance
|
42
|
|
Section 9.03 Covenant Defeasance
|
43
|
|
Section 9.04 Application of Trust Money
|
43
|
|
Section 9.05 Repayment to Issuer
|
44
|
|
ARTICLE 10 MISCELLANEOUS PROVISIONS
|
44
|
|
Section 10.01 Incorporators, Stockholders, Officers and Directors Exempt from Individual Liability
|
44
|
|
Section 10.02 Provisions of Indenture for the Sole Benefit of Parties and Securityholders
|
44
|
|
Section 10.03 Successors and Assigns of Issuer Bound by Indenture
|
44
|
|
Section 10.04 Notices and Demands on Issuer, Trustee and Securityholders
|
45
|
Table of Contents
(continued)
|
|
Page
|
|
|
|
|
Section 10.05 Officers’ Certificates and Opinions of Counsel; Statements to be Contained Therein
|
45
|
|
Section 10.06 Payments Due on Saturdays, Sundays and Holidays
|
46
|
|
Section 10.07 Conflict of Any Provision of Indenture with Trust Indenture Act of 1939
|
46
|
|
Section 10.08 New York Law to Govern
|
46
|
|
Section 10.09 Counterparts
|
46
|
|
Section 10.10 Effect of Headings
|
46
|
|
ARTICLE 11 REDEMPTION OF SECURITIES
|
47
|
|
Section 11.01 Applicability of Article
|
47
|
|
Section 11.02 Notice of Redemption; Partial Redemptions
|
47
|
|
Section 11.03 Payment of Securities Called for Redemption
|
48
|
|
Section 11.04 Exclusion of Certain Securities from Eligibility for Selection for Redemption
|
48
|
|
Section 11.05 Conversion Arrangement On Call For Redemption
|
49
|
|
ARTICLE 12 CONVERSION OF SECURITIES
|
49
|
|
Section 12.01 Applicability of Article
|
49
|
|
Section 12.02 Right of Securityholders to Convert Securities
|
50
|
|
Section 12.03 Issuance of Shares of Capital Stock on Conversion
|
50
|
|
Section 12.04 No Payment or Adjustment for Interest or Dividends
|
51
|
|
Section 12.05 Adjustment of Conversion Rate
|
51
|
|
Section 12.06 No Fractional Shares to Be Issued
|
55
|
|
Section 12.07 Preservation of Conversion Rights Upon Consolidation, Merger, Sale or Conveyance
|
55
|
|
Section 12.08 Notice to Security Holders of a Series Prior to Taking Certain Types of Action
|
56
|
|
Section 12.09 Covenant to Reserve Shares for Issuance on Conversion of Securities
|
57
|
|
Section 12.10 Compliance with Governmental Requirements
|
57
|
|
Section 12.11 Payment of Taxes Upon Certificates for Shares Issued Upon Conversion
|
57
|
|
Section 12.12 Trustee’s Duties with Respect to Conversion Provisions
|
57
|
|
ARTICLE 13 SUBORDINATION OF SECURITIES
|
58
|
|
Section 13.01 Agreement Of Subordination
|
58
|
Table of Contents
(continued)
|
|
Page
|
|
|
|
|
Section 13.02 Payments to Holders
|
58
|
|
Section 13.03 Subrogation Of Securities
|
59
|
|
Section 13.04 Authorization By Holders
|
60
|
|
Section 13.05 Notice to Trustee
|
60
|
|
Section 13.06 Trustee’s Relation to Senior Indebtedness
|
61
|
|
Section 13.07 No Impairment Of Subordination
|
62
|
|
Section 13.08 Rights Of Trustee
|
62
|
THIS INDENTURE, dated
as of , between ZOMEDICA PHARMACEUTICALS CORP., a corporation organized under the laws of Alberta, Canada (the “
Issuer
”)
and ●, a ● corporation, as trustee (the “
Trustee
”).
W I T N E S S E T H:
WHEREAS, the Issuer
has duly authorized the issue from time to time of its unsecured debentures, notes or other evidences of indebtedness to be issued
in one or more series (the “
Securities
”) up to such principal amount or amounts as may from time to time be
authorized in accordance with the terms of this Indenture and to provide, among other things, for the authentication, delivery
and administration thereof, the Issuer has duly authorized the execution and delivery of this Indenture; and
WHEREAS, all things
necessary to make this Indenture a valid indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of
the premises and the purchases of the Securities by the Holders thereof, the Issuer and the Trustee mutually covenant and agree
for the equal and proportionate benefit of the respective Holders from time to time of the Securities as follows:
ARTICLE 1
DEFINITIONS
Section 1.01
Certain Terms Defined
. The following terms (except as otherwise expressly provided or unless the context otherwise
clearly requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings
specified in this Section. All other terms used in this Indenture that are defined in the Trust Indenture Act of 1939 or the definitions
of which in the Securities Act of 1933 are referred to in the Trust Indenture Act of 1939, as amended, including terms defined
therein by reference to the Securities Act of 1933, as amended, (except as herein otherwise expressly provided or unless the context
otherwise clearly 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 this Indenture. All accounting terms used herein and not expressly defined shall have the meanings
assigned to such terms in accordance with GAAP. The words “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.
The terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular.
“
Affiliate
”
of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition, “control” when used with respect to
any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms “controlling” and ”controlled”
have meanings correlative to the foregoing.
“
Authorized
Newspaper
” means a newspaper in the English language or in an official language of the country of publication, customarily
printed on each Business Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation in the place
in connection with which the term is used or in the financial community of such place. If, because of temporary suspension of publication
or general circulation of any newspaper or for any other reason, it is impossible or impracticable to make any publication of any
notice required by this Indenture in the manner herein provided, such publication or other notice in lieu thereof which is made
at the written direction of the Issuer by the Trustee shall constitute a sufficient publication of such notice.
“
Board of
Directors
” means either the Board of Directors of the Issuer or any committee of such Board duly authorized to act hereunder.
“
Business
Day
” means, with respect to any Security, a day that in the city (or in all of the cities, if more than one) in which
amounts are payable, as specified in the form of such Security, is not a day on which banking institutions are authorized by law
or regulation to close.
“
Capitalized
Lease
” means, as applied to any Person, any lease of any property (whether real, personal, or mixed) of which the discounted
present value of the rental obligations of such Person as lessee, in conformity with GAAP, is required to be capitalized on the
balance sheet of such Person; and “
Capitalized Lease Obligation
” is defined to mean the rental obligations,
as aforesaid, under such lease.
“
Capital Stock
”
means any and all shares, interests, participations or other equivalents (however designated, whether voting or non-voting) of
the Issuer’s capital stock or other ownership interests, whether now outstanding or issued after the date of this Indenture,
including, without limitation, all Common Stock and Preferred Stock.
“
Closing Price
”
on any day when used with respect to any class of Capital Stock means the closing sale price per share (or if no closing sale price
is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the
average ask prices) on that date as reported by The Nasdaq Global Select Market or, if such Capital Stock is not listed on The
Nasdaq Global Select Market, then on the principal U.S. national or regional securities exchange on which such Capital Stock is
then listed. If such Capital Stock is not listed on either The Nasdaq Global Select Market or on any U.S. national or regional
securities exchange on the relevant date, the Closing Price will be the last quoted bid price for the Company’s Common Stock
in the over-the-counter market on the relevant date as reported by the OTC Markets Group Inc. or similar organization. In the event
that no such quotation is available for any day, the Board of Directors shall be entitled to determine in good faith the current
market price on the basis of such quotations as it considers appropriate.
“
Commission
”
means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934,
or if at any time after the execution and delivery of this Indenture such Commission is not existing and performing the duties
now assigned to it under the Trust Indenture Act, then the body performing such duties on such date.
“
Common Stock
”
means any and all shares, interests, participations or other equivalents (however designated, whether voting or non-voting) of
the Issuer’s common stock, without nominal or par value, whether now outstanding or issued after the date of the Indenture,
including, without limitation, all series and classes of such common stock.
“
Corporate
Trust Office
” means the office of the Trustee at which the corporate trust business of the Trustee shall, at any particular
time, be principally administered, which office is, at the date as of which this Indenture is dated, located at
[
●]
.
“
Currency
Agreement
” means any foreign exchange contract, currency swap agreement, or other similar agreement or arrangement designed
to protect against the fluctuation in currency values.
“
Default
”
means any Event of Default as defined in Section 4.01 and any event that is, or after notice or passage of time or both would be,
an Event of Default.
“
Depositary
”
means, with respect to the Securities of any series issuable or issued in the form of one or more Registered Global Securities,
the Person designated as Depositary by the Issuer pursuant to Section 2.03 until a successor Depositary shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter “Depositary” shall mean or include each Person
who is then a Depositary hereunder, and if at any time there is more than one such Person, “Depositary” as used with
respect to the Securities of any such series shall mean the Depositary with respect to the Registered Global Securities of that
series.
“
Determination
Date
” has the meaning specified in Section 12.05.
“
Event of
Default
” has the meaning specified in Section 4.01.
“
GAAP
”
means generally accepted accounting principles in the United States of America as in effect as of the date of determination, including,
without limitation, those set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute
of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the accounting profession. All ratios and computations
contained in this Indenture shall be computed in conformity with GAAP applied on a consistent basis.
“
Guarantee
”
means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness or other obligation
of any other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise,
of such Person:
(i)
to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation of
such other Person (whether arising by virtue of partnership arrangements, or by agreement to keep-well, to purchase assets, goods,
securities, or services, to take-or-pay, or to maintain financial statement conditions or otherwise); or
(ii)
entered into for purposes of assuring in any other manner the obligee of such Indebtedness or other obligation of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or in part);
provided
, that the term “
Guarantee
”
shall not include endorsements for collection or deposit in the ordinary course of business. The term “
Guarantee
”
used as a verb has a corresponding meaning.
“
Holder
”,
“
Securityholder
” or other similar terms mean the registered holder of any Security.
“
Indebtedness
”
means, with respect to any Person at any date of determination (without duplication):
(i)
all indebtedness of such Person for borrowed money;
(ii)
all obligations of such Person evidenced by bonds, debentures, notes, or other similar instruments, in each case, for value
received or settlement of claims;
(iii)
all obligations of such Person in respect of letters of credit or other similar instruments (including reimbursement obligations
with respect thereto);
(iv)
all obligations of such Person to pay the deferred and unpaid purchase price of property or services (but excluding trade
accounts payable or accrued liabilities arising in the ordinary course of business);
(v)
all obligations of such Person as lessee under Capitalized Leases;
(vi)
all Indebtedness of other Persons secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed
by such Person;
provided
that the amount of such Indebtedness shall be the lesser of:
(1) the
fair market value of such asset at such date of determination; and
(2) amount
of such Indebtedness;
(vii)
all Indebtedness of other Persons to the extent Guaranteed by such Person; and
(viii)
to the extent not otherwise included in this definition, obligations under Currency Agreements and Interest Rate Agreements.
Notwithstanding the
foregoing, in no event shall the term “Indebtedness” be deemed to include letters of credit or bonds that secure performance
or surety bonds or similar instruments that are issued in the ordinary course of business.
The amount of Indebtedness
of any Person at any date shall be the outstanding balance at such date of all unconditional obligations as described above and,
with respect to contingent obligations, the maximum liability upon the occurrence of the contingency giving rise to the obligation;
provided that:
(x) the
amount outstanding at any time of any Indebtedness issued with original issue discount is the face amount of such Indebtedness
less the remaining unamortized portion of the original issue discount of such Indebtedness at such time as determined in conformity
with GAAP; and
(y) Indebtedness
shall not include any liability for federal, state, local, or other taxes.
“
Indenture
”
means this instrument as originally executed and delivered or, if amended or supplemented as herein provided, as so amended or
supplemented or both, and shall include the forms and terms of particular series of Securities established as contemplated hereunder.
“
Interest
”
means, when used with respect to non-interest bearing Securities, interest payable after maturity. ”Interest Rate Agreement”
means any obligation of any Person pursuant to any interest rate swap, cap, collar or similar arrangement providing protection
against fluctuations in interest rates. For purposes of the Indenture, the amount of such obligation shall be the amount determined
in respect thereof as of the end of the then most recently ended fiscal quarter of such Person, based on the assumption that such
obligation had terminated at the end of such fiscal quarter, and in making such determination, if any agreement relating to such
obligation provides for the netting of amounts payable by and to such Person thereunder or if any such agreement provides for the
simultaneous payment of amounts by and to such Person, then in each such case, the amount of such obligation shall be the net amount
so determined, plus any premium due upon default by such Person.
“
Issuer
”
means the Person identified as “Issuer” in the first paragraph hereof and, subject to Article 8, its successors and
assigns.
“
Lien
”
means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind, or any other
type of preferential arrangement that has the practical effect of creating a security interest, in respect of such asset. For the
purposes of this Indenture, the Issuer shall be deemed to own subject to a Lien any asset that it has acquired or holds subject
to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement relating
to such asset.
“
Officers’
Certificate
” means a certificate signed by the chairman of the Issuer’s Board of Directors, its president or any
vice president, and by its treasurer, any assistant treasurer, its secretary or any assistant secretary of the Issuer, and delivered
to the Trustee. Each such certificate shall comply with Section 314 of the Trust Indenture Act of 1939 and include the statements
provided for in Section 10.05.
“
Opinion of
Counsel
” means an opinion in writing signed by legal counsel who may be an employee of or counsel to the Issuer and who
shall be satisfactory to the Trustee. Each such opinion shall comply with Section 314 of the Trust Indenture Act of 1939 and include
the statements provided for in Section 10.05, if and to the extent required hereby.
“
Original
Issue Date
” of any Security (or portion thereof) means the earlier of (i) the date of such Security or (ii) the date
of any Security (or portion thereof) for which such Security was issued (directly or indirectly) on registration of transfer, exchange
or substitution.
“
Original
Issue Discount Security
” means any Security that provides for an amount less than the Principal amount thereof to be
due and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 4.01.
“
Outstanding
”,
when used with reference to Securities, shall, subject to the provisions of Section 6.04, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture, except:
(i)
Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
(ii)
Securities, or portions thereof, for the payment or redemption of which monies in the necessary amount shall have been deposited
in trust with the Trustee or with any paying agent (other than the Issuer) or shall have been set aside, segregated and held in
trust by the Issuer for the Holders of such Securities (if the Issuer shall act as its own paying agent), provided that if such
Securities, or portions thereof, are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given
as herein provided, or provision satisfactory to the Trustee shall have been made for giving such notice; and
(iii)
Securities in substitution for which other Securities shall have been authenticated and delivered, or which shall have been
paid, pursuant to the terms of Section 2.09 (except with respect to any such Security as to which proof satisfactory to the Trustee
is presented that such Security is held by a person in whose hands such Security is a legal, valid and binding obligation of the
Issuer).
In determining whether
the Holders of the requisite Principal amount of Outstanding Securities of any or all series have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the Principal amount of an Original Issue Discount Security that shall be deemed
to be Outstanding for such purposes shall be the amount of the Principal thereof that would be due and payable as of the date of
such determination upon a declaration of acceleration of the maturity thereof pursuant to Section 4.01.
“
Person
”
means any individual, corporation, partnership, limited liability company, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision thereof or any other entity.
“
Preferred
Stock
” means any and all shares, interests, participations or other equivalents (however designated, whether voting or
non-voting) of the Issuer’s preferred stock, without nominal or par value, whether now outstanding or issued after the date
of the Indenture, including, without limitation, all series and classes of such preferred stock.
“
Principal
”
means, with respect to the Securities or any Security or any portion thereof, the principal amount of such Securities, Security
or portion thereof, and shall be deemed to include “and premium, if any”.
“
record date
”
as used with respect to any interest payment date (except a date for payment of defaulted interest), has the meaning specified
in Section 2.07.
“
Registered
Global Security
” means a Security evidencing all or a part of a series of Registered Securities, issued to the Depositary
for such series in accordance with Section 2.04, and bearing the legend prescribed in Section 2.04.
“
Registered
Security
” means any Security registered on the register maintained by the Issuer pursuant to Section 2.08.
“
Responsible
Officer
” when used with respect to the Trustee means any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer
of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the administration of this Indenture.
“
Security
”
or “
Securities
” has the meaning stated in the first recital of this Indenture, or, as the case may be, Securities
that have been authenticated and delivered under this Indenture.
“
Senior Indebtedness
”
of the Issuer means (a) all Indebtedness of the Issuer, whether currently outstanding or hereafter issued, unless, by the terms
of the instrument creating or evidencing such Indebtedness, it is provided that such Indebtedness is not superior in right of payment
to the Securities, and (b) any modifications, refunding, deferrals, renewals or extensions of any such Indebtedness or securities,
notes or other evidence of Indebtedness issued in exchange for such Indebtedness; provided that in no event shall “Senior
Indebtedness” include (i) Indebtedness of the Issuer owed or owing to any Subsidiary of the Issuer or any officer, director
or employee of the Issuer or any Subsidiary of the Issuer, (ii) Indebtedness to trade creditors or (iii) any liability for taxes
owned or owing by the Issuer.
“
Subsidiary
”
means, with respect to any Person, any corporation, association or other business entity of which more than 50% of all votes represented
by all classes of outstanding Voting Stock is owned, directly or indirectly, by such Person and one or more other Subsidiaries
of such Person.
“
Trustee
”
means the Person identified as “
Trustee
” in the first paragraph hereof and, subject to the provisions of Article
5, shall also include any successor trustee.
“
Trust Indenture
Act of 1939
” (except as otherwise provided in Section 7.01 and Section 7.02) means the Trust Indenture Act of 1939 as
in force at the date as of which this Indenture was originally executed.
“
UCC
”
means the Uniform Commercial Code, as in effect in each applicable jurisdiction. ”Unregistered Security” means any
Security other than a Registered Security.
“
U.S. Government
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 an agency of instrumentality of the United States of America the payment
of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, and shall also include
a depository receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder
of a depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from
the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of interest on or principal of the U.S. Government Obligation evidenced by such depository receipt.
“
Voting Stock
”
means, with respect to any Person, capital stock of any class or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
“
vice president
”
when used with respect to the Issuer or the Trustee, means any vice president, whether or not designated by a number or a word
or words added before or after the title of “
vice president
”.
“
Wholly-Owned
”
is defined to mean, with respect to any Subsidiary of any Person, such Subsidiary if all of the outstanding common stock or other
similar equity ownership interests (but not including preferred stock) in such Subsidiary (other than any director’s qualifying
shares or investments by foreign nationals mandated by applicable law) is owned directly or indirectly by such Person.
“
Yield to
Maturity
” means the yield to maturity on a series of securities, calculated at the time of issuance of such series, or,
if applicable, at the most recent redetermination of interest on such series, and calculated in accordance with accepted financial
practice.
ARTICLE 2
SECURITIES
Section 2.01
Forms Generally
. The Securities of each series shall be substantially in such form (not inconsistent with this Indenture)
as shall be established by
or pursuant to a resolution of the Board of
Directors or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture and may have imprinted or otherwise reproduced thereon such
legend or legends, not inconsistent with the provisions of this Indenture, as may be required to comply with any law or with any
rules or regulations pursuant thereto, or with any rules of any securities exchange or to conform to general usage, all as may
be determined by the officers executing such Securities, as evidenced by their execution of the Securities. The Issuer shall furnish
any such legends to the Trustee in writing.
The definitive Securities
shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of such Securities.
Section 2.02
Form of Trustee’s Certification of Authentication
. The Trustee’s certificate of authentication on all
Securities shall be in substantially the following form:
This is one of the
Securities of the series designated herein and referred to in the within-mentioned Indenture.
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as Trustee
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By:
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Authorized Signatory:
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Section 2.03
Amount Unlimited; Issuable in Series
. The aggregate Principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may
be issued in one or more series. There shall be established in or pursuant to a resolution of the Board of Directors and set forth
in an Officers’ Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities
of any series:
(a)
the title of the Securities of the series (which shall distinguish the Securities of the series from all other Securities);
(b)
any limit upon the aggregate Principal amount of the Securities of the 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 the series pursuant to Section 2.08, Section 2.09, Section 2.11 or Section 12.03);
(c)
the date or dates on which the Principal of the Securities of the series is payable;
(d)
the rate or rates at which the Securities of the series shall bear interest, if any, or the method by which such rate shall
be determined, the date or dates from which such interest shall accrue, the interest payment dates on which such interest shall
be payable and the record dates for the determination of Holders to whom interest is payable;
(e)
the place or places where the Principal of and any interest on Securities of the series shall be payable (if other than
as provided in Section 3.02);
(f)
the price or prices at which, the period or periods within 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 Issuer;
(g)
the obligation, if any, of the Issuer to redeem, purchase or repay Securities of the series at the option of a Holder thereof
and the price or prices at which, the period or periods within which and the terms and conditions upon which Securities of the
series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
(h)
the obligation, if any, of the Issuer to permit the conversion of the Securities of such series into Capital Stock, and
the terms and conditions upon which such conversion shall be effected (including, without limitation, the initial conversion price
or rate, the conversion period and any other provision in addition to or in lieu of those set forth in this Indenture relative
to such obligation);
(i)
if other than denominations of $1,000 and any multiple thereof, the denominations in which Securities of the series shall
be issuable;
(j)
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 4.01 or provable in bankruptcy pursuant
to Section 4.02;
(k)
if the Securities of the series are issuable in whole or in part as one or more Registered Global Securities, the identity
of the Depositary for such Registered Global Security or Securities;
(l)
any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture);
(m)
any trustees, authenticating or paying agents, transfer agents or registrar or any other agents with respect to the Securities
of such series; and
(n)
the extent to which payments on the Securities will be subordinated to the payment of Senior Indebtedness of the Issuer.
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
such resolution of the Board of Directors or in any such indenture supplemental hereto.
Section 2.04
Authentication and Delivery of Securities
. At any time and from time to time after the execution and delivery of
this Indenture, the Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication, and the
Trustee shall thereupon authenticate and deliver such Securities to or upon the written order of the Issuer, such order to be signed
by both (a) the chairman of its Board of Directors, its president or any vice president and by its treasurer, any assistant treasurer,
its secretary or any assistant secretary, without any further action by the Issuer. In authenticating such Securities and accepting
the additional responsibilities under this Indenture in relation to such Securities the Trustee shall receive, and (subject to
Section 5.01) shall be fully protected in relying upon:
(a)
a certified copy of any resolution or resolutions of the Board of Directors authorizing the action taken pursuant to the
resolution or resolutions delivered under clause (b) below;
(b)
a copy of any resolution or resolutions of the Board of Directors relating to such series, in each case certified by the
secretary or an assistant secretary of the Issuer;
(c)
an executed supplemental indenture, if any, and the documentation required to be delivered pursuant to Section 7.04;
(d)
an Officers’ Certificate setting forth the form and terms of the Securities as required pursuant to Section 2.01 and
Section 2.03, respectively and prepared in accordance with Section 10.05;
(e)
an Opinion of Counsel, prepared in accordance with Section 10.05, to the effect:
(i)
that the form or forms and terms of such Securities have been established by or pursuant to a resolution of the Board of
Directors or by a supplemental indenture as permitted by Section 2.01 and Section 2.03 in conformity with the provisions of this
Indenture; and
(ii)
that such Securities, when authenticated and delivered by the Trustee and issued by the Issuer in the manner and subject
to any conditions specified in such Opinion of Counsel, will constitute valid and binding obligations of the Issuer enforceable
against the Issuer in accordance with their terms, except to the extent that enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or similar laws now or hereafter in effect relating to creditors’
rights generally, and general principles of equity (regardless of whether enforceability is considered in a proceeding in equity
or at law).
The Trustee shall have
the right to decline to authenticate and deliver any Securities under this section if the Trustee, being advised by counsel, determines
that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of
trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that such
action would expose the Trustee to personal liability.
If the Issuer shall
establish pursuant to Section 2.03 that the Securities of a series or a portion thereof are to be issued in the form of one or
more Registered Global Securities, then the Issuer shall execute (in accordance with Section 2.05) and the Trustee shall authenticate
and make available for delivery one or more Registered Global Securities that (i) shall represent and shall be denominated in an
amount equal to the aggregate Principal amount of all of the Securities of such series issued in such form and not yet canceled,
(ii) shall be registered in the name of the Depositary for such Registered Global Security or Securities or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such Depositary or its custodian or pursuant to such Depositary’s
instructions and (iv) shall bear a legend substantially to the following effect: ”Unless and until it is exchanged in whole
or in part for Securities in definitive registered form, this Security may not be transferred except as a whole by the Depositary
to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.”
Section 2.05
Execution of Securities
. The Securities shall be signed on behalf of the Issuer by the chairman of its Board of Directors,
its president, any vice president, its treasurer or any assistant treasurer, under its corporate seal and attested by its secretary
or any assistant secretary. Such signatures may be the manual or facsimile signatures of the present or any future such officers.
The seal of the Issuer may be in the form of a facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced
on the Securities. Typographical and other minor errors or defects in any such reproduction of the seal or any such signature shall
not affect the validity or enforceability of any Security that has been duly authenticated and delivered by the Trustee.
In case any officer
of the Issuer who shall have signed any of the Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Issuer, such Security nevertheless may be authenticated and delivered
or disposed of as though the person who signed such Security had not ceased to be such officer of the Issuer; and any Security
may be signed on behalf of the Issuer by such persons as, at the actual date of the execution of such Security, shall be the proper
officers of the Issuer, although at the date of the execution and delivery of this Indenture any such person was not such an officer.
Section 2.06
Certificate of Authentication
. Only such Securities as shall bear thereon a certificate of authentication substantially
in the form hereinbefore recited, executed by the Trustee by the manual signature of one of its authorized signatories, shall be
entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee upon any
Security executed by the Issuer shall be conclusive evidence that the Security so authenticated has been duly authenticated and
delivered hereunder and that the Holder is entitled to the benefits of this Indenture.
Section 2.07
Denomination and Date of Securities; Payments of Interest
. The Securities shall be issuable as registered securities
without coupons and in denominations as shall be specified as contemplated by Section 2.03. In the absence of any such specification
with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $1,000 and any
multiple thereof. The Securities shall be numbered, lettered, or otherwise distinguished in such manner or in accordance with such
plan as the officers of the Issuer executing the same may determine as evidenced by the execution and authentication thereof.
Each Security shall
be dated the date of its authentication, shall bear interest, if any, from the date and shall be payable on the dates, in each
case, which shall be specified as contemplated by Section 2.03.
The person in whose
name any Security of any series is registered at the close of business on any record date applicable to a particular series with
respect to any interest payment date for such series shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Security subsequent to the record date and prior to such interest
payment date, except if and to the extent the Issuer shall default in the payment of the interest due on such interest payment
date for such series, in which case such defaulted interest shall be paid to the persons in whose names Outstanding Securities
for such series are registered at the close of business on a subsequent record date (which shall be not less than five Business
Days prior to the date of payment of such defaulted interest) established by notice given by mail by or on behalf of the Issuer
to the Holders of Securities not less than 15 days preceding such subsequent record date. The term “
record date
”
as used with respect to any interest payment date (except a date for payment of defaulted interest) shall mean the date specified
as such in the terms of the Securities of any particular series, or, if no such date is so specified, if such interest payment
date is the first day of a calendar month, the fifteenth day of the next preceding calendar month or, if such interest payment
date is the fifteenth day of a calendar month, the first day of such calendar month, whether or not such record date is a Business
Day.
Section 2.08
Registration, Transfer and Exchange
. The Issuer will keep or cause to be kept at each office or agency to be maintained
for the purpose as provided in Section 3.02 a register or registers in which, subject to such reasonable regulations as it may
prescribe, it will register, and will register the transfer of, Securities as in this Article provided. Such register shall be
in written form in the English language or in any other form capable of being converted into such form within a reasonable time.
At all reasonable times such register or registers shall be open for inspection by the Trustee.
At the option of the
Holder thereof, Registered Securities of any series (other than a Registered Global Security, except as set forth below) may be
exchanged for a Registered Security or Registered Securities of such series and tenor having authorized denominations and an equal
aggregate Principal amount, upon surrender of such Registered Securities to be exchanged at the agency of the Issuer that shall
be maintained for such purpose in accordance with Section 3.02 and upon payment, if the Issuer shall so require, of the charges
hereinafter provided. If the Securities of any series are issued in both registered and unregistered form, except as otherwise
established pursuant to Section 2.03, at the option of the Holder thereof, Unregistered Securities of any series may be exchanged
for Registered Securities of such series and tenor having authorized denominations and an equal aggregate Principal amount, upon
surrender of such Unregistered Securities to be exchanged at the agency of the Issuer that shall be maintained for such purpose
in accordance with Section 3.02 and upon payment, if the Issuer shall so require, of the charges hereinafter provided. At the option
of the Holder thereof, if Unregistered Securities of any series, maturity date, interest rate and Original Issue Date are issued
in more than one authorized denomination, except as otherwise established pursuant to Section 2.03, such Unregistered Securities
may be exchanged for Unregistered Securities of such series and tenor having authorized denominations and an equal aggregate Principal
amount, upon surrender of such Unregistered Securities to be exchanged at the agency of the Issuer that shall be maintained for
such purpose in accordance with Section 3.02 and upon payment, if the Issuer shall so require, of the charges hereinafter provided.
Registered Securities of any series may not be exchanged for Unregistered Securities of such series. Whenever any Securities are
so surrendered for exchange, the Issuer shall execute, and the Trustee shall authenticate and make available for delivery, the
Securities which the Holder making the exchange is entitled to receive.
All Registered Securities
presented for registration of transfer, exchange, redemption, conversion or payment shall be duly endorsed by, or be accompanied
by a written instrument or instruments of transfer in form satisfactory to the Issuer and the Trustee duly executed by, the Holder
or his attorney duly authorized in writing.
The Issuer may require
payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities. No service charge shall be made for any such transaction.
Notwithstanding any
other provision of this Section 2.08, unless and until it is exchanged in whole or in part for Securities in definitive registered
form, a Registered Global Security representing all or a portion of the Securities of a series may not be transferred except as
a whole by the Depositary for such series to a nominee of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee to a successor Depositary for such series or a
nominee of such successor Depositary.
If at any time the
Depositary for any Registered Global Securities of any series notifies the Issuer that it is unwilling or unable to continue as
Depositary for such Registered Global Securities or if at any time the Depositary for such Registered Global Securities shall no
longer be eligible under applicable law, the Issuer shall appoint a successor Depositary eligible under applicable law with respect
to such Registered Global Securities. If a successor Depositary eligible under applicable law for such Registered Global Securities
is not appointed by the Issuer within 90 days after the Issuer receives such notice or becomes aware of such ineligibility, the
Issuer will execute, and the Trustee, upon receipt of the Issuer’s order for the authentication and delivery of definitive
Registered Securities of such series and tenor, will authenticate and make available for delivery Registered Securities of such
series and tenor, in any authorized denominations, in an aggregate Principal amount equal to the Principal amount of such Registered
Global Securities, in exchange for such Registered Global Securities.
The Issuer may at any
time and in its sole discretion determine that any Registered Global Securities of any series shall no longer be maintained in
global form. In such event, or in the event that there shall have occurred and be continuing an Event of Default with respect to
a series of Securities, the Issuer will, upon the request of any Holder, execute, and the Trustee, upon receipt of the Issuer’s
order for the authentication and delivery of definitive Registered Securities of such series and tenor, will authenticate and make
available for delivery, Registered Securities of such series and tenor in any authorized denominations, in an aggregate Principal
amount equal to the Principal amount of such Registered Global Securities, in exchange for such Registered Global Securities.
Any time the Registered
Securities of any series are not in the form of Registered Global Securities pursuant to the preceding two paragraphs, the Issuer
agrees to supply the Trustee with a reasonable supply of certificated Registered Securities without the legend required by Section
2.04 and the Trustee agrees to hold such Registered Securities in safekeeping until authenticated and delivered pursuant to the
terms of this Indenture.
If established by the
Issuer pursuant to Section 2.03 with respect to any Registered Global Security, the Depositary for such Registered Global Security
may surrender such Registered Global Security in exchange in whole or in part for Registered Securities of the same series and
tenor in definitive registered form on such terms as are acceptable to the Issuer and such Depositary. Thereupon, the Issuer shall
execute, and the Trustee shall authenticate and make available for delivery, without service charge,
(i)
to the Person specified by such Depositary new Registered Securities of the same series and tenor, of any authorized denominations
as requested by such Person, in an aggregate Principal amount equal to and in exchange for such Person’s beneficial interest
in the Registered Global Security; and
(ii)
to such Depositary a new Registered Global Security in a denomination equal to the difference, if any, between the Principal
amount of the
surrendered Registered Global Security and the aggregate
Principal amount of Registered Securities authenticated and delivered pursuant to clause (i) above.
Registered Securities
issued in exchange for a Registered Global Security pursuant to this Section 2.08 shall be registered in such names and in such
authorized denominations as the Depositary for such Registered Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or an agent of the Issuer or the Trustee. The Trustee or such agent shall
deliver such Securities to or as directed by the Persons in whose names such Securities are so registered.
All Securities issued
upon any transfer or exchange of Securities shall be valid obligations of the Issuer, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Securities surrendered upon such transfer or exchange.
Notwithstanding anything
herein or in the forms or terms of any Securities to the contrary, none of the Issuer, the Trustee or any agent of the Issuer or
the Trustee shall be required to exchange any Unregistered Security for a Registered Security if such exchange would result in
adverse Federal income tax consequences to the Issuer (such as, for example, the inability of the Issuer to deduct from its income,
as computed for Federal income tax purposes, the interest payable on the Unregistered Securities) under then applicable United
States Federal income tax laws. The Trustee and any such agent shall be entitled to rely on an Officers’ Certificate or an
Opinion of Counsel in determining such result.
Neither the Registrar
nor the Issuer shall be required (i) to issue, authenticate, register the transfer of or exchange Securities of any series for
a period of 15 days before the mailing of a notice of redemption of such Securities to be redeemed or (ii) to register the transfer
of or exchange any Security selected for redemption in whole or in part.
Section 2.09
Mutilated, Defaced, Destroyed, Lost and Stolen Securities
. In case any temporary or definitive Security shall become
mutilated or defaced and shall be surrendered to the Trustee, the Issuer shall execute, and the Trustee shall authenticate and
deliver, a new Security of the same series, bearing a number not contemporaneously outstanding, in exchange and substitution for
the mutilated or defaced Security. If the Holder of any Security claims that the Security has been lost, destroyed or wrongfully
taken, the Issuer shall execute, and the Trustee shall authenticate and deliver, a new Security of the same series, bearing a number
not contemporaneously outstanding, in exchange and substitution for the lost, destroyed or wrongfully taken Security, if the applicant
so requests before the Issuer has notice that the Security has been acquired by a protected purchaser, and the applicant furnishes
to the Issuer and to the Trustee and any agent of the Issuer or the Trustee such security or indemnity as may be required by them
to indemnify and defend and to save each of them harmless and the applicant satisfies other reasonable requirements imposed by
the Issuer.
Upon the issuance of
any substitute Security, the Issuer 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 and its counsel) connected
therewith. In case any Security which has matured or is about to mature or has been called for redemption in full shall become
mutilated or defaced or be destroyed, lost or stolen, the Issuer 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 or defaced Security), if the applicant for
such payment shall furnish to the Issuer and to the Trustee and any agent of the Issuer or the Trustee such security or taking,
the applicant shall also furnish to the Issuer and the Trustee and any agent of the Issuer or the Trustee evidence to their satisfaction
of the destruction, loss or wrongful taking of such Security and of the ownership thereof.
Every substitute Security
of any series issued pursuant to the provisions of this section by virtue of the fact that any such Security is destroyed, lost
or stolen shall constitute an additional contractual obligation of the Issuer, whether or not the destroyed, lost or wrongfully
taken Security shall be at any time enforceable by anyone and shall be entitled to all the benefits of (but shall be subject to
all the limitations of rights set forth in) this Indenture equally and proportionately with any and all other Securities of such
series duly authenticated and delivered hereunder. All Securities shall be held and owned upon the express condition that, to the
extent permitted by law, the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, defaced
or destroyed, lost or wrongfully taken Securities and shall preclude any and all other rights or remedies.
Section 2.10
Cancellation of Securities; Destruction Thereof
. All Securities surrendered for payment, redemption, repurchase,
conversion, registration of transfer or exchange, if surrendered to the Issuer or any agent of the Issuer or the Trustee, shall
be delivered to the Trustee for cancellation or, if surrendered to the Trustee, shall be canceled by it; and no Securities shall
be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture. The Trustee shall dispose of
canceled Securities held by it in accordance with the record retention policies of the Trustee in effect from time to time and,
if such canceled certificates are destroyed, shall deliver a certificate of destruction to the Issuer. If the Issuer shall acquire
any of the Securities, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such
Securities unless and until the same are delivered to the Trustee for cancellation.
Section 2.11
Temporary Securities
. Pending the preparation of definitive Securities for any series, the Issuer may execute and
the Trustee shall authenticate and deliver temporary Securities for such series (printed, lithographed, typewritten or otherwise
reproduced, in each case in form satisfactory to the Trustee). Temporary Securities of any series shall be issuable as registered
Securities without coupons, of any authorized denomination, and substantially in the form of the definitive Securities of such
series but with such omissions, insertions and variations as may be appropriate for
temporary
Securities, all as may be determined by the Issuer with the concurrence of the Trustee. Temporary Securities may contain such reference
to any provisions of this Indenture as may be appropriate. Every temporary Security shall be executed by the Issuer and be authenticated
by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive Securities.
Without unreasonable delay the Issuer shall execute and shall furnish definitive Securities of such series and thereupon temporary
Securities of such series may be surrendered in exchange therefor without charge at each office or agency to be maintained by the
Issuer for that purpose pursuant to Section 3.02, and the Trustee shall authenticate and deliver in exchange for such temporary
Securities of such series a like aggregate Principal amount of definitive Securities of the same series of authorized denominations.
Until so exchanged, the temporary Securities of any series shall be entitled to the same benefits under this Indenture as definitive
Securities of such series.
Section 2.12
Computation of Interest
. Except as otherwise specified in the Securities of a series, interest shall be computed
on the basis of a 360-day year of twelve 30-day months.
Section 2.13
CUSIP Numbers
. The Issuer in issuing the Securities may use “CUSIP” numbers (if then generally in use),
and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders; provided that
any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities
or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed
on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer will
notify the Trustee of any change in the “CUSIP” numbers.
ARTICLE 3
COVENANTS OF THE ISSUER AND THE TRUSTEE
Section 3.01
Payment of Principal and Interest
. The Issuer covenants and agrees for the benefit of each series of Securities that
it will duly and punctually pay or cause to be paid the Principal of, and interest on, each of the Securities of such series at
the place or places, at the respective times and in the manner provided in such Securities. Each installment of interest on the
Securities of any series may be paid by mailing checks for such interest payable to or upon the written order of the Holders of
Securities entitled thereto as they shall appear on the registry books of the Issuer.
Notwithstanding any
provisions of this Indenture and the Securities of any series to the contrary, if the Issuer and a Holder of any Registered Security
so agree or if expressly provided pursuant to Section 2.03, payments of interest on, and any portion of the Principal of, such
Holder’s Registered Security shall be made by the paying agent, upon receipt from the Issuer of immediately available funds
by 11:00 a.m., New York City time (or such other time as may be agreed to between the Issuer and the paying agent) or the Issuer,
directly to the Holder of such Security (by wire transfer of Federal
funds
or immediately available funds or otherwise) if the Holder has delivered written instructions to the Trustee 15 days prior to such
payment date requesting that such payment will be so made and designating the bank account to which such payments shall be so made
and, in the case of payments of Principal, surrenders the same to the Trustee. The Trustee shall be entitled to rely on the last
instruction delivered by the Holder pursuant to this Section 3.01 unless a new instruction is delivered 15 days prior to a payment
date. The Issuer will indemnify and hold each of the Trustee and any paying agent harmless against any loss, liability or expense
(including attorneys’ fees and expenses) resulting from any act or omission to act on the part of the Issuer or any such
Holder in connection with any such agreement or from making any payment in accordance with any such agreement.
Section 3.02
Offices for Payments, etc
. So long as any of the Securities remain outstanding, the Issuer will maintain in the Borough
of Manhattan, The City of New York an office or agency (o) where the Securities may be presented for payment, (p) where
the Securities may be presented for registration of transfer and for exchange as in this Indenture provided, (q) where
notices and demands to or upon the Issuer in respect of the Securities or of this Indenture may be served and (r) for
Securities of each series that is convertible, where such Securities may be presented for conversion. The Issuer will give to the
Trustee written notice of the location of any such office or agency and of any change of location thereof. Unless otherwise specified
in accordance with Section 2.03, the Issuer hereby initially designates the Corporate Trust Office of Trustee as the office to
be maintained by it for each such purpose. In case the Issuer shall fail to so designate or maintain any such office or agency
or shall fail to give such notice of the location or of any change in the location thereof, presentations and demands may be made
and notices may be served at the Corporate Trust Office.
Section 3.03
Paying Agents
. Whenever the Issuer shall appoint a paying agent other than the Trustee with respect to the Securities
of any series, it will cause 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:
(a)
that it will hold all sums received by it as such agent for the payment of the Principal of or interest on the Securities
of such series (whether such sums have been paid to it by the Issuer or by any other obligor on the Securities of such series)
in trust for the benefit of the Holders of the Securities of such series or of the Trustee;
(b)
that it will give the Trustee notice of any failure by the Issuer (or by any other obligor on the Securities of such series)
to make any payment of the Principal of or interest on the Securities of such series when the same shall be due and payable; and
during the continuance of the failure referred to in clause Section 3.03(b) above.
The Issuer will, on
or prior to each due date of the Principal of or interest on the Securities of such series, deposit with the paying agent a sum
sufficient to pay such Principal or interest so becoming due, and (unless such paying agent is the Trustee) the Issuer will promptly
notify the Trustee of any failure to take such action.
If the Issuer shall
act as its own paying agent with respect to the Securities of any Series, it will, on or before each due date of the Principal
of or interest on the Securities of such series, set aside, segregate and hold in trust for the benefit of the Holders of the Securities
of such series a sum sufficient to pay such Principal or interest so becoming due. The Issuer will promptly notify the Trustee
of any failure to take such action.
Whenever the Issuer
shall have one or more paying agents for any series of Securities, it will, on or before each due date of the Principal of or interest
on any Securities of such series, deposit with the paying agent or agents for the Securities of such series a sum, by 11:00 a.m.
New York City time in immediately available funds on the payment date, sufficient to pay the Principal or interest so becoming
due with respect to the Securities of such series, and (unless such paying agent is the Trustee) the Issuer will promptly notify
the Trustee in writing of any failure so to act.
Anything in this section
to the contrary notwithstanding, the Issuer may at any time, for the purpose of obtaining a satisfaction and discharge with respect
to one or more or all series of Securities hereunder, or for any other reason, pay or cause to be paid to the Trustee all sums
held in trust for any such series by the Issuer or any paying agent hereunder, as required by this Section, such sums to be held
by the Trustee upon the trusts herein contained.
Anything in this Section
3.03 to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section 3.03 is subject to the provisions
of Section 9.05.
Section 3.04
Certificate of the Issuer
. Within 120 days after the close of the fiscal year ended
[
●], and within
120 days after the close of each fiscal year thereafter, the Issuer will furnish to the Trustee a brief certificate (which need
not comply with Section 10.05) from the principal executive, financial or accounting officer of the Issuer as to his or her knowledge
of the Issuer’s compliance with all conditions and covenants under the Indenture (such compliance to be determined without
regard to any period of grace or requirement of notice provided under the Indenture).
At the time such certificate
is filed, the Issuer will also file with the Trustee a letter or statement of the independent accountants who shall have certified
the financial statements of the Issuer for its preceding fiscal year to the effect that, in making the examination necessary for
certification of such financial statements, they have obtained no knowledge of any default by the Issuer in the performance or
fulfillment of any covenant, agreement or condition contained in this Indenture, which default remains uncured at the date of such
letter or statement, or, if they shall have obtained knowledge of any such uncured default, specifying in such letter or statement
such default or defaults and the nature and status thereof, it being understood that such accountants shall not be liable directly
or indirectly for failure to obtain knowledge of any such default or defaults, and that nothing contained in this Section 3.04
shall be construed to require such accountants to make any investigation beyond the scope required in connection with such examination.
Section 3.05
List of Securityholders
. If and so long as the Trustee shall not be the Security registrar for the Securities of
any series, the Issuer will furnish or cause to be furnished to the Trustee a list in such form as the Trustee may reasonably require
of the names and addresses of the Holders of the Securities of such series pursuant to Section 312 of the Trust Indenture Act of
1939 (a) semi-annually not more than 10 days after each record date for the payment of interest on such Securities, as
hereinabove specified, as of such record date and on dates to be determined pursuant to Section 2.03 for non-interest bearing Securities
in each year and (b) at such other times as the Trustee may request in writing, within 30 days after receipt by the Issuer
of any such request as of a date not more than 10 days prior to the time such information is furnished.
Section 3.06
Reports by the Issuer
. The Issuer covenants to:
(a)
file, whether or not required to do so under applicable law, with the Trustee, within 15 days after the Issuer files the
same with the Commission:
(i)
copies of the annual reports and of the information, documents, and other reports which the Issuer files with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934; and
(ii)
such additional information, documents and reports with respect to compliance by the Issuer with the conditions and covenants
provided for in this Indenture as the Issuer may from time to time file with the Commission; and
(b)
transmit to the Securityholders, in the manner and to the extent provided in Section 10.04, such summaries of any information,
documents and reports required to be filed with the Trustee pursuant to the provisions of subdivision (a) of this Section 3.06
as may be required by the rules and regulations of the Commission.
Delivery of such reports,
information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute
constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s
compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
Section 3.07
Corporate Existence
. So long as any of the Securities remain unpaid, the Issuer will at all times (except as otherwise
provided or permitted elsewhere in this Indenture) do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence.
Section 3.08
Restrictions on Mergers, Sales and Consolidations
. So long as any of the Securities remain unpaid, the Issuer will
not consolidate or merge with or sell, convey or lease all or substantially all of its property to any other corporation except
as permitted in Article 8 hereof.
Section 3.09
Further Assurances
. From time to time whenever requested by the Trustee, the Issuer will execute and deliver such
further instruments and assurances and do such further acts as may be reasonably necessary or proper to carry out more effectually
the purposes of this Indenture or to secure the rights and remedies hereunder of the Holders of the Securities of any series.
ARTICLE 4
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 4.01
Event of Default Defined; Acceleration of Maturity; Waiver of Default
. “
Event of Default
” with
respect to Securities of any series wherever used herein, means any one of the following events which shall have occurred and be
continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental
body):
(a)
default by the Issuer in the payment of any installment of interest upon any of the Securities of such series as and when
the same shall become due and payable, and continuance of such default for a period of 30 days;
(b)
default by the Issuer in the payment of all or any part of the Principal on any of the Securities of such series as and
when the same shall become due and payable either at maturity, upon redemption, by declaration or otherwise, and continuance of
such default for a period of five days;
(c)
default by the Issuer in the performance, or breach by the Issuer, of any of its covenants or agreements in respect of the
Securities of such series (other than a covenant or agreement in respect of the Securities of such series a default in whose performance
or whose breach is elsewhere in this section specifically dealt with), and continuance of such default or breach for a period of
30 consecutive days after there has been given, by registered or certified mail, to the Issuer by the Trustee or to the Issuer
and the Trustee by the Holders of at least 25% in Principal amount of the Outstanding Securities of all series affected thereby,
a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a notice of
default hereunder;
(d)
the entry by a court having jurisdiction in the premises of a decree or order for relief in respect of the Issuer in an
involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or the appointment
of a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of the Issuer or for any substantial
part of the Issuer’s property and assets or the ordering of the winding up or liquidation of the Issuer’s affairs,
and the continuance of any such decree or order unstayed and in effect for a period of 90 consecutive days;
(e)
the commencement by the Issuer of a voluntary case under any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect, or the consent by the Issuer to the entry of an order for relief in an involuntary case under any such
law, or the consent by the Issuer to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee
or sequestrator (or similar official) of the Issuer or for any substantial part of the Issuer’s property, or the making of
any general assignment by the Issuer for the benefit of creditors; or
(f)
any other Event of Default provided in the supplemental indenture or resolution of the Board of Directors under which such
series of Securities is issued or in the form of Security for such series.
If an Event of Default
described in clauses 4.01(a), 4.01(b), 4.01(c) or 4.01(f) occurs and is continuing, then, and in each and every such case, unless
the Principal of all of the Securities of such series shall have already become due and payable, either the Trustee or the Holders
of not less than 25% in aggregate Principal amount of the Securities of any affected series then Outstanding hereunder (each such
series voting as a separate class) by notice in writing to the Issuer (and to the Trustee if given by Securityholders), may declare
the entire Principal (or, if the Securities of such series are Original Issue Discount Securities, such portion of the Principal
amount as may be specified in the terms of such series) of all Securities of such series and the interest accrued thereon, if any,
to be due and payable immediately, and upon any such declaration the same shall become immediately due and payable. If an Event
of Default described in clauses Section 4.01(d) or Section 4.01(e) occurs and is continuing, then the Principal amount of all the
Securities then Outstanding and interest accrued thereon, if any, shall be and become immediately due and payable, without any
notice or other action by any Holder or the Trustee, to the full extent permitted by applicable law.
The foregoing provisions,
however, are subject to the condition that if, at any time after the Principal (or, if the Securities are Original Issue Discount
Securities, such portion of the Principal as may be specified in the terms thereof) of the Securities of any series (or of all
the Securities, as the case may be) shall have been so declared due and payable, and before any judgment or decree for the payment
of the monies due shall have been obtained or entered as hereinafter provided, the Issuer shall pay or shall deposit with the Trustee
a sum sufficient to pay all matured installments of interest upon all the Securities of such series (or of all the Securities,
as the case may be) and the Principal of any and all Securities of such series (or of all the Securities, as the case may be) which
shall have become due otherwise than by acceleration (with interest upon such Principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of interest, at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of such series (or at the respective
rates of interest or Yields to Maturity of all the Securities, as the case may be) to the date of such payment or deposit) and
such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel, and all
other expenses and liabilities incurred, and all advances made, by the
Trustee
except as a result of negligence or bad faith, and if any and all Events of Default under the Indenture, other than the non-payment
of the Principal of Securities which shall have become due by acceleration, shall have been cured, waived or otherwise remedied
as provided herein, then and in every such case the Holders of a majority in aggregate Principal amount of all the then Outstanding
Securities of all such series that have been accelerated, each such series voting as a separate class, by written notice to the
Issuer and to the Trustee, may waive all defaults with respect to such series (or with respect to all the Securities, as the case
may be) and rescind and annul such declaration and its consequences, but no such waiver or rescission and annulment shall extend
to or shall affect any subsequent default or shall impair any right consequent thereon.
For all purposes under
this Indenture, if a portion of the Principal of any Original Issue Discount Securities shall have been accelerated and declared
due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded
and annulled, the Principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be
such Portion of the Principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion
of the Principal thereof as shall be due and payable as a result of such acceleration, together with interest, if any, thereon
and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.
Section 4.02
Collection of Indebtedness by Trustee; Trustee May Prove Debt
. The Issuer covenants that (h) in case default
shall be made in the payment of any installment of interest on any of the Securities of any series when such interest shall have
become due and payable, and such default shall have continued for a period of 30 days or (i) in case default shall be
made in the payment of all or any part of the Principal of any of the Securities of any series when the same shall have become
due and payable, whether upon maturity of the Securities of such series or upon any redemption or by declaration or otherwise,
then in each case upon demand of the Trustee, the Issuer will pay to the Trustee for the benefit of the Holders of the Securities
of such series (x) the whole amount that then shall have become due and payable on all Securities of such series for Principal
or interest, as the case may be (with interest to the date of such payment upon the overdue Principal and, to the extent that payment
of such interest is enforceable under applicable law, on overdue installments of interest at the same rate as the rate of interest
or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of such series) and (y) in
addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including reasonable
compensation to the Trustee and each predecessor Trustee, their respective agents and counsel, and any expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor Trustee except as a result of its negligence or bad faith.
Until such demand is
made by the Trustee, the Issuer may pay the Principal of and interest on the Securities of any series to the registered Holders,
whether or not the Principal of and interest on the Securities of such series be overdue.
In case the Issuer
shall fail forthwith to pay such amounts 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 proceedings to judgment or final decree, and may enforce any such judgment or final
decree against the Issuer or other obligor upon such Securities and collect in the manner provided by law out of the property of
the Issuer or other obligor upon such Securities, wherever situated, the monies adjudged or decreed to be payable.
In case there shall
be pending proceedings relative to the Issuer or any other obligor upon the Securities under Title 11 of the United States Code
or any other applicable Federal or state bankruptcy, insolvency or other similar law, or in case a receiver, assignee or trustee
in bankruptcy or reorganization, liquidator, sequestrator or similar official shall have been appointed for or taken possession
of the Issuer or its property or such other obligor, or in case of any other comparable judicial proceedings relative to the Issuer
or other obligor upon the Securities of any series, or to the creditors or property of the Issuer or such other obligor, the Trustee,
irrespective of whether the Principal of any Securities shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section, shall
be entitled and empowered, by intervention in such proceedings or otherwise:
(a)
to file and prove a claim or claims for the whole amount of Principal and interest (or, if the Securities of any series
are Original Issue Discount Securities, such portion of the Principal amount as may be specified in the terms of such series) owing
and unpaid in respect of the Securities of any series, and to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for reasonable compensation to the Trustee and each predecessor
Trustee, and their respective agents, attorneys and counsel, and for reimbursement of all expenses and liabilities incurred, and
all advances made, by the Trustee and each predecessor Trustee, except as a result of negligence or bad faith) and of the Securityholders
allowed in any judicial proceedings relative to the Issuer or other obligor upon the Securities of any series, or to the creditors
or property of the Issuer or such other obligor;
(b)
unless prohibited by applicable law and regulations, to vote on behalf of the Holders of the Securities of any series in
any election of a trustee or a standby trustee in arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings
or person performing similar functions in comparable proceedings; and
(c)
to collect and receive any monies or other property payable or deliverable on any such claims, and to distribute all amounts
received with respect to the claims of the Securityholders and of the Trustee on their behalf; and any trustee, receiver, or liquidator,
custodian or other similar official is hereby authorized by each of the Securityholders to make payments to the Trustee, and, in
the event that the Trustee shall
consent to the making of payments directly
to the Securityholders, to pay to the Trustee such amounts as shall be sufficient to cover reasonable compensation to the Trustee,
each predecessor Trustee and their respective agents, attorneys and counsel, and all other expenses and liabilities incurred, and
all advances made, by the Trustee and each predecessor Trustee except as a result of negligence or bad faith and all other amounts
due to the Trustee or any predecessor Trustee pursuant to Section 5.06.
Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or vote for or accept or adopt on behalf of any Securityholder
any plan of reorganization, arrangement, adjustment or composition affecting the Securities of any 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 except,
as aforesaid, to vote for the election of a trustee in bankruptcy or similar person.
All rights of action
and of asserting claims under this Indenture, or under any of the Securities, may be enforced by the Trustee without the possession
of any of the Securities or the production thereof on any trial or other proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment, subject
to the payment of the expenses, disbursements and compensation of the Trustee, each predecessor Trustee and their respective agents
and attorneys, shall be for the ratable benefit of the Holders of the Securities in respect of which such action was taken.
In any proceedings
brought by the Trustee (and also any proceedings involving the interpretation of any provision of this Indenture to which the Trustee
shall be a party) the Trustee shall be held to represent all the Holders of the Securities in respect to which such action was
taken, and it shall not be necessary to make any Holders of such Securities parties to any such proceedings.
Section 4.03
Application of Proceeds
. Any monies collected by the Trustee pursuant to this Article in respect of any series shall
be applied in the following order at the date or dates fixed by the Trustee and, in case of the distribution of such monies on
account of Principal or interest, upon presentation of the several Securities in respect of which monies have been collected and
stamping (or otherwise noting) thereon the payment, or issuing Securities of such series in reduced Principal amounts in exchange
for the presented Securities of like series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses
applicable to such series in respect of which monies have been collected, including reasonable compensation to the Trustee and
each predecessor Trustee and their respective agents and attorneys and of all expenses and liabilities incurred, and all advances
made, by the Trustee and each predecessor Trustee except as a result of negligence or bad faith, and all other amounts due to the
Trustee or any predecessor Trustee pursuant to Section 5.06;
SECOND: In case the Principal of the
Securities of such series in respect of which monies have been collected shall not have become and be then due and payable, to
the payment of interest on the Securities of such series in default in the order of the maturity of the installments of such interest,
with interest (to the extent that such interest has been collected by the Trustee) upon the overdue installments of interest at
the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in such
Securities, such payments to be made ratably to the persons entitled thereto, without discrimination or preference;
THIRD: In case the Principal of the Securities
of such series in respect of which monies have been collected shall have become and shall be then due and payable, to the payment
of the whole amount then owing and unpaid upon all the Securities of such series for Principal and interest, with interest upon
the overdue Principal, and (to the extent that such interest has been collected by the Trustee) upon overdue installments of interest
at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in
the Securities of such series; and in case such monies shall be insufficient to pay in full the whole amount so due and unpaid
upon the Securities of such series, then to the payment of such Principal and interest or yield to maturity, without preference
or priority of Principal over interest or yield to maturity, or of interest or yield to maturity over Principal, or of any installment
of interest over any other installment of interest, or of any Security of such series over any other Security of such series, ratably
to the aggregate of such Principal and accrued and unpaid interest or yield to maturity; and
FOURTH: To the payment of the remainder,
if any, to the Issuer or any other person lawfully entitled thereto.
Section 4.04
Suits for Enforcement.
In case an Event of Default has occurred, has not been waived and is continuing, the Trustee
may proceed to protect and enforce the rights vested in it by this Indenture, 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.
Section 4.05
Restoration of Rights on Abandonment of Proceedings
. In case the Trustee shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee, then and in every such case the Issuer and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the Issuer, the Trustee and the Securityholders shall continue
as though no such proceedings had been taken.
Section 4.06
Limitations on Suits by Securityholder
. 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 action or proceeding at law or in equity or in bankruptcy or otherwise
upon or under or with respect to this Indenture, or for the appointment of a trustee, receiver, liquidator, custodian or other
similar official or for any other remedy hereunder, unless such Holder previously shall have given to the Trustee written notice
of an Event of Default and of the continuance thereof, as hereinbefore provided, and unless also the Holders of not less than 25%
in aggregate Principal amount of the Securities of such series then outstanding shall have made written request upon the Trustee
to institute such action or proceedings in respect of such Event of Default in its own name as trustee hereunder and shall have
offered to the Trustee indemnity satisfactory to the Trustee against the costs, expenses and liabilities to be incurred therein
or thereby and the Trustee for 60 days after its receipt of such notice, request and offer of indemnity shall have failed to institute
any such action or proceeding and no direction inconsistent with such written request shall have been given to the Trustee pursuant
to Section 4.09; it being understood and intended, and being expressly covenanted by the Holder of every Security with every other
Holder and the Trustee, that no one or more Holders of Securities of any series shall have any right in any manner whatever by
virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of any other such Holder of
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 the
applicable 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 4.07
Unconditional Right of Securityholders to Institute Certain Suits
. Notwithstanding any other provision in this Indenture
and any provision of any Security, the right of any Holder of any Security to receive payment of the Principal of or interest on
such Security on or after the respective due dates expressed in such Security, or to institute suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
Section 4.08
Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default
. Except as provided in Section 4.06, no right
or remedy herein conferred upon or reserved to the Trustee or to the Securityholders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right
or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
No delay or omission
of the Trustee or of any Securityholder 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 Event of
Default
or an acquiescence therein; and, subject to
Section 4.06
, every
power and remedy given by this Indenture or by law to the Trustee or to the Securityholders may be exercised from time to time,
and as often as shall be deemed expedient, by the Trustee or by the Securityholders.
Section 4.09
Control by Securityholders
. The Holders of a majority in aggregate Principal amount of the Securities of each series
affected (with each series voting as a separate class) at the time outstanding shall have the right to direct the time, method,
and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the
Trustee with respect to the Securities of such series by this Indenture; provided that such direction shall not be otherwise than
in accordance with law and the provisions of this Indenture and provided further that (subject to the provisions of Section 5.01)
the Trustee shall have the right to decline to follow any such direction if the Trustee, being advised by counsel, shall determine
that the action or proceeding so directed may not lawfully be taken or if the Trustee in good faith by its board of directors,
the executive committee, or a trust committee of directors or Responsible Officers of the Trustee shall determine that the action
or proceedings so directed would subject the Trustee to personal liability or if the Trustee in good faith shall so determine that
the actions or forbearances specified in or pursuant to such direction would be unduly prejudicial to the interests of Holders
of the Securities of all series so affected not joining in the giving of said direction.
Nothing in this Indenture
shall impair the right of the Trustee to take any action which is not inconsistent with such direction or directions by Securityholders.
Section 4.10
Waiver of Past Defaults
. Prior to a declaration of the acceleration of the maturity of the Securities of any series
as provided in Section 4.01, the Holders of a majority in aggregate Principal amount of the Securities of such series at the time
Outstanding (each such series voting as a separate class) may on behalf of the Holders of all the Securities of such series waive
an existing default or Event of Default, except a default in the payment of Principal of or interest on any Security as specified
in clauses (a) or (b) of Section 4.01 or in respect of a covenant or provision hereof which cannot be modified or amended without
the consent of each Holder affected as provided in Section 7.02. In the case of any such waiver, the Issuer, the Trustee and the
Holders of the Securities of each series affected shall be restored to their former positions and rights hereunder, respectively.
Upon any such waiver,
such default shall cease to exist and be deemed to have been cured and not to have occurred, and any Event of Default arising therefrom
shall be deemed to have been cured, and not to have occurred for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other default or Event of Default or impair any right consequent thereon.
Section 4.11
Trustee to Give Notice of Default, But May Withhold in Certain Circumstances
. The Trustee shall give to the Securityholders
of any series, as the names and addresses of such Holders appear on the registry books, notice by mail of all defaults
known
to Responsible Officers of the Trustee which have occurred with respect to such series, such notice to be transmitted within 90
days after the occurrence thereof, unless such defaults shall have been cured before the giving of such notice (the term “default”
or “defaults” for the purposes of this section being hereby defined to mean any event or condition which is, or with
notice or lapse of time or both would become, an Event of Default); provided that, except in the case of default in the payment
of the Principal of or interest on any of the Securities of such series, the Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive committee, or a trust committee of directors or trustees and/or Responsible
Officers of the Trustee in good faith determines that the withholding of such notice is in the interests of the Securityholders
of such series.
Section 4.12
Right of Court to Require Filing of Undertaking to Pay Costs
. All parties to this Indenture agree, and each Holder
of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken, suffered
or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, 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;
provided
that
the provisions of this Section 4.12 shall not apply to (i) any suit instituted by the Trustee, (ii) any suit
instituted by any Securityholder or group of Securityholders of any series holding in the aggregate more than 10% in aggregate
Principal amount of the Securities of such series or (iii) any suit instituted by a Holder pursuant to Section 4.07.
ARTICLE 5
CONCERNING THE TRUSTEE
Section 5.01
Duties and Responsibilities of the Trustee
. With respect to the Holders of any series of Securities issued hereunder,
the Trustee, prior to the occurrence of an Event of Default with respect to the Securities of a particular series and after the
curing or waiving of all Events of Default which may have occurred with respect to such series, undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture. In case an Event of Default with respect to the Securities
of a series has occurred (which has not been cured or waived) the Trustee shall exercise 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 person would exercise or use under
the circumstances in the conduct of such person’s own affairs.
(a)
Prior to the occurrence of an Event of Default with respect to the Securities of any series and after the curing or waiving
of all such Events of Default with respect to such series which may have occurred:
(i)
the duties and obligations of the Trustee with respect to the Securities of any Series shall be determined solely by the
express provisions of this Indenture, and the Trustee shall not be liable 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
(ii)
in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of any such statements, certificates or opinions which by any
provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this Indenture.
(b)
No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(i)
this subsection (b) shall not be construed to limit the effect of subsection (a) of this Section 5.01;
(ii)
the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officers
of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and
(iii)
the Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the Holders 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.
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 shall be reasonable ground
for believing that the repayment of such funds or adequate indemnity against such liability is not reasonably assured to it.
The provisions of this
Section 5.01 are in furtherance of and subject to Sections 315 and 316 of the Trust Indenture Act of 1939.
Whether or not therein
expressly provided, every provision of this Indenture relating to the conduct of, affecting the liability of or affording protection
to the Trustee shall be subject to the provisions of this Section 5.01.
Section 5.02
Certain Rights of the Trustee
. In furtherance of and subject to the Trust Indenture Act of 1939, and subject to Section
5.01:
(a)
In the absence of bad faith on its part, the Trustee may conclusively rely and shall be protected in acting or refraining
from acting upon any resolution, Officers’ Certificate or any other certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, coupon, security or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or parties;
(b)
any request, direction, order or demand of the Issuer mentioned herein shall be sufficiently evidenced by an Officers’
Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any resolution of the Board of Directors
may be evidenced to the Trustee by a copy thereof certified by the secretary or an assistant secretary of the Issuer;
(c)
the Trustee may consult with counsel of its selection and any advice or Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted to be taken by it hereunder in good faith and in accordance
with such advice or Opinion of Counsel;
(d)
the Trustee shall be under no obligation to exercise any of the trusts 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 which might be incurred
by it in connection with such request, order or direction;
(e)
the Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized
or within the discretion, rights or powers conferred upon it by this Indenture;
(f)
prior to the occurrence of an Event of Default hereunder and after the curing or waiving of all Events of Default, 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, appraisal, bond, debenture, note, coupon, security, or other paper
or document unless requested in writing so to do by the Holders of not less than a majority in aggregate Principal amount of the
Securities of all series affected then outstanding; provided 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 indemnity
satisfactory to it against such expenses or liabilities as a condition to proceeding, and the reasonable expenses of every such
investigation shall be paid by the Issuer or, if paid by the Trustee or any predecessor trustee, shall be repaid by the Issuer
upon demand;
(g)
the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through
agents or attorneys not regularly in its employ and the Trustee shall not be responsible for any misconduct or negligence on the
part of any such agent or attorney appointed with due care by it hereunder;
(h)
the Trustee shall not be liable for any action taken, suffered or omitted in good faith and believed by it to be authorized
or within the discretion, rights or powers conferred upon it by this Indenture;
(i)
the Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee
has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at
the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture;
(j)
the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right
to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent,
custodian and other Person employed to act hereunder; and
(k)
the Trustee may request that the Issuer deliver an Officers’ Certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate
may be signed by any person authorized to sign an Officers’ Certificate, including any person specified as so authorized
in any such certificate previously delivered and not superseded.
Section 5.03
Trustee Not Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof
. The recitals
contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements
of the Issuer, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representation as
to the validity or sufficiency of this Indenture or the Securities. The Trustee shall not be accountable for the use or application
by the Issuer of any of the Securities or of the proceeds thereof.
Section 5.04
Trustee and Agents May Hold Securities; Collections, etc
. The Trustee or any agent of the Issuer or the Trustee,
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 the Trustee or such agent and may otherwise deal with the Issuer and receive, collect, hold and retain collections from
the Issuer with the same rights it would have if it were not the Trustee or such agent.
Section 5.05
Monies Held by Trustee
. All monies received by the Trustee in trust hereunder need not be segregated from other funds
except to the extent required by mandatory provisions of law. Neither the Trustee nor any agent of the Issuer or the Trustee shall
be under any liability for interest on any monies received by it hereunder.
Section 5.06
Compensation and Indemnification of Trustee and Its Prior Claim
. The Issuer covenants and agrees to pay to the Trustee
from time to time, and the Trustee shall be entitled to, such compensation as shall be agreed in writing from time to time by the
Issuer and the Trustee (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express
trust) and the Issuer covenants and agrees to pay or reimburse the Trustee and each predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by or on behalf of it 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 agents and
other persons not regularly in its employ) except to the extent any such expense, disbursement or advance may arise from its negligence
or bad faith. The Issuer also covenants and agrees to indemnify the Trustee and each predecessor Trustee for, and to hold it harmless
against, any loss, liability or expense arising out of or in connection with the acceptance or administration of this Indenture
or the trusts hereunder and the performance of its duties hereunder, including the costs and expenses of defending itself against
or investigating any claim of liability (whether asserted by the Issuer, a Holder or any other Person) in the premises, except
to the extent such loss, liability or expense is due to the negligence or bad faith of the Trustee or such predecessor Trustee.
The obligations of the Issuer under this section to compensate and indemnify the Trustee and each predecessor Trustee and to pay
or reimburse the Trustee and each predecessor Trustee for expenses, disbursements and advances shall constitute additional indebtedness
hereunder and shall survive the satisfaction and discharge of this Indenture or the resignation or removal of the Trustee. Such
additional indebtedness shall be a senior claim and lien 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, and the Securities
are hereby subordinated to such senior claim. The parties agree that if the Trustee renders services following an Event of Default
under Section 4.01(d) or (e), compensation for such services is intended to constitute administrative expense under any bankruptcy
law.
Section 5.07
Right of Trustee to Rely on Officers’ Certificate, etc
. Subject to Section 5.01 and Section 5.02, whenever
in the administration of the trusts 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 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 by it under
the provisions of this Indenture upon the faith thereof.
Section 5.08
Persons Eligible for Appointment as Trustee
. The Trustee for each series of Securities hereunder shall at all times
be a corporation which is eligible in accordance with the provisions of Section 310(a) of the Trust Indenture Act of 1939 and which
has (or which is a Wholly-Owned Subsidiary, directly or indirectly, of a bank
holding
company which has) a combined capital and surplus of $50,000,000. If such corporation or holding company publishes reports of condition
at least annually, pursuant to law or to the requirements of a Federal, State or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and surplus of such corporation or holding company shall
be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.
Section 5.09
Resignation and Removal; Appointment of Successor Trustee
. (a) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign with respect to one or more or all series of Securities by giving written notice of resignation
to the Issuer. Upon receiving such notice of resignation, the Issuer shall promptly appoint a successor trustee or trustees with
respect to the applicable series by written instrument in duplicate, executed by authority of the Board of Directors, one copy
of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee or trustees. If no successor
Trustee shall have been so appointed with respect to any series and have accepted appointment within 30 days after the mailing
of such notice of resignation, the resigning Trustee may petition, at the expense of the Issuer, any court of competent jurisdiction
for the appointment of a successor Trustee, or any Securityholder who has been a bona fide Holder of a Security or Securities of
the applicable series for at least six months may, subject to the provisions of Section 4.12, on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor Trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, appoint a successor Trustee.
(b)
In case at any time any of the following shall occur:
(i)
the Trustee shall fail to comply with the provisions of Section 310(b) of the Trust Indenture Act of 1939 with respect to
any series of Securities after written request therefor by the Issuer or by any Securityholder who has been a bona fide Holder
of a Security or Securities of such series for at least six months;
(ii)
the Trustee shall cease to be eligible in accordance with the provisions of Section 310(a) of the Trust Indenture Act of
1939 and shall fail to resign after written request therefor by the Issuer or by any Securityholder; or
(iii)
the Trustee shall become incapable of acting with respect to any series of Securities, or shall be adjudged a bankrupt or
insolvent, or a receiver or liquidator of the Trustee or of its property shall be appointed, 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 Issuer may remove the Trustee with respect to the applicable series of Securities and appoint a successor trustee
for such series by written instrument, in duplicate, executed by order of the Board of Directors of the Issuer, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to the successor Trustee, or, subject to Section 315(e) of
the Trust Indenture Act of 1939, any Securityholder who has been a bona fide Holder of a Security or Securities of
such series for at least six months may
on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor trustee with respect to such series. Such court may thereupon, after such notice, if any, as
it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c)
The Holders of a majority in aggregate Principal amount of the Securities of each series at the time outstanding may at
any time remove the Trustee with respect to Securities of such series and appoint a successor Trustee with respect to the Securities
of such series by delivering to the Trustee so removed, to the successor Trustee so appointed and to the Issuer the evidence provided
in Section 6.01 of the action in that regard taken by the Securityholders.
(d)
Any resignation or removal of the Trustee with respect to any series and any appointment of a successor trustee with respect
to such series pursuant to any of the provisions of this Section 5.09 shall become effective upon acceptance of appointment by
the successor trustee as provided in Section 5.10.
Section 5.10
Acceptance of Appointment by Successor
. Any successor Trustee appointed as provided in Section 5.09 shall execute
and deliver to the Issuer and to its predecessor Trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Trustee with respect to all or any applicable series shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as if originally named as Trustee for such series hereunder.
On the written request of the Issuer or of the successor Trustee, upon payment of its charges then unpaid, the Trustee ceasing
to act shall, subject to Section 5.06, pay over to the successor Trustee all monies at the time held by it hereunder and shall
execute and deliver an instrument transferring to such successor Trustee all such rights, powers, duties and obligations. Upon
request of any such successor Trustee, the Issuer shall execute any and all instruments in writing for more fully and certainly
vesting in and confirming to such successor Trustee all such rights and powers. Any Trustee ceasing to act shall, nevertheless,
retain a prior claim upon all property or funds held or collected by such Trustee to secure any amounts then due it pursuant to
the provisions of Section 5.06.
If a successor Trustee
is appointed with respect to the Securities of one or more (but not all) series, the Issuer, the predecessor Trustee and each successor
Trustee with respect to the Securities of any applicable series shall execute and deliver an indenture supplemental hereto which
shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties
of the predecessor Trustee with respect to the Securities of any series as to which the predecessor Trustee is not retiring shall
continue to be vested in the predecessor Trustee, and 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 and that each
such Trustee shall be Trustee of a trust or trusts under separate indentures.
Upon acceptance of
appointment by any successor Trustee as provided in this Section 5.10, the Issuer shall mail notice thereof by first-class mail
to the Holders of Securities of any series for which such successor Trustee is acting as Trustee at their last addresses as they
shall appear in the Security register. If the acceptance of appointment is substantially contemporaneous with the resignation,
then the notice called for by the preceding sentence may be combined with the notice called for by Section 5.09. If the Issuer
fails to mail such notice within 10 days after acceptance of appointment by the successor Trustee, the successor Trustee shall
cause such notice to be mailed at the expense of the Issuer.
Section 5.11
Merger, Conversion, Consolidation or Succession to Business of Trustee
. 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 all or substantially all the corporate trust business of
the Trustee, shall be the successor of the Trustee hereunder, provided that such corporation shall be eligible under the provisions
of Section 5.08, 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 at the time
such successor to the Trustee shall succeed to the trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor
Trustee and deliver such Securities so authenticated; and, in case at that time any of the Securities of any series shall not have
been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder
or in the name of the successor Trustee; and in all such cases such certificate shall have the full force which it is anywhere
in the Securities of such series or in this Indenture provided that the certificate of the Trustee shall have; provided, that the
right to adopt the certificate of authentication of any predecessor Trustee or to authenticate Securities of any series in the
name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation.
Section 5.12
Reports to the Trustee
. The Trustee shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto.
If required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within sixty days after each May 15 following the
date of the initial issuance of Securities under this Indenture deliver to Holders a brief report, dated as of such May 15, which
complies with the provisions of such Section 313(a).
A copy of each such
report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange, if any, upon which
the Securities are listed,
with the Commission and with the Issuer. The
Issuer will promptly notify the Trustee when the Securities are listed on any stock exchange and of any delisting thereof.
ARTICLE 6
CONCERNING THE SECURITYHOLDERS
Section 6.01
Evidence of Action Taken by Securityholders
. Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by a specified percentage in Principal amount of the Securityholders
of any or all series may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such
specified percentage of Securityholders in person or by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments are delivered to the Trustee. Proof of execution
of any instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject
to Section 5.01 and Section 5.02) conclusive in favor of the Trustee and the Issuer, if made in the manner provided in this Article.
Section 6.02
Proof of Execution of Instruments and of Holding of Securities; Record Date
. Subject to Section 5.01 and Section
5.02, the execution of any instrument by a Securityholder or his agent or proxy may be proved by the certificate of any notary
public or other officer authorized to take acknowledgment of deeds, that the Person executing such instrument acknowledged to such
notary public or other such officer the execution thereof, or by an affidavit of a witness to such execution sworn to before any
such notary public or other officer. Where such execution is by an officer of a corporation or association or a member of a partnership
on behalf of such corporation, association or partnership, as the case may be, or by any other Person acting in a representative
capacity, such certificate or affidavit shall also constitute sufficient proof of such Person’s authority. The holding of
Securities shall be proved by the Security register or by a certificate of the registrar thereof. The Issuer may set a record date
for purposes of determining the identity of Holders of Securities of any series entitled to vote or consent to any action referred
to in Section 6.01, which record date may be set at any time or from time to time by notice to the Trustee, for any date or dates
(in the case of any adjournment or reconsideration) not more than 60 days nor less than five days prior to the proposed date of
such vote or consent, and thereafter, notwithstanding any other provisions hereof, only Holders of Securities of such series of
record on such record date shall be entitled to so vote or give such consent or revoke such vote or consent.
Section 6.03
Holders to be Treated as Owners
. Prior to due presentment of a Security for registration of transfer, the Issuer,
the Trustee and any agent of the Issuer or the Trustee may deem and treat the person in whose name any Security shall be registered
upon the Security register for such series as the absolute owner of such Security (whether or not such Security shall be overdue
and notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving payment of or on account of
the Principal of and, subject to the provisions of this Indenture, interest on such Security and
for
all other purposes, and neither the Issuer nor the Trustee nor any agent of the Issuer or the Trustee shall be affected by any
notice to the contrary. All such payments so made to any such person, or upon his order, shall be valid, and, to the extent of
the sum or sums so paid, effectual to satisfy and discharge the liability for monies payable upon any such Security.
Section 6.04
Securities Owned by Issuer Deemed Not Outstanding
. In determining whether the Holders of the requisite aggregate
Principal amount of Outstanding Securities of any or all series have concurred in any direction, consent or waiver under this Indenture,
Securities which are owned by the Issuer or any other obligor on the Securities with respect to which such determination is being
made or by any person directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer
or any other obligor on the Securities with respect to which such determination is being made 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 as to which the Trustee has received written notice
are so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding
if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities
and that the pledgee is not the Issuer or any other obligor upon the Securities or any person directly or indirectly controlling
or controlled by or under direct or indirect common control with the Issuer or any other obligor on the Securities. In case of
a dispute as to such right, the advice of counsel shall be full protection in respect of any decision made by the Trustee in accordance
with such advice. Upon request of the Trustee, the Issuer shall furnish to the Trustee promptly an Officers’ Certificate
listing and identifying all Securities, if any, known by the Issuer to be owned or held by or for the account of any of the above-described
persons; and, subject to Section 5.01 and Section 5.02, the Trustee shall be entitled to accept such Officers’ Certificate
as conclusive evidence of the facts therein set forth and of the fact that all Securities not listed therein are Outstanding for
the purpose of any such determination.
Section 6.05
Right of Revocation of Action Taken
. At any time prior to (but not after) the evidencing to the Trustee, as provided
in Section 6.01, of the taking of any action by the Holders of the percentage in aggregate Principal amount of the Securities of
any or all series, as the case may be, specified in this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial numbers of the Securities the Holders of which
have consented to such action may, by filing written notice at the Corporate Trust Office and upon proof of holding as provided
in this Article, 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
Securities issued in exchange or substitution therefor, irrespective of whether or not any notation in regard thereto is made upon
any such Security. Any action taken by the Holders of the percentage in aggregate Principal
amount
of the Securities of any or all series, as the case may be, specified in this Indenture in connection with such action shall be
conclusively binding upon the Issuer, the Trustee and the Holders of all the Securities affected by such action.
ARTICLE 7
SUPPLEMENTAL INDENTURES
Section 7.01
Supplemental Indentures Without Consent of Securityholders
. The Issuer, when authorized by a resolution of its Board
of Directors certified to the Trustee, and the Trustee may from time to time and at any time enter into an indenture or indentures
supplemental hereto for one or more of the following purposes:
(a)
to evidence the succession of another corporation to the Issuer, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Issuer pursuant to Article 8;
(b)
(i) to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture
which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture, (ii) to
conform the terms of Securities to the description thereof in the prospectus and prospectus supplement (or similar offering document)
offering such Securities or (iii) to make such other provisions in regard to matters or questions arising under this
Indenture or under any supplemental indenture as the Board of Directors may deem necessary or desirable and which shall not adversely
affect the interests of the Holders of the Securities in any material respect;
(c)
to establish the form or terms of Securities of any series as permitted by Section 2.01 and Section 2.03;
(d)
to evidence and provide for the acceptance of appointment hereunder by a successor trustee with respect to the Securities
of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one trustee, pursuant to the requirements of Section 5.10;
(e)
to comply with any requirements of the Commission in connection with the qualification of this Indenture under the Trust
Indenture Act of 1939;
(f)
to provide for uncertificated or Unregistered Securities and to make all appropriate changes for such purpose;
(g)
to make any change that would not reasonably be expected to adversely affect the rights of any Holder in any material respect;
(h)
to add to the covenants of the Issuer such new covenants, restrictions, conditions or provisions as its Board of Directors
shall consider to be for the protection of the Holders of Securities, and with respect to which the Trustee has received an Opinion
of Counsel to a similar effect, and to make the occurrence, or the occurrence and continuance, of a default in any such additional
covenants, restrictions, conditions or provisions an Event of Default; provided, that in respect of any such additional covenant,
restriction, condition or provision such supplemental indenture may provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate enforcement upon
such an Event of Default or may limit the remedies available to the Trustee upon such an Event of Default or may limit the right
of the Holders of a majority in aggregate Principal amount of the Securities of such series to waive such an Event of Default;
or
(i)
to make any change so long as no Securities are Outstanding.
The Trustee is hereby
authorized to join with the Issuer in the execution of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any such supplemental indenture which 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 without the consent of the Holders of any of the Securities at the
time outstanding, notwithstanding any of the provisions of Section 7.02.
Section 7.02
Supplemental Indentures With Consent of Securityholders
. With the consent (evidenced as provided in Article 6) of
the Holders of not less than a majority in aggregate Principal amount of the Securities at the time Outstanding of all series affected
by such supplemental indenture (voting as one class), the Issuer, when authorized by a resolution of its Board of Directors, and
the Trustee may, from time to time and at any time, enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the Holders of the Securities of each such series; provided, that no such
supplemental indenture shall without the consent of each Holder affected thereby:
(i)
change the stated maturity of the Principal of, or the time of payment of any installment of interest on, such Holder’s
Security;
(ii)
reduce the Principal thereof or the rate of interest thereon, or any premium payable with respect thereto;
(iii)
change any place of payment where, or the currency in which, any Security or any premium or the interest thereon is payable;
(iv)
change the provisions for calculating any redemption or repurchase price, including the definitions relating thereto;
(v)
make any change to Section 4.07 or Section 4.10 (except to include other provisions subject to Section 4.10);
(vi)
reduce the percentage in Principal amount of outstanding Securities of the relevant series the consent of whose Holders
is required for any such supplemental indenture, for any waiver of compliance with any provisions of this Indenture or any defaults
and their consequences provided for in this Indenture;
(vii)
alter or impair the right to convert any Security at the rate and upon the terms provided in Article 12;
(viii)
waive a default in the payment of Principal of or interest on any Security of such Holder (except pursuant to a rescission
of acceleration pursuant to Section 4.01);
(ix)
adversely affect the rights of such Holder under any mandatory redemption or repurchase provision or any right of redemption
or repurchase at the option of such Holder;
(x)
modify any of the provisions of this Section 7.02, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of the Holder of each outstanding Security affected
thereby;
(xi)
modify Article 13 of this Indenture or the definition of “Senior Indebtedness” in Article 1 hereof in a manner
adverse to Holders of any series of Securities; or
(xii)
change or waive any provision that, pursuant to a board resolution or indenture supplemental hereto establishing the terms
of one or more series of Securities, is prohibited to be so changed or waived.
Upon the written request
of the Issuer, accompanied by a copy of a resolution of the Board of Directors certified by the secretary or an assistant secretary
of the Issuer authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of
the consent of Securityholders as aforesaid and other documents, if any, required by Section 6.01, the Trustee shall join with
the Issuer 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.
It shall not be necessary
for the consent of the Securityholders 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.
Promptly after the
execution by the Issuer and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Issuer shall
mail a notice thereof by first class mail to the Holders of Securities of each series affected thereby at their addresses as they
shall appear on the registry books of the Issuer, setting forth in general terms the substance of such supplemental indenture.
Any failure of the Issuer to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity
of any such supplemental indenture.
Section 7.03
Effect of Supplemental Indenture
. Upon the execution of any supplemental indenture pursuant to the provisions hereof,
this Indenture shall 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 Issuer and the Holders of Securities of
each 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 7.04
Documents to Be Given to Trustee
. The Trustee, subject to the provisions of Section 5.01 and Section 5.02, may receive
an Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant
to this Article 7 complies with the applicable provisions of this Indenture.
Section 7.05
Notation on Securities in Respect of Supplemental Indentures
. Securities of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to the provisions of this Article may bear a notation in form approved
by the Trustee for such series as to any matter provided for by such supplemental indenture or as to any action taken at any such
meeting. If the Issuer or the Trustee shall so determine, new Securities of any series so modified as to conform, in the opinion
of the Trustee and the Board of Directors, to any modification of this Indenture contained in any such supplemental indenture may
be prepared by the Issuer, authenticated by the Trustee and delivered in exchange for the Securities of such series then outstanding.
ARTICLE 8
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 8.01
Issuer May Consolidate, etc., on Certain Terms
. The Issuer covenants that it will not merge or consolidate with any
other Person or sell, convey, transfer, lease or otherwise dispose of all or substantially all of its property and assets to any
Person (other than a consolidation with or merger with or into or a sale, conveyance, transfer, lease or other disposition to a
Wholly-Owned Subsidiary with a positive net worth;
provided
that, in connection with any such merger of the Issuer
with a Wholly-Owned Subsidiary, no consideration (other than common stock) in the surviving person or the Issuer shall be issued
or distributed to the stockholders of the Issuer), unless (xv)
either
(x) the Issuer shall be the continuing corporation, or the successor corporation or (y) the Person formed by such consolidation
or into which the Issuer is merged or that acquires by sale or conveyance substantially all the assets of the Issuer (if other
than the Issuer) shall be a corporation or limited liability company organized and validly existing under the laws of the United
States of America or any jurisdiction thereof and shall expressly assume the due and punctual payment of the Principal of and interest
on all the Securities, according to their tenor, and the due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed or observed by the Issuer, by supplemental indenture satisfactory to the Trustee,
executed and delivered to the Trustee by such Person, (xvi) immediately after giving effect to such transaction, no default
or Event of Default shall have occurred and be continuing and (xvii) the Issuer delivers to the Trustee an Officers’
Certificate and Opinion of Counsel, in each case stating that such consolidation, merger or transfer and such supplemental indenture
complies with this Section 8.01 and that all conditions precedent provided for herein relating to such transaction have been complied
with;
provided
, however, that the foregoing limitations shall not apply if, in the good faith determination of the
Board of Directors, whose determination shall be evidenced by a board resolution certified to the Trustee, the principal purpose
of such transaction is to change the state of incorporation of the Issuer; and
provided further
that any such
transaction shall not have as one of its purposes the evasion of the foregoing limitations.
Section 8.02
Successor Corporation Substituted
. In case of any such consolidation, merger, sale, conveyance, transfer, lease or
other disposition, and following such an assumption by the successor Person, such successor Person shall succeed to and be substituted
for the Issuer, with the same effect as if it had been named herein. Such successor Person may cause to be signed, and may issue
either in its own name or in the name of the Issuer prior to such succession any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Issuer and delivered to the Trustee; and, upon the order of such successor Person
instead of the Issuer and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee, pursuant
to the terms hereof, shall authenticate and shall deliver any Securities which previously shall have been signed and delivered
by the officers of the Issuer to the Trustee for authentication, and any Securities which such successor Person thereafter shall
cause to be signed and delivered to the Trustee for that purpose. All of the Securities so issued shall in all respects have the
same legal rank and benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with the terms
of this Indenture as though all of such Securities had been issued at the date of the execution hereof.
In case of any such
consolidation, merger, sale, conveyance, transfer, lease 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.
Upon the assumption
by the successor Person in the manner described in this Article, the Issuer shall be discharged from all obligations and covenants
under this Indenture and the Securities.
ARTICLE 9
DISCHARGE OF INDENTURE
Section 9.01
Defeasance Within One Year of Payment
. Except as otherwise provided in this Section 9.01, the Issuer may terminate
its obligations under the Securities of any series and this Indenture with respect to Securities of such series if:
(i)
all Securities of such series previously authenticated and delivered (other than destroyed, lost or wrongfully taken Securities
of such series that have been replaced or Securities of such series for whose payment money or securities have theretofore been
held in trust and thereafter repaid to the Issuer, as provided in Section 9.05) have been delivered to the Trustee for cancellation
and the Issuer has paid all sums payable by it hereunder; or
(ii)
(A) the Securities of such series mature within one year or all of them are to be called for redemption within one
year under arrangements satisfactory to the Trustee for giving the notice of redemption, (B) the Issuer irrevocably deposits
in trust with the Trustee, as trust funds solely for the benefit of the Holders of such Securities for that purpose, money or U.S.
Government Obligations or a combination thereof sufficient (unless such funds consist solely of money, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee), without
consideration of any reinvestment and after payment of all Federal, state and local taxes or other charges and assessments in respect
thereof payable by the Trustee, to pay Principal of and interest on the Securities of such series to maturity or redemption, as
the case may be, and to pay all other sums payable by it hereunder and (C) the Issuer delivers to the Trustee an Officers’
Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the satisfaction
and discharge of this Indenture with respect to the Securities of such series have been complied with.
With respect to the
foregoing clause (i), only the Issuer’s obligations under Sections 5.06 and 9.05 in respect of the Securities of such series
shall survive. With respect to the foregoing clause (ii), only the Issuer’s obligations in Sections 2.03 through 2.11, 3.02,
5.06, 5.09 and 9.05 in respect of the Securities of such series shall survive until such Securities of such series are no longer
outstanding. Thereafter, only the Issuer’s obligations in Sections 5.06 and 9.05 in respect of the Securities of such series
shall survive. After any such irrevocable deposit, the Trustee shall acknowledge in writing the discharge of the Issuer’s
obligations under the Securities of such series and this Indenture with respect to the Securities of such series except for those
surviving obligations specified above.
Section 9.02
Defeasance
. Except as provided below, the Issuer will be deemed to have paid and will be discharged from any and
all obligations in respect of the Securities of any series and the provisions of this Indenture will no longer be in effect with
respect to the Securities of such series (and the Trustee, at the expense of the Issuer, shall execute instruments in form and
substance satisfactory to the Issuer and the Trustee acknowledging the same) if the following conditions shall have been satisfied:
(i)
the Issuer has irrevocably deposited in trust with the Trustee as trust funds specifically pledged as security for, and
dedicated solely to, Holders of the Securities of such series, for payment of the Principal of and interest on the Securities of
such series, money or U.S. Government Obligations or a combination thereof sufficient (unless such funds consist solely of money,
in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered
to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local taxes or other charges
and assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and accrued interest on the outstanding
Securities of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee),
as the case may be;
(ii)
such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material
agreement or instrument to which the Issuer is a party or by which it is bound;
(iii)
no default or Event of Default with respect to the Securities of such series shall have occurred and be continuing on the
date of such deposit;
(iv)
the Issuer shall have delivered to the Trustee (1) either (x) a ruling directed to the Trustee received from the Internal
Revenue Service to the effect that the Holders of the Securities of such series will not recognize income, gain or loss for Federal
income tax purposes as a result of the Issuer’s exercise of its option under this Section 9.02 and will be subject to federal
income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance
had not occurred or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x) above and based upon a change
in law and (2) an Opinion of Counsel to the effect that the Holders of the Securities of such series have a valid security interest
in the trust funds subject to no prior liens under the UCC; and
(v)
the Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that
all conditions precedent provided for herein relating to the defeasance contemplated by this Section 9.02 of the Securities of
such series have been complied with.
The Issuer’s
obligations in Sections 2.03 through 2.11, 3.02, 5.06, 5.09 and 9.05 with respect to the Securities of such series shall survive
until such Securities are no
longer outstanding. Thereafter, only the
Issuer’s obligations in Sections 5.06 and 9.05 shall survive.
Section 9.03
Covenant Defeasance
. The Issuer may omit to comply with any term, provision or condition set forth in Sections 3.04,
3.06 or 3.08 (or any other specific covenant relating to the Securities of any series provided for in a Board Resolution or supplemental
indenture pursuant to Section 2.03 which may by its terms be defeased pursuant to this Section 9.03), and such omission shall be
deemed not to be an Event of Default under clause (c) of Section 4.01, with respect to the outstanding Securities of such series
if:
(i)
the Issuer has irrevocably deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the
Securities of such series, for payment of the Principal of and interest, if any, on the Securities of such series, money or U.S.
Government Obligations or a combination thereof in an amount sufficient (unless such funds consist solely of money, in the opinion
of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the
Trustee) without consideration of any reinvestment and after payment of all Federal, state and local taxes or other charges and
assessments in respect thereof payable by the Trustee, to pay and discharge the Principal of and interest on the outstanding Securities
of such series to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as
the case may be;
(ii)
such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other material
agreement or instrument to which the Issuer is a party or by which it is bound;
(iii)
no default or Event of Default with respect to the Securities of such series shall have occurred and be continuing on the
date of such deposit;
(iv)
the Issuer has delivered to the Trustee an Opinion of Counsel to the effect that (A) the Holders of the Securities
of such series have a valid security interest in the trust funds subject to no prior liens under the UCC and (B) such
Holders will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit and covenant defeasance
and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the
case if such deposit and defeasance had not occurred; and
(v)
the Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that
all conditions precedent provided for herein relating to the covenant defeasance contemplated by this Section 9.03 of the Securities
of such series have been complied with.
Section 9.04
Application of Trust Money
. Subject to Section 9.05, the Trustee or Paying Agent shall hold in trust money or U.S.
Government Obligations deposited with
it pursuant to 9.01, 9.02, 9.03,
as the case may be, in respect of the Securities of any series and shall apply the deposited money and the proceeds from deposited
U.S. Government Obligations in accordance with the Securities of such series and this Indenture to the payment of Principal of
and interest on the Securities of such series; provided that such money need not be segregated from other funds except to the extent
required by law. The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against
the U.S. Government Obligations deposited pursuant to 9.01, 9.02, 9.03, as the case may be, or the Principal and interest received
in respect thereof, other than any such tax, fee or other charge that by law is for the account of the Holders.
Section 9.05
Repayment to Issuer
. Subject to Sections 5.06 and 9.01, the Trustee and the Paying Agent shall promptly pay to the
Issuer upon request set forth in an Officers’ Certificate any money held by them at any time and not required to make payments
hereunder and thereupon shall be relieved from all liability with respect to such money. Subject to applicable escheat or abandoned
property laws, the Trustee and the Paying Agent shall pay to the Issuer upon written request any money held by them and required
to make payments hereunder under this Indenture that remains unclaimed for two years;
provided
that the Trustee
or such Paying Agent before being required to make any payment shall cause to be published at the expense of the Issuer once in
an Authorized Newspaper or mail to each Holder entitled to such money at such Holder’s address (as set forth in the register)
notice that such money remains unclaimed and that after a date specified therein (which shall be at least 30 days from the date
of such publication or mailing) any unclaimed balance of such money then remaining will be repaid to the Issuer. After payment
to the Issuer, Holders entitled to such money must look to the Issuer for payment as unsecured general creditors unless an abandoned
property law designates another Person, and all liability of the Trustee and such Paying Agent with respect to such money shall
cease.
ARTICLE 10
MISCELLANEOUS PROVISIONS
Section 10.01
Incorporators, Stockholders, Officers and Directors Exempt from Individual Liability
. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture or in any Security, or because of any indebtedness evidenced thereby,
shall be had against any incorporator, as such, or against any past, present or future stockholder, officer, director or employee,
as such, of the Issuer or of any successor Person thereof, either directly or through the Issuer or any successor Person thereof,
under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Securities by the Holders
thereof and as part of the consideration for the issue of the Securities.
Section 10.02
Provisions of Indenture for the Sole Benefit of Parties and Securityholders
. Nothing in this Indenture or in the
Securities, expressed or implied, shall give or be construed to give to any person, firm or corporation, other than the parties
hereto and their successors and the Holders of the Securities, any legal or equitable right, remedy or claim under this Indenture
or under any covenant or provision herein contained, all such covenants and provisions being for the sole benefit of the parties
hereto and their successors and of the Holders of the Securities.
Section 10.03
Successors and Assigns of Issuer Bound by Indenture
. All the covenants, stipulations, promises and agreements contained
in this Indenture by or on behalf of the Issuer shall bind its successors and assigns, whether so expressed or not.
Section 10.04
Notices and Demands on Issuer, Trustee and Securityholders
. Any notice or demand which 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 Issuer may be given
or served by being deposited postage prepaid, first-class mail (except as otherwise specifically provided herein) addressed (until
another address of the Issuer is filed by the Issuer with the Trustee) to Zomedica Pharmaceuticals Corp. at 100 Phoenix Drive,
Suite 190, Ann Arbor Michigan 48108, Attention: Chief Financial Officer. Any notice, direction, request or demand by the Issuer
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 at the Corporate Trust Office.
Where this Indenture
provides for notice to Holders, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder entitled thereto, at such Holder’s last address as it appears in
the Security register. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect
in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where
this Indenture provides for notice in any manner, such notice may be waived in writing by the person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be
filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon
such waiver.
In case, by reason
of the suspension of or irregularities in regular mail service, it shall be impracticable to mail notice to the Issuer and Securityholders
when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as
shall be satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice.
Section 10.05
Officers’ Certificates and Opinions of Counsel; Statements to be Contained Therein
. Upon any application or
demand by the Issuer to the Trustee to take any action under any of the provisions of this Indenture, the Issuer 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.
Each certificate or
opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided
for in this Indenture shall include (a) a statement that the person making such certificate or opinion has read such covenant or
condition, (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based, (c) a statement that, in the opinion of such person, he has made such examination
or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has
been complied with and (d) a statement as to whether or not, in the opinion of such person, such condition or covenant has been
complied with.
Any certificate, statement
or opinion of an officer of the Issuer may be based, insofar as it relates to legal matters, upon a certificate or opinion of or
representations by counsel, unless such officer knows that the certificate or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care
should know that the same are erroneous. Any certificate, statement or opinion of counsel may be based, insofar as it relates to
factual matters, information with respect to which is in the possession of the Issuer, upon the certificate, statement or opinion
of or representations by an officer or officers of the Issuer, unless such counsel knows that the certificate, statement or opinion
or representations with respect to the matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement
or opinion of an officer of the Issuer or of counsel may be based, insofar as it relates to accounting matters, upon a certificate
or opinion of or representations by an accountant or firm of accountants in the employ of the Issuer, unless such officer or counsel,
as the case may be, knows that the certificate or opinion or representations with respect to the accounting matters upon which
his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know
that the same are erroneous.
Any certificate or
opinion of any independent firm of public accountants filed with the Trustee shall contain a statement that such firm is independent.
Section 10.06
Payments Due on Saturdays, Sundays and Holidays
. If the date of maturity of interest on or Principal of the Securities
of any series or the date fixed for redemption or repayment of any such Security shall not be a Business Day, then payment of interest
or Principal need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect
as if made on the date of maturity or the date fixed for redemption, and no interest shall accrue for the period after such date.
Section 10.07
Conflict of Any Provision of Indenture with Trust Indenture Act of 1939
. If and to the extent that any provision
of this Indenture limits, qualifies or conflicts with another provision incorporated in this Indenture by operation of Sections
310 to 317, inclusive, of the Trust Indenture Act of 1939, such incorporated provision shall control.
Section 10.08
New York Law to Govern
. This Indenture and each Security shall be deemed to be a contract under the laws of the State
of New York, and for all purposes shall be construed in accordance with the laws of such State.
Section 10.09
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 10.10
Effect of Headings
. The Article and Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
ARTICLE 11
REDEMPTION OF SECURITIES
Section 11.01
Applicability of Article
. The provisions of this Article shall be applicable to the Securities of any series which
are redeemable before their maturity except as otherwise specified as contemplated by Section 2.03 for Securities of such series.
Section 11.02
Notice of Redemption; Partial Redemptions
. Notice of redemption to the Holders of Securities of any series to be
redeemed as a whole or in part at the option of the Issuer shall be given by mailing notice of such redemption by first class mail,
postage prepaid, at least 30 days and not more than 60 days prior to the date fixed for redemption to such Holders of Securities
of such series at their last addresses as they shall appear upon the registry books. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not the Holder receives the notice. Failure to give
notice by mail, or any defect in the notice to the Holder of any Security of a series designated for redemption as a whole or in
part shall not affect the validity of the proceedings for the redemption of any other Security of such series.
The notice of redemption
to each such Holder shall specify the CUSIP numbers of such Securities to be redeemed, the Principal amount of each Security of
such series held by such Holder to be redeemed, the date fixed for redemption, the redemption price, the place or places of payment,
that payment will be made upon presentation and surrender of such Securities, that interest accrued to the date fixed for redemption
will be paid as specified in such notice and that on and after said date interest thereon or on the portions thereof to be redeemed
will cease to accrue. In case any Security of a series is to be redeemed in part only the notice of redemption shall state the
portion of the Principal amount thereof to be redeemed, the method the Trustee shall use to determine such
Securities
to be redeemed as specified in the last paragraph of this Section 11.02, if applicable, and shall state that on and after the date
fixed for redemption, 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.
The notice of redemption
of Securities of any series to be redeemed at the option of the Issuer shall be given by the Issuer or, at the Issuer’s written
request, by the Trustee in the name and at the expense of the Issuer.
By 11:00 a.m. (New
York City time) on the redemption date specified in the notice of redemption given as provided in this Section, the Issuer will
deposit with the Trustee or with one or more paying agents (or, if the Issuer is acting as its own paying agent, set aside, segregate
and hold in trust as provided in Section 3.03) an amount of money sufficient to redeem on the redemption date all the Securities
of such series so called for redemption at the appropriate redemption price, together with accrued interest to the date fixed for
redemption. If less than all the outstanding Securities of a series are to be redeemed, the Issuer will deliver to the Trustee
at least 70 days (unless a shorter period shall be satisfactory to the Trustee) prior to the date fixed for redemption an Officers’
Certificate stating the aggregate Principal amount of Securities to be redeemed.
In the case of the
redemption of all of the Securities of a series outstanding, the Issuer shall notify the Trustee in writing of the redemption date
45 days (unless a shorter period shall be satisfactory to the Trustee) prior to the redemption date.
If less than all the
Securities of a series are to be redeemed, the Trustee shall select, pro rata or by lot or in such manner as it shall deem appropriate
and fair, Securities of such series to be redeemed in whole or in part. Securities of a series may be redeemed in part in multiples
equal to the minimum authorized denomination for Securities of such series or any multiple thereof. The Trustee shall promptly
notify the Issuer in writing of the Securities of such series selected for redemption and, in the case of any Securities of such
series selected for partial redemption, the Principal amount thereof to be redeemed. For all purposes of this Indenture, unless
the context otherwise requires, all provisions relating to the redemption of Securities of any series shall relate, in the case
of any Security redeemed or to be redeemed only in part, to the portion of the Principal amount of such Security which has been
or is to be redeemed.
Section 11.03
Payment of Securities Called for Redemption
. If notice of redemption has been given as above provided, the Securities
or portions of Securities 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 on and after said date
(unless the Issuer shall default in the payment of such Securities at the redemption price, together with interest accrued to said
date) interest on the Securities or portions of Securities so called for redemption shall cease to accrue and, except as provided
in Section 5.05 and Section 9.04, such Securities shall cease from and after the date fixed for redemption to be entitled to any
benefit or security under this Indenture, and the Holders thereof shall have no right in respect of such
Securities
except the right to receive the redemption price thereof and unpaid interest to the date fixed for redemption. On presentation
and surrender of such Securities at a place of payment specified in said notice, said Securities or the specified portions thereof
shall be paid and redeemed by the Issuer at the applicable redemption price, together with interest accrued thereon to the date
fixed for redemption; provided that any semiannual payment of interest becoming due on the date fixed for redemption shall be payable
to the Holders of such Securities registered as such on the relevant record date subject to the terms and provisions of Section
2.07 hereof.
If any Security called
for redemption shall not be so paid upon surrender thereof for redemption, the Principal shall, until paid or duly provided for,
bear interest from the date fixed for redemption at the rate of interest or Yield to Maturity (in the case of an Original Issue
Discount Security) borne by the Security.
Upon presentation of
any Security redeemed in part only, the Issuer shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Issuer, a new Security or Securities of such series, of authorized denominations,
in Principal amount equal to the unredeemed portion of the Security so presented, pursuant to Sections 2.04, 2.05 and 2.06.
Section 11.04
Exclusion of Certain Securities from Eligibility for Selection for Redemption
. Securities shall be excluded from
eligibility for selection for redemption if they are identified by registration and certificate number in a written statement signed
by an authorized officer of the Issuer and delivered to the Trustee at least 40 days prior to the last date on which notice of
redemption may be given as being owned of record and beneficially by, and not pledged or hypothecated by either (a) the
Issuer or (b) an entity specifically identified in such written statement directly or indirectly controlling or controlled
by or under direct or indirect common control with the Issuer.
Section 11.05
Conversion Arrangement On Call For Redemption
. In connection with any redemption of Securities, the Issuer shall
deposit the amount due in connection with such redemption as required by Section 11.02 or it may arrange for the purchase and conversion
of any Securities called for redemption by an agreement with one or more investment bankers or other purchasers to purchase such
Securities and to make the deposit required of it by Section 11.02 on its behalf by paying to the Trustee or the Paying Agent in
trust for the Securityholders, on or before 10:00 a.m. New York time on the redemption date, an amount no less than the redemption
price, together with interest, if any, accrued to the redemption date of such Securities, in immediately available funds. Notwithstanding
anytime to the contrary contained in this Article 11, the obligation of the Issuer to pay the redemption price of such Securities,
including all accrued interest, if any, shall be deemed to be satisfied and discharged to the extent such amount is so paid by
such purchasers. If such an agreement is entered into, any Securities not duly surrendered for conversion by the Holders thereof
may, at the option of the Issuer, be deemed, to the fullest extent permitted by law, acquired by such purchasers from such Holders
and (notwithstanding anything to the contrary contained in Article 12)
surrendered
by such purchasers for conversion, all as of immediately prior to the close of business on the last day on which Securities of
such series called for redemption may be converted in accordance with this Indenture and the terms of such Securities, subject
to payment of the above amount aforesaid. The Trustee or the Paying Agent shall hold and pay to the Securityholders whose Securities
are selected for redemption any such amount paid to it in the same manner as it would monies deposited with it by the Issuer for
the redemption of Securities. Without the Trustee’s and the Paying Agent’s prior written consent, no arrangement between
the Issuer and such purchasers for the purchase and conversion of any Securities shall increase or otherwise affect any of the
powers, duties, responsibilities or obligations of the Trustee as set forth in this Indenture, and the Issuer agrees to indemnify
the Trustee from, and hold it harmless against, any loss, liability or expense arising out of or in connection with any such arrangement
for the purchase and conversion of any Securities between the Issuer and such purchasers, including the costs and expenses incurred
by the Trustee and the Paying Agent in the defense of any claim or liability arising out of or in connection with the exercise
or performance of any of its powers, duties, responsibilities or obligations under this Indenture.
ARTICLE 12
CONVERSION OF SECURITIES
Section 12.01
Applicability of Article
. Securities of any series which are convertible into Capital Stock at the option of the
Securityholder shall be convertible in accordance with their terms and (unless otherwise specified as contemplated by Section 2.03
for Securities of any series) in accordance with this Article. Each reference in this Article 12 to “a Security” or
”the Securities” refers to the Securities of the particular series that is convertible into Capital Stock. Each reference
in this Article to “Capital Stock” into which Securities of any series are convertible refers to the class of Capital
Stock into which the Securities of such series are convertible in accordance with their terms (as specified as contemplated by
Section 2.03). If more than one series of Securities with conversion privileges are outstanding at any time, the provisions of
this Article 12 shall be applied separately to each such series.
Section 12.02
Right of Securityholders to Convert Securities
. Subject to and upon compliance with the terms of the Securities and
the provisions of Section 11.05 and this Article 12, at the option of the Holder thereof, any Security of any series of any authorized
denomination, or any portion of the Principal amount thereof which is $1,000 or any integral multiple of $1,000, may, at any time
during the period specified in the Securities of such series, or in case such Security or portion thereof shall have been called
for redemption, then in respect of such Security or portion thereof until and including, but not after (unless the Issuer shall
default in payment due upon the redemption thereof) the close of business on the Business Day prior to the date fixed for redemption
except that in the case of redemption at the option of the Securityholder, if specified in the terms of such Securities, such right
shall terminate upon receipt of written notice of the exercise of such option, be converted into duly authorized, validly issued,
fully paid and nonassessable shares of Capital Stock, as specified in such Security, at the conversion
rate
for each $1,000 Principal amount of Securities (such initial conversion rate reflecting an initial conversion price specified in
such Security) in effect on the conversion date, or, in case an adjustment in the conversion rate has taken place pursuant to the
provisions of Section 12.05, then at the applicable conversion rate as so adjusted, upon surrender of the Security or Securities,
the Principal amount of which is so to be converted, to the Issuer at any time during usual business hours at the office or agency
to be maintained by it in accordance with the provisions of Section 3.02, accompanied by a written notice of election to convert
as provided in Section 12.03 and, if so required by the Issuer and the Trustee, by a written instrument or instruments of transfer
in form satisfactory to the Issuer and the Trustee duly executed by the registered Holder or his attorney duly authorized in writing.
All Securities surrendered for conversion shall, if surrendered to the Issuer or any conversion agent, be delivered to the Trustee
for cancellation and cancelled by it, or shall, if surrendered to the Trustee, be cancelled by it, as provided in Section 2.10.
The initial conversion
price or conversion rate in respect of a series of Securities shall be as specified in the Securities of such series. The conversion
price or conversion rate will be subject to adjustment on the terms set forth in Section 12.05 or such other or different terms,
if any, as may be specified by Section 2.03 for Securities of such series. Provisions of this Indenture that apply to conversion
of all of a Security also apply to conversion of a portion of it.
Section 12.03
Issuance of Shares of Capital Stock on Conversion
. As promptly as practicable after the surrender, as herein provided,
of any Security or Securities for conversion, the Issuer shall deliver or cause to be delivered at its said office or agency to
or upon the written order of the Holder of the Security or Securities so surrendered a certificate or certificates representing
the number of duly authorized, validly issued, fully paid and nonassessable shares of Capital Stock into which such Security or
Securities may be converted in accordance with the terms thereof and the provisions of this Article 12. Prior to delivery of such
certificate or certificates, the Issuer shall require a written notice at its said office or agency from the Holder of the Security
or Securities so surrendered stating that the Holder irrevocably elects to convert such Security or Securities, or, if less than
the entire Principal amount thereof is to be converted, stating the portion thereof to be converted. Such notice shall also state
the name or names (with address and social security or other taxpayer identification number) in which said certificate or certificates
are to be issued. Such conversion shall be deemed to have been made at the time that such Security or Securities shall have been
surrendered for conversion and such notice shall have been received by the Issuer or the Trustee, the rights of the Holder of such
Security or Securities as a Securityholder shall cease at such time, the person or persons entitled to receive the shares of Capital
Stock upon conversion of such Security or Securities shall be treated for all purposes as having become the record holder or holders
of such shares of Capital Stock at such time and such conversion shall be at the conversion rate in effect at such time. In the
case of any Security of any series which is converted in part only, upon such conversion, the Issuer shall execute and the Trustee
shall authenticate and deliver to the Holder thereof, as
requested by
such Holder, a new Security or Securities of such series of authorized denominations in aggregate Principal amount equal to the
unconverted portion of such Security.
If the last day on
which a Security may be converted is not a Business Day in a place where a conversion agent is located, the Security may be surrendered
to that conversion agent on the next succeeding day that is a Business Day.
The Issuer will not
be required to deliver certificates for shares of Capital Stock upon conversion while its stock transfer books are closed for a
meeting of shareholders or for the payment of dividends or for any other purpose, but certificates for shares of Capital Stock
shall be delivered as soon as the stock transfer books shall again be opened.
Section 12.04
No Payment or Adjustment for Interest or Dividends
. Unless otherwise specified as contemplated by Section 2.03 for
Securities of such series, Securities surrendered for conversion during the period from the close of business on any regular record
date (or special record date for payment of defaulted interest) next preceding any interest payment date to the opening of business
on such interest payment date (except Securities called for redemption on a redemption date within such period) when surrendered
for conversion must be accompanied by payment of an amount equal to the interest thereon which the registered Holder is to receive
on such interest payment date. Payment of interest shall be made, as of such interest payment date or such date, as the case may
be, to the Holder of record of the Securities as of such regular, or special record date, as applicable. Except where Securities
surrendered for conversion must be accompanied by payment as described above, no interest on converted Securities will be payable
by the Issuer on any interest payment date subsequent to the date of conversion. No other payment or adjustment for interest or
dividends is to be made upon conversion. Notwithstanding the foregoing, upon conversion of any Original Issue Discount Security,
the fixed number of shares of Capital Stock into which such Security is convertible delivered by the Issuer to the Holder thereof
shall be applied, first, to pay the accrued original issue discount attributable to the period from the date of issuance to the
date of conversion of such Security, and, second, to pay the balance of the Principal amount of such Security.
Section 12.05
Adjustment of Conversion Rate
. Unless otherwise specified as contemplated by Section 2.03 for Securities of such
series, the conversion rate for Securities in effect at any time shall be subject to adjustment as follows:
(a)
In case the Issuer shall (i) declare a dividend or make a distribution on the class of Capital Stock into which
Securities of such series are convertible in shares of its Capital Stock, (ii) subdivide the outstanding shares of the
class of Capital Stock into which Securities of such series are convertible into a greater number of shares, (iii)combine
the outstanding shares of the class of Capital Stock into which Securities of such series are convertible into a smaller number
of shares or (iv) issue by reclassification of the shares of the class of Capital Stock into which Securities of such
series are convertible (including any such reclassification in connection with a consolidation or
merger
in which the Issuer is the continuing corporation) any shares, the conversion rate for the Securities of such series in effect
at the time of the record subdivision, combination or reclassification, shall be proportionately adjusted so that the Holder of
any Security of such series surrendered for conversion after such time shall be entitled to receive the number and kind of shares
which he would have owned or have been entitled to receive had such Security been converted immediately prior to such time. Similar
adjustments shall be made whenever any event listed above shall occur.
(b)
In case the Issuer shall fix a record date for the issuance of rights or warrants to all holders of the class of Capital
Stock into which Securities of such series are convertible entitling them (for a period expiring within 45 days after such record
date) to subscribe for or purchase shares of such class of Capital Stock (or securities convertible into shares of such class of
Capital Stock) at a price per share (or, in the case of a right or warrant to purchase securities convertible into such class of
Capital Stock, having a conversion price per share, after adding thereto the exercise price, computed on the basis of the maximum
number of shares of such class of Capital Stock issuable upon conversion of such convertible securities, per share of such class
of Capital Stock, so issuable) less than the current market price per share of such class of Capital Stock (as defined in subsection
(e) below) on the date on which such issuance was declared or otherwise announced by the Issuer (the “
Determination Date
”),
the number of shares of such class of Capital Stock into which each $1,000 Principal amount of Securities shall be convertible
after such record date shall be determined by multiplying the number of shares of such class of Capital Stock into which such Principal
amount of Securities was convertible immediately prior to such record date by a fraction, of which the numerator shall be the number
of shares of such class of Capital Stock outstanding on the Determination Date plus the number of additional shares of such class
of Capital Stock offered for subscription or purchase (or in the case of a right or warrant to purchase securities convertible
into such class of Capital Stock, the aggregate number of additional shares of such class of Capital Stock into which the convertible
securities so offered are initially convertible), and of which the denominator shall be the number of shares of such class of Capital
Stock outstanding on the Determination Date plus the number of shares of such class of Capital Stock obtained by dividing the aggregate
offering price of the total number of shares so offered (or, in the case of a right or warrant to purchase securities convertible
into such class of Capital Stock, the aggregate initial conversion price of the convertible securities so offered, after adding
thereto the aggregate exercise price of such rights or warrants computed on the basis of the maximum number of shares of such class
of Capital Stock issuable upon conversion of such convertible securities) by such current market price. Shares of such class of
Capital Stock of the Issuer owned by or held for the account of the Issuer shall not be deemed outstanding for the purpose of any
such computation. Such adjustment shall be made successively whenever such a record date is fixed; and to the extent that shares
of such class of Capital Stock are not delivered (or securities convertible into shares of such class of Capital Stock are not
delivered) after the expiration of such rights or warrants (or, in the case of rights or warrants to purchase securities convertible
into such class of Capital Stock once exercised, the expiration of the conversion right of such securities) the conversion rate
shall be readjusted to the conversion rate which would then be in effect
had the adjustments made upon the issuance of such rights or warrants (or securities convertible into shares) been made upon the
basis of delivery of only the number of shares actually delivered. In the event that such rights or warrants are not so issued,
the conversion rate shall again be adjusted to be the conversion rate which would then be in effect if such record date had not
been fixed.
(c)
In case the Issuer shall fix a record date for the making of a distribution to all holders of the class of Capital Stock
into which Securities of such series are convertible (including any such distribution made in connection with a consolidation or
merger in which the Issuer is the continuing corporation) of evidences of its indebtedness or assets (excluding any cash dividends
paid from retained earnings and dividends payable in Capital Stock for which adjustment is made pursuant to subsection (a) above
or (d) below) or subscription rights or warrants (excluding subscription rights or warrants to purchase the class of Capital Stock
into which Securities of such series are convertible), the number of shares of such class of Capital Stock into which each $1,000
Principal amount of Securities of such series shall be convertible after such record date shall be determined by multiplying the
number of shares of such class of Capital Stock into which such Principal amount of Securities was convertible immediately prior
to such record date by a fraction, of which the numerator shall be the fair market value of the assets of the Issuer, after deducting
therefrom all liabilities of the Issuer and all preferences (including accrued but unpaid dividends) in respect of classes of Capital
Stock having a preference with respect to the assets of the Issuer over such class of Capital Stock (all as determined by the Board
of Directors, whose determination shall be conclusive, and described in a certificate signed by chairman of the Issuer’s
Board of Directors, its president, any vice president, its treasurer, any assistant treasurer, its secretary or any assistant secretary,
filed with the Trustee and each conversion agent) on such record date, and of which the denominator shall be such fair market value
after deducting therefrom such liabilities and preferences, less the fair market value (as determined by the Board of Directors,
whose determination shall be conclusive, and described in a statement filed with the Trustee and each conversion agent) of the
assets or evidences of indebtedness, so distributed or of such subscription rights or warrants applicable, so distributed. Such
adjustment shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made,
the conversion rate shall again be adjusted to the conversion rate which would then be in effect if such record date had not been
fixed.
(d)
In case the Issuer shall, by dividend or otherwise, distribute to all holders of its Capital Stock cash (excluding any dividend
or distribution in connection with the liquidation, dissolution or winding up of the Issuer, whether voluntary or involuntary),
then, in such case, unless the Issuer elects to reserve such cash for distribution to the Holders of the Securities upon the conversion
of the Securities so that any such Holder converting Securities will receive upon such conversion, in addition to the shares of
Capital Stock to which such Holder is entitled, the amount of cash which such Holder would have received if such Holder had, immediately
prior to the record date for such
distribution of cash, converted its
Securities into Capital Stock, the conversion rate shall be adjusted so that the same shall equal the rate determined by multiplying
the conversion rate in effect immediately prior to the record date by a fraction of which the denominator shall be the current
market price of the Capital Stock (determined as provided in Section 12.05(e) on the record date less the amount of cash so distributed
(and not excluded as provided above) applicable to one share of Capital Stock and the numerator shall be such current market price
of the Capital Stock (determined as provided in Section 12.05(e)), such adjustment to be effective immediately prior to the opening
of business on the day following the record date; provided, however, that in the event the portion of the cash so distributed applicable
to one share of Capital Stock is equal to or greater than the current market price of the Capital Stock (determined as provided
in (e)Section 12.05(e)) on the record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each
Securityholder shall have the right to receive upon conversion the amount of cash such Holder would have received had such Holder
converted each Security on the record date. If such dividend or distribution is not so paid or made, the conversion rate shall
again be adjusted to be the conversion rate which would then be in effect if such dividend or distribution had not been declared.
(e)
For the purpose of any computation under subsections (b) and (d) above and Section 12.06, the current market price per share
of the Capital Stock on any date as of which such price is to be computed shall mean the average of the Closing Prices for the
30 consecutive Business Days commencing 45 Business Days before such date.
(f)
No adjustment in the conversion rate shall be required unless such adjustment would require a cumulative increase or decrease
of at least 1% in such rate; provided, however, that any adjustments which by reason of this subsection (f) are not required to
be made shall be carried forward and taken into account in any subsequent adjustment; and
provided further
, that adjustments
shall be required and made in accordance with the provisions of this Article 12 (other than this subsection (f)) not later than
such time as may be required in order to preserve the tax-free nature of a States income tax purposes to the Holders of Securities
or the class of Capital Stock into which such Securities are convertible. All calculations under this Article 12 shall be made
to the nearest cent or to the nearest one-thousandth of a share, as the case may be. Anything in this Section 12.05 to the contrary
notwithstanding, the Issuer shall be entitled to make such adjustments in the conversion rate, in addition to those required by
this Section 12.05, as it in its discretion shall determine to be advisable in order that any stock dividend, subdivision of shares,
distribution of rights to purchase stock or securities, or distribution of securities convertible into or exchangeable for stock
hereafter made by the Issuer to its shareholders shall not be taxable for United States income tax purposes.
(g)
Whenever the conversion rate is adjusted, as herein provided, the Issuer shall promptly file with the Trustee and with the
office or agency maintained by the Issuer for the conversion of Securities of such series pursuant to Section 3.02, a certificate
of a firm of independent public accountants of recognized national standing selected by the Board of Directors (who may be the
regular accountants employed by the
Issuer) setting forth the conversion
rate after such adjustment and setting forth a brief statement of the facts requiring such adjustment and a computation thereof.
Such certificate shall be conclusive evidence of the correctness of such adjustment. Neither the Trustee nor any conversion agent
shall be under any duty or responsibility with respect to any such certificate or any facts or computations set forth therein,
except to exhibit said certificate from time to time to any Securityholder of such series desiring to inspect the same. The Issuer
shall promptly cause a notice setting forth the adjusted conversion rate to be mailed to the Holders of Securities of such series,
as their names and addresses appear upon the register of the Issuer.
(h)
In the event that at any time, as a result of shares of any other class of Capital Stock becoming issuable in exchange or
substitution for or in lieu of shares of the class of Capital Stock into which such Securities are convertible or as a result of
an adjustment made pursuant to subsection (a) above, the Holder of any Security of such series thereafter surrendered for conversion
shall become entitled to receive any shares of the Issuer other than shares of the class of Capital Stock into which the Issuer
of such series are convertible, thereafter the number of such other shares so receivable upon conversion of any Security shall
be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with
respect to the class of Capital Stock into which the Securities of such series are convertible contained in subsections (a) to
(f), inclusive, above, and the provisions of this Article 12 with respect to the class of Capital Stock into which the Securities
of such series are convertible shall apply on like terms to any such other shares.
(i)
The conversion rate with respect to any Original Issue Discount Security, the terms of which provide for convertibility,
shall not be adjusted during the term of such Original Issue Discount Security for accrued original issue discount.
(j)
In the event that the Securities of any series are convertible into more than one class of Capital Stock, the provisions
of this Section 12.05 shall apply separately to events affecting each such class.
Section 12.06
No Fractional Shares to Be Issued
. No fractional shares of Capital Stock shall be issued upon conversions of Securities.
If more than one Security of any series shall be surrendered for conversion at one time by the same Holder, the number of full
shares which shall be issuable upon conversion thereof shall be computed on the basis of the aggregate Principal amount of the
Securities of such series (or specified portions thereof to the extent permitted hereby) so surrendered. Instead of a fraction
of a share of Capital Stock which would otherwise be issuable upon conversion of any Security or Securities (or specified portions
thereof), the Issuer shall pay a cash adjustment in respect of such fraction of a share in an amount equal to the same fractional
interest of the current market price (as defined in Section 12.05) per share of Capital Stock on the Business Day next preceding
the day of conversion.
Section 12.07
Preservation of Conversion Rights Upon Consolidation, Merger, Sale or Conveyance
. In case of any consolidation of
the Issuer with, or merger of the
Issuer into, any other corporation (other
than a consolidation or merger in which the Issuer is the continuing corporation), or in the case of any sale or transfer of all
or substantially all of the assets of the Issuer, the corporation formed by such consolidation or the corporation into which the
Issuer shall have been merged or the corporation which shall have acquired such assets, as the case may be, shall execute and deliver
to the Trustee, a supplemental indenture, subject to the provisions of
Article 12
and
ARTICLE 8 as they relate to supplemental indentures, providing that the Holder of each Security then Outstanding of a series which
was convertible into Capital Stock shall have the right thereafter to convert such Security into the kind and amount of shares
of stock and other securities and property, including cash, receivable upon such consolidation, merger, sale or transfer by a holder
of the number of shares of Capital Stock of the Issuer into which such Securities might have been converted immediately prior to
such consolidation, merger, sale or transfer. Such supplemental indenture shall conform to the provisions of the Trust Indenture
Act of 1939 as then in effect and shall provide for adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this
Article 12
. Neither the Trustee
nor any conversion agent shall be under any responsibility to determine the correctness of any provision contained in any such
supplemental indenture relating either to the kind or amount of shares of stock or other securities or property receivable by Securityholders
upon the conversion of their Securities after any such consolidation, merger, sale or transfer, or to any adjustment to be made
with respect there to and, subject to the provisions of Article 5, may accept as conclusive evidence of the correctness of any
such provisions, and shall be protected in relying upon, an Opinion of Counsel with respect thereto. If in the case of any such
consolidation, merger, sale or transfer, the stock or other securities and property receivable by a Holder of the Securities includes
stock or other securities and property of a corporation other than the successor or purchasing corporation, then such supplemental
indenture shall also be executed by such other corporation and shall contain such additional provisions to protect the interests
of the Holders of the Securities as the Board of Directors shall reasonably consider necessary. The above provisions of this Section
12.07 shall similarly apply to successive consolidations, mergers, sales or transfers.
Section 12.08
Notice to Security Holders of a Series Prior to Taking Certain Types of Action. With respect to the Securities of any series,
in case:
(a)
the Issuer shall authorize the issuance to all holders of the class of Capital Stock into which Securities of such series
are convertible of rights or warrants to subscribe for or purchase shares of its Capital Stock or of any other right;
(b)
the Issuer shall authorize the distribution to all holders of the class of Capital Stock into which Securities of such series
are convertible of evidences of its indebtedness or assets (except for the exclusions with respect to certain dividends set forth
in Section 12.05(c));
(c)
of any subdivision, combination or reclassification of the class of Capital Stock into which Securities of such series are
convertible or of any consolidation or
merger to which the Issuer is a
party and for which approval by the shareholders of the Issuer is required, or of the sale or transfer of all or substantially
all of the assets of the Issuer; or
(d)
of the voluntary or involuntary dissolution, liquidation or winding up of the Issuer;
then the Issuer shall cause to be filed
with the Trustee and at the office or agency maintained for the purpose of conversion of Securities of such series pursuant to
Section 3.02, and shall cause to be mailed to the Holders of Securities of such series, at their last addresses as they shall appear
upon the register of the Issuer, at least 10 days prior to the applicable record date hereinafter specified, a notice stating (i)
the date as of which the holders of such class of Capital Stock to be entitled to receive any such rights, warrants or distribution
are to be determined, or (ii) the date on which any such subdivision, combination, reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation, winding up or other action is expected to become effective, and the date as of which it is
expected that holders of record of such class of Capital Stock shall be entitled to exchange their Capital Stock of such class
for securities or other property, if any, deliverable upon such subdivision, combination, reclassification, consolidation, merger,
sale, transfer, dissolution, liquidation, winding up or other action. The failure to give the notice required by this Section 12.08
or any defect therein shall not affect the legality or validity of any distribution, right, warrant, subdivision, combination,
reclassification, consolidation, merger, sale, transfer, dissolution, liquidation, winding up or other action, or the vote upon
any of the foregoing. Such notice shall also be published by and at the expense of the Issuer not later than the aforesaid filing
date at least once in an Authorized Newspaper.
Section 12.09
Covenant to Reserve Shares for Issuance on Conversion of Securities
. The Issuer covenants that at all times it will
reserve and keep available out of each class of its authorized Capital Stock, free from preemptive rights, solely for the purpose
of issue upon conversion of Securities of any series as herein provided, such number of shares of Capital Stock of such class as
shall then be issuable upon the conversion of all Outstanding Securities of such series. The Issuer covenants that an shares of
Capital Stock which shall be so issuable shall, when issued or delivered, be duly and validly issued shares of the class of authorized
Capital Stock into which Securities of such series are convertible, and shall be fully paid and nonassessable, free of all liens
and charges and not subject to preemptive rights and that, upon conversion, the appropriate capital stock accounts of the Issuer
will be duly credited.
Section 12.10
Compliance with Governmental Requirements
. The Issuer covenants that if any shares of Capital Stock required to be
reserved for purposes of conversion of Securities hereunder require registration or listing with or approval of any governmental
authority under any Federal or State law, pursuant to the Securities Act of 1933, as amended, or the Securities Exchange Act of
1934, as amended, or any national or regional securities exchange on which such Capital Stock is listed at the time of
delivery
of any shares of such Capital Stock, before such shares may be issued upon conversion, the Issuer will use reasonable efforts to
cause such shares to be duly registered, listed or approved, as the case may be.
Section 12.11
Payment of Taxes Upon Certificates for Shares Issued Upon Conversion
. The issuance of certificates for shares of
Capital Stock upon the conversion of Securities shall be made without charge to the converting Securityholders for any tax (including,
without limitation, all documentary and stamp taxes) in respect of the issuance and delivery of such certificates, and such certificates
shall be issued in the respective names of, or in such names as may be directed by, the Holders of the Securities converted; provided,
however, that the Issuer shall not be required to pay any tax which may be payable in respect of any transfer involved in the issuance
and delivery of any such certificate in a name other than that of the Holder of the Security converted, and the Issuer shall not
be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have
paid to the Issuer the amount of such tax or shall have established to the satisfaction of the Issuer that such tax has been paid.
Section 12.12
Trustee’s Duties with Respect to Conversion Provisions
. The Trustee and any conversion agent shall not at any
time be under any duty or responsibility to any Securityholder to determine whether any facts exist which may require any adjustment
of the conversion rate or conversion price, or with respect to the nature or extent of any such adjustment when made, or with respect
to the method employed, or herein or in any supplemental indenture provided to be employed, in making the same. Neither the Trustee
nor any conversion agent shall be accountable with respect to the registration under securities laws, listing, validity or value
(or the kind or amount) of any shares of Capital Stock, or of any other securities or property, which may at any time be issued
or delivered upon the conversion of any Security; and neither the Trustee nor any conversion agent makes any representation with
respect thereto. Neither the Trustee nor any conversion agent shall be responsible for any failure of the Issuer to make any cash
payment or to issue, transfer or deliver any shares of stock or stock certificates or other securities or property upon the surrender
of any Security for the purpose of conversion; and the Trustee, subject to the provisions of Article 5, and any conversion agent
shall not be responsible for any failure of the Issuer to comply with any of the covenants of the Issuer contained in this Article
12.
ARTICLE 13
SUBORDINATION OF SECURITIES
Section 13.01
Agreement Of Subordination.
The Issuer covenants and agrees, and each Holder of Securities issued hereunder by his
acceptance thereof likewise covenants and agrees, that all Securities shall be issued subject to the provisions of this ARTICLE
13; and each Holder, whether upon original issue or upon transfer or assignment thereof, accepts and agrees to be bound by such
provisions.
The payment of the
principal of, premium, if any, and interest on all Securities issued hereunder shall, to the extent and in the manner hereinafter
set forth, be subordinated and subject in right of payment to the prior payment in full of all Senior Indebtedness, whether outstanding
at the date of this Indenture or thereafter incurred.
The provisions of this
ARTICLE 13 define the subordination of the Securities, as obligations of the Issuer, with respect to Senior Indebtedness of the
Issuer, as defined for the Issuer.
No provision of this
ARTICLE 13 shall prevent the occurrence of any default or Event of Default hereunder.
Section 13.02
Payments to Holders
. In the event and during the continuation of any default in the payment of principal, premium,
interest or any other payment due on any Senior Indebtedness of the Issuer continuing beyond the period of grace, if any, specified
in the instrument or lease evidencing such Senior Indebtedness of the Issuer, then, unless and until such default shall have been
cured or waived or shall have ceased to exist, no payment shall be made by the Issuer with respect to the principal of, or premium,
if any, or interest on the Securities, except payments made pursuant to Article 9 hereof from amounts deposited with the Trustee
pursuant thereto prior to the happening of such default.
Upon any payment by
the Issuer, or distribution of assets of the Issuer of any kind or character, whether in cash, property or securities, to creditors
upon any dissolution or winding-up or liquidation or reorganization of the Issuer, whether voluntary or involuntary or in bankruptcy,
insolvency, receivership or other proceedings, all amounts due or to become due upon all Senior Indebtedness of the Issuer shall
first be paid in full, or payment thereof provided for in money in accordance with its terms, before any payment is made on account
of principal (including, if applicable, any cash due upon conversion the Securities), premium, if any, or interest on the Securities
(except payments made pursuant to ARTICLE 9 hereof from amounts deposited with the Trustee pursuant thereto prior to the happening
of such dissolution, winding-up, liquidation or reorganization); and upon any such dissolution or winding-up or liquidation or
reorganization any payment by the Issuer, or distribution of assets of the Issuer of any kind or character, whether in cash, property
or securities, to which the holders of the Securities or the Trustee would be entitled, except for the provisions of this ARTICLE
13, shall (except as aforesaid) be paid by the Issuer or by any receiver, trustee in bankruptcy, liquidating trustee, agent or
other Person making such payment or distribution, or by the holders of the Securities or by the Trustee under this Indenture if
received by them or it, directly to the holders of Senior Indebtedness of the Issuer (pro rata to such holders on the basis of
the respective amounts of Senior Indebtedness of the Issuer held by such holders, as calculated by the Issuer) or their representative
or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any Senior Indebtedness
of the Issuer may have been issued, as their respective interests may appear, to the extent necessary to pay all Senior Indebtedness
of the Issuer in full, in
money or money’s worth, after giving effect
to any concurrent payment or distribution to or for the holders of Senior Indebtedness of the Issuer, before any payment or distribution
is made to the holders of the Securities or to the Trustee.
In the event that,
notwithstanding the foregoing, any payment or distribution of assets of the Issuer of any kind or character, whether in cash, property
or securities, prohibited by the foregoing, shall be received by the Trustee or the holders of the Securities before all Senior
Indebtedness of the Issuer is paid in full, or provision is made for such payment in money in accordance with its terms, such payment
or distribution shall be held in trust for the benefit of and shall be paid over or delivered to the holders of Senior Indebtedness
of the Issuer or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any
instruments evidencing any Senior Indebtedness of the Issuer may have been issued, as their respective interests may appear, as
calculated by the Issuer, for application to the payment of all Senior Indebtedness of the Issuer remaining unpaid to the extent
necessary to pay all Senior Indebtedness of the Issuer in full in money in accordance with its terms, after giving effect to any
concurrent payment or distribution to or for the holders of such Senior Indebtedness.
For purposes of this
ARTICLE 13, the words, “cash, property or securities” shall not be deemed to include shares of stock of the Issuer
as reorganized or readjusted, or securities of the Issuer or any other corporation provided for by a plan of reorganization or
readjustment, the payment of which is subordinated at least to the extent provided in this ARTICLE 13 with respect to the Securities
to the payment of all Senior Indebtedness of the Issuer which may at the time be outstanding; provided that (i) the Senior
Indebtedness of the Issuer is assumed by the new corporation, if any, resulting from any such reorganization or readjustment, and
(ii) the rights of the holders of the Senior Indebtedness of the Issuer (other than leases) and of leases which are assumed
are not, without the consent of such holders, altered by such reorganization or readjustment. The consolidation of the Issuer with,
or the merger of the Issuer into, another corporation or the liquidation or dissolution of the Issuer following the conveyance
or transfer of its property as an entirety, or substantially as an entirety, to another corporation upon the terms and conditions
provided for in ARTICLE 8 hereof shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes
of this Section 13.02 if such other corporation shall, as a part of such consolidation, merger, conveyance or transfer, comply
with the conditions stated in ARTICLE 8 hereof. Nothing in this Section 13.02 shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 5.06.
Section 13.03
Subrogation Of Securities
. Subject to the payment in full of all Senior Indebtedness of the Issuer, the rights of
the holders of the Securities shall be subrogated to the rights of the holders of Senior Indebtedness of the Issuer to receive
payments or distributions of cash, property or securities of the Issuer applicable to the Senior Indebtedness of the Issuer until
principal (including, if applicable, any cash due upon conversion the Securities), premium, if any, and interest on the Securities
on the Securities shall be paid in full; and, for the purposes of such subrogation, no payments or
distributions
to the holders of the Senior Indebtedness of the Issuer of any cash, property or securities to which the holders of the Securities
or the Trustee would be entitled except for the provisions of this
ARTICLE 13
to
or for the benefit of the holders of Senior Indebtedness of the Issuer by holders of the Securities or the Trustee, shall, as between
the Issuer, its creditors other than holders of Senior Indebtedness of the Issuer, and the holders of the Securities, be deemed
to be a payment by the Issuer to or on account of the Senior Indebtedness of the Issuer. It is understood that the provisions of
this ARTICLE 13 are and are intended solely for the purpose of defining the relative rights of the holders of the Securities, on
the one hand, and the holders of the Senior Indebtedness of the Issuer, on the other hand.
Nothing contained in
this
ARTICLE 13
or elsewhere in this Indenture or in the Securities
is intended to or shall impair, as between the Issuer, its creditors other than the holders of its Senior Indebtedness, and the
holders of the Securities, the obligation of the Issuer, which is absolute and unconditional, to pay to the holders of the Securities
the principal (including, if applicable, any cash due upon conversion the Securities), premium, if any, and interest on the Securities
as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative
rights of the holders of the Securities and creditors of the Issuer other than the holders of its Senior Indebtedness, nor shall
anything herein or therein prevent the Trustee or the holder of any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any, under this ARTICLE 13 of the holders of Senior
Indebtedness of the Issuer in respect of cash, property or securities of the Issuer received upon the exercise of any such remedy.
Upon any payment or
distribution of assets of the Issuer referred to in this
ARTICLE 13
,
the Trustee, subject to the provisions of Section 5.01, and the holders of the Securities shall be entitled to rely upon any order
or decree made by any court of competent jurisdiction in which such dissolution, winding-up, liquidation or reorganization proceedings
are pending, or a certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment
or distribution, delivered to the Trustee or to the holders of the Securities, for the purpose of ascertaining the Persons entitled
to participate in such distribution, the holders of the Senior Indebtedness and other indebtedness of the Issuer, the amount thereof
or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this ARTICLE
13.
Section 13.04
Authorization By Holders
. Each holder of a Security by his or her acceptance thereof authorizes and directs the Trustee
on his or her behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this ARTICLE
13 appoints the Trustee his attorney-in-fact for any and all such purposes.
Section 13.05
Notice to Trustee
. The Issuer shall give promptly written notice to a Responsible Officer of the Trustee of any fact
known to the Issuer which would prohibit the making of any payment of monies to or by the Trustee in respect of the Securities
pursuant to the provisions of this
ARTICLE 13
.
Notwithstanding the provisions of this ARTICLE 13 or any other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of any payment of amounts to or by the Trustee in respect
of the Securities pursuant to the provisions of this ARTICLE 13, unless and until a Responsible Officer of the Trustee shall have
received written notice thereof at the Corporate Trust Office of the Trustee from the Issuer or a holder or holders of Senior Indebtedness
or from any trustee therefor; and before the receipt of any such written notice, the Trustee, subject to the provisions of Section
5.01, shall be entitled in all respects to assume that no such facts exist;
provided
that if on a date not fewer
than three Business Days prior to the date upon which by the terms hereof any such amounts may become payable for any purpose (including,
without limitation, the payment of principal (including, if applicable, any cash due upon conversion of the Securities), premium,
if any, and interest on any Security) the Trustee shall not have received, with respect to such monies, the notice provided for
in this Section 13.05, then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority
to receive such amounts and to apply the same to the purpose for which they were received, and shall not be affected by any notice
to the contrary which may be received by it on or after such prior date. Notwithstanding anything to the contrary hereinbefore
set forth, nothing shall prevent any payment or delivery by the Issuer or the Trustee to the Holders of amounts in connection with
a redemption of Securities if (i) notice of such redemption has been given pursuant to ARTICLE 11 or Section 9.01 hereof prior
to the receipt by the Trustee of written notice as aforesaid, and (ii) such notice of redemption is given not earlier than
60 days before the redemption date.
The Trustee conclusively
shall be entitled to rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Indebtedness
of the Issuer (or a trustee on behalf of such holder) to establish that such notice has been given by a holder of Senior Indebtedness
of the Issuer or a trustee on behalf of any such holder or holders. In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a holder of Senior Indebtedness of the Issuer to participate
in any payment or distribution pursuant to this
ARTICLE 13
, the
Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
of the Issuer held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and
any other facts pertinent to the rights of such Person under this
ARTICLE
13
, and if such evidence is not furnished the Trustee may defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment.
Section 13.06
Trustee’s Relation to Senior Indebtedness
. The Trustee in its individual capacity shall be entitled to all
the rights set forth in this
ARTICLE 13
in respect of any Senior
Indebtedness of the Issuer at any time held by it, to the same extent as any other holder of Senior Indebtedness of the Issuer
and nothing elsewhere in this Indenture shall deprive the Trustee of any of its rights as such holder.
With respect to the
holders of Senior Indebtedness of the Issuer, the Trustee undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this
ARTICLE 13
, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness of the Issuer shall be read into this Indenture against
the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness of the Issuer and
the Trustee shall not be liable to any holder of Senior Indebtedness of the Issuer if it shall pay over or deliver to holders of
Securities, the Issuer or any other Person money or assets to which any holder of Senior Indebtedness of the Issuer shall be entitled
by virtue of this
ARTICLE 13
or otherwise.
Section 13.07
No Impairment Of Subordination
. No right of any present or future holder of any Senior Indebtedness to enforce subordination
as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Issuer
or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the Issuer with the terms, provisions
and covenants of this Indenture, regardless of any knowledge thereof which any such holder may have or otherwise be charged with.
Section 13.08
Rights Of Trustee
. Nothing in this
ARTICLE 13
shall
apply to claims of or payments to, the Trustee pursuant to Section 5.06.
IN WITNESS WHEREOF,
the parties hereto have caused this Indenture to be duly executed, as of the first date written above.
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ZOMEDICA PHARMACEUTICALS CORP., as Issuer
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By:
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Name:
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Title:
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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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FORM OF NOTE
UNLESS AND UNTIL IT
IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE REGISTERED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF
THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS
THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“
DTC
”),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
ZOMEDICA PHARMACEUTICALS CORP.
[
●] % Subordinated Note Due
[
●]
No.
[
●]
CUSIP No.:
[
●]
$
[
●]
ZOMEDICA PHARMACEUTICALS
CORP., a corporation organized under the laws of Alberta, Canada (“
Issuer
”, which term includes any successor
corporation), for value received promises to pay to CEDE & CO. or its registered assigns, the principal sum of
[
●]
on
[
●].
Interest Payment Dates:
[
●] and
[
●] (each, an “
Interest Payment Date
”), commencing on
[
●]. Interest
Record Dates:
[
●] and
[
●] (each, an “
Interest Record Date
”).
Reference is made to
the further provisions of this Security contained herein, which will for all purposes have the same effect as if set forth at this
place.
IN WITNESS WHEREOF,
the Issuer has caused this Security to be signed manually or by facsimile by its duly authorized officer.
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ZOMEDICA PHARMACEUTICALS CORP.
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By:
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Name:
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Title:
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This is one of the
series designated herein and referred to in the within-mentioned Indenture.
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[
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, as Trustee
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By:
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Authorized Signatory
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(REVERSE OF SECURITY)
ZOMEDICA PHARMACEUTICALS CORP.
[
●]
%
Subordinated Note Due
[
●]
1.
Interest
.
ZOMEDICA PHARMACEUTICALS
CORP., a corporation organized under the laws of Alberta, Canada (the “
Issuer
”), promises to pay interest on
the Principal amount of this Security at the rate per annum shown above. Cash interest on the Securities will accrue from the most
recent date to which interest has been paid or, if no interest has been paid, from
[
●]. The Issuer will pay interest
semi-annually in arrears on each Interest Payment Date, commencing
[
●]. Interest will be computed on the basis of
a 360-day year of twelve 30-day months.
The Issuer shall pay
interest on overdue Principal from time to time on demand at the rate borne by the Securities and on overdue installments of interest
(without regard to any applicable grace periods) to the extent lawful.
2.
Method of Payment
.
The Issuer shall pay
interest on the Securities (except defaulted interest) to the persons who are the registered Holders at the close of business on
the Interest Record Date immediately preceding the Interest Payment Date notwithstanding any transfer or exchange of such Security
subsequent to such Interest Record Date and prior to such Interest Payment Date. Holders must surrender Securities to the Trustee
to collect Principal payments. The Issuer shall pay Principal and interest in money of the United States that at the time of payment
is legal tender for payment of public and private debts (“
U.S. Legal Tender
”). However, the payments of interest,
and any portion of the Principal (other than interest payable at maturity or on any redemption or repayment date or the final payment
of Principal) shall be made by the Paying Agent, upon receipt from the Issuer of immediately available funds by 11:00 a.m., New
York City time (or such other time as may be agreed to between the Issuer and the Paying Agent or the Issuer), directly to a Holder
(by Federal funds wire transfer or otherwise) if the Holder has delivered written instructions to the Trustee 15 days prior to
such payment date requesting that such payment will be so made and designating the bank account to which such payments shall be
so made and in the case of payments of Principal surrenders the same to the Trustee in exchange for a Security or Securities aggregating
the same principal amount as the unredeemed Principal amount of the Securities surrendered.
3.
Paying Agent
.
Initially,
[
●]
(the “
Trustee
”) will act as Paying Agent. The Issuer may change any Paying Agent without notice to the Holders.
4.
Indenture
.
The Issuer issued the
Securities under an Indenture, dated as of
[
●] (the “
Indenture
”), between the Issuer and the Trustee.
Capitalized terms herein are used as defined in the Indenture unless otherwise defined herein. The terms of the Securities include
those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) (the “
TIA
”), as in effect on the date of the Indenture until such time as the Indenture is qualified
under the TIA, and thereafter as in effect on the date on which the Indenture is qualified under the TIA. Notwithstanding anything
to the contrary herein, the Securities are subject to all such terms, and Holders of Securities are referred to the Indenture and
the TIA for a statement of them. To the extent the terms of the Indenture and this Security are inconsistent, the terms of the
Indenture shall govern.
5.
Subordination
.
The indebtedness of
the Issuer evidenced by this Security, including the Principal hereof and interest hereon, is, to the extent and in the manner
set forth in the Indenture, subordinate and junior in right of payment to the Company’s obligations to holders of Senior
Indebtedness of the Issuer and each Holder of this Security, by acceptance hereof, agrees to and shall be bound by such provisions
of the Indenture and all other provisions of the Indenture.
6.
Denominations; Transfer; Exchange
.
The Securities are
in registered form, without coupons, in denominations of $1,000 and multiples of $1,000. A Holder shall register the transfer of
or exchange Securities in accordance with the Indenture. The Issuer may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay certain transfer taxes or similar governmental charges payable in connection therewith
as permitted by the Indenture. The Issuer need not issue, authenticate, register the transfer of or exchange any Securities or
portions thereof for a period of fifteen (15) days before such series is selected for redemption, nor need the Issuer register
the transfer or exchange of any security selected for redemption in whole or in part.
7.
Persons Deemed Owners
.
The registered Holder
of a Security shall be treated as the owner of it for all purposes.
8.
Unclaimed Funds
.
If funds for the payment
of Principal or interest remain unclaimed for two years, the Trustee and the Paying Agent will repay the funds to the Issuer at
its written request. After that, all liability of the Trustee and such Paying Agent with respect to such funds shall cease.
9.
Legal Defeasance and Covenant Defeasance
.
The Issuer may be discharged
from its obligations under the Securities and under the Indenture with respect to the Securities except for certain provisions
thereof, and may be discharged from obligations to comply with certain covenants contained in the Securities and in the Indenture
with respect to the Securities, in each case upon satisfaction of certain conditions specified in the Indenture.
10.
Amendment; Supplement; Waiver
.
Subject to certain
exceptions, the Securities and the provisions of the Indenture relating to the Securities may be amended or supplemented with the
written consent of the Holders of at least a majority in aggregate Principal amount of the Securities then outstanding, and any
existing Default or Event of Default or compliance with certain provisions may be waived with the consent of the Holders of a majority
in aggregate Principal amount of the Securities then outstanding. Without notice to or consent of any Holder, the parties thereto
may amend or supplement the Indenture and the Securities to, among other things, cure any ambiguity, defect or inconsistency, provide
for uncertificated Securities in addition to or in place of certificated Securities or comply with any requirements of the Commission
in connection with the qualification of the Indenture under the Trust Indenture Act, or make any other change that does not adversely
affect the rights of any Holder of a Security.
11.
Defaults and Remedies
.
If an Event of Default
(other than certain bankruptcy Events of Default with respect to the Issuer) occurs and is continuing, the Trustee or the Holders
of at least 25% in aggregate Principal amount of Securities then outstanding may declare all of the Securities to be due and payable
immediately in the manner and with the effect provided in the Indenture. If a bankruptcy Event of Default with respect to the Issuer
occurs and is continuing, all the Securities shall be immediately due and payable immediately in the manner and with the effect
provided in the Indenture without any notice or other action on the part of the Trustee or any Holder. Holders of Securities may
not enforce the Indenture or the Securities except as provided in the Indenture. The Trustee is not obligated to enforce the Indenture
or the Securities unless it has received indemnity satisfactory to it. The Indenture permits, subject to certain limitations therein
provided, Holders of a majority in aggregate Principal amount of the Securities then outstanding to direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Holders of Securities notice of certain continuing Defaults or Events of Default
if it determines that withholding notice is in their interest.
12.
Conversion
.
Reference is made to
the Indenture, including, without limitation, provisions giving the Holder of this Security the right to convert this Security
into Capital Stock of the Issuer on the terms and subject to the limitations as more fully specified in the Indenture. The initial
conversion rate for this Security is
[
●]. This conversion rate is subject to modification as provided in the Indenture.
Such further provisions shall for all purposes have the same effect as though fully set forth at this place.
13.
Trustee Dealings with Issuer
.
The Trustee under the
Indenture, in its individual or any other capacity, may become the owner or pledgee of Securities and may otherwise deal with the
Issuer as if it were not the Trustee.
14.
No Recourse Against Others.
No stockholder, director,
officer, employee or incorporator, as such, of the Issuer or any successor Person thereof shall have any liability for any obligation
under the Securities or the Indenture or for any claim based on, in respect of or by reason of, such obligations or their creation.
Each Holder of a Security by accepting a Security waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Securities.
15.
Authentication
.
This Security shall
not be valid until the Trustee manually signs the certificate of authentication on this Security.
16.
Abbreviations and Defined Terms
.
Customary abbreviations
may be used in the name of a Holder of a Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by
the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
17.
CUSIP Numbers
.
Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification Procedures, the Issuer has caused CUSIP numbers to be printed on
the Securities as a convenience to the Holders of the Securities. No representation is made as to the accuracy of such numbers
as printed on the Securities and reliance may be placed only on the other identification numbers printed hereon.
18.
Governing Law
.
The laws of the State
of New York shall govern the Indenture and this Security thereof.
ASSIGNMENT FORM
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I or we assign and transfer this Security to
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(Print
or type name, address and zip code of assignee or transferee)
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(Insert
Social Security or other identifying number of assignee or transferee)
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and irrevocably appoint ___________________ agent to transfer this Security on the books of the Issuer.
The agent may substitute another to act for him.
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Dated:
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Signed:
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(Signed exactly as name appears on the other side of this Security)
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Signature Guarantee:
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Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor program reasonably
acceptable to the Trustee)
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EXHIBIT 5.1
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December 20, 2018
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Board of Directors
Zomedica Pharmaceuticals Corp.
100 Phoenix Drive, Suite 190
An Arbor, Michigan 48108
Re: Zomedica Pharmaceuticals Corp. – Form S-3 Registration
Statement
Ladies and Gentlemen:
This opinion is being furnished to you
in connection with the Registration Statement on Form S-3 (the "
Registration Statement
"), including the base prospectus
that is part of the Registration Statement (the "
Prospectus
") and the sales agreement prospectus that is part
of the Registration Statement (the "
ATM Prospectus
"), filed by Zomedica Pharmaceuticals Corp., a corporation organized
under the laws of Alberta, Canada (the "
Company
"), with the Securities and Exchange Commission (the "
Commission
")
on December 20, 2018 under the Securities Act of 1933, as amended (the "
Securities Act
").
The Prospectus provides that it will be
supplemented in the future by one or more prospectus supplements (each, a "
Prospectus Supplement
"). The Prospectus,
as supplemented by the various Prospectus Supplements, will provide for the issuance and sale by the Company from time to time
of up to $300,000,000 aggregate offering price of: (i) the Company's common shares, without nominal or par value (the "
Common
Shares
"); (ii) the Company's preferred shares, without nominal or par value (the "
Preferred Shares
");
(iii) the Company's senior debt securities and subordinated debt securities (collectively, the "
Debt Securities
"),
which may be issued pursuant to a senior debt indenture (the "
Senior Debt Indenture
"), between the Company and
the trustee to be named therein (the "
Senior Debt Trustee
") and a subordinated debt indenture (the "
Subordinated
Debt Indenture
," and together with the Senior Debt Indenture, the "
Indentures
") between the Company
and the trustee to be named therein (the "
Subordinated Debt Trustee
" and, together with the Senior Debt Trustee,
the "
Trustees
"); (iv) warrants to purchase securities, property or assets of the Company (the "
Warrants
");
(v) subscription rights to purchase Common Shares or Debt Securities (the "
Subscription Rights
"); or (vi) units
composed of any of the foregoing (the "
Units
"). The Common Shares, the Preferred Shares, the Debt Securities,
the Warrants, the Subscription Rights and the Units are collectively referred to herein as the "
Securities
."
Any Debt Securities may be exchangeable and/or convertible into Common Shares or other securities. The Warrants may be issued
pursuant to a warrant agreement (the "
Warrant Agreement
") between the Company and either a bank, trust company
or other financial institution, as warrant agent or, each of the initial holders of such Warrants. The Subscription Rights may
be issued pursuant to a subscription rights agreement (the "
Subscription Rights Agreement
") between the Company
and either a bank, trust company or other financial institution, as subscription rights agent or, each of the initial holders
of such Subscription Rights. The Units may be issued pursuant to a Unit Agreement (the "
Unit Agreement
") between
the Company and either a bank, trust company or other financial institution, as unit agent or, each of the initial holders of
such Units. The Securities are being registered for offering and sale from time to time pursuant to Rule 415 under the Securities
Act.
The ATM Prospectus relates to the sale by the
Company of Common Shares having an aggregate offering price of up to $50,000,000 (the "
ATM Shares
") under a sales
agreement (the "
Sales Agreement
") to be entered into between the Company and Cantor Fitzgerald & Co.
In rendering our opinions set forth below,
we have reviewed the Registration Statement and the exhibits thereto. We have also reviewed such corporate documents and records
of the Company, such certificates of public officials and officers of the Company and such other matters as we have deemed necessary
or appropriate for purposes of this opinion. In our examination, we have assumed: (i) the authenticity of original documents and
the genuineness of all signatures; (ii) the conformity to the originals of all documents submitted to us as copies; (iii) the
truth, accuracy and completeness of the information, representations and warranties contained in the instruments, documents, certificates
and records we have reviewed; and (iv) the legal capacity for all purposes relevant hereto of all natural persons and, with respect
to all parties to agreements or instruments relevant hereto other than the Company, that such parties had the requisite power
and authority (corporate or otherwise) to execute, deliver and perform such agreements or instruments, that such agreements or
instruments have been duly authorized by all requisite action (corporate or otherwise), executed and delivered by such parties
and that such agreements or instruments are the valid, binding and enforceable obligations of such parties. As to any facts material
to the opinions expressed herein that were not independently established or verified, we have relied upon oral or written statements
and representations of officers and other representatives of the Company.
Based on the foregoing, and subject to
the additional assumptions, limitations and qualifications set forth herein, we are of the opinion that:
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1.
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With respect to Common Shares (other than the ATM Shares), when: (a) the issuance and the terms
of the sale of the Common Shares have been duly authorized by the Board of Directors of the Company in conformity with the Company's
Articles of Amalgamation, as amended and by-laws; (b) such shares have been issued and delivered against payment of the purchase
price therefor in accordance with the applicable definitive purchase, underwriting or similar agreement, and as contemplated by
the Registration Statement, the Prospectus and the related Prospectus Supplement; and (c) to the extent such Common Shares are
to be issued upon the conversion, exchange or exercise of any series of Preferred Shares, Debt Securities, Warrants, Subscription
Rights or Units, when such shares have been duly issued and delivered as contemplated by the terms of such security or governing
instrument in respect thereof, such Common Shares will be validly issued, fully paid and non-assessable.
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2.
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With respect to the ATM Shares, (a) when the Registration Statement has become effective under
the Securities Act, and (b) when the ATM Shares have been issued and sold in accordance with the Sales Agreement, and as described
in the Registration Statement and ATM Prospectus, the ATM Shares will be validly issued, fully paid and nonassessable.
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3.
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With respect to any particular series of Preferred Shares, that: (a) upon designation of the relative
rights, preferences and limitations of any series of Preferred Shares by the Board of Directors of the Company and the proper filing
of Articles of Amendment with the Corporate Registry of the Province of Alberta and the issuance by such Registry of a Certificate
of Amendment relating to such series of Preferred Shares, all necessary corporate action on the part of the Company will have been
taken to authorize the issuance and sale of such series of Preferred Shares proposed to be sold by the Company; and (b) when such
Preferred Shares have been issued and delivered against payment of the purchase price therefor in accordance with the applicable
definitive purchase, underwriting or similar agreement, and as contemplated by the Registration Statement, the Prospectus and the
related Prospectus Supplement(s), such Preferred Shares will be validly issued, fully paid and non-assessable.
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In rendering the opinions set forth above,
we have assumed that (i) the Registration Statement (and any applicable post-effective amendment thereto) will have become effective
under the Securities Act, a Prospectus Supplement will have been prepared and filed with the Commission describing the Securities
offered thereby and such Securities will have been issued and sold in accordance with the terms of such Prospectus Supplement and
in compliance with all applicable laws; (ii) a definitive purchase, underwriting or similar agreement with respect to such Securities
(if applicable) will have been duly authorized, executed and delivered by the Company and the other parties thereto; (iii) the
Securities will be duly authorized by all necessary corporate action by the Company and any agreement pursuant to which such Securities
may be issued will be duly authorized, executed and delivered by the Company and the other parties thereto; (iv) the Company is
and will remain duly organized, validly existing and in good standing under the laws of the Province of Alberta; (v) the Company
has reserved a sufficient number of shares of its duly authorized, but unissued, Common Shares as is necessary to provide for the
issuance of the Common Shares pursuant to the Registration Statement; and (vi) all sales of Common Shares under the Registration
Statement, the Prospectus, the ATM Prospectus and any Prospectus Supplement will occur in the United States, no sales of Common
Shares shall be made to a person resident in the Province of Alberta and no sales of Common Shares will be made through the facilities
of the TSX Venture Exchange.
Our opinion expressed herein is also subject
to the qualification that no term or provision shall be included in any Indenture, Warrant Agreement, Subscription Rights Agreement,
Unit Agreement or any other agreement or instrument pursuant to which any of the Securities are to be issued that would affect
the validity of such opinion.
Our opinion is limited to the laws of the
Province of Alberta and the federal laws of Canada applicable therein. We express no opinion as to the effect of the law of any
other jurisdiction. Our opinion is rendered as of the date hereof, and we assume no obligation to advise you of changes in law
or fact (or the effect thereof on the opinions expressed herein) that hereafter may come to our attention.
We hereby consent to the inclusion of this
opinion as Exhibit 5.1 to the Registration Statement and to the references to our firm therein and in the Prospectus and in any
Prospectus Supplement under the caption "Legal Matters." In giving our consent, we do not 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 thereunder.
Very truly yours,
/s/ Tingle Merrett LLP
Tingle Merrett
LLP
EXHIBIT 5.2
December 20, 2018
Zomedica
Pharmaceuticals Corp.
100 Phoenix
Drive, Suite 190
Ann Arbor, Michigan 48108
Re:
Shelf Registration Statement on Form S-3
Gentlemen:
This opinion is being furnished to you in
connection with the Registration Statement on Form S-3 (the “
Registration Statement
”), including the base prospectus
that is part of the Registration Statement (the “
Prospectus
”), filed by Zomedica Pharmaceuticals Corp., a corporation
organized under the laws of Alberta, Canada (the “
Company
”), with the Securities and Exchange Commission (the
“
Commission
”) on December 20, 2018 under the Securities Act of 1933, as amended (the “
Securities Act
”).
Capitalized terms used herein have the respective meanings ascribed thereto in the Registration Statement unless otherwise defined
herein.
The Prospectus provides that it will be
supplemented in the future by one or more prospectus supplements (each, a “
Prospectus Supplement
”). The Prospectus,
as supplemented by the various Prospectus Supplements, will provide for the issuance and sale by the Company from time to time
of up to $300,000,000 aggregate offering price of certain securities, including: (i) the Company’s senior debt securities
and subordinated debt securities (collectively, the “
Debt Securities
”), which may be issued pursuant to a senior
debt indenture (the “
Senior Debt Indenture
”), between the Company and the trustee to be named therein (the “
Senior
Debt Trustee
”) and a subordinated debt indenture (the “
Subordinated Debt Indenture
,” and together
with the Senior Debt Indenture, the “
Indentures
”) between the Company and the trustee to be named therein (the
“
Subordinated Debt Trustee
” and, together with the Senior Debt Trustee, the “
Trustees
”);
(ii) warrants to purchase securities, property or assets of the Company (the “
Warrants
”); (iii) subscription
rights to purchase Common Stock or Debt Securities (the “
Subscription Rights
”); or (iv) units composed of any
of the foregoing (the “
Units
”). The Debt Securities, Warrants, Subscription Rights and Units are collectively
referred to herein as the “
Securities
.” Any Debt Securities may be exchangeable and/or convertible into the
Company’s common shares, without nominal or par value, or other securities. The Warrants may be issued pursuant to a warrant
agreement (the “
Warrant Agreement
”) between the Company and either a bank, trust company or other financial
institution, as warrant agent or, each of the initial holders of such Warrants. The Subscription Rights may be issued pursuant
to a subscription rights agreement (the “
Subscription Rights Agreement
”) between the Company and either a bank,
trust company or other financial institution, as subscription rights agent or, each of the initial holders of such Subscription
Rights. The Units may be issued pursuant to a Unit Agreement (the “
Unit Agreement
”) between the Company and
either a bank, trust company or other financial institution, as unit agent or, each of the initial holders of such Units. The Securities
are being registered for offering and sale from time to time pursuant to Rule 415 under the Securities Act.
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NEW YORK
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PALO ALTO
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NEW JERSEY
|
UTAH
|
WASHINGTON, D.C.
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Lowenstein Sandler LLP
|
In rendering our opinions set forth below,
we have reviewed the Registration Statement and the exhibits thereto. We have also reviewed such corporate documents and records
of the Company, and such other matters as we have deemed necessary or appropriate for purposes of this opinion. In our examination,
we have assumed: (i) the authenticity of original documents and the genuineness of all signatures; (ii) the conformity to the originals
of all documents submitted to us as copies; (iii) the truth, accuracy and completeness of the information, representations and
warranties contained in the instruments, documents, certificates and records we have reviewed; and (iv) the legal capacity for
all purposes relevant hereto of all natural persons and, with respect to all parties to agreements or instruments relevant hereto,
that such parties had the requisite power and authority (corporate or otherwise) to execute, deliver and perform such agreements
or instruments, that such agreements or instruments have been duly authorized by all requisite action (corporate or otherwise),
executed and delivered by such parties and that such agreements or instruments are the valid, binding and enforceable obligations
of such parties, other than the Company. As to any facts material to the opinions expressed herein that were not independently
established or verified, we have relied upon oral or written statements and representations of officers and other representatives
of the Company.
Based on the foregoing, and subject to the
additional assumptions, limitations and qualifications set forth herein, we are of the opinion that:
1.
With respect to Debt Securities, when (a) the issuance and the terms of the sale of the Debt Securities have been duly authorized
by the Board of Directors of the Company; (b) the terms of the Debt Securities and of their issuance and sale have been duly established
so as not to 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
or any of its property; (c) the Debt Securities and the applicable Indenture relating to the Debt Securities have been duly executed
and countersigned and in the case of the Indenture, duly authenticated by the Trustee, and the Debt Securities have been issued
and sold as contemplated by the Registration Statement, the Prospectus and the related Prospectus Supplement; and (d) the Company
has received the applicable consideration for the Debt Securities as contemplated by the Registration Statement, the Prospectus
and the related Prospectus Supplement(s), the Debt Securities will constitute valid and binding obligations of the Company.
2.
With respect to Warrants, when (a) the issuance and the terms of the sale of the Warrants have been duly authorized by the
Board of Directors of the Company; (b) the terms of the Warrants and of their issuance and sale have been duly established so as
not to 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 or
any of its property; (c) the Warrants and the applicable Warrant Agreement relating to the Warrants, if any, have been duly executed
and countersigned and the Warrants have been issued and sold in accordance with the applicable definitive purchase, underwriting
or similar agreement, as contemplated by the Registration Statement, the Prospectus and the related Prospectus Supplement(s); and
(d) the Company has received the applicable consideration for the Warrants in accordance with the applicable definitive purchase,
underwriting or similar agreement, and as contemplated by as contemplated by the Registration Statement, the Prospectus and the
related Prospectus Supplement(s), the Warrants will constitute valid and binding obligations of the Company.
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3.
With respect to the Subscription Rights, when both: (a) the issuance and the terms of the sale of the Subscription Rights
have been duly authorized by the Board of Directors of the Company; and (b) the terms of the Subscription Rights and of their issuance
and sale have been duly established so as not to 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 or any of its property; and (c) the Subscription Rights Agreement or the agreements relating
to the Subscription Rights have been duly authorized and validly executed and delivered by the Company, then the Subscription Rights
will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
4.
With respect to the Units, when both: (a) the issuance and the terms of the sale of the Units have been duly authorized
by the Board of Directors of the Company; and (b) the terms of the Units and of their issuance and sale have been duly established
so as not to 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
or any of its property; and (c) the Unit Agreement or the agreements relating to the Units have been duly authorized and validly
executed and delivered by the Company, then the Units will be valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms.
In rendering the opinions set forth above,
we have assumed that (i) the Registration Statement (and any applicable post-effective amendment thereto) will have become effective
under the Securities Act, a Prospectus Supplement will have been prepared and filed with the Commission describing the Securities
offered thereby and such Securities will have been issued and sold in accordance with the terms of such Prospectus Supplement and
in compliance with all applicable laws; (ii) a definitive purchase, underwriting or similar agreement with respect to such Securities
(if applicable) will have been duly authorized, executed and delivered by the Company and the other parties thereto; (iii) the
Securities will be duly authorized by all necessary corporate action by the Company and any agreement pursuant to which such Securities
may be issued will be duly authorized, executed and delivered by the Company and the other parties thereto; and (iv) the Company
is and will remain duly organized, validly existing and in good standing under the law of its jurisdiction of incorporation.
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, including without limitation, concepts of materiality, reasonableness, good faith
and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of 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; and (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 liability where such indemnification or contribution is contrary
to public policy. We express no opinion concerning the enforceability of any waiver of rights or defenses with respect to stay,
extension or usury laws. Our opinion expressed herein is also subject to the qualification that no term or provision shall be included
in any Indenture, Warrant Agreement, Subscription Rights Agreement, Unit Agreement or any other agreement or instrument pursuant
to which any of the Securities are to be issued that would affect the validity of such opinion.
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3
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Our opinion is limited to the federal laws
of the United States and the laws of the State of New York. We express no opinion as to the effect of the law of any other jurisdiction.
Our opinion is rendered as of the date hereof, and we assume no obligation to advise you of changes in law or fact (or the effect
thereof on the opinions expressed herein) that hereafter may come to our attention.
We hereby consent to the inclusion of this
opinion as Exhibit 5.2 to the Registration Statement and to the references to our firm therein and in the Prospectus and in any
Prospectus Supplement under the caption “Legal Matters.” In giving our consent, we do not 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 thereunder.
Very truly yours,
/s/ Lowenstein Sandler LLP
LOWENSTEIN SANDLER LLP
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Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in this Registration Statement on Form S-3 of our auditors’
report dated February 28, 2018, relating to the consolidated financial statements of Zomedica Pharmaceuticals Corp. and its subsidiaries
(the “Company”) for the years ended December 31, 2017 and 2016, (which report expresses an unqualified opinion), appearing
in the Annual Report on Form 10-K of the Company filed February 28, 2018, and to the reference to us under the heading “Experts”
in the Prospectus, which is part of this Registration Statement
.
.
/s/ MNP LLP
Chartered Professional Accountants
Licensed Public Accountants
December 20, 2018
Toronto, Canada