As
filed with the United States Securities and Exchange Commission on
August 17, 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
PALATIN TECHNOLOGIES, INC.
(Exact name of registrant as specified in its
charter)
Delaware
|
95-4078884
|
(State or other jurisdiction of incorporation or
organization)
|
(I.R.S. Employer Identification No.)
|
4B Cedar Brook Drive
Cranbury, New Jersey 08512
(609) 495-2200
(Address, including zip code, and telephone number,
including area code, of Registrant’s principal executive
offices)
______________________
Stephen T. Wills, Executive Vice President, Chief Financial
Officer,
and Chief Operating Officer
4B Cedar Brook Drive
Cranbury, New Jersey 08512
(609) 495-2200
(Name, address, including zip code, and telephone
number,
including area code, of agent for service)
______________________
Please send copies of all communications to:
Faith L. Charles, Esq.
Thompson Hine LLP
335 Madison Avenue, 12
th
Floor
New York, NY 10017
(212) 908-3905
|
Stephen A. Slusher, Esq.
Chief Legal Officer
4B Cedar Brook Drive
Cranbury, NJ 08512
(609) 495-2200
|
______________________
Approximate date of commencement of proposed sale to the public:
from time to time, following the effective date of this
registration statement.
If the
only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check
the following box. ☐
If any
of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box. ☑
If this
Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same
offering. ☐
If this
Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier
effective registration statement for the same offering.
☐
If this
Form is a registration statement pursuant to General Instruction
I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e)
under the Securities Act, check the following box.
☐
If this
Form is a post-effective amendment to a registration statement
filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant
to Rule 413(b) under the Securities Act, check the following
box. ☐
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated filer, a
smaller reporting company or an emerging growth company. See the
definitions of “large accelerated filer,”
“accelerated filer,” “smaller reporting
company” and “emerging growth company” in Rule
12b-2 of the Exchange Act.
Large accelerated filer
|
☐
|
Accelerated filer
|
☑
|
Non-accelerated
filer
|
☐
(Do not check if a smaller reporting
company)
|
Smaller reporting company
|
☑
|
|
|
Emerging
growth company
|
☐
|
If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting
standards provided pursuant to Section 7(a)(2)(B) of the Securities
Act.
☐
Calculation of Registration Fee
Title of
each
class
of
securities
to
be
registered
|
Amount to
be
registered
(1)
|
Proposed maximum
offering price per unit (2)
|
Proposed maximum
aggregate offering price (1)(2)
|
Amount of
registration
fee
(3)
|
Common
Stock
|
―
|
―
|
―
|
―
|
Preferred
Stock
|
―
|
―
|
―
|
―
|
Debt
Securities
|
―
|
―
|
―
|
―
|
Warrants
|
―
|
―
|
―
|
―
|
Units
|
―
|
―
|
―
|
―
|
Total
|
―
|
―
|
$
50,725,001
|
$
6,320.00
|
NOTES TO FEE TABLE:
(1)
This registration
statement covers offers, sales and distributions of an
indeterminate number or aggregate principal amount of the
registered securities which the registrant may from time to time
issue at indeterminate prices. The aggregate maximum offering price
of all securities registered will not exceed $100,000,000 or if the
registrant issues any debt securities at an original issuance
discount, such greater amount as shall result in proceeds of
$100,000,000 to the registrant. The registered securities may be
sold separately or as units with other classes of the registered
securities. The registered securities also include such
indeterminate numbers of shares of common stock and preferred stock
and amount of debt securities as may be issued upon conversion of
or exchange for preferred stock or debt securities that provide for
conversion or exchange, upon exercise of warrants or pursuant to
the antidilution provisions of any such securities.
(2)
The registrant will
determine the proposed maximum offering price per unit and the
proposed maximum aggregate offering price per class from time to
time in connection with the issuance of the registered securities.
The proposed maximum aggregate offering price for each class is
omitted pursuant to General Instruction II.D of Form S-3 under the
Securities Act of 1933, as amended.
(3)
Calculated in
accordance with Rule 457(o) under the Securities Act of 1933, as
amended (the “Securities Act”). In addition to the
$50,725,001 of securities set forth in the table above, pursuant to
Rule 415(a)(6) under the Securities Act, this registration
statement includes $49,274,999 of unsold securities (the
“Unsold Securities”) that had previously been
registered under the Company’s registration statement on Form
S-3 on August 3, 2015 and declared effective on August 18, 2015
(File No. 333-206047) and paid a filing fee for a total of
$100,000,000 of securities that may be issued under that
registration statement. Pursuant to Rule 415(a)(6) under the
Securities Act, the $11,620 of filing fees previously paid in
connection with the Unsold Securities will continue to be applied
to the Unsold Securities that are being carried forward to this
registration statement. In accordance with U.S. Securities and
Exchange Commission rules, the registrant may continue to offer and
sell the Unsold Securities during the grace period afforded by Rule
415(a)(5). If the registrant sells any Unsold Securities during the
grace period, the registrant will identify in a pre-effective
amendment to this registration statement the new amount of Unsold
Securities to be carried forward to this registration statement in
reliance upon Rule 415(a)(6) and any filing fee paid in connection
with such Unsold Securities and the amount of any new securities to
be registered. Pursuant to Rule 415(a)(6) of the Securities Act,
the offering of the Unsold Securities registered under the Prior
Registration Statement will be deemed terminated as of the date of
effectiveness of this registration statement.
The registrant hereby amends this registration statement on such
date or dates as may be necessary to delay its effective date until
the registrant shall file a further amendment which specifically
states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities
Act of 1933, as amended, or until the registration statement shall
become effective on such date as the U.S. Securities and Exchange
Commission, acting pursuant to said Section 8(a), may
determine.
The information in this prospectus is not complete and may be
changed. We may not sell these securities until the registration
statement filed with the U.S. Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these securities
and it is not soliciting an offer to buy these securities in any
jurisdiction where the offer or sale is not permitted.
PROSPECTUS
|
SUBJECT TO COMPLETION
|
August 17, 2018
|
PALATIN TECHNOLOGIES, INC.
4B
Cedar Brook Drive
Cranbury,
New Jersey 08512
(609)
495-2200
$100,000,000
Common
Stock
Preferred
Stock
Debt
Securities
Warrants
Units
We may
offer under this prospectus from time to time in one or more
offerings, at prices and on terms to be determined by market
conditions at the time we make the offer, up to an aggregate of
$100,000,000 of our:
●
common stock, par
value $0.01 per share;
●
preferred stock,
par value $0.01 per share;
●
warrants to
purchase common or preferred stock, or debt securities;
or
●
any combination of
the above, separately or as units.
This
prospectus may not be used to sell our securities unless
accompanied by a prospectus supplement. The prospectus supplement
will provide specific terms of the securities offered, will
describe the specific manner in which we will offer these
securities, and may also supplement, update or amend information
contained in this prospectus. Before you invest in our securities,
you should carefully read both this prospectus and any prospectus
supplement related to the offering of the securities, together with
any documents incorporated herein or therein.
Our
common stock is listed on the NYSE American under the symbol
“PTN.” On August 15, 2018, the closing price of our
common stock as reported on the NYSE American was $0.94 per share.
None of the other securities that we may offer under this
prospectus are currently publicly traded.
As of
August 15, 2018, the aggregate market value of our outstanding
common shares held by non-affiliates was approximately
$187,547,027, which was calculated based on 201,902,552 common
shares outstanding as of that date, of which 199,518,114 common
shares were held by non-affiliates, and a price per share of $0.94,
which was the closing price of our common stock as reported on the
NYSE American on such date.
Investing in our securities involves a high degree of risk. You
should purchase these securities only if you can afford a complete
loss of your investment. See “Risk Factors” beginning
on page 7.
Neither the United States Securities and Exchange Commission nor
any state securities commission has approved or disapproved of
these securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
If we
sell securities through agents or underwriters, we will include
their names and the fees, commissions and discounts they will
receive, as well as the net proceeds to us, in the applicable
prospectus supplement. The underwriters, if any, may over-allot a
portion of the securities.
The
date of this prospectus is , 2018
TABLE OF CONTENTS
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Page
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Prospectus
Summary
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3
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Risk
Factors
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7
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Note
Concerning Forward-Looking Statements
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8
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Incorporation
of Information by Reference
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10
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Where
You Can Find More Information
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11
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|
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Use of
Proceeds
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11
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|
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Dilution
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11
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|
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Market
Price of and Dividends on Common Equity and Related Stockholder
Matters
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11
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|
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Description
of Securities
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14
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|
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Anti-Takeover
Effects of Provisions of Delaware Law and Our Charter
Documents
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19
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Plan of
Distribution
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21
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Legal
Matters
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22
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Experts
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22
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PROSPECTUS SUMMARY
This summary highlights certain information appearing elsewhere in
this prospectus and in the information incorporated by reference.
This summary is not complete and does not contain all of the
information you should consider prior to investing in our
securities. After you read this summary, you should read and
consider carefully the more detailed information and financial
statements and related notes that we include in this prospectus or
incorporate by reference, especially the section entitled
“Risk Factors.” If you invest in our securities, you
are assuming a high degree of risk.
Unless we have indicated otherwise or the context otherwise
requires, references in the prospectus to “Palatin,”
the “Company,” “we,” “us” and
“our” or similar terms refer to the operations of
Palatin Technologies, Inc. and its subsidiary.
Overview
We are
a specialized biopharmaceutical company developing first-in-class
medicines based on molecules that modulate the activity of the
melanocortin and natriuretic peptide receptor systems. Our product
candidates are targeted, receptor-specific therapeutics for the
treatment of diseases with significant unmet medical need and
commercial potential. Our most advanced product candidate is
bremelanotide, a peptide melanocortin receptor agonist, for the
treatment of premenopausal women with hypoactive sexual desire
disorder (“HSDD”), which is a type of female sexual
dysfunction (“FSD”), defined as low desire with
associated distress. A New Drug Application (“NDA”) has
been submitted to the U.S. Food and Drug Administration
(“FDA”) by our exclusive North American licensee, AMAG
Pharmaceuticals, Inc. (“AMAG”) and accepted for filing
by the FDA, with an FDA decision on approval expected in the first
quarter of calendar 2019.
Bremelanotide.
Bremelanotide is an as-needed subcutaneous
injectable product for the treatment of HSDD in premenopausal
women. Bremelanotide is a synthetic peptide analog of the naturally
occurring hormone alpha-MSH (melanocyte-stimulating hormone). In
March 2018, our exclusive North American licensee for
bremelanotide, AMAG, submitted an NDA to the FDA for bremelanotide
for the treatment of HSDD in premenopausal women, which was
accepted for filing and review by the FDA. The Prescription Drug
User Fee Act date for completion of FDA review of the bremelanotide
NDA is March 23, 2019. We have also licensed rights to
bremelanotide to Shanghai Fosun Pharmaceutical Industrial
Development Co. Ltd. (“Fosun”) for the territories of
the People’s Republic of China, Taiwan, Hong Kong S.A.R. and
Macau S.A.R. (collectively, “China”), and Kwangdong
Pharmaceutical Co., Ltd. (“Kwangdong”) for the Republic
of Korea (“Korea”).
Our
Phase 3 studies for HSDD in premenopausal women, called the
RECONNECT studies, consisted of two double-blind
placebo-controlled, randomized parallel group studies comparing the
as desired use of 1.75 mg of bremelanotide versus placebo, in each
case, delivered via a subcutaneous auto-injector. Each trial
consisted of more than 600 patients randomized in a 1:1 ratio to
either the treatment arm or placebo with a 24-week evaluation
period. In both clinical trials, bremelanotide met the
pre-specified co-primary efficacy endpoints of improvement in
desire and decrease in distress associated with low sexual desire
as measured using validated patient-reported outcome
instruments.
After
completing the studies, patients had the option to continue in an
open-label safety extension study for an additional 52 weeks.
Nearly 80% of patients who completed the randomized portion of the
study elected to remain in the open-label portion of the study. In
the Phase 3 clinical trials, the most frequent adverse events were
nausea, flushing, and headache, which were generally
mild-to-moderate in intensity and were transient.
We
retain worldwide rights for bremelanotide for HSDD and all other
indications outside North America, Korea and China. We are actively
seeking potential partners for marketing and commercialization
rights for bremelanotide for HSDD outside the licensed territories.
However, we may not be able to enter into suitable agreements with
potential partners on acceptable terms, if at all.
Melanocortin Receptor Systems.
There are five melanocortin
receptors, MC1r through MC5r. Modulation of these receptors,
through use of receptor-specific agonists, which activate receptor
function, or receptor-specific antagonists, which block receptor
function, can have significant pharmacological effects. Our new
product development activities primarily focus on MC1r agonists,
with potential to treat a number of inflammatory and autoimmune
diseases such as dry eye disease, uveitis, diabetic retinopathy and
inflammatory bowel disease. We believe that MC1r agonists,
including the MC1r agonist peptides we are developing, have broad
anti-inflammatory effects and appear to utilize mechanisms engaged
by the endogenous melanocortin system in regulation of the immune
system and resolution of pro-inflammatory responses. We are also
developing peptides that are active at more than one melanocortin
receptor, and MC4r agonists, with potential utility in a number of
obesity and metabolic-related disorders, including rare disease and
orphan indications.
●
PL-8177, a
selective MC1r agonist peptide, is our lead clinical development
candidate for inflammatory bowel diseases, with potential
applicability for a number of other diseases. We filed an
Investigational New Drug (“IND”) application on PL-8177
in late 2017 and have completed subcutaneous dosing of human
subjects in a Phase 1 single and multiple ascending dose clinical
safety study, with data expected in the fourth quarter of calendar
year 2018. We anticipate starting a clinical study with oral dosing
of PL-8177 in human subjects in the second half of calendar year
2018, with data expected in the first half of calendar
2019.
●
PL-8331, a dual
MC1r and MC5r peptide agonist, is a preclinical development
candidate for treating ocular inflammation. We have initiated IND
preclinical enabling activities with PL-8331, and if results are
favorable, anticipate filing an IND and initiating clinical trials
for treatment of dry eye disease in the second half of calendar
year 2019.
●
We have initiated
preclinical programs with MC4r peptides and orally-active small
molecules for treatment of rare genetic metabolic and obesity
disorders, and if results are favorable, anticipate selecting a
lead clinical development candidate and completing IND enabling
activities in calendar year 2019.
Natriuretic Peptide Receptor Systems.
The natriuretic
peptide receptor (“NPR”) system has numerous
cardiovascular functions, and therapeutic agents modulating this
system may be useful in treatment of cardiovascular diseases,
including reducing cardiac hypertrophy and fibrosis, heart failure,
acute asthma, other pulmonary diseases and hypertension. While the
therapeutic potential of modulating this system is well
appreciated, development of therapeutic agents has been difficult
due, in part, to the short biological half-life of native peptide
agonists. We have designed and are developing potential candidate
drugs that are selective for one or more different natriuretic
peptide receptors, including natriuretic peptide receptor-A
(“NPR-A”), natriuretic peptide receptor B
(“NPR-B”), natriuretic peptide receptor C
(“NPR-C”).
●
PL-3994 is an NPR-A
agonist we developed which has completed Phase 1 clinical safety
studies. It has potential utility in treatment of a number of
cardiovascular diseases, including genetic and orphan diseases
resulting from a deficiency of endogenous active NPR-A. We have
ongoing academic collaborations with several institutions with
PL-3994, and seek to enter into a development partnership by the
end of calendar year 2019.
●
PL-5028, a dual
NPR-A and NPR-C agonist we developed, is in preclinical development
for cardiovascular diseases, including reducing cardiac hypertrophy
and fibrosis. We have ongoing academic collaborations with several
institutions with PL-5028, and seek to enter into a development
partnership by the end of calendar year 2019.
The
following chart illustrates the status of our drug development
programs.
Our Strategy
Key
elements of our business strategy include:
●
Using our
technology and expertise to develop and commercialize products in
our active drug development programs;
●
Entering into
strategic alliances and partnerships with pharmaceutical companies
to facilitate the development, manufacture, marketing, sale and
distribution of product candidates that we are
developing;
●
Partially funding
our product development programs with the cash flow generated from
existing license agreements, as well as any future research,
collaboration or license agreements; and
●
Completing
development and seeking regulatory approval of certain of our other
product candidates.
Risks Related to Our Business
Our
business is subject to numerous risks and uncertainties, including
those incorporated by reference in the section of this prospectus
entitled “Risk Factors,” which you should read
carefully before deciding to invest in our securities. These risks
include, among others, the following:
●
We have incurred
substantial losses since our inception and we anticipate that we
will not attain sustained profitability in the foreseeable future,
if ever. We expect to incur additional losses as we continue our
development of product candidates. Until bremelanotide for HSDD or
other product candidates receive regulatory approval under
applicable regulatory requirements, neither we nor our licensees
can sell products we have developed and we will not have product,
sales milestone or royalty revenues from them;
●
We are
substantially dependent on the clinical and commercial success of
our product candidates, primarily our lead product candidate,
bremelanotide for HSDD, for which AMAG, our North American
licensee, has filed an NDA with FDA. Neither we nor our licensees
may be able to obtain regulatory approval for bremelanotide for
HSDD or our other product candidates under applicable regulatory
requirements. The denial or delay of any such approval would delay
commercialization and have a material adverse effect on our
potential to generate revenue, our business and our results of
operations;
●
Our licensees
control the development and commercialization of bremelanotide in
North America, China and Korea, and as a result we may not realize
a significant portion of the potential value of the license
arrangements. We have limited control over development activities,
including regulatory approvals, and no direct control over
commercialization efforts;
●
Even if
bremelanotide for HSDD or our other product candidates receive
regulatory approval, the products may fail to achieve the level of
market acceptance needed for us to have commercial success. Our
product candidates, if approved, will face significant competition
and our failure, or the failure of our licensees, to effectively
compete may prevent us from achieving significant market
penetration and expansion;
●
We will require
substantial additional funding to achieve our goals, and a failure
to obtain this necessary capital when needed on acceptable terms,
or at all, could force us to delay, limit, reduce or terminate our
product development, other operations or commercialization
efforts;
●
If our efforts to
protect our intellectual property related to bremelanotide for HSDD
or any future product candidates are not adequate, we may not be
able to compete effectively in our market; and
●
We rely on a small
management team and staff as well as various contractors and
consultants to provide critical services to us, including services
related to our clinical programs for bremelanotide, PL-8177 and
PL-3994 and our preclinical programs for other NPR and MC1r and
MC4r
peptide or small
molecule drug candidates. Such programs could be adversely affected
if we lose the services of existing key personnel.
Corporate Information
We were
incorporated under the laws of the State of Delaware on November
21, 1986 and commenced operations in the biopharmaceutical area in
1996. Our corporate offices are located at 4B Cedar Brook Drive,
Cranbury, New Jersey 08512 and our telephone number is (609)
495-2200. Our internet address is www.palatin.com. The information
on our website is not incorporated by reference into this
prospectus and should not be considered to be part of this
prospectus. Our website address is included in this prospectus as
an inactive textual reference only.
“Palatin
Technologies, Inc.” and the Palatin logo are our trademarks.
All other trademarks and service marks appearing in this prospectus
are the property of their respective owners.
The Offering
This
prospectus is part of a registration statement on Form S-3 that we
filed with the U.S. Securities and Exchange Commission
(“SEC”) utilizing a “shelf” registration
process. Under this process, we may sell any combination of the
securities described in this prospectus in one or more offerings up
to a total dollar amount of $100.0 million. This prospectus
provides you with a general description of the securities we may
offer. Each time we offer to sell securities under this prospectus,
we will provide a prospectus supplement containing specific
information about the terms of that offering. The prospectus
supplement may also add, update or change information contained in
this prospectus. To the extent that any information we provide in a
prospectus supplement is inconsistent with information in this
prospectus, the information in the prospectus supplement will
modify or supersede this prospectus. You should read both this
prospectus and any prospectus supplement together with the
additional information described under the headings
“Incorporation of Information by Reference” and
“Where You Can Find More Information.”
You
should rely only on the information contained or incorporated by
reference in this prospectus and in any prospectus supplement. We
have not authorized anyone to provide you with different
information. We are not offering the securities in any jurisdiction
where the offering is prohibited. You should not assume that the
information in this prospectus, any prospectus supplement or any
document incorporated by reference is truthful or complete at any
date other than the date mentioned on the cover page of those
documents.
RISK FACTORS
Investing in our
securities involves risks which you should consider carefully. We
have set forth below risk factors related specifically to this
offering. For risks related to our business operations, see
“Risk Factors” in our annual report, on Form 10-K for
the year ended June 30, 2017 and our quarterly report on Form 10-Q
for the quarter ended March 31, 2018, and all subsequent reports
that we file with the SEC under Sections 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”). We have incorporated those reports by
reference into this prospectus. See “Incorporation of
Information by Reference” and “Where You Can Find More
Information” below.
RISKS RELATED TO THE OFFERING
We expect to sell additional equity securities, which will cause
dilution.
We
expect to sell more equity securities in the future to obtain
operating funds. We may sell these securities at a discount to the
market price. Any future sales of equity will dilute the holdings
of existing stockholders, possibly reducing the value of their
investment.
Investors in this offering may suffer immediate
dilution.
As of
March 31, 2018, we had a pro forma net book value of $10.2 million
which yields a net book value of $0.05 per share of common stock,
assuming the conversion of all then convertible preferred stock and
no exercise of any warrants or options. If you pay more than the
net tangible book value per share for stock in this offering, you
will suffer immediate dilution.
As of July 31, 2018, there were 45,435,379 shares of common stock
underlying outstanding convertible preferred stock, options,
restricted stock units and warrants. Stockholders may experience
dilution from the conversion of preferred stock, exercise of
outstanding options and warrants and vesting of restricted stock
units.
As of
July 31, 2018, holders of our outstanding dilutive securities had
the right to acquire the following amounts of underlying common
stock:
●
61,145 shares
issuable on the conversion of immediately convertible Series A
Convertible preferred stock, subject to adjustment, for no further
consideration;
●
12,646,312 shares
issuable on the exercise of stock options, at exercise prices
ranging from $0.37 to $2.80 per share;
●
9,323,876 shares
issuable under restricted stock units which vest on dates between
September 7, 2018 and June 26, 2022, subject either to the
fulfillment of service conditions or attaining defined performance
conditions; and
●
23,404,046 shares
issuable on the exercise of warrants at exercise prices ranging
from $0.70 to $0.91 per share.
If the
holders convert, exercise or receive these securities, or similar
dilutive securities we may issue in the future, stockholders may
experience dilution in the net tangible book value of their common
stock. In addition, the sale or availability for sale of the
underlying shares in the marketplace could depress our stock price.
We have registered or agreed to register for resale substantially
all of the underlying shares listed above. Holders of registered
underlying shares could resell the shares immediately upon
issuance, which could result in significant downward pressure on
our stock price and could also negatively impact our ability to
raise equity capital.
We will have broad discretion over the use of the proceeds of this
offering and you may not realize a return.
We will
have considerable discretion in the application of the net proceeds
of this offering. We have not determined the amount of net proceeds
that we will apply to various corporate purposes, including
potential acquisitions. We may use the net proceeds for purposes
that do not yield a significant return, if any, for our
stockholders.
NOTE CONCERNING FORWARD-LOOKING STATEMENTS
In this
prospectus, references to “we”, “our”,
“us” or “Palatin” means Palatin
Technologies, Inc. and its subsidiary.
This
prospectus, and the information that we incorporate by reference,
as well as oral statements that may be made by us or by our
officers, directors, or employees acting on our behalf, that are
not historical facts constitute “forward-looking
statements”, which are made pursuant to the safe harbor
provisions of Section 27A of the Securities Act of 1933, as
amended (the “Securities Act”) and Section 21E of
the Exchange Act. The forward-looking statements in this prospectus
do not constitute guarantees of future performance. Investors are
cautioned that statements that are not strictly historical
statements contained in this prospectus, including, without
limitation, the following are forward looking
statements:
●
estimates of our
expenses, future revenue and capital requirements;
●
our ability to
obtain additional financing on terms acceptable to us, or at
all;
●
our ability to
advance product candidates into, and successfully complete,
clinical trials;
●
the initiation,
timing, progress and results of future preclinical studies and
clinical trials, and our research and development
programs;
●
the timing or
likelihood of regulatory filings and approvals;
●
our expectations
regarding completion of required clinical trials and studies and
validation of methods and controls used to manufacture
bremelanotide for the treatment of premenopausal women with HSDD,
which is a type of FSD;
●
our expectation
regarding the timing of our regulatory submissions for approval of
bremelanotide for HSDD in the United States and in certain other
jurisdictions outside the United States;
●
our expectation
regarding performance of our exclusive licensees of bremelanotide,
including;
o
AMAG for North
America,
o
Fosun, a subsidiary
of Shanghai Fosun Pharmaceutical (Group) Co., Ltd., for China,
and
●
the potential for
commercialization of bremelanotide for HSDD in North America by
AMAG and other product candidates, if approved, by us;
●
our expectations
regarding the potential market size and market acceptance for
bremelanotide for HSDD and our other product candidates, if
approved for commercial use;
●
our ability to
compete with other products and technologies similar to our product
candidates;
●
the ability of our
third-party collaborators to timely carry out their duties under
their agreements with us;
●
the ability of our
contract manufacturers to perform their manufacturing activities
for us in compliance with applicable regulations;
●
our ability to
recognize the potential value of our licensing arrangements with
third parties;
●
the potential to
achieve revenues from the sale of our product
candidates;
●
our ability to
obtain adequate reimbursement from Medicare, Medicaid, private
insurers and other healthcare payers;
●
our ability to
maintain product liability insurance at a reasonable cost or in
sufficient amounts, if at all;
●
the retention of
key management, employees and third-party contractors;
●
the scope of
protection we are able to establish and maintain for intellectual
property rights covering our product candidates and
technology;
●
our compliance with
federal and state laws and regulations;
●
the timing and
costs associated with obtaining regulatory approval for our product
candidates;
●
the impact of
fluctuations in foreign exchange rates;
●
the impact of
legislative or regulatory healthcare reforms in the United
States;
●
our ability to
adapt to changes in global economic conditions; and
●
our ability to
remain listed on the NYSE American stock exchange.
These
forward-looking statements involve known and unknown risks,
uncertainties and other factors that could cause our actual results
to be materially different from our historical results or from any
results expressed or implied by forward-looking statements. Our
future operating results are subject to risks and uncertainties and
are dependent upon many factors, including, without limitation, the
risks identified under the caption “Risk Factors,” and
in our other SEC filings. The statements we make in this prospectus
are as of the date of this prospectus.
Although we believe
that the expectations reflected in the forward-looking statements
are reasonable, we cannot guarantee future results, levels of
activity, performance or achievements. Except as may be required by
law, we do not intend to update any of the forward-looking
statements for any reason after the date of this prospectus to
conform such statements to actual results or if new information
becomes available.
All
forward-looking statements attributable to us, or to persons acting
on our behalf, are expressly qualified in their entirety by these
cautionary statements.
You
should read this prospectus, together with the information
incorporated herein by reference as described under the section
entitled “Incorporation of Information by Reference,”
and the documents that we reference in this prospectus and have
filed with the SEC as exhibits to the registration statement on
Form S-3, of which this prospectus is a part, with the
understanding that our actual future results, levels of activity,
performance and achievements may be materially different from what
we expect. We qualify all of our forward-looking statements by
these cautionary statements.
INCORPORATION OF INFORMATION BY REFERENCE
We
incorporate into this prospectus information contained in documents
which we file with the SEC. We are disclosing important information
to you by referring you to those documents. The information which
we incorporate by reference is an important part of this
prospectus, and certain information that we file later with the SEC
will automatically update and supersede this information. We
incorporate by reference the documents listed below (other than, in
each case, any documents or information deemed to have been
furnished and not filed in accordance with SEC rules):
●
current report on
Form 8-K, filed with the SEC on September 7, 2017;
●
current report on
Form 8-K, filed with the SEC on September 12, 2017;
●
annual report on
Form 10-K for the fiscal year ended June 30, 2017, filed with the
SEC on September 25, 2017;
●
quarterly report on
Form 10-Q for the quarter ended September 30, 2017, filed with the
SEC on November 13, 2017;
●
quarterly report on
Form 10-Q for the quarter ended December 31, 2017, filed with the
SEC on February 12, 2018;
●
amended annual
report on Form 10-K/A for the fiscal year ended June 30, 2017,
filed with the SEC on April 13, 2018;
●
current report on
Form 8-K, filed with the SEC on April 20, 2018;
●
quarterly report on
Form 10-Q for the quarter ended March 31, 2018, filed with the SEC
on May 14, 2018;
●
current report on
Form 8-K, filed with the SEC on June 27, 2018; and
●
the description of
our common stock contained in our registration statement on Form
8-A, initially filed with the SEC on December 13, 1999, including
any amendment or report for the purpose of updating such
description.
We also
incorporate by reference any documents that we subsequently file
with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act, prior to the termination of the offering (other than,
in any case, any documents or information deemed to have been
furnished and not filed in accordance with SEC rules).
You may
obtain a free copy of any or all of the information incorporated by
reference by writing or calling us. Please direct your request
to:
Executive Vice
President, Chief Financial Officer and Chief Operating
Officer
Palatin
Technologies, Inc.
4B
Cedar Brook Drive
Cranbury, New
Jersey 08512
Telephone: (609)
495-2200
Fax:
(609) 495-2201
WHERE YOU CAN FIND MORE INFORMATION
We file
annual, quarterly and current reports, proxy statements,
registration statements and other information with the SEC. You may
read and copy any materials we file at the SEC’s Public
Reference Room at 100 F St. NE, Washington, DC 20549. You may
obtain information on the operation of the Public Reference Room by
calling the SEC at 1-800-SEC-0330. The SEC maintains an Internet
site that contains reports, proxy and information statements, and
other information regarding issuers that file electronically with
the SEC. The address of that website is http://www.sec.gov. You can
also access these documents free of charge and find information
about Palatin on our website at http://www.palatin.com. Information
found on our website is not part of this prospectus or any
prospectus supplement, and investors should not rely on any such
information in deciding whether to invest in our
securities.
USE OF PROCEEDS
Unless
we state otherwise in a prospectus supplement, we intend to use the
net proceeds from the sale of securities under this prospectus for
general corporate purposes, including capital expenditures. From
time to time, we evaluate the possibility of acquiring businesses,
products and technologies, and we may use a portion of the proceeds
as consideration for acquisitions. Until we use net proceeds for
these purposes, we may invest them in interest-bearing
securities.
DILUTION
We may
set forth in a prospectus supplement the following information
regarding any material dilution of the equity interests of
purchasers of securities in an offering under this
prospectus:
●
The net tangible
book value per share of our equity securities before and after the
offering;
●
The amount of the
increase in such net tangible book value per share attributable to
the cash payments made by the purchasers in the offering;
and
●
the amount of the
immediate dilution from the public offering price which will be
absorbed by such purchasers.
MARKET PRICE OF AND DIVIDENDS ON COMMON EQUITY AND RELATED
STOCKHOLDER MATTERS
The
table below provides, for the fiscal quarters indicated, the
reported high and low sales prices for our common stock on the NYSE
American (formerly the NYSE MKT and NYSE AMEX) since July 1,
2016.
FISCAL YEAR
ENDED JUNE 30, 2017
|
|
|
Fourth
Quarter
|
$
0.50
|
$
0.29
|
Third
Quarter
|
0.62
|
0.32
|
Second
Quarter
|
0.90
|
0.45
|
First
Quarter
|
0.86
|
0.45
|
FISCAL YEAR
ENDED JUNE 30, 2018
|
|
|
Fourth
Quarter
|
$
1.59
|
$
0.87
|
Third
Quarter
|
1.20
|
0.83
|
Second
Quarter
|
1.05
|
0.65
|
First
Quarter
|
0.69
|
0.38
|
Our
common stock has been listed on NYSE American under the symbol
“PTN” since December 21, 1999. It previously traded on
The Nasdaq SmallCap Market under the symbol
“PLTN.”
Holders of common stock
. On August 15,
2018, we had approximately 144 record holders of common stock and
the closing sales price of our common stock as reported on the NYSE
American was $0.94 per share.
Dividends and dividend policy
. We have
never declared or paid any dividends. We currently intend to retain
earnings, if any, for use in our business. We do not anticipate
paying dividends in the foreseeable future.
Dividend restrictions
. Our outstanding
Series A Preferred Stock, consisting of 4,030 shares on July 31,
2018, provides that we may not pay a dividend or make any
distribution to holders of any class of stock unless we first pay a
special dividend or distribution of $100 per share to the holders
of the Series A Preferred Stock.
DESCRIPTION OF SECURITIES
General
The
following description of our capital stock is intended as a summary
only and is qualified in its entirety by reference to our amended
and restated certificate of incorporation and bylaws, which are
filed as exhibits to the registration statement of which this
prospectus forms a part. Our authorized capital stock consists
of:
●
300,000,000 shares
of common stock, par value $0.01 per share, and
●
10,000,000 shares
of preferred stock, par value $0.01 per share, of which 9,736,000
shares are undesignated.
As of
July 31, 2018, we had outstanding:
●
201,713,902 shares
of our common stock;
●
4,030 shares of
Series A Convertible Preferred Stock, convertible into 61,145
shares of common stock, subject to adjustment, for no further
consideration;
●
stock options to
purchase 12,646,312 shares of common stock at exercise prices
ranging from $0.37 to $2.80 per share;
●
restricted stock
units representing 9,323,876 shares of common stock which vest on
dates between September 7, 2018 and June 26, 2022, subject to the
fulfillment of service conditions
or attaining defined performance
conditions; and
●
warrants to
purchase 23,404,046 shares of common stock issuable on the exercise
of warrants at exercise prices ranging from $0.70 to $0.91 per
share.
Common Stock
We have
the authority to issue 300,000,000 shares of common stock, par
value $0.01 per share. As of July 31, 2018, there were 201,713,902
shares of our common stock outstanding, and a maximum of 45,435,379
shares of common stock were issuable on conversion of outstanding
convertible preferred stock, exercise of outstanding options and
warrants, and vesting of restricted stock units.
Holders
of our common stock are entitled to one vote per share for the
election of directors and on all other matters that require
stockholder approval. Holders of shares of common stock do not have
any cumulative voting rights. Subject to any preferential rights of
any outstanding preferred stock, in the event of our liquidation,
dissolution or winding up, holders of our common stock are entitled
to share ratably in the assets remaining after payment of
liabilities and the liquidation preferences of any outstanding
preferred stock. See “Preferred Stock” and
“Series A Convertible Preferred Stock,” below. Our
common stock does not carry any redemption rights or any preemptive
or preferential rights enabling a holder to subscribe for, or
receive shares of, any class of our common stock or any other
securities convertible into shares of any class of our common
stock. Holders of our common stock have the right to participate
ratably in dividend distributions. Our outstanding Series A
Preferred Stock, consisting of 4,030 shares on July 31, 2018,
provides that we may not pay a dividend or make any distribution to
holders of any class of stock unless we first pay a special
dividend or distribution of $100 per share to the holders of the
Series A Preferred Stock.
Market Information
Our
common stock is listed on the NYSE American under the symbol
“PTN.” On August 15, 2018, the closing price of the
common stock was $0.94 per share. We do not have any other class of
securities listed for trading.
Transfer Agent and Registrar
The
transfer agent for our common stock and our Series A and Series B
warrants is American Stock Transfer & Trust Company, located at
6201 15
th
Avenue, Brooklyn, New York 11219. Their telephone number is (800)
937-5449.
Preferred Stock
We have
the authority to issue 10,000,000 shares of preferred stock. As of
July 31, 2018, 264,000 shares of our preferred stock were
designated as a single class, Series A Convertible Preferred Stock,
of which 4,030 shares were outstanding (see “Series A
Convertible Preferred Stock” below). The description of
preferred stock provisions set forth below is not complete and is
subject to and qualified in its entirety by reference to our
amended and restated certificate of incorporation and the
certificate of designations relating to the Series A Convertible
Preferred Stock.
The
board of directors has the right, without the consent of holders of
common stock, to designate and issue one or more series of
preferred stock, which may be convertible into common stock at a
ratio determined by the board. A series of preferred stock may bear
rights superior to common stock as to voting, dividends,
redemption, distributions in liquidation, dissolution, or winding
up, and other relative rights and preferences. The board may set
the following terms of any series preferred stock (which will be
specified in the applicable prospectus supplement):
●
the number of
shares constituting the series and the distinctive designation of
the series;
●
dividend rates,
whether dividends are cumulative, and, if so, from what date and
the relative rights of priority of payment of
dividends;
●
voting rights and
the terms of the voting rights;
●
conversion
privileges and the terms and conditions of conversion, including
provision for adjustment of the conversion rate;
●
redemption rights
and the terms and conditions of redemption, including the date or
dates upon or after which shares may be redeemable, and the amount
per share payable in case of redemption, which may vary under
different conditions and at different redemption
dates;
●
sinking fund
provisions for the redemption or purchase of shares;
●
rights in the event
of voluntary or involuntary liquidation, dissolution or winding up
of the corporation, and the relative rights of priority of payment;
and
●
any other relative
powers, preferences, rights, privileges, qualifications,
limitations and restrictions of the series.
Dividends on
outstanding shares of preferred stock will be paid or declared and
set apart for payment before any dividends may be paid or declared
and set apart for payment on the common stock with respect to the
same dividend period.
If upon
any voluntary or involuntary liquidation, dissolution or winding up
of the corporation, the assets available for distribution to
holders of preferred stock are insufficient to pay the full
preferential amount to which the holders are entitled, then the
available assets will be distributed ratably among the shares of
all series of preferred stock in accordance with the respective
preferential amounts (including unpaid cumulative dividends, if
any) payable with respect to each series.
Holders
of preferred stock will not be entitled to preemptive rights to
purchase or subscribe for any shares of any class of capital stock
of the corporation. The preferred stock will, when issued, be fully
paid and non-assessable. The rights of the holders of preferred
stock will be subordinate to those of our general
creditors.
Series A Convertible Preferred Stock
The
board of directors established a series of 264,000 shares of
preferred stock, designated Series A Convertible Preferred Stock,
par value $0.01 per share (the “Series A”). We issued
137,780 shares of Series A in 1997, of which 4,030 shares remain
outstanding as of July 31, 2018, the rest having been converted
into common stock. The Series A has the following rights and
preferences.
Optional conversion.
Each share of
Series A is convertible at any time, at the option of the holder,
into the number of shares of common stock equal to $100 divided by
the conversion price, as defined in the Series A certificate of
designations. The current conversion price is $6.59, so each share
of Series A is currently convertible into approximately 15 shares
of common stock.
Mandatory conversion.
We may, at our
option, cause the conversion of the Series A, in whole or in part,
on a pro rata basis, into common stock, if the closing bid price of
the common stock has exceeded 200% of the conversion price for at
least 20 trading days in any 30 consecutive trading day period,
ending three days prior to the date of mandatory
conversion.
Price protection provisions.
The
conversion price decreases if we sell common stock (or equivalents)
for a price per share less than the conversion price or less than
the market price of the common stock, subject to certain
exceptions. The conversion price is also subject to adjustment upon
the occurrence of a merger, reorganization, consolidation,
reclassification, stock dividend or stock split which results in an
increase or decrease in the number of shares of common stock
outstanding.
Dividend and distribution preference.
We may not pay a dividend or make any distribution to holders of
any other capital stock unless and until we first pay a special
dividend or distribution of $100 per share to the holders of Series
A.
Liquidation preference.
Upon (i)
liquidation, dissolution or winding up of the Company, whether
voluntary or involuntary, (ii) sale or other disposition of all or
substantially all of the assets of the Company, or (iii) any
consolidation, merger, combination, reorganization or other
transaction in which Palatin is not the surviving entity or in
which the shares of common stock constituting in excess of 50% of
the voting power of the Company are exchanged for or changed into
other stock or securities, cash and/or any other property, after
payment or provision for payment of the debts and other liabilities
of the Company, the holders of Series A will be entitled to
receive, pro rata and in preference to the holders of any other
capital stock, an amount per share equal to $100 plus accrued but
unpaid dividends, if any.
Voting rights.
Each holder of Series A
has the number of votes equal to the number of shares of common
stock issuable upon conversion of the holder’s Series A at
the record date for determination of the stockholders entitled to
vote or, if no record date is established, at the date a vote is
taken. Except as provided above or as required by applicable law,
the holders of the Series A are entitled to vote together with the
holders of the common stock and not as a separate
class.
Debt Securities
As of
the date of this prospectus, we have no debt securities issued and
outstanding other than four-year senior secured term loans with a
group led by Horizon Technology Finance Corporation for an original
total face amount of $20,000,000 in the aggregate. As of March 31,
2018, the total of notes payable was $8,250,005 (including
unamortized discounts and issuance costs of $83,328), of which
$6,921,032 was classified as a current liability.
The
following description, together with the additional information we
include in any applicable prospectus supplement, summarizes the
material terms and provisions of the debt securities that we may
offer under this prospectus. While the terms we have summarized
below will apply generally to any future debt securities we may
offer, we will describe the particular terms of any debt securities
that we may offer in more detail in the applicable prospectus
supplement. The terms of any debt securities we offer under a
prospectus supplement may differ from the terms we describe
below.
We will
issue notes under an indenture, which we will enter into with the
trustee named in the indenture. Any indenture will be qualified
under the Trust Indenture Act of 1939. You should read the summary
below, the applicable prospectus supplement and the provisions of
the applicable indenture and any related security documents, if
any, in their entirety before investing in our debt
securities.
We will
describe in each prospectus supplement the following terms relating
to a series of debt securities:
●
the principal
amount being offered, and if a series, the total amount authorized
and the total amount outstanding;
●
any limit on the
amount that may be issued;
●
whether or not we
will issue the series of debt securities in global form, and if so,
the terms and who the depository will be;
●
the principal
amount due at maturity, and whether the debt securities will be
issued with an original issue discount;
●
whether and under
what circumstances, if any, we will pay additional amounts on any
debt securities held by a person who is not a United States person
for tax purposes, and whether we can redeem the debt securities if
we have to pay such additional amounts;
●
the annual interest
rate, which may be fixed or variable, or the method for determining
the rate and the date interest will begin to accrue, the dates
interest will be payable and the regular record dates for interest
payment dates or the method for determining such
dates;
●
whether or not the
debt securities will be secured or unsecured, and the terms of any
secured debt;
●
the terms of the
subordination of any series of subordinated debt;
●
the place where
payments will be payable;
●
restrictions on
transfer, sale or other assignment, if any;
●
our right, if any,
to defer payment of interest and the maximum length of any such
deferral period;
●
the date, if any,
after which the conditions upon which, and the price at which, we
may, at our option, redeem the series of debt securities pursuant
to any optional or provisional redemption provisions and the terms
of those redemptions provisions;
●
the date, if any,
on which, and the price at which we are obligated, pursuant to any
mandatory sinking fund or analogous fund provisions or otherwise,
to redeem, or at the holder’s option to purchase, the series
of debt securities and the currency or currency unit in which the
debt securities are payable;
●
whether the
indenture will restrict our ability to pay dividends, or will
require us to maintain any asset ratios or reserves;
●
whether we will be
restricted from incurring any additional indebtedness, issuing
additional securities, or entering into a merger, consolidation or
sale of our business;
●
a discussion of any
material or special United States federal income tax considerations
applicable to the debt securities;
●
information
describing any book-entry features;
●
provisions for a
sinking fund purchase or other analogous fund, if any;
●
any provisions for
payment of additional amounts for taxes and any provision for
redemption, if we must pay such additional amount with respect to
any debt security;
●
whether the debt
securities are to be offered at a price such that they will be
deemed to be offered at an “original issue discount” as
defined in paragraph (a) of Section 1273 of the Internal Revenue
Code;
●
the denominations
in which we will issue the series of debt securities, if other than
denominations of $1,000 and any integral multiple
thereof;
●
the terms on which
a series of debt securities may be convertible into or exchangeable
for our common stock, any other of our securities or securities of
a third party, and whether conversion or exchange is mandatory, at
the option of the holder or at our option;
●
whether we and/or
the debenture trustee may change an indenture without the consent
of any holders;
●
the form of debt
security and how it may be exchanged and transferred;
●
descriptions of the
debenture trustee and paying agent, and the method of payments;
and
●
any other specific
terms, preferences, rights or limitations of, or restrictions on,
the debt securities, including any additional events of default or
covenants provided with respect to the debt securities, and any
terms which may be required by us or advisable under applicable
laws or regulations.
Specific indentures
will contain additional important terms and provisions and will be
incorporated by reference as an exhibit to the registration
statement that includes this prospectus, or as an exhibit to a
report filed under the Exchange Act, incorporated by reference in
this prospectus.
Warrants
As of
August 15, 2018, warrants for the purchase of 23,404,046 shares of
our common stock were outstanding, exercisable at a weighted
average exercise price of $0.77. The outstanding warrants expire on
various dates from December 23, 2019 through December 6,
2021.
The
following description, together with the additional information we
may include in any applicable prospectus supplement, summarizes the
material terms and provisions of the warrants that we may offer
under this prospectus and the related warrant agreements and
warrant certificates. While the terms summarized below will apply
generally to any warrants that we may offer, we will describe the
particular terms of any series of warrants in more detail in the
applicable prospectus supplement. The terms of any warrants offered
under a prospectus supplement may differ from the terms described
below. Specific warrant agreements will contain additional
important terms and provisions and will be incorporated by
reference as exhibits to the registration statement that includes
this prospectus, or as exhibits to a report filed under the
Exchange Act, incorporated by reference in this
prospectus.
General.
We will describe in the
applicable prospectus supplement the terms of the series of
warrants, including:
●
the offering price
and aggregate number of warrants offered;
●
the currency for
which the warrants may be purchased;
●
if applicable, the
designation and terms of the securities with which the warrants are
issued and the number of warrants issued with each such security or
each principal amount of such security;
●
if applicable, the
date on and after which the warrants and the related securities
will be separately transferable;
●
in the case of
warrants to purchase common stock or preferred stock, the number of
shares of common stock or preferred stock, as the case may be,
purchasable upon the exercise of one warrant and the price at which
these shares may be purchased upon exercise;
●
in the case of
warrants to purchase debt securities, the principal amount of debt
securities purchasable upon exercise of one warrant and the price
at which, and currency in which, this principal amount of debt
securities may be purchased upon exercise;
●
the effect of any
merger, consolidation, sale or other disposition of our business on
the warrant agreement and the warrants;
●
the terms of any
rights to redeem or call the warrants;
●
any provisions for
changes to or adjustments in the exercise price or number of
securities issuable upon exercise of the warrants;
●
the dates on which
the right to exercise the warrants will commence and
expire;
●
the manner in which
the warrant agreement and warrants may be modified;
●
federal income tax
consequences of holding or exercising the warrants;
●
information
relating to book-entry procedures, if any;
●
the terms of the
securities issuable upon exercise of the warrants; and
●
any other specific
terms, preferences, rights or limitations of or restrictions on the
warrants.
Before
exercising their warrants, holders of warrants will not have any of
the rights of holders of the securities purchasable upon such
exercise, including:
●
in the case of
warrants to purchase debt securities, the right to receive payments
of principal of, or premium, if any, or interest on, the debt
securities purchasable upon exercise or to enforce covenants in the
applicable indenture; or
●
in the case of
warrants to purchase common stock or preferred stock, the right to
receive dividends, if any, or, payments upon our liquidation,
dissolution or winding up or to exercise voting rights, if
any.
Exercise of Warrants.
Each warrant will
entitle the holder to purchase the securities that we specify in
the applicable prospectus supplement at the exercise price that we
describe in the applicable prospectus supplement. Unless we
otherwise specify in the applicable prospectus supplement, holders
of the warrants may exercise the warrants at any time up to 5:00
P.M. New York time on the expiration date that we set forth in the
applicable prospectus supplement. After the close of business on
the expiration date, unexercised warrants will become
void.
Holders
of the warrants may exercise the warrants by delivering the warrant
certificate representing the warrants to be exercised together with
specified information, and paying the required amount to the
warrant agent in immediately available funds, as provided in the
applicable prospectus supplement. We will set forth on the reverse
side of the warrant certificate and/or in the applicable prospectus
supplement the information that the holder of the warrant will be
required to deliver to the warrant agent.
Upon
receipt of the required payment and the warrant certificate
properly completed and duly executed at the corporate trust office
of the warrant agent or any other office indicated in the
applicable prospectus supplement, we will issue and deliver the
securities purchasable upon such exercise. If fewer than all of the
warrants represented by the warrant certificate are exercised, then
we will issue a new warrant certificate for the remaining amount of
warrants. If we so indicate in the applicable prospectus
supplement, holders of the warrants may surrender securities as all
or part of the exercise price for the warrants (cashless
exercise).
We will
describe in the applicable prospectus supplement exercise
procedures for warrants in a book-entry form, if any.
Enforceability of Rights by Holders of
Warrants.
Each warrant agent will act solely as our agent
under the applicable warrant agreement and will not assume any
obligation or relationship of agency or trust with any holder of
any warrant. A single bank or trust company may act as warrant
agent for more than one issue of warrants. A warrant agent will
have no duty or responsibility in case of any default by us under
the applicable warrant agreement or warrant, including any duty or
responsibility to initiate any proceedings at law or otherwise, or
to make any demand upon us. Any holder of a warrant may, without
the consent of the related warrant agent or the holder of any other
warrant, enforce by appropriate legal action its right to exercise,
and receive the securities purchasable upon exercise of, its
warrants.
ANTI-TAKEOVER EFFECTS OF PROVISIONS OF DELAWARE LAW
AND OUR CHARTER DOCUMENTS
Amended and Restated Certificate of Incorporation
Our
amended and restated certificate of incorporation authorizes the
issuance of up to 10,000,000 shares of preferred stock, par value
$.01 per share, of which 264,000 shares are currently designated as
Series A Convertible Preferred Stock. The board of directors has
the authority, without further approval of the stockholders, to
issue and determine the rights and preferences of other series of
preferred stock, except as limited by the certificate of
designation for the Series A. The board could issue one or more
series of preferred stock with voting, conversion, dividend,
liquidation, or other rights which would adversely affect the
voting power and ownership interest of holders of common stock.
This authority may have the effect of deterring hostile takeovers,
delaying or preventing a change in control, and discouraging bids
for our common stock at a premium over the market
price.
Section 203 of the Delaware General Corporation Law
We are
subject to Section 203 of the Delaware General Corporation Law,
which, subject to certain exceptions, prohibits a Delaware
corporation from engaging in any business combination with any
interested stockholder for a period of three years following the
time that such stockholder became an interested stockholder,
unless:
●
prior to such time,
the board of directors approved either the business combination or
the transaction that resulted in the stockholder becoming an
interested holder;
●
upon consummation
of the transaction that resulted in the stockholder becoming an
interested stockholder, the interested stockholder owned at least
85% of the voting stock of the corporation outstanding at the time
the transaction commenced, excluding for purposes of determining
the number of shares outstanding those shares owned (a) by persons
who are directors and also officers and (b) by employee stock plans
in which employee participants do not have the right to determine
confidentially whether shares held subject to the plan will be
tendered in a tender or exchange offer; or
●
at or subsequent to
such time, the business combination is approved by the board of
directors and authorized at an annual or special meeting of
stockholders, and not by written consent, by the affirmative vote
of at least two thirds of the outstanding voting stock which is not
owned by the interested stockholder.
In
general, Section 203 defines “business combination” to
include the following:
●
any merger or
consolidation involving the corporation and the interested
stockholder;
●
any sale, transfer,
pledge or other disposition of 10% or more of the assets of the
corporation involving the interested stockholder;
●
subject to certain
exceptions, any transaction that results in the issuance or
transfer by the corporation of any stock of the corporation to the
interested stockholder;
●
any transaction
involving the corporation that has the effect of increasing the
proportionate share of the stock or any class or series of the
corporation beneficially owned by the interested stockholder;
or
●
the receipt by the
interested stockholder of the benefit of any loans, advances,
guarantees, pledges or other financial benefits provided by or
through the corporation.
In
general, Section 203 defines “interested stockholder”
as an entity or person beneficially owning 15% or more of the
outstanding voting stock of the corporation and any entity or
person affiliated with or controlling or controlled by such entity
or person.
Indemnification and Limitation of Liability
Our
amended and restated certificate of incorporation and bylaws
require us to indemnify our directors, officers, employees and
agents against the costs (including fines, judgments and attorney
fees) from involvement in legal proceedings arising from their
position or service, provided that the person seeking
indemnification acted:
●
in a manner he or
she reasonably believed to be in, or not opposed to, the best
interests of the corporation; and,
●
with respect to any
criminal action or proceeding, had no reasonable cause to believe
his or her conduct was unlawful.
The
amended and restated certificate of incorporation and bylaws allow
us to buy indemnification insurance for this purpose.
Our
certificate of incorporation provides that, to the fullest extent
permissible under Delaware law, no director shall be personally
liable to the corporation or its stockholders for monetary damages
for breach of a fiduciary duty as a director. However, this
provision does not eliminate the duty of care, and in appropriate
circumstances, equitable remedies such as injunctive or other forms
of non-monetary relief that will remain available under Delaware
law. In addition, each director will continue to be subject to
liability for (a) breach of the director’s duty of loyalty to
us or our stockholders, (b) acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law,
(c) violating Section 174 of the Delaware General Corporation Law,
or (d) any transaction from which the director derived an improper
personal benefit. The provision also does not affect a
director’s responsibilities under any other law, such as the
federal securities laws or state or federal environmental
laws.
PLAN OF DISTRIBUTION
We may
sell securities under this prospectus in public
offerings:
●
through one or more
underwriters or dealers;
●
directly to
investors; or
●
through a
combination of any of these methods.
We may
price the securities we sell under this prospectus:
●
at a fixed public
offering price or prices, which we may change from time to
time;
●
at market prices
prevailing at the times of sale;
●
at prices
calculated by a formula based on prevailing market
prices;
●
at negotiated
prices; or
●
in a combination of
any of the above pricing methods.
If we
use underwriters for an offering, they will acquire securities for
their own account and may resell them from time to time in one or
more transactions at a fixed public offering price or at varying
prices determined at the time of sale. The obligations of the
underwriters to purchase the securities will be subject to the
conditions set forth in the applicable underwriting agreement. We
may offer the securities to the public through underwriting
syndicates represented by managing underwriters or by underwriters
without a syndicate. Subject to certain conditions, the
underwriters will be obligated to purchase all the securities of
the series offered by the prospectus supplement. The public
offering price and any discounts or concessions allowed or
re-allowed or paid to dealers may change from time to time. Only
underwriters named in a prospectus supplement are underwriters of
the securities offered by that prospectus supplement.
We may
offer our securities in “at the market” offerings, with
the meaning of Rule 415(a)(4) of the Securities Act, into an
existing trading market on terms described in the applicable
prospectus supplement. Underwriters and dealers may participate in
any “at the market” offering.
We may
also sell securities directly or through agents. We will name any
agent involved in an offering and we will describe any commissions
we will pay the agent in the prospectus supplement. Unless the
prospectus supplement states otherwise, our agents will act on a
best-efforts basis.
We may
authorize agents or underwriters to solicit offers by certain types
of institutional investors to purchase securities from us at the
public offering price set forth in the prospectus supplement
pursuant to delayed delivery contracts providing for payment and
delivery on a specified date in the future. We will describe the
conditions of these contracts and the commissions we must pay for
solicitation of these contracts in the prospectus
supplement.
We may
provide agents and underwriters with indemnification against
certain civil liabilities, including liabilities under the
Securities Act, or contribution with respect to payments that the
agents or underwriters may make with respect to such liabilities.
Underwriters or agents may engage in transactions with us, or
perform services for us, in the ordinary course of business. We may
also use underwriters or agents with whom we have a material
relationship. We will describe the nature of any such relationship
in the prospectus supplement.
An
underwriter may engage in overallotment, stabilizing transactions,
short covering transactions and penalty bids in accordance with
Regulation M under the Exchange Act . Overallotment involves sales
in excess of the offering size, which create a short position.
Stabilizing transactions permit bids to purchase the underlying
security so long as the stabilizing bids do not exceed a specified
maximum. Short covering transactions involve purchases of the
securities in the open market after the distribution is completed
to cover short positions. Penalty bids permit the underwriter to
reclaim a selling concession from a dealer when the securities
originally sold by the dealer are purchased in a covering
transaction to cover short positions. These activities may cause
the price of our securities to be higher than it would otherwise be
on the open market. The underwriter may discontinue any of these
activities at any time.
All
securities we offer, other than common stock, will be new issues of
securities, with no established trading market. Underwriters may
make a market in these securities, but will not be obligated to do
so and may discontinue market making at any time without notice. We
cannot guarantee the liquidity of the trading markets for any
securities.
LEGAL MATTERS
Unless
otherwise specified in the applicable prospectus supplement, the
validity of the securities covered by this prospectus will be
passed upon for us by Thompson Hine LLP, New York, New York. In
addition, counsel that will be named in the applicable prospectus
supplement will pass upon the validity of any securities offered
under the applicable prospectus supplement for any underwriters or
agents.
EXPERTS
The
consolidated financial statements of Palatin Technologies, Inc. as
of June 30, 2017 and 2016, and for each of the years in the
three-year period ended June 30, 2017, have been incorporated by
reference herein and in the registration statement in reliance upon
the report of KPMG LLP, independent registered public accounting
firm, incorporated by reference herein, and upon the authority of
said firm as experts in accounting and auditing.
This
prospectus is part of a registration statement we filed with the
SEC. You should rely only on the information or representations
contained in (or incorporated by reference in) this prospectus and
any accompanying prospectus supplement. We have not authorized
anyone to provide information other than that provided in this
prospectus and any accompanying prospectus supplement. We are not
making an offer of these securities in any jurisdiction where the
offer is not permitted. You should assume that the information in
this prospectus or any accompanying prospectus supplement, as well
as information we have previously filed with the SEC and
incorporated by reference herein, is accurate as of the date on the
front of those documents only. Our business, financial condition,
results of operations, and prospects may have changed since those
dates, is accurate as of any date other than the date on the front
of the document.
$100,000,000
Common
Stock
Preferred
Stock
Debt
Securities
Warrants
Units
PALATIN TECHNOLOGIES, INC.
PROSPECTUS
,
2018
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND
DISTRIBUTION
The
following table sets forth expenses (estimated except for the SEC
registration fees) in connection with the offering described in the
registration statement. These estimates do not include expenses for
the preparation and filing of supplemental prospectuses relating to
the issuance of particular securities under this registration
statement.
SEC registration
fees
|
$
6,320
|
Exchange
fees
|
0
|
Legal fees and
expenses
|
10,000
|
Accountants fees
and expenses
|
9,000
|
Miscellaneous
|
3,000
|
TOTAL
|
$
28,320
|
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section
102(b)(7) of the Delaware General Corporation Law (DGCL) allows a
corporation to provide in its certificate of incorporation for the
elimination or limitation of personal liability of a director to
the corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director, with some exceptions. Article V,
Section 3 of our amended and restated certificate of incorporation
provides that to the fullest extent permitted by the DGCL, no
director shall be personally liable to us or our stockholders for
monetary damages for breach of a fiduciary duty as a
director.
Section
145 of the DGCL provides that a corporation may indemnify any
person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative by reason
of the fact that he is or was a director, officer, employee or
agent of the corporation, or serving at the request of the
corporation in similar capacities, against expenses (including
attorneys’ fees), judgments, fines, and amounts paid in
settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. In the case of an action or suit by or in
the right of the corporation, no indemnification shall be made with
respect to any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless and only
to the extent that the court having jurisdiction shall determine
that such person is fairly and reasonably entitled to
indemnity.
Article
VI of our amended and restated certificate of incorporation and
Article IX of our bylaws provide that we shall make the
indemnification permitted under the DGCL, as summarized above, but
only (unless ordered by a court) upon a determination by a majority
of a quorum of disinterested directors, by independent legal
counsel in a written opinion, or by the stockholders, that the
indemnified person has met the applicable standard of
conduct.
Article
VI of our amended and restated certificate of incorporation and
Article IX of our bylaws further provide that we may advance
expenses for defending actions, suits or proceedings upon such
terms and conditions as our board of directors deems appropriate,
and that we may purchase insurance on behalf of indemnified persons
whether or not we would have the power to indemnify such persons
under Section 145 of the DGCL. We have obtained a directors’
and officers’ liability insurance policy which covers, among
other things, certain liabilities arising under the Securities Act
of 1933.
ITEM 16. EXHIBITS
EXHIBIT INDEX
Exhibit Number
|
|
Description
|
|
Filed Herewith
|
|
Form
|
|
Filing Date
|
|
SEC File No.
|
1.01
|
|
Underwriting
Agreement.†
|
|
|
|
|
|
|
|
|
|
|
Restated
Certificate of Incorporation of Palatin Technologies, Inc., as
amended.
|
|
|
|
10-K
|
|
September
27, 2013
|
|
001-15543
|
|
|
Bylaws
of Palatin Technologies, Inc.
|
|
|
|
10-Q
|
|
February
8, 2008
|
|
001-15543
|
|
|
Specimen
Certificate for shares of Common Stock, $.01 par value, of Palatin
Technologies, Inc.
|
|
|
|
S-1
|
|
September
29, 2014
|
|
333-198992
|
4.04
|
|
Form of
securities purchase agreement.†
|
|
|
|
|
|
|
|
|
4.05
|
|
Certificate
of designation of preferred stock and specimen preferred stock
certificate.†
|
|
|
|
|
|
|
|
|
|
|
Form of
debt indenture.
|
|
X
|
|
|
|
|
|
|
4.07
|
|
Form of
note.†
|
|
|
|
|
|
|
|
|
4.08
|
|
Form of
warrant agreement and warrant certificate.†
|
|
|
|
|
|
|
|
|
|
|
Opinion
of Thompson Hine LLP.
|
|
X
|
|
|
|
|
|
|
|
|
Consent
of Thompson Hine LLP.††
|
|
X
|
|
|
|
|
|
|
|
|
Consent
of Independent Registered Public Accounting Firm.
|
|
X
|
|
|
|
|
|
|
|
|
Power
of Attorney.†††
|
|
X
|
|
|
|
|
|
|
†
To be filed by
amendment, or as an exhibit to a report filed under the Securities
Exchange Act of 1934 and incorporated herein by
reference.
††
Included in Exhibit
5.01.
†††
Included in the
signature page of this registration statement.
ITEM 17. UNDERTAKINGS
(a)
The undersigned
registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration
statement:
i. To
include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
ii. To
reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form
of prospectus filed with the Securities and Exchange Commission
(the “Commission”) pursuant to
Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in the maximum
aggregate offering price set forth in the “Calculation of
Registration Fee” table in the effective registration
statement; and
iii. To
include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement.
Provided, however
, that:
Paragraphs
(a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply
if the registration statement is on Form S-3 and the information
required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement, or is contained in a
form of prospectus filed pursuant to Rule 424(b) that is part of
the registration statement.
(2) That,
for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial
bona
fide
offering thereof.
(3) To
remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(5) That,
for purposes of determining liability under the Securities Act of
1933 to any purchaser:
(A)
Each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the registration
statement as of the date the filed prospectus was deemed part of
and included in the registration statement; and
(B)
Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii) or (x) for
the purpose of providing the information required by
Section 10(a) of the Securities Act of 1933 shall be deemed to
be part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after
effectiveness and 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;
or
(C)
Each prospectus filed pursuant to Rule 424(b) as part of a
registration statement relating to an offering, other than
registration statements relying on Rule 430B or other than
prospectuses filed in reliance on Rule 430A, shall be deemed to be
part of and included in the registration statement as of the date
it is first used after effectiveness
; 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 first use,
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 date of
first use.
(6) That,
for the purpose of determining liability of the registrant under
the Securities Act of 1933 to any purchaser in the initial
distribution of securities, the undersigned registrant undertakes
that in a primary offering of securities of the undersigned
registrant pursuant to this registration statement, regardless of
the underwriting method used to sell the securities to the
purchaser, if the securities are offered or sold to such purchaser
by means of any of the following communications, the undersigned
registrant will be a seller to the purchaser and will be considered
to offer or sell such securities to such
purchaser:
i. Any
preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to Rule
424;
ii.
Any free writing prospectus relating to the offering prepared by or
on behalf of the undersigned registrant or used or referred to by
the undersigned registrant;
iii.
The portion of any other free writing prospectus relating to the
offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the
undersigned registrant; and
iv.
Any other communication that is an offer in the offering made by
the undersigned registrant to the purchaser.
(b)
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan’s annual
report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide
offering
thereof.
(h)
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in
the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
(i)
The undersigned registrant hereby undertakes that:
(1) For
purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as
part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant
to Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933
shall be deemed to be part of this registration statement as of the
time it was declared effective.
(2)
For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus 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.
(j) The
undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act
under subsection (a) of Section 310 of the Trust
Indenture Act in accordance with the rules and regulations
prescribed by the Commission under Section 305(b)(2) of the
Trust Indenture Act.
SIGNATURES
Pursuant to the
requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused
this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the Township of
Cranbury, State of New Jersey, on August 17, 2018.
|
PALATIN
TECHNOLOGIES, INC.
|
|
|
|
|
|
|
By:
|
/s/
Carl
Spana
|
|
|
|
Carl Spana,
Ph.D.
|
|
|
|
President and Chief
Executive Officer
|
|
We, the
undersigned officers and directors of Palatin Technologies, Inc.,
severally constitute Carl Spana and Stephen T. Wills, and each of
them singly, our true and lawful attorneys with full power to them,
and each of them singly, to sign for us and in our names in the
capacities indicated below, the Registration Statement on Form S-3
filed herewith, and with full power of substitution and
resubstitution, and any and all subsequent amendments, including
post-effective amendments, to said registration statement,
and any subsequent
registration statements pursuant to Rule 462 of the Securities Act
of 1933, as amended,
and to file the same, with all exhibits
thereto and other documents in connection therewith, with the U.S.
Securities and Exchange Commission, and generally to do all such
things in our names and behalf in our capacities as officers and
directors to enable Palatin Technologies, Inc. to comply with all
requirements of the Securities and Exchange
Commission.
Pursuant to the
requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/
Carl Spana
|
|
President,
Chief Executive Officer and Director
|
|
August
17, 2018
|
Carl
Spana
|
|
(principal
executive officer)
|
|
|
|
|
|
|
|
/s/
Stephen T. Wills
|
|
Executive
Vice President, Chief Financial Officer
|
|
August
17, 2018
|
Stephen
T. Wills
|
|
and
Chief Operating Officer (principal financial and accounting
officer)
|
|
|
|
|
|
|
|
/s/
John K.A. Prendergast
|
|
Chairman
and Director
|
|
August
17, 2018
|
John
K.A. Prendergast
|
|
|
|
|
|
|
|
|
|
/s/
Robert K. deVeer, Jr
|
|
Director
|
|
August
17, 2018
|
Robert
K. deVeer, Jr.
|
|
|
|
|
|
|
|
|
|
/s/ J.
Stanley Hull
|
|
Director
|
|
August
17, 2018
|
J.
Stanley Hull
|
|
|
|
|
|
|
|
|
|
/s/
Alan W. Dunton
|
|
Director
|
|
August
17, 2018
|
Alan W.
Dunton
|
|
|
|
|
|
|
|
|
|
/s/
Angela Rossetti
|
|
Director
|
|
August
17, 2018
|
Angela
Rossetti
|
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/s/
Arlene M. Morris
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Director
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August
17, 2018
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Arlene
M. Morris
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/s/
Anthony M. Manning
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Director
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August
17, 2018
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Anthony
M. Manning
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Form of Indenture
PALATIN TECHNOLOGIES, INC.
ISSUER
and
______________________________________
INDENTURE TRUSTEE
INDENTURE
Dated as of __________, _____
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND INCORPORATION BY
REFERENCE
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3
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Section
1.01
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Definitions.
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3
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Section
1.02
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Other Definitions.
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7
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Section
1.03
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Incorporation by Reference of Trust Indenture Act.
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7
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Section
1.04
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Rules of Construction.
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8
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ARTICLE II
TILE SECURITIES
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8
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Section
2.01
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Issuable in Series.
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8
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Section
2.02
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Establishment of Terms of Series of Securities.
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8
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Section
2.03
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Execution and Authentication.
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11
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Section
2.04
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Registrar and Paying Agent.
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11
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Section
2.05
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Paying Agent to Hold Money in Trust.
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12
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Section
2.06
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Holder Lists.
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12
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Section
2.07
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Transfer and Exchange.
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12
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Section
2.08
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Mutilated, Destroyed, Lost and Stolen Securities.
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13
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Section
2.09
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Outstanding Securities.
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13
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Section
2.10
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Treasury Securities.
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14
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Section
2.11
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Temporary Securities.
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14
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Section
2.12
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Cancellation.
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14
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Section
2.13
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Defaulted Interest.
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14
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Section
2.14
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Global Securities
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14
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ARTICLE III
REDEMPTION
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16
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Section
3.01
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Notice to Trustee.
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16
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Section
3.02
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Selection of Securities to be Redeemed.
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16
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Section
3.03
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Notice of Redemption.
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16
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Section
3.04
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Effect of Notice of Redemption.
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17
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Section
3.05
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Deposit of Redemption Price.
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17
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Section
3.06
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Securities Redeemed in Part.
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17
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ARTICLE IV
COVENANTS
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17
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Section
4.01
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Payment of Principal and Interest.
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17
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Section
4.02
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SEC Reports.
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17
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Section
4.03
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Compliance Certificate.
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17
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Section
4.04
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Stay, Extension and Usury Laws.
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18
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ARTICLE V
SUCCESSORS
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18
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Section
5.01
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When Company May Merge, Etc.
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18
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Section
5.02
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Successor Corporation Substituted.
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18
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ARTICLE VI
DEFAULTS AND REMEDIES
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18
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Section
6.01
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Events of Default.
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18
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Section
6.02
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Acceleration of Maturity; Rescission and Annulment.
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20
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Section
6.03
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Collection of Indebtedness and Suits for Enforcement by
Trustee.
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20
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Section
6.04
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Trustee May File Proofs of Claim.
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21
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Section
6.05
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Trustee May Enforce Claims Without Possession of
Securities.
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21
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Section
6.06
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Application of Money Collected.
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21
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Section
6.07
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Limitation on Suits.
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22
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Section
6.08
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Unconditional Right of Holders to Receive Principal and
Interest.
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22
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Section
6.09
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Restoration of Rights and Remedies.
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22
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Section
6.10
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Rights and Remedies Cumulative.
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23
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Section
6.11
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Delay or Omission Not Waiver.
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23
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Section
6.12
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Control by Holders.
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23
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Section
6.13
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Waiver of Past Defaults.
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23
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Section
6.14
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Undertaking for Costs.
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24
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ARTICLE VII
TRUSTEE
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24
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Section
7.01
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Duties of Trustee.
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24
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Section
7.02
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Rights of Trustee.
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25
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Section
7.03
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Individual Rights of Trustee.
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26
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Section
7.04
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Trustee’s Disclaimer.
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26
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Section
7.05
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Notice of Defaults.
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26
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Section
7.06
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Reports by Trustee to Holders.
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27
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Section
7.07
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Compensation and Indemnity.
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27
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Section
7.08
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Replacement of Trustee.
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27
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Section
7.09
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Successor Trustee by Merger, etc.
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28
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Section
7.10
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Eligibility; Disqualification.
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28
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Section
7.11
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Preferential Collection of Claims Against Company.
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28
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ARTICLE VIII
SATISFACTION AND DISCHARGE;
DEFEASANCE
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29
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Section
8.01
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Satisfaction and Discharge of Indenture.
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29
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Section
8.02
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Application of Trust Funds; Indemnification.
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29
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Section
8.03
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Legal Defeasance of Securities of any Series.
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30
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Section
8.04
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Covenant Defeasance.
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31
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Section
8.05
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Repayment to Company.
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32
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Section
8.06
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Reinstatement.
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33
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ARTICLE IX
AMENDMENTS AND WAIVERS
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33
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Section
9.01
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Without Consent of Holders.
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33
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Section
9.02
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With Consent of Holders.
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34
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Section
9.03
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Limitations.
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34
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Section
9.04
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Compliance with Trust Indenture Act.
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35
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Section
9.05
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Revocation and Effect of Consents.
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35
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Section
9.06
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Notation on or Exchange of Securities.
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35
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Section
9.07
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Trustee Protected.
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35
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ARTICLE X
MISCELLANEOUS
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36
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Section
10.01
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Trust Indenture Act Controls.
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36
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Section
10.02
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Notices.
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36
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Section
10.03
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Communication by Holders with Other Holders.
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36
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Section
10.04
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Certificate and Opinion as to Conditions Precedent.
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37
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Section
10.05
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Statements Required in Certificate or Opinion.
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37
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Section
10.06
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Rules by Trustee and Agents.
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37
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Section
10.07
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Legal Holidays.
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37
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Section
10.08
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No Recourse Against Others.
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37
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Section
10.09
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Counterparts.
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38
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Section
10.10
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Governing Laws.
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38
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Section
10.11
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No Adverse Interpretation of Other Agreements.
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38
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Section
10.12
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Successors.
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38
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Section
10.13
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Severability.
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38
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Section
10.14
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Table of Contents, Headings, Etc.
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38
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Section
10.15
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Securities in a Foreign Currency.
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38
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Section
10.16
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Judgment Currency.
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39
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ARTICLE XI
SINKING FUNDS
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39
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Section
11.01
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Applicability of Article.
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39
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Section
11.02
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Satisfaction of Sinking Fund Payments with Securities.
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40
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Section
11.03
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Redemption of Securities for Sinking Fund.
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40
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Reconciliation and tie between the Trust Indenture Act of 1939 and
this Indenture
Section
310
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(a)(1)
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7.10
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(a)(2)
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7.10
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(a)(3)
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Not
Applicable
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(a)(4)
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Not
Applicable
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(a)(5)
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7.10
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(b)
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7.10
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Section
311
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(a)
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7.11
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(b)
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7.11
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(c)
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Not
Applicable
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Section
312
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(a)
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2.06
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(b)
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10.03
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(c)
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10.03
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Section
313
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(a)
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7.06
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(b)(1)
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7.06
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(b)(2)
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7.06
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(c)(1)
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7.06
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(d)
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7.06
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Section
314
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(a)
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4.02,10.05
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(b)
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Not
Applicable
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|
(c)(1)
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10.04
|
|
(c)(2)
|
10.04
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|
(c)(3)
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Not
Applicable
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(d)
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Not
Applicable
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(e)
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10.05
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(f)
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Not
Applicable
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Section
315
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(a)
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7.01
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(b)
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7.05
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(c)
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7.01,
7.05, 7.07
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(d)
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7.01
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(e)
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6.14
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Section
316
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(a)
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2.09
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(a)(1)(a)
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6.12
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(a)(1)(b)
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6.13
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(b)
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6.08
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Section
317
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(a)(1)
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6.03
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(a)(2)
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6.04
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(b)
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2.05
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Section
318
|
(a)
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10.01
|
Indenture dated as
of
between Palatin Technologies, Inc., a Delaware corporation
(“
Company
”),
and ____________________, a _______________________ corporation, as
trustee (“
Trustee
”).
Each
party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of the Securities
issued under this Indenture.
ARTICLE I
DEFINITIONS AND
INCORPORATION BY REFERENCE
Section 1.01
Definitions.
“
Additional Amounts
” means any
additional amounts which are required hereby or by any Security,
under circumstances specified herein or therein, to be paid by the
Company in respect of certain taxes imposed on Holders specified
herein or therein and which are owing to such Holders.
“
Affiliate
” of any specified
person means any other person directly or indirectly controlling or
controlled by or under direct or indirect common control with such
specified person. For the purposes of this definition,
“control” (including, with correlative meanings, the
terms “controlled by” and “under common control
with”), as used with respect to any person, shall mean the
possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of such person, whether
through the ownership of voting securities or by agreement or
otherwise.
“
Agent
” means any Registrar,
Paying Agent or Service Agent.
“
Applicable Procedures
” means,
with respect to any transfer or transaction involving a Global
Security or beneficial interest therein, the rules and procedures
of DTC or any successor Depositary, in each case to the extent
applicable to such transaction and as in effect from time to
time.
“
Authorized Newspaper
” means a
newspaper in an official language of the country of publication
customarily published at least once a day for at least five days in
each calendar week and of general circulation in the place in
connection with which the term is used. If it shall be impractical
in the opinion of the Trustee to make any publication of any notice
required hereby in an Authorized Newspaper, any publication or
other notice in lieu thereof that is made or given by the Trustee
shall constitute a sufficient publication of such
notice.
“
Bearer
” means anyone in
possession from time to time of a Bearer Security.
“
Bearer Security
” means any
Security, including any interest coupon appertaining thereto, that
does not provide for the identification of the Holder
thereof.
“
Board of Directors
” means the
Board of Directors of the Company or any duly authorized committee
thereof.
“
Board Resolution
” means a copy
of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been adopted by the Board of
Directors or pursuant to authorization by the Board of Directors
and to be in full force and effect on the date of the certificate
and delivered to the Trustee.
“
Business Day
” means, unless
otherwise provided by Board Resolution, Officers’ Certificate
or supplemental indenture hereto for a particular Series, any day
except a Saturday, Sunday or a legal holiday in New York, New York
on which banking institutions are authorized or required by law,
regulation or executive order to close.
“
Capital Interests
” means any and
all shares, interests, participations, rights or other equivalents
(however designated) of capital stock, including, without
limitation, with respect to partnerships, partnership interests
(whether general or limited) and any other interest or
participation that confers on a person the right to receive a share
of the profits and losses of or distributions of assets of, such
partnership.
“
Company
” means the party named
as such above until a successor replaces it and thereafter means
the successor.
“
Company Order
” means a written
order signed in the name of the Company by two Officers, one of
whom must be the Company’s principal executive officer,
principal financial officer or principal accounting
officer.
“
Company Request
” means a written
request signed in the name of the Company by its Chief Executive
Officer, Chief Financial Officer or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
“
Corporate Trust Office
” means
the office of the Trustee at which at any particular time its
corporate trust business shall be principally
administered.
“
Default
” means any event which
is, or after notice or passage of time or both would be, an Event
of Default.
“
Depository
” means, with respect
to the Securities of any Series issuable or issued in whole or part
in the form of one or more Global Securities, the person designated
as Depositary for such Series by the Company, which Depository
shall be a clearing agency registered under the Exchange Act; and
if at any time there is more than one such person,
“Depository” as used with respect to the Securities of
any Series shall mean the Depository with respect to the Securities
of such Series.
“
Discount Security
” means any
Security that provides for an amount less than the stated principal
amount thereof to be due and payable upon declaration of
acceleration of the maturity thereof pursuant to Section
6.02.
“
Dollars
” and “
$
” means the currency of the
United States of America.
“
DTC
” means the Depository Trust
Company, a New York corporation.
“
Exchange Act
” means the
Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
“
Foreign Currency
” means any
currency or currency unit issued by a government other than the
government of the United States of America.
“
Foreign Government Obligations
”
means, with respect to Securities of any Series that are
denominated in a Foreign Currency, (i) direct obligations of the
government that issued or caused to be issued such currency for the
payment of which obligations its full faith and credit is pledged
or (ii) obligations of a person controlled or supervised by or
acting as an agency or instrumentality of such government the
timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by such government, which, in either
case under clauses (i) or (ii), are not callable or redeemable at
the option of the issuer thereof.
“
GAAP
” means generally accepted
accounting principles promulgated by the Financial Accounting
Standards Board or by such other entity as the SEC may designate
for that purpose.
“
Global Security
” or
“
Global
Securities
” means a Security or Securities, as the
case may be, in the form established pursuant to Section 2.02
evidencing all or part of a Series of Securities, issued to the
Depository for such Series or its nominee, and registered in the
name of such Depository or nominee.
“
Holder
” means a person in whose
name a Security is registered or the holder of a Bearer
Security.
“
Indenture
” means this Indenture
as amended or supplemented from time to time and shall include the
form and terms of particular Series of Securities established as
contemplated hereunder.
“
interest
” with respect to any
Discount Security which by its terms bears interest only after
Maturity means interest payable after Maturity.
“
Maturity
” when used with respect
to any Security or installment of principal thereof means the date
on which the principal of such Security or such installment of
principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration,
call for redemption or otherwise.
“
Officer
” means the Chief
Executive Officer, Chief Financial Officer, any Vice-President, the
Treasurer, the Secretary, any Assistant Treasurer or any Assistant
Secretary of the Company.
“
Officers’ Certificate
”
means a certificate signed by two Officers, one of whom must be the
Company’s principal executive officer, principal financial
officer or principal accounting officer.
“
Opinion of Counsel
” means a
written opinion of legal counsel who is reasonably acceptable to
the Trustee. The counsel may be an employee of or counsel to the
Company.
“
person
” means any individual,
corporation, partnership, joint venture, association, limited
liability company, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision
thereof.
“
principal
” of a Security means
the principal of the Security plus, when appropriate, the premium,
if any, on, and any Additional Amounts in respect of the
Security.
“
Responsible Officer
” means any
officer of the Trustee in its Corporate Trust Office with direct
responsibility for the administration of this Indenture and also
means, with respect to a particular corporate trust matter, any
other officer to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with a
particular subject.
“
SEC
” means the United States
Securities and Exchange Commission.
“
Securities
” means the
debentures, notes or other debt instruments of the Company of any
Series authenticated and delivered under this
Indenture.
“
Series
” or “Series of
Securities” means each series of debentures, notes or other
debt instruments of the Company created pursuant to Sections 2.01
and 2.02 hereof.
“
Stated Maturity
” means when used
with respect to any Security or any installment of principal
thereof or interest thereon, the date specified in such Security as
the fixed date on which the principal of such Security or such
installment of principal or interest is due and
payable.
“
Subsidiary
” means, with respect
to any person, any corporation, association or other business
entity of which more than 50% of the total voting power of shares
of Capital Interests entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or
trustees thereof or, in the case of a partnership, more than 50% of
the partners’ Capital Interests (considering all
partners’ Capital Interests as a single class), is at the
time owned or controlled, directly or indirectly, by such person or
one or more of the other Subsidiaries of such person or combination
thereof.
“
TIA
” means the Trust Indenture
Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) as in effect on
the date of this Indenture and the rules and regulations
promulgated thereunder, provided, however, that in the event the
Trust Indenture Act of 1939 is amended after such date,
“TIA” means, to the extent required by any such
amendment, the Trust Indenture Act as so amended.
“
Trustee
” means the person named
as the “Trustee” in the first paragraph of this
instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and
thereafter “Trustee” shall mean each person who is then
a Trustee hereunder, and if at any time there is more than one such
person, “Trustee” as used with respect to the
Securities of any Series shall mean the Trustee with respect to
Securities of that Series.
“
U.S. Government Obligations
”
means securities which are (i) direct obligations of the United
States of America for the payment of which its full faith and
credit is pledged or (ii) obligations of a person controlled or
supervised by and acting as an agency or instrumentality of the
United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United
States of America, and which are not callable or redeemable at the
option of the issuer thereof and shall also include a depository
receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specific payment of
interest on or principal of any such U.S. Government Obligation
held by such custodian for the account of the holder of a
depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount
received by the custodian in respect of the U.S. Government
Obligation evidenced by such depository receipt.
Section 1.02
Other
Definitions.
TERM
|
|
DEFINED IN SECTION
|
“Bankruptcy Law”
|
|
6.01
|
“Custodian”
|
|
6.01
|
“Event of Default”
|
|
6.01
|
“Judgment Currency”
|
|
10.16
|
“Legal Holiday”
|
|
10.07
|
“mandatory sinking fund payment”
|
|
11.01
|
“Market Exchange Rate”
|
|
10.15
|
“New York Banking Day”
|
|
10.16
|
“optional sinking fund payment”
|
|
11.01
|
“Paying Agent”
|
|
2.04
|
“Registrar”
|
|
2.04
|
“Required Currency”
|
|
10.16
|
“Service Agent”
|
|
2.04
|
“successor person”
|
|
5.01
|
Section 1.03
Incorporation
by Reference of Trust Indenture Act.
Whenever this
Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following
meanings:
“
Commission
” means the
SEC.
“
indenture securities
” means the
Securities.
“
indenture security holder
” means
a Holder.
“
indenture to be qualified
” means
this Indenture.
“
indenture trustee
” or
“
institutional
trustee
” means the Trustee.
“
obligor
” on the indenture
securities means the Company and any successor obligor upon the
Securities.
All
other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by a SEC
rule under the TIA and not otherwise defined herein are used herein
as so defined.
Section 1.04
Rules
of Construction.
Unless
the context otherwise requires:
(a)
a term has the
meaning assigned to it;
(b)
an accounting term
not otherwise defined has the meaning assigned to it in accordance
with generally accepted accounting principles;
(c)
references to
“generally accepted accounting principles” and
“GAAP” shall mean generally accepted accounting
principles in effect as of the time when and for the period as to
which such accounting principles are to be applied;
(d)
“or”
is not exclusive;
(e)
words in the
singular include the plural, and in the plural include the
singular; and
(f)
provisions apply
to successive events and transactions.
ARTICLE II
THE
SECURITIES
Section 2.01
Issuable
in Series.
The
aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is unlimited. The Securities may
be issued in one or more Series. All Securities of a Series shall
be identical except as may be set forth or determined in the manner
provided in a Board Resolution, supplemental indenture or
Officers’ Certificate detailing the adoption of the terms
thereof pursuant to authority granted under a Board Resolution. In
the case of Securities of a Series to be issued from time to time,
the Board Resolution, Officers’ Certificate or supplemental
indenture detailing the adoption of the terms thereof pursuant to
authority granted under a Board Resolution may provide for the
method by which specified terms (such as interest rate, maturity
date, record date or date from which interest shall accrue) are to
be determined. Securities may differ between Series in respect of
any matters, provided that all Series of Securities shall be
equally and ratably entitled to the benefits of the
Indenture.
Section 2.02
Establishment
of Terms of Series of Securities.
At or
prior to the issuance of any Securities within a Series, the
following shall be established (as to the Series generally, in the
case of Subsection 2.02(a) and either as to such Securities within
the Series or as to the Series generally in the case of Subsections
2.02(b) through 2.02(s) by or pursuant to a Board Resolution, and
set forth or determined in the manner provided in a Board
Resolution, supplemental indenture or an Officers’
Certificate:
(a)
the form and title
of the Series (which shall distinguish the Securities of that
particular Series from the Securities of any other
Series);
(b)
the price or
prices (expressed as a percentage of the principal amount thereof)
at which the Securities of the Series will be issued;
(c)
any limit upon the
aggregate principal amount of the Securities of the Series which
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 2.07, 2.08, 2.11, 3.06 or
9.06);
(d)
the date or dates
on which the principal of the Securities of the Series is
payable;
(e)
the rate or rates
(which may be fixed or variable) per annum or, if applicable, the
method used to determine such rate or rates (including, but not
limited to, any commodity, commodity index, stock exchange index or
financial index) at which the Securities of the Series shall bear
interest, if any, the date or dates from which such interest, if
any, shall accrue, the date or dates on which such interest, if
any, shall commence and be payable and any regular record date for
the interest payable on any interest payment date;
(f)
the place or
places where the principal of and interest, if any, on the
Securities of the Series shall be payable, where the Securities of
such Series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in
respect of the Securities of such Series and this Indenture may be
served, and the method of such payment, if by wire transfer, mail
or other means;
(g)
if applicable, the
period or periods within which, the price or prices at which and
the terms and conditions upon which the Securities of the Series
may be redeemed, in whole or in part, at the option of the
Company;
(h)
the obligation, if
any, of the Company to redeem or purchase the Securities of the
Series pursuant to any sinking fund or analogous provisions or at
the option of a Holder thereof and the period or periods within
which, the price or prices at which and the terms and conditions
upon which Securities of the Series shall be redeemed or purchased,
in whole or in part, pursuant to such obligation;
(i)
the dates, if any,
on which and the price or prices at which the Securities of the
Series will be repurchased by the Company at the option of the
Holders thereof and other detailed terms and provisions of such
repurchase obligations;
(j)
if other than
denominations of $1,000 and any integral multiple thereof the
denominations in which the Securities of the Series shall be
issuable;
(k)
if other than the
principal amount thereof, the portion of the principal amount of
the Securities of the Series that shall be payable upon declaration
of acceleration of the maturity thereof pursuant to Section
6.02;
(l)
the currency of
denomination of the Securities of the Series, which may be Dollars
or any Foreign Currency, and the agency or organization, if any,
responsible for overseeing such composite currency;
(m)
the provisions, if
any, relating to any security provided for the Securities of the
Series;
(n)
any addition to or
change in the Events of Default which applies to any Securities of
the Series and any change in the right of the Trustee or the
requisite Holders of such Securities to declare the principal
amount thereof due and payable pursuant to Section
6.02;
(o)
any addition to or
change in the covenants set forth in Articles IV or V which applies
to Securities of the Series;
(p)
the provisions, if
any, relating to conversion of any Securities of such Series,
including, if applicable, the securities into which the Securities
are convertible, the conversion price, the conversion period,
provisions as to whether conversion will be mandatory, at the
option of the Holders or at the option of the Company, the events
requiring an adjustment of the conversion price and provisions
affecting conversion if such Series of Securities are
redeemed;
(q)
whether the
Securities of such Series will be senior debt securities or
subordinated debt securities and, if applicable, a description of
the subordination terms thereof;
(r)
any depositaries,
interest rate calculation agents, exchange rate calculation agents
or other agents with respect to Securities of such Series if other
than those appointed herein; and
(s)
any other terms of
the Securities of the Series (which may modify or delete any
provision of this Indenture insofar as it applies to such
Series).
All
Securities of any one Series need not be issued at the same time
and may be issued from time to time, consistent with the terms of
this Indenture, if so provided by or pursuant to a Board
Resolution, a supplemental indenture hereto or an Officers’
Certificate, and, unless otherwise provided in such Board
Resolution, a Series may be reopened, without the consent of the
Holders, for increases in the aggregate principal amount of such
Series and issuances of additional Securities of such
Series.
Section 2.03
Execution
and Authentication.
Two
Officers shall sign the Securities for the Company by manual or
facsimile signature. If an Officer whose signature is on a Security
no longer holds that office at the time the Security is
authenticated, the Security shall nevertheless be valid. A Security
shall not be valid until authenticated by the manual signature of
the Trustee or an authenticating agent. The signature shall be
conclusive evidence that the Security has been authenticated under
this Indenture. The Trustee shall at any time, and from time to
time, authenticate Securities for original issue in the principal
amount provided in the Board Resolution, supplemental indenture
hereto or Officers’ Certificate, upon receipt by the Trustee
of a Company Order. Such Company Order may authorize authentication
and delivery pursuant to oral or electronic instructions from the
Company or its duly authorized agent or agents, which oral
instructions shall be promptly confirmed in writing. Each Security
shall be dated the date of its authentication unless otherwise
provided by a Board Resolution, a supplemental indenture hereto or
an Officers’ Certificate. The aggregate principal amount of
Securities of any Series outstanding at any time may not exceed any
limit placed upon the principal amount for such Series set forth in
the applicable Board Resolution, supplemental indenture hereto or
Officers’ Certificate delivered pursuant to Section 2.02,
except as provided in Section 2.02 or 2.08. Prior to the issuance
of Securities of any Series, the Trustee shall have received and,
subject to Section 7.02, shall be fully protected in relying on:
(a) the Board Resolution, supplemental indenture hereto or
Officers’ Certificate establishing the form of the Securities
of that Series or of Securities within that Series and the terms of
the Securities of that Series or of Securities within that Series,
(b) an Officers’ Certificate complying with Section 10.04 and
(c) an Opinion of Counsel complying with Section 10.04. The Trustee
shall have the right to decline to authenticate and deliver any
Securities of such Series: (a) if the Trustee, being advised by
counsel, determines that such action may not be taken lawfully; or
(b) if the Trustee’s board of directors or trustees,
executive committee or a trust committee of directors and/or
vice-presidents shall determine in good faith that such action
would expose the Trustee to personal liability to Holders of any
then outstanding Series of Securities. The Trustee may appoint an
authenticating agent acceptable to the Company to authenticate
Securities. An authenticating agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to
deal with the Company or an Affiliate of the Company.
Section 2.04
Registrar
and Paying Agent.
The
Company shall maintain, with respect to each Series of Securities,
at the place or places specified with respect to such Series
pursuant to Section 2.02, an office or agency where Securities of
such Series may be presented or surrendered for payment
(“
Paying
Agent
”), where Securities of such Series may be
surrendered for registration of transfer or exchange
(“
Registrar
”)
and where notices and demands to or upon the Company in respect of
the Securities of such Series and this Indenture may be served
(“
Service
Agent
”). The Registrar shall keep a register with
respect to each Series of Securities and to their transfer and
exchange. The Company will give prompt written notice to the
Trustee of the name and address, and any change in the name or
address, of each Registrar, Paying Agent or Service Agent. If at
any time the Company shall fail to maintain any such required
Registrar, Paying Agent or Service Agent or shall fail to furnish
the Trustee with the name and address thereof, such presentations,
surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands. The Company may
also from time to time designate one or more co-registrars,
additional paying agents or additional service agents and may from
time to time rescind such designations;
provided
, however, that no such
designation or rescission shall in any manner relieve the Company
of its obligations to maintain a Registrar, Paying Agent and
Service Agent in each place so specified pursuant to Section 2.02
for Securities of any Series for such purposes. The Company will
give prompt written notice to the Trustee of any such designation
or rescission and of any change in the name or address of any such
co-registrar, additional paying agent or additional service agent.
The term “Registrar” includes any co-registrar; the
term “Paying Agent” includes any additional paying
agent; and the term “Service Agent” includes any
additional service agent. The Company hereby appoints the Trustee
the initial Registrar, Paying Agent and Service Agent for each
Series unless another Registrar, Paying Agent or Service Agent, as
the case may be, is appointed prior to the time Securities of that
Series are first issued.
Section 2.05
Paying
Agent to Hold Money in Trust.
The
Company shall require each Paying Agent, other than the Trustee, to
agree in writing that the Paying Agent will hold in trust, for the
benefit of Holders of any Series of Securities or the Trustee, all
money held by the Paying Agent for the payment of the principal of
or the interest on the Series of Securities, and will notify the
Trustee of any default by the Company in making any such payment.
While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Company may,
at any time, require a Paying Agent to pay all money held by it to
the Trustee. Upon payment to the Trustee, the Paying Agent (if
other than the Company or a Subsidiary of the Company) shall have
no further liability for such money. If the Company or a Subsidiary
of the Company acts as Paying Agent, it shall segregate and hold in
a separate trust fund, for the benefit of Holders of any Series of
Securities, all money held by it as Paying Agent.
Section 2.06
Holder
Lists.
The
Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and
addresses of Holders of each Series of Securities and shall
otherwise comply with TIA Section 312(a). If the Trustee is not the
Registrar, the Company shall furnish to the Trustee at least ten
(10) days before each interest payment date and at such other times
as the Trustee may request in writing a list, in such form and as
of such date as the Trustee may reasonably require, of the names
and addresses of Holders of each Series of Securities.
Section 2.07
Transfer
and Exchange.
Where
Securities of a Series are presented to the Registrar or a
co-registrar with a request to register a transfer or to exchange
them for an equal principal amount of Securities of the same
Series, the Registrar shall register the transfer or make the
exchange if its requirements for such transactions are met. To
permit registrations of transfers and exchanges, the Trustee shall
authenticate Securities at the Registrar’s request. No
service charge shall be made for any registration of transfer or
exchange (except as otherwise expressly permitted herein), but the
Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer tax or similar governmental
charge payable upon exchanges pursuant to Section 2.11, 3.06 or
9.06). Neither the Company nor the Registrar shall be required (a)
to issue, register the transfer of or exchange Securities of any
Series for the period beginning at the opening of business fifteen
days immediately preceding the mailing of a notice of redemption of
Securities of that Series selected for redemption and ending at the
close of business on the day of such mailing, or (b) to register
the transfer of or exchange Securities of any Series selected,
called or being called for redemption as a whole or the portion
being redeemed of any such Securities selected, called or being
called for redemption in part.
Section 2.08
Mutilated,
Destroyed, Lost and Stolen Securities.
(a)
If any mutilated
Security is surrendered to the Trustee, the Company shall execute
and the Trustee shall authenticate and make available for delivery
in exchange therefor a new Security of the same Series and of like
tenor and principal amount and bearing a number not
contemporaneously outstanding. If there shall be delivered to the
Company and the Trustee (i) evidence to their satisfaction of the
destruction, loss or theft of any Security and (ii) such security
or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been
acquired by a protected purchaser, the Company shall execute and,
upon its request, the Trustee shall authenticate and make available
for delivery, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same Series and of like tenor and
principal amount and bearing a number not contemporaneously
outstanding. In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Security,
pay such Security.
(b)
Upon the issuance
of any new Security under this Section, the Company may require the
payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected
therewith. Every new Security of any Series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall
constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security
shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that Series duly issued
hereunder. The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities.
Section 2.09
Outstanding
Securities.
The
Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those canceled by it, those
delivered to it for cancellation, those reductions in the interest
on a Global Security effected by the Trustee in accordance with the
provisions hereof and those described in this Section as not
outstanding. If a Security is replaced pursuant to Section 2.08, it
ceases to be outstanding until the Trustee receives proof
satisfactory to it that the replaced Security is held by a
protected purchaser. If the Paying Agent (other than the Company, a
Subsidiary of the Company or an Affiliate of the Company) holds on
the Maturity of Securities of a Series money sufficient to pay such
Securities payable on that date, then on and after that date such
Securities of the Series cease to be outstanding and interest on
them ceases to accrue. A Security does not cease to be outstanding
because the Company or an Affiliate of the Company holds the
Security. In determining whether the Holders of the requisite
principal amount of outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver
hereunder, the principal amount of a Discount Security that shall
be deemed to be outstanding for such purposes shall be the amount
of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of
the Maturity thereof pursuant to Section 6.02.
Section 2.10
Treasury
Securities.
In
determining whether the Holders of the required principal amount of
Securities of a Series have concurred in any request, demand,
authorization, direction, notice, consent or waiver, Securities of
a Series owned by the Company shall be disregarded, except that for
the purposes of determining whether the Trustee shall be protected
in relying on any such request, demand, authorization, direction,
notice, consent or waiver, only Securities of a Series that the
Trustee knows are so owned shall be so disregarded.
Section 2.11
Temporary
Securities.
Until
definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities
upon a Company Order. Temporary Securities shall be substantially
in the form of definitive Securities but may have variations that
the Company considers appropriate for temporary Securities. Without
unreasonable delay, the Company shall prepare and the Trustee upon
request shall authenticate definitive Securities of the same Series
and date of maturity in exchange for temporary Securities. Until so
exchanged, temporary securities shall have the same rights under
this Indenture as the definitive Securities.
Section 2.12
Cancellation.
The
Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to
the Trustee any Securities surrendered to them for registration of
transfer, exchange or payment. The Trustee shall cancel all
Securities surrendered for registration of transfer, exchange,
payment, replacement or cancellation in accordance with its
customary procedures and deliver such canceled Securities to the
Company, unless the Company otherwise directs; provided that the
Trustee shall not be required to destroy Securities. The Company
may not issue new Securities to replace Securities that it has paid
or delivered to the Trustee for cancellation.
Section 2.13
Defaulted
Interest.
If the
Company defaults in a payment of interest on a Series of
Securities, it shall pay the defaulted interest, plus, to the
extent permitted by law, any interest payable on the defaulted
interest, to the persons who are Holders of the Series on a
subsequent special record date. The Company shall fix the record
date and payment date. At least ten (10) days before the record
date, the Company shall mail to the Trustee and to each Holder of
the Series a notice that states the record date, the payment date
and the amount of interest to be paid. The Company may pay
defaulted interest in any other lawful manner.
Section 2.14
Global
Securities
(a)
Terms of
Securities. A Board Resolution, a supplemental indenture hereto or
an Officers’ Certificate shall establish whether the
Securities of a Series shall be issued in whole or in part in the
form of one or more Global Securities and the Depository for such
Global Security or Securities.
(b)
Transfer and
Exchange. Notwithstanding any provisions to the contrary contained
in Section 2.07 of the Indenture and in addition thereto, any
Global Security shall be exchangeable pursuant to Section 2.07 of
the Indenture for Securities registered in the names of Holders
other than the Depository for such Security or its nominee only if
(i) such Depository notifies the Company that it is unwilling or
unable to continue as Depository for such Global Security or if at
any time such Depository ceases to be a clearing agency registered
under the Exchange Act, and, in either case, the Company fails to
appoint a successor Depository registered as a clearing agency
under the Exchange Act within 90 days of such event, (ii) the
Company executes and delivers to the Trustee an Officers’
Certificate to the effect that such Global Security shall be so
exchangeable or (iii) an Event of Default with respect to the
Securities represented by such Global Security shall have happened
and be continuing. Any Global Security that is exchangeable
pursuant to the preceding sentence shall be exchangeable for
Securities registered in such names as the Depository shall direct
in writing in an aggregate principal amount equal to the principal
amount of the Global Security with like tenor and
terms.
(c)
Except as provided
in this Section 2.14(c), a Global Security may not be transferred
except as a whole by the Depository with respect to such Global
Security to a nominee of such Depository, by a nominee of such
Depository to such Depository or another nominee of such Depository
or by the Depository or any such nominee to a successor Depository
or a nominee of such a successor Depository.
(d)
Legend. Any Global
Security issued hereunder shall bear a legend in substantially the
following form:
(e)
“This
Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of the
Depository or a nominee of the Depository. This Security is
exchangeable for Securities registered in the name of a person
other than the Depository or its nominee only in the limited
circumstances described in the Indenture, and may not be
transferred except as a whole by the Depository to a nominee of the
Depository, by a nominee of the Depository to the Depository or
another nominee of the Depository or by the Depository or any such
nominee to a successor Depository or a nominee of such a successor
Depository.”
(f)
Acts of Holders.
The Depository, as a Holder, may appoint agents and otherwise
authorize participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action
which a Holder is entitled to give or take under the
Indenture.
(g)
Payments.
Notwithstanding the other provisions of this Indenture, unless
otherwise specified as contemplated by Section 2.02, payment of the
principal of and interest, if any, on any Global Security shall be
made to the Holder thereof.
(h)
Consents,
Declaration and Directions. Except as provided in Section 2.14(g),
the Company, the Trustee and any Agent shall treat a person as the
Holder of such principal amount of outstanding Securities of such
Series represented by a Global Security as shall be specified in a
written statement of the Depository with respect to such Global
Security, for purposes of obtaining any consents, declarations,
waivers or directions required to be given by the Holders pursuant
to this Indenture.
(i)
The Depository or
its nominee, as registered owner of a Global Security, shall be the
Holder of such Global Security for all purposes under the Indenture
and the Securities, and owners of beneficial interests in a Global
Security shall hold such interests pursuant to the Applicable
Procedures. Accordingly, any such owner’s beneficial interest
in a Global Security will be shown only on, and the transfer of
such interest shall be effected only through, records maintained by
the Depositary or its nominee and such owners of beneficial
interests in a Global Security will not be considered the owners or
holders thereof.
Section 2.15
CUSIP
Numbers.
The
Company 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 elements of identification printed on the Securities, and any
such redemption shall not be affected by any defect in or omission
of such numbers. The Company shall promptly notify the Trustee of
any change in “CUSIP” numbers of which the Company
becomes aware.
ARTICLE III
REDEMPTION
Section 3.01
Notice
to Trustee.
The
Company may, with respect to any Series of Securities, reserve the
right to redeem and pay the Series of Securities or may covenant to
redeem and pay the Series of Securities or any part thereof prior
to the Stated Maturity thereof at such time and on such terms as
provided for in such Securities. If a Series of Securities is
redeemable and the Company wants or is obligated to redeem prior to
the Stated Maturity thereof all or part of the Series of Securities
pursuant to the terms of such Securities, it shall notify the
Trustee of the redemption date and the principal amount of Series
of Securities to be redeemed.
Section 3.02
Selection
of Securities to be Redeemed.
Unless
otherwise indicated fora particular Series by a Board Resolution, a
supplemental indenture or an Officers’ Certificate, if less
than all the Securities of a Series are to be redeemed, the Trustee
shall select the Securities of the Series to be redeemed in any
manner that the Trustee deems fair and appropriate. The Trustee
shall make the selection from Securities of the Series outstanding
not previously called for redemption. The Trustee may select for
redemption portions of the principal of Securities of the Series
that have denominations larger than $1,000. Securities of the
Series and portions of them it selects shall be in amounts of
$1,000 or whole multiples of $1,000 or, with respect to Securities
of any Series issuable in other denominations pursuant to Section
2.02(j), the minimum principal denomination for each Series and
integral multiples thereof Provisions of this Indenture that apply
to Securities of a Series called for redemption also apply to
portions of Securities of that Series called for
redemption.
Section 3.03
Notice
of Redemption.
(a)
Unless otherwise
indicated for a particular Series by Board Resolution, a
supplemental indenture hereto or an Officers’ Certificate, at
least 30 days but not more than 60 days before a redemption date,
the Company shall send or cause to be sent, by electronic delivery,
if held at DTC, or by first class mail postage prepaid, a notice of
redemption to each Holder whose Securities are to be redeemed and,
if any Bearer Securities are outstanding, publish on one occasion a
notice in an Authorized Newspaper. The notice shall identify the
Securities of the Series to be redeemed and shall
state:
(i)
the redemption
date;
(ii)
the redemption
price;
(iii)
the name and
address of the Paying Agent;
(iv)
that Securities of
the Series called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(v)
that interest on
Securities of the Series called for redemption ceases to accrue on
and after the redemption date;
(vi)
the CUSIP number,
if any; and
(vii)
any other information as may be required by the terms of the
particular Series or the Securities of a Series being
redeemed.
At the
Company’s request, the Trustee shall give the notice of
redemption in the Company’s name and at its
expense.
Section 3.04
Effect
of Notice of Redemption.
Once
notice of redemption is sent, mailed or published as provided in
Section 3.03, Securities of a Series called for redemption become
due and payable on the redemption date and at the redemption price.
A notice of redemption may not be conditional. Upon surrender to
the Paying Agent, such Securities shall be paid at the redemption
price plus accrued interest to the redemption date; provided that
installments of interest whose Stated Maturity is on or prior to
the redemption date shall be payable to the Holders of such
Securities (or one or more predecessor Securities) registered at
the close of business on the relevant record date therefor
according to their terms and the terms of this
Indenture.
Section 3.05
Deposit
of Redemption Price.
On or
before 10:00 a.m., New York City time, on the redemption date, the
Company shall deposit with the Paying Agent money sufficient to pay
the redemption price of and accrued interest, if any, on all
Securities to be redeemed on that date.
Section 3.06
Securities
Redeemed in Part.
Upon
surrender of a Security that is redeemed in part, the Trustee shall
authenticate for the Holder a new Security of the same Series and
the same maturity equal in principal amount to the unredeemed
portion of the Security surrendered.
ARTICLE IV
COVENANTS
Section 4.01
Payment
of Principal and Interest.
The
Company covenants and agrees for the benefit of the Holders of each
Series of Securities that it will duly and punctually pay the
principal of and interest, if any, on the Securities of that Series
in accordance with the terms of such Securities and this
Indenture.
Section 4.02
SEC
Reports.
The
Company shall, so long as any of the Securities are outstanding,
electronically file with the Commission the annual, quarterly and
other periodic reports that the Company is required to file with
the Commission pursuant to Sections 13 and 15(d) of the Exchange
Act. The Company also shall comply with the other provisions of TIA
Section 314(a). Delivery of any reports, information and documents
to the Trustee is for informational purposes only and the
Trustee’s receipt of such shall not constitute constructive
notice of any information contained therein or determinable from
information contained therein, including the Company’s
compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on an Officers’
Certificate).
Section 4.03
Compliance
Certificate.
The
Company shall, so long as any of the Securities are outstanding,
deliver to the Trustee, within 120 days after the end of each
fiscal year of the Company, an Officers’ Certificate stating
whether or not to the knowledge of the signers thereof the Company
is in default in the performance and observance of any of the
terms, provisions and conditions hereof (without regard to any
period of grace or requirement of notice provided hereunder), and
if a Default or Event of Default shall have occurred, specifying
all such Defaults or Events of Default and the nature and status
thereof of which they may have knowledge. The Company shall, so
long as any of the Securities are outstanding, deliver to the
Trustee, within thirty (30) days after becoming aware of any
Default or Event of Default, an Officers’ Certificate
specifying such Default or Event of Default and what action the
Company is taking or proposes to take with respect
thereto.
Section 4.04
Stay,
Extension and Usury Laws.
The
Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, plead or in any manner
whatsoever claim or take the benefit or advantage of any stay,
extension or usury law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the
performance of this Indenture or the Securities and the Company (to
the extent it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law and covenants that it will
not, by resort to any such law, hinder, delay or impede the
execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no
such law has been enacted.
ARTICLE V
SUCCESSORS
Section 5.01
When
Company May Merge, Etc.
The
Company shall not consolidate with or merge with or into, or
convey, transfer or lease all or substantially all of its
properties and assets to, any person (a “
successor person
”)
unless:
(a)
the Company is the
surviving corporation or the successor person (if other than the
Company) is organized and validly existing under the laws of any
U.S. domestic jurisdiction and expressly assumes the
Company’s obligations on the Securities and under this
Indenture; and
(b)
immediately after
giving effect to the transaction, no Default or Event of Default
shall have occurred and be continuing.
The
Company shall deliver to the Trustee prior to the consummation of
the proposed transaction an Officers’ Certificate to the
foregoing effect and an Opinion of Counsel stating that the
proposed transaction and any supplemental indenture comply with
this Indenture.
Section 5.02
Successor
Corporation Substituted.
Upon
any consolidation or merger, or any sale, lease, conveyance or
other disposition of all or substantially all of the assets of the
Company in accordance with Section 5.01, the successor corporation
formed by such consolidation or into or with which the Company is
merged or to which such sale, lease, conveyance or other
disposition is made shall succeed to, and be substituted for, and
may exercise every right and power of the Company under this
Indenture with the same effect as if such successor person has been
named as the Company herein; provided, however, that the
predecessor Company in the case of a sale, conveyance or other
disposition (other than a lease) shall be released from all
obligations and covenants under this Indenture and the
Securities.
ARTICLE VI
DEFAULTS AND
REMEDIES
Section 6.01
Events
of Default.
“
Event of Default
,” wherever used
herein with respect to Securities of any Series, means any one of
the following events, unless in the establishing Board Resolution,
supplemental indenture or Officers’ Certificate, it is
provided that such Series shall not have the benefit of said Event
of Default:
(a)
default in the
payment of any interest on any Security of that Series when it
becomes due and payable, and continuance of such default for a
period of thirty (30) days (unless the entire amount of such
payment is deposited by the Company with the Trustee or with a
Paying Agent prior to the expiration of such period of thirty (30)
days);
(b)
default in the
payment of principal of any Security of that Series at its
Maturity;
(c)
default in the
performance or breach of any covenant or warranty of the Company in
this Indenture (other than a covenant or warranty for which the
consequences of nonperformance or breach are addressed elsewhere in
this Section 6.01 and other than a covenant or warranty that has
been included in this Indenture solely for the benefit of Series of
Securities other than that Series), which default continues uncured
for a period of ninety (90) days after there has been given, by
registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of not less than a
majority in principal amount of the outstanding Securities of that
Series 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 Company
pursuant to or within the meaning of any Bankruptcy Law. (i)
commences a voluntary case or proceeding; (ii) consents to the
entry of an order for relief against it in an involuntary case,
(iii) consents to the appointment of a Custodian of it or for
all or substantially all of its property, (iv)makes a general
assignment for the benefit of its creditors, or (v) makes an
admission by writing that it is generally unable to pay its debts
as the same become due;
(e)
a court of
competent jurisdiction enters an order or decree under any
Bankruptcy Law that: (i) is for relief against the Company in an
involuntary case, (ii) appoints a Custodian of the Company or for
all or substantially all of its property, or (iii) orders the
liquidation of the Company, and the order or decree remains
unstayed and in effect for ninety (90) days; or
(f)
any other Event of
Default provided with respect to Securities of that Series, which
is specified in a Board Resolution, a supplemental indenture hereto
or an Officers’ Certificate, in accordance with Section
2.02(n).
The
term “
Bankruptcy
Law
” means Title 11 of the U.S. Code or any similar
federal or state law for the relief of debtors. The term
“Custodian” means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy
Law.
Section 6.02
Acceleration
of Maturity; Rescission and Annulment.
If an
Event of Default with respect to Securities of any Series at the
time outstanding occurs and is continuing (other than an Event of
Default referred to in Section 6.1(d) or (e)), then in every such
case the Trustee or the Holders of not less than a majority in
principal amount of the outstanding Securities of that Series may
declare the principal amount (or, if any Securities of that Series
are Discount Securities, such portion of the principal amount as
may be specified in the terms of such Securities) of and accrued
and unpaid interest, if any, on all of the Securities of that
Series to be due and payable immediately, by a notice in writing to
the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) and
accrued and unpaid interest, if any, shall become immediately due
and payable. If an Event of Default specified in Section 6.1(d) or
(e) shall occur, the principal amount (or specified amount) of and
accrued and unpaid interest, if any, on all outstanding Securities
shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any
Holder. At any time after such a declaration of acceleration with
respect to any Series has been made and before a judgment or decree
for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in
principal amount of the outstanding Securities of that Series, by
written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if all Events of
Default with respect to Securities of that Series, other than the
non-payment of the principal and interest, if any, of Securities of
that Series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section
6.13. No such rescission shall affect any subsequent Default or
impair any right consequent thereon.
Section 6.03
Collection
of Indebtedness and Suits for Enforcement by Trustee.
The
Company covenants that if:
(a)
default is made in
the payment of any interest on any Security when such interest
becomes due and payable and such default continues for a period of
30 days, or
(b)
default is made in
the payment of principal of any Security at the Maturity thereof,
then the Company will, upon demand of the Trustee, pay to it, for
the benefit of the Holders of such Securities, the whole amount
then due and payable on such Securities for principal and interest
and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal and any overdue
interest at the rate or rates prescribed therefor in such
Securities and, in addition thereto, such further amount as shall
be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the
Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so
due and unpaid, may prosecute such proceeding to judgment or final
decree and may enforce the same against the Company or any other
obligor upon such Securities and collect the moneys adjudged or
deemed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon such Securities,
wherever situated.
If an
Event of Default with respect to any Securities of any Series
occurs and is continuing, the Trustee may in its discretion proceed
to protect and enforce its rights and the rights of the Holders of
Securities of such Series by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any covenant
or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper
remedy.
Section 6.04
Trustee
May File Proofs of Claim.
In
case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other
obligor upon the Securities or the property of the Company or of
such other obligor or their creditors, the Trustee (irrespective of
whether the principal of the Securities shall then be due and
payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall
be entitled and empowered, by intervention in such proceeding or
otherwise, (a) to file and prove a claim for the whole amount of
principal and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel)
and of the Holders allowed in such judicial proceeding, and (b) to
collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same, and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and,
in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount
due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof or to authorize
the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
Section 6.05
Trustee
May Enforce Claims Without Possession of Securities.
All
rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in
any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel,
be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.
Section 6.06
Application
of Money Collected.
Any
money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account
of principal or interest, upon presentation of the Securities and
the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
First:
To the payment of all amounts due the Trustee under Section 7.07;
and
Second: To the
payment of the amounts then due and unpaid for principal of and
interest on the Securities in respect of which or for the benefit
of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable
on such Securities for principal and interest, respectively;
and
Third:
To the Company.
Section 6.07
Limitation
on Suits.
No
Holder of any Security of any Series shall have any right to
institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless:
(a)
such Holder has
previously given written notice to the Trustee of a continuing
Event of Default with respect to the Securities of that
Series;
(b)
the Holders of at
least a majority in principal amount of the outstanding Securities
of that Series shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder,
(c)
such Holder or
Holders have offered to the Trustee reasonable indemnity against
the costs, expenses and liabilities to be incurred in compliance
with such request;
(d)
the Trustee for 60
days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding;
and
(e)
no direction
inconsistent with such written request has been given to the
Trustee during such 60-day period by the Holders of a majority in
principal amount of the outstanding Securities of that Series; it
being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of or by
availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other of such Holders, or to obtain or
to seek to obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all
such Holders.
Section 6.08
Unconditional
Right of Holders to Receive Principal and Interest.
Notwithstanding
any other provision in this Indenture, the Holder of any Security
shall have the right, which is absolute and unconditional, to
receive payment of the principal of and interest, if any, on such
Security on the Stated Maturity or Stated Maturities expressed in
such Security (or, in the case of redemption, on the redemption
date) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent
of such Holder.
Section 6.09
Restoration
of Rights and Remedies.
If the
Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all
rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 6.10
Rights
and Remedies Cumulative.
Except
as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in Section 2.08, no
right or remedy herein conferred upon or reserved to the Trustee or
to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not, to the extent permitted
by law, prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 6.11
Delay
or Omission Not Waiver.
No
delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may
be.
Section 6.12
Control
by Holders.
The
Holders of a majority in principal amount of the outstanding
Securities of any Series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred on the Trustee, with respect to the Securities of such
Series, provided that:
(a)
such direction
shall not be in conflict with any rule of law or with this
Indenture,
(b)
the Trustee may
take any other action deemed proper by the Trustee which is not
inconsistent with such direction, and
(c)
subject to the
provisions of Section 6.01, the Trustee shall have the right to
decline to follow any such direction if the Trustee in good faith
shall, by a Responsible Officer of the Trustee, determine that the
proceeding so directed would involve the Trustee in personal
liability.
Section 6.13
Waiver
of Past Defaults.
The
Holders of not less than a majority in principal amount of the
outstanding Securities of any Series may on behalf of the Holders
of all the Securities of such Series waive any past Default
hereunder with respect to such Series and its consequences, except
a Default (i) in the payment of the principal of or interest on any
Security of such Series (provided, however, that the Holders of a
majority in principal amount of the outstanding Securities of any
Series may rescind an acceleration and its consequences, including
any related payment default that resulted from such acceleration)
or (ii) in respect of a covenant or provision hereof which cannot
be modified or amended without the consent of the Holder of each
outstanding Security of such Series affected. Upon any such waiver,
such Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of
this Indenture; but no such waiver shall extend to any subsequent
or other Default or impair any right consequent
thereon.
Section 6.14
Undertaking
for Costs.
All
parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken, suffered or omitted
by it as Trustee, the filing by any party litigant in such suit of
an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable
attorneys’ fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Company, to
any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10%
in principal amount of the outstanding Securities of any Series, or
to any suit instituted by any Holder for the enforcement of the
payment of the principal of or interest on any Security on or after
the Stated Maturity or Stated Maturities expressed in such Security
(or, in the case of redemption, on the redemption
date).
ARTICLE VII
TRUSTEE
Section 7.01
Duties
of Trustee.
(a)
If an Event of
Default has occurred and is continuing, the Trustee shall exercise
the rights and powers vested in it by this Indenture and use the
same degree of care and skill in their exercise as a prudent person
would exercise or use under the circumstances in the conduct of
such person’s own affairs.
(b)
Except during the
continuance of an Event of Default:
(i)
The Trustee need
perform only those duties that are specifically set forth in this
Indenture and no others.
(ii)
In the absence of
bad faith on its part, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon Officers’ Certificates or Opinions of
Counsel furnished to the Trustee and conforming to the requirements
of this Indenture; however, in the case of any such Officers’
Certificates or Opinions of Counsel which by any provisions hereof
are specifically required to be furnished to the Trustee, the
Trustee shall examine such Officers’ Certificates and
Opinions of Counsel to determine whether or not they conform to the
requirements of this Indenture.
(c)
The Trustee may
not be relieved from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except
that:
(i)
This paragraph
does not limit the effect of paragraph (b) of this
Section.
(ii)
The Trustee shall
not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts.
(iii)
The Trustee shall
not be liable with respect to any action taken, suffered or omitted
to be taken by it with respect to Securities of any Series in good
faith in accordance with the direction of the Holders of a majority
in principal amount of the outstanding Securities of such Series
relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture with respect
to the Securities of such Series.
(d)
Every provision of
this Indenture that in any way relates to the Trustee is subject to
paragraph (a), (b) and (c) of this Section.
(e)
The Trustee may
refuse to perform any duty or exercise any right or power at the
request or direction of any Holder unless it receives indemnity
satisfactory to it against any loss, liability or
expense.
(f)
The Trustee shall
not be liable for interest on any money received by it except as
the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except
to the extent required by law.
(g)
No provision of
this Indenture shall require the Trustee to risk its own funds or
otherwise incur any financial liability in the performance of any
of its duties, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk is not
reasonably assured to it.
(h)
The Paying Agent,
the Registrar and any Service Agent or authenticating agent shall
be entitled to the protections, immunities and standard of care as
are set forth in paragraphs (a), (b) and (c) of this Section with
respect to the Trustee.
Section 7.02
Rights
of Trustee.
(a)
The Trustee may
rely on and shall be protected in acting or refraining from acting
upon any document believed by it to be genuine and to have been
signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b)
Before the Trustee
acts or refrains from acting, it may require an Officers’
Certificate. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on such
Officers’ Certificate.
(c)
The Trustee may
act through agents and shall not be responsible for the misconduct
or negligence of any agent appointed with due care. No Depository
shall be deemed an agent of the Trustee, and the Trustee shall not
be responsible for any act or omission by any
Depository.
(d)
The Trustee shall
not be liable for any action it takes or omits to take in good
faith which it believes to be authorized or within its rights or
powers, provided that the Trustee’s conduct does not
constitute negligence or bad faith.
(e)
The Trustee may
consult with counsel, and the advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder
without negligence and in good faith and in reliance
thereon.
(f)
The Trustee shall
be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any
of the Holders of Securities unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in
compliance with such request or direction.
(g)
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, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see
fit.
(h)
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 generally
or the Securities of a particular Series and this
Indenture.
(i)
The permissive
rights of the Trustee enumerated herein shall not be construed as
duties.
Section 7.03
Individual
Rights of Trustee.
The
Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the
Company or an Affiliate of the Company with the same rights it
would have if it were not Trustee. Any Agent may do the same with
like rights. The Trustee is also subject to Sections 7.10 and
7.11.
Section 7.04
Trustee’s
Disclaimer.
The
Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for
the Company’s use of the proceeds from the Securities, and it
shall not be responsible for any statement in the Securities other
than its authentication.
Section 7.05
Notice
of Defaults.
If a
Default or Event of Default occurs and is continuing with respect
to the Securities of any Series and if it is known to a Responsible
Officer of the Trustee, the Trustee shall mail to each Holder of
the Securities of that Series and, if any Bearer Securities are
outstanding, publish on one occasion in an Authorized Newspaper,
notice of a Default or Event of Default within ninety (90) days
after it occurs or, if later, after a Responsible Officer of the
Trustee has knowledge of such Default or Event of Default. Except
in the case of a Default or Event of Default in payment of
principal of or interest on any Security of any Series, the Trustee
may withhold the notice if and so long as its corporate trust
committee or a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of
Holders of that Series.
Section 7.06
Reports
by Trustee to Holders.
Within
sixty (60) days after May 15 in each year, the Trustee shall
transmit by mail to all Holders, as their names and addresses
appear on the register kept by the Registrar and, if any Bearer
Securities are outstanding, publish in an Authorized Newspaper, a
brief report dated as of such May 15, in accordance with, and to
the extent required under, TIA Section 313. A copy of each report
at the time of its mailing to Holders of any Series shall be filed
with the SEC and each stock exchange on which the Securities of
that Series are listed. The Company shall promptly notify the
Trustee when Securities of any Series are listed on any stock
exchange.
Section 7.07
Compensation
and Indemnity.
The
Company shall pay to the Trustee from time to time compensation for
its services as the Company and the Trustee shall from time to time
agree upon in writing. The Trustee’s compensation shall not
be limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee upon request for all
reasonable out-of-pocket expenses incurred by it. Such expenses
shall include the reasonable compensation and expenses of the
Trustee’s agents and counsel. The Company shall indemnify
each of the Trustee and any predecessor Trustee against any loss,
liability or expense (including the cost of defending itself),
including taxes (other than taxes based upon, measured by or
determined by the income of the Trustee) incurred by it except as
set forth in this Section 7.07 in the performance of its duties
under this Indenture as Trustee or Agent. The Trustee shall notify
the Company promptly of any claim for which it may seek indemnity.
The Company shall defend the claim and the Trustee shall cooperate
in the defense. The Trustee may have one separate counsel and the
Company shall pay the reasonable fees and expenses of such counsel.
The Company need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld. This
indemnification shall apply to officers, directors, employees,
shareholders and agents of the Trustee. The Company need not
reimburse any expense or indemnify against any loss or liability
incurred by the Trustee or by any officer, director, employee,
shareholder or agent of the Trustee through the negligence or bad
faith of any such persons. To secure the Company’s payment
obligations in this Section, the Trustee shall have a lien prior to
the Securities of any Series on all money or property held or
collected by the Trustee, except that held in trust to pay
principal of and interest on particular Securities of that Series.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(d) or (e) occurs, the expenses
and the compensation for the services are intended to constitute
expenses of administration under any Bankruptcy Law. The provisions
of this Section shall survive the resignation or removal of the
Trustee and the termination of this Indenture.
Section 7.08
Replacement
of Trustee.
A
resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor
Trustee’s acceptance of appointment as provided in this
Section. The Trustee may resign with respect to the Securities of
one or more Series by so notifying the Company at least 30 days
prior to the date of the proposed resignation. The Holders of a
majority in principal amount of the Securities of any Series may
remove the Trustee with respect to that Series by so notifying the
Trustee and the Company. The Company may remove the Trustee with
respect to Securities of one or more Series if:
(a)
the Trustee fails
to comply with Section 7.10;
(b)
the Trustee is
adjudged bankrupt or insolvent or an order for relief is entered
with respect to the Trustee under any Bankruptcy Law,
(c)
a Custodian or
public officer takes charge of the Trustee or its property;
or
(d)
the Trustee
becomes incapable of acting.
If the
Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a
successor Trustee.
If a
successor Trustee with respect to the Securities of any one or more
Series does not take office within 60 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of at least a majority in principal amount of the
Securities of the applicable Series may petition any court of
competent jurisdiction for the appointment of a successor
Trustee.
A
successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately
after that, the retiring Trustee shall transfer all property held
by it as Trustee to the successor Trustee subject to the lien
provided for in Section 7.07, the resignation or removal of the
retiring Trustee shall become effective, and the successor Trustee
shall have all the rights, powers and duties of the Trustee with
respect to each Series of Securities for which it is acting as
Trustee under this Indenture. A successor Trustee shall mail a
notice of its succession to each Holder of each such Series and, if
any Bearer Securities are outstanding, publish such notice on one
occasion in an Authorized Newspaper. Notwithstanding replacement of
the Trustee pursuant to this Section 7.08, the Company’s
obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Trustee with respect to expenses and
liabilities incurred by it prior to the date of such
replacement.
Section 7.09
Successor
Trustee by Merger, etc.
If the
Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust business to,
another corporation, the successor corporation without any further
act shall be the successor Trustee.
Section 7.10
Eligibility;
Disqualification.
This
Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee
shall comply with TIA Section 310(b).
Section 7.11
Preferential
Collection of Claims Against Company.
The
Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to
the extent indicated.
ARTICLE VIII
SATISFACTION AND
DISCHARGE; DEFEASANCE
Section 8.01
Satisfaction
and Discharge of Indenture.
This
Indenture shall upon Company Order cease to be of further effect
(except as hereinafter provided in this Section 8.01), and the
Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this
Indenture, when
(a)
any of the
following shall have occurred:
(i)
no Securities have
been issued hereunder,
(ii)
all Securities
theretofore authenticated and delivered (other than Securities that
have been destroyed, lost or stolen and that have been replaced or
paid) have been delivered to the Trustee for cancellation;
or
(iii)
all such
Securities not theretofore delivered to the Trustee for
cancellation (1) have become due and payable, or (2) will become
due and payable at their Stated Maturity within one year, or (3)
are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Company; and
the Company has irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust an amount sufficient for
the purpose of paying and discharging the entire indebtedness on
such Securities not theretofore delivered to the Trustee for
cancellation, for principal and interest to the date of such
deposit (in the case of Securities which have become due and
payable on or prior to the date of such deposit) or to the Stated
Maturity or redemption date, as the case may be;
(b)
the Company has
paid or caused to be paid all other sums payable hereunder by the
Company; and
(c)
the Company has
delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of
this Indenture have been complied with.
Notwithstanding
the satisfaction and discharge of this Indenture, the obligations
of the Company to the Trustee under Section 7.07 and, if money
shall have been deposited with the Trustee pursuant to clause (a)
of this Section, the provisions of Sections 2.04 , 2.05 , 2.07,
2.08, 8.01, 8.02 and 8.05 shall survive.
Section 8.02
Application
of Trust Funds; Indemnification.
(a)
Subject to the
provisions of Section 8.05, all money deposited with the Trustee
pursuant to Section 8.01, all money and U.S. Government Obligations
or Foreign Government Obligations deposited with the Trustee
pursuant to Section 8.03 or 8.04 and all money received by the
Trustee in respect of U.S. Government Obligations or Foreign
Government Obligations deposited with the Trustee pursuant to
Section 8.03 or 8.04, shall be held in trust and applied by it, in
accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying
Agent (other than the Company acting as its own Paying Agent) as
the Trustee may determine, to the persons entitled thereto, of the
principal and interest for whose payment such money has been
deposited with or received by the Trustee or analogous payments as
contemplated by Sections 8.03 or 8.04.
(b)
The Company shall
pay and shall indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against U.S. Government Obligations
or Foreign Government Obligations deposited pursuant to Sections
8.03 or 8.04 or the interest and principal received in respect of
such obligations other than any payable by or on behalf of
Holders.
(c)
The Trustee shall
deliver or pay to the Company from time to time upon Company
Request any U.S. Government Obligations or Foreign Government
Obligations or money held by it as provided in Sections 8.03 or
8.04 which, in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written
certification thereof delivered to the Trustee, are then in excess
of the amount thereof which then would have been required to be
deposited for the purpose for which such U.S. Government
Obligations or Foreign Government Obligations or money were
deposited or received. This provision shall not authorize the sale
by the Trustee of any U.S. Government Obligations or Foreign
Government Obligations held under this Indenture.
Section 8.03
Legal
Defeasance of Securities of any Series.
Unless
this Section 8.03 is otherwise specified, pursuant to Section
2.02(s), to be inapplicable to Securities of any Series, the
Company shall be deemed to have paid and discharged the entire
indebtedness on all the outstanding Securities of any Series on the
91st day after the date of the deposit referred to in subparagraph
(d) hereof and the provisions of this Indenture, as it relates to
such outstanding Securities of such Series, shall no longer be in
effect (and the Trustee, at the expense of the Company, shall, at
Company Request, execute proper instruments acknowledging the
same), except as to:
(a)
the rights of
Holders of Securities of such Series to receive, from the trust
funds described in subparagraph (d) hereof, (i) payment of the
principal of and each installment of principal of and interest on
the outstanding Securities of such Series on the Stated Maturity of
such principal or installment of principal or interest, and (ii)
the benefit of any mandatory sinking fund payments applicable to
the Securities of such Series on the day on which such payments are
due and payable in accordance with the terms of this Indenture and
the Securities of such Series; and
(b)
the provisions of
Sections 2.04, 2.05, 2.07, 2.08, 8.02, 8.03 and 8.05;
and
(c)
the rights,
powers, trust and immunities of the Trustee hereunder, provided
that, the following conditions shall have been
satisfied:
(d)
with reference to
this Section 8.03, the Company shall have deposited or caused to be
irrevocably deposited (except as provided in Section 8.02(c)) with
the Trustee as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for and
dedicated solely to the benefit of the Holders of such Securities
(i) in the case of Securities of such Series denominated in
Dollars, cash in Dollars and/or U.S. Government Obligations, or
(ii) in the case of Securities of such Series denominated in a
Foreign Currency (other than a composite currency), money and/or
Foreign Government Obligations, which through the payment of
interest and principal in respect thereof in accordance with their
terms, will provide (without reinvestment and assuming no tax
liability will be imposed on such Trustee), not later than one day
before the due date of any payment of money, an amount in cash,
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge each
installment of principal of and interest, if any, on and any
mandatory sinking fund payments in respect of all the Securities of
such Series on the dates such installments of interest or principal
and such sinking fund payments are due;
(e)
such deposit will
not result in a breach or violation of, or constitute a default
under, this Indenture or any other agreement or instrument to which
the Company is a party or by which it is bound;
(f)
no Default or
Event of Default with respect to the Securities of such Series
shall have occurred and be continuing on the date of such deposit
or during the period ending on the 91st day after such
date;
(g)
the Company shall
have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel to the effect that (i) the Company has received
from, or there has been published by, the Internal Revenue Service
a ruling, or (ii) since the date of execution of this Indenture,
there has been a change in the applicable Federal income tax law,
in either case to the effect that, and based thereon such Opinion
of Counsel shall confirm that, the Holders of the Securities of
such Series will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the same
amounts and in the same manner and at the same times as would have
been the case if such deposit, defeasance and discharge had not
occurred;
(h)
the Company shall
have delivered to the Trustee an Officers’ Certificate
stating that the deposit was not made by the Company with the
intent of preferring the Holders of the Securities of such Series
over any other creditors of the Company or with the intent of
defeating, hindering, delaying or defrauding any other creditors of
the Company;
(i)
the Company shall
have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent
provided for relating to the defeasance contemplated by this
Section have been complied with; and
(j)
such defeasance
shall not result in the trust arising from such deposit
constituting an investment company within the meaning of the
Investment Company Act of 1940, as amended, unless such trust shall
be registered under such Act or exempt from registration
thereunder.
Section 8.04
Covenant
Defeasance.
Unless
this Section 8.04 is otherwise specified, pursuant to Section
2.02(s), to be inapplicable to Securities of any Series, on and
after the 91st day after the date of the deposit referred to in
subparagraph (a) hereof; the Company may omit to comply with
respect to the Securities of any Series with any term, provision or
condition set forth under Sections 4.02, 4.03, and 5.01 as well as
any additional covenants specified in a supplemental indenture for
such Series of Securities or a Board Resolution or an
Officers’ Certificate delivered pursuant to Section 2.02 (and
the failure to comply with any such covenants shall not constitute
a Default or Event of Default with respect to such Series under
Section 6.01) and the occurrence of any event specified in a
supplemental indenture for such Series of Securities or a Board
Resolution or an Officers’ Certificate delivered pursuant to
Section 2.02 and designated as an Event of Default shall not
constitute a Default or Event of Default hereunder, with respect to
the Securities of such Series, provided that the following
conditions shall have been satisfied:
(a)
with reference to
this Section 8.04, the Company has deposited or caused to be
irrevocably deposited (except as provided in Section 8.02(c)) with
the Trustee as trust funds in trust for the purpose of making the
following payments specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities
(i) in the case of Securities of such Series denominated in
Dollars, cash in Dollars and/or U.S. Government Obligations, or
(ii) in the case of Securities of such Series denominated in a
Foreign Currency (other than a composite currency), money and/or
Foreign Government Obligations, which through the payment of
interest and principal in respect thereof in accordance with their
terms, will provide (and without reinvestment and assuming no tax
liability will be imposed on such Trustee), not later than one day
before the due date of any payment of money, an amount in cash,
sufficient, in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge each installment of principal of and interest, if any, on
and any mandatory sinking fund payments in respect of the
Securities of such Series on the dates such installments of
interest or principal and such sinking fund payments are
due;
(b)
such deposit will
not result in a breach or violation of or constitute a default
under, this Indenture or any other agreement or instrument to which
the Company is a party or by which it is bound;
(c)
no Default or
Event of Default with respect to the Securities of such Series
shall have occurred and be continuing on the date of such deposit
or during the period ending on the 91st day after such
date;
(d)
the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect
that Holders of the Securities of such Series will not recognize
income, gain or loss for federal income tax purposes as a result of
such deposit and covenant defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such deposit and covenant
defeasance had not occurred;
(e)
the Company shall
have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the covenant defeasance
contemplated by this Section have been complied with;
and
(f)
Such defeasance
shall not result in the trust arising from such deposit
constituting an investment company within the meaning of the
Investment Company Act of 1940, as amended, unless such trust shall
be registered under such Act or exempt from registration
thereunder.
Section 8.05
Repayment
to Company.
The
Trustee and the Paying Agent shall pay to the Company upon written
request any money held by them for the payment of principal and
interest that remains unclaimed for two years, and after such time,
Holders entitled to the money must look to the Company for payment
as general creditors unless an applicable abandoned property law
designates another person.
Section 8.06
Reinstatement.
If the
Trustee or the Paying Agent is unable to apply any money deposited
with respect to Securities of any series in accordance with Section
8.01 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the
obligations of the Company under this Indenture with respect to the
Securities of such series and under the Securities of such series
shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.01 until such time as the Trustee or the
Paying Agent is permitted to apply all such money in accordance
with Section 8.01; provided, however, that if the Company has made
any payment of principal of, premium (if any) or interest on any
Additional Amounts with respect to any Securities because of the
reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such
payment from the money held by the Trustee or the Paying
Agent.
ARTICLE IX
AMENDMENTS AND
WAIVERS
Section 9.01
Without
Consent of Holders.
The
Company and the Trustee may amend or supplement this Indenture or
the Securities of one or more Series without the consent of any
Holder:
(a)
to evidence the
succession of another person to the Company under this Indenture
and the Securities and the assumption by any such successor person
of the obligations of the Company hereunder and under the
Securities;
(b)
to add or remove
covenants of the Company for the benefit of the Holders of all or
any series of Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such
covenants are expressly being included for the benefit of such
series) or to surrender any right or power herein conferred upon
the Company provided such action does not adversely affect the
interests of the Company;
(c)
to add any
additional Events of Default;
(d)
to add to or
change any of the provisions of this Indenture to such extent as
shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to
principal, and with or without interest coupons, or to permit or
facilitate the issuance of Securities in uncertificated
form;
(e)
to add to, change
or eliminate any of the provisions of this Indenture in respect of
one or more series of Securities, provided that any such addition,
change or elimination (A) shall neither (i) apply to any Security
of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (ii)
modify the rights of the Holder of any such Security with respect
to such provision or (B) shall become effective only when there is
no such Security Outstanding;
(f)
to establish the
forms or terms of the Securities of any series issued pursuant to
the terms hereof;
(g)
to cure any
ambiguity or correct any inconsistency in this
Indenture;
(h)
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;
(i)
to qualify this
Indenture under the Trust Indenture Act;
(j)
to provide for
uncertificated securities in addition to certificated
securities;
(k)
to supplement any
provisions of this Indenture necessary to permit or facilitate the
defeasance and discharge of any series of Securities, provided that
such action does not adversely affect the interests of the Holders
of Securities of such series or any other series; and
(l)
to comply with the
rules or regulations of any securities exchange or automated
quotation system on which any of the Securities may be listed or
traded.
Section 9.02
With
Consent of Holders.
The
Company and the Trustee may enter into a supplemental indenture
with the written consent of the Holders of at least a majority in
principal amount of the outstanding Securities of each Series
affected by such supplemental indenture (including consents
obtained in connection with a tender offer or exchange offer for
the Securities of such Series), for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of each such
Series. Except as provided in Section 6.13, the Holders of at least
a majority in principal amount of the outstanding Securities of any
Series by notice to the Trustee (including consents obtained in
connection with a tender offer or exchange offer for the Securities
of such Series) may waive compliance by the Company with any
provision of this Indenture or the Securities with respect to such
Series. It shall not be necessary for the consent of the Holders of
Securities under this Section 9.02 to approve the particular form
of any proposed supplemental indenture or waiver, but it shall be
sufficient if such consent approves the substance thereof. After a
supplemental indenture or waiver under this section becomes
effective, the Company shall mail to the Holders of Securities
affected thereby and, if any Bearer Securities affected thereby are
outstanding, publish on one occasion in an Authorized Newspaper, a
notice briefly describing the supplemental indenture or waiver. Any
failure by the Company to mail or publish such notice, or any
defect therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture or waiver.
Section 9.03
Limitations.
Without
the consent of each Holder affected, an amendment or waiver may
not:
(a)
reduce the amount
of Securities whose Holders must consent to an amendment,
supplement or waiver;
(b)
reduce the rate of
or extend the time for payment of interest (including default
interest) on any Security;
(c)
reduce the
principal or change the Stated Maturity of any Security or reduce
the amount of, or postpone the date fixed for, the payment of any
sinking fund or analogous obligation;
(d)
reduce the
principal amount of Discount Securities payable upon acceleration
of the maturity thereof;
(e)
waive a Default or
Event of Default in the payment of the principal of or interest, if
any, on any Security (except a rescission of acceleration of the
Securities of any Series by the Holders of at least a majority in
principal amount of the outstanding Securities of such Series and a
waiver of the payment default that resulted from such
acceleration);
(f)
make the principal
of or interest, if any, on any Security payable in any currency
other than that stated in the Security;
(g)
make any change in
Sections 6.08, 6.13, or 9.03; or
(h)
waive a redemption
payment with respect to any Security.
Section 9.04
Compliance
with Trust Indenture Act.
Every
amendment to this Indenture or the Securities of one or more Series
shall be set forth in a supplemental indenture hereto that complies
with the TIA as then in effect.
Section 9.05
Revocation
and Effect of Consents.
Until
an amendment is set forth in a supplemental indenture or a waiver
becomes effective, a consent to it by a Holder of a Security is a
continuing consent by the Holder and every subsequent Holder of a
Security or portion of a Security that evidences the same debt as
the consenting Holder’s Security, even if notation of the
consent is not made on any Security. However, any such Holder or
subsequent Holder may revoke the consent as to his Security or
portion of a Security if the Trustee receives the notice of
revocation before the date of the supplemental indenture or the
date the waiver becomes effective. Any amendment or waiver once
effective shall bind every Holder of each Series affected by such
amendment or waiver unless it is of the type described in any of
clauses (a) through (h) of Section 9.03. In that case, the
amendment or waiver shall bind each Holder of a Security who has
consented to it and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the
consenting Holder’s Security.
Section 9.06
Notation
on or Exchange of Securities.
The
Trustee may place an appropriate notation about an amendment or
waiver on any Security of any Series thereafter authenticated. The
Company in exchange for Securities of that Series may issue and the
Trustee shall authenticate upon request new Securities of that
Series that reflect the amendment or waiver.
Section 9.07
Trustee
Protected.
In
executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, in addition to the documents
required by Section 10.04, and (subject to Section 7.01) shall be
fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee shall sign all
supplemental indentures, except that the Trustee need not sign any
supplemental indenture that adversely affects its
rights.
ARTICLE X
MISCELLANEOUS
Section 10.01
Trust
Indenture Act Controls.
If any
provision of this Indenture limits, qualifies or conflicts with
another provision which is required or deemed to be included in
this Indenture by the TIA, such required or deemed provision shall
control.
Section 10.02
Notices.
(a)
Any notice or
communication by the Company or the Trustee to the other, or by a
Holder to the Company or the Trustee, is duly given if in writing
and delivered in person or mailed by first-class mail or sent by
facsimile transmission addressed as follows:
if to
the Company:
Palatin
Technologies, Inc.
4B
Cedar Brook Drive
Cranbury, New
Jersey 08512
Attention: Chief
Counsel
Telephone: (609)
495-2200
Facsimile: (609)
495-2202
if to
the Trustee:
[
]
(b)
The Company or the
Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications. Any
notice or communication to a Holder shall be mailed by first-class
mail to his address shown on the register kept by the Registrar
and, if any Bearer Securities are outstanding, published in an
Authorized Newspaper. Failure to mail a notice or communication to
a Holder of any Series or any defect in it shall not affect its
sufficiency with respect to other Holders of that or any other
Series. If a notice or communication is mailed or published in the
manner provided above, within the time prescribed, it is duly
given, whether or not the Holder receives it. If the Company mails
a notice or communication to Holders, it shall mail a copy to the
Trustee and each Agent at the same time.
(c)
Any notice or
demand that by any provision of this Indenture is required or
permitted to be given or served by the Company may, at the
Company’s written request received by the Trustee not fewer
than five (5) Business Days prior (or such shorter period of time
as may be acceptable to the Trustee) to the date on which such
notice must be given or served, be given or served by the Trustee
in the name of and at the expense of the Company.
Section 10.03
Communication
by Holders with Other Holders.
Holders
of any Series may communicate pursuant to TIA Section 312(b) with
other Holders of that Series or any other Series with respect to
their rights under this Indenture or the Securities of that Series
or all Series. The Company, the Trustee, the Registrar and anyone
else shall have the protection of TIA Section 312(c).
Section 10.04
Certificate
and Opinion as to Conditions Precedent.
Upon
any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the
Trustee:
(a)
an Officers’
Certificate stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with;
and
(b)
an Opinion of
Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
Section 10.05
Statements
Required in Certificate or Opinion.
Each
certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than a
certificate provided pursuant to TIA Section 314(a)(4)) shall
comply with the provisions of TIA Section 314(e) and shall
include:
(a)
a statement that
the person making such certificate or opinion has read such
covenant or condition;
(b)
a brief statement
as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or
opinion are based;
(c)
a statement that,
in the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an informed
opinion as to whether or not such covenant or condition has been
complied with; and
(d)
a statement as to
whether or not, in the opinion of such person, such condition or
covenant has been complied with.
Section 10.06
Rules
by Trustee and Agents.
The
Trustee may make reasonable rules for action by or a meeting of
Holders of one or more Series. Any Agent may make reasonable rules
and set reasonable requirements for its functions.
Section 10.07
Legal
Holidays.
Unless
otherwise provided by Board Resolution, Officers’ Certificate
or supplemental indenture hereto for a particular Series, a
“Legal Holiday” is any day that is not a Business Day.
If a payment date is a Legal Holiday at a place of payment, payment
may be made at that place on the next succeeding day that is not a
Legal Holiday, and no interest shall accrue for the intervening
period.
Section 10.08
No
Recourse Against Others.
A
director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company
under the Securities or the Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. Each
Holder by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for
the issue of the Securities.
Section 10.09
Counterparts.
This
Indenture may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
Section 10.10
Governing
Laws.
This
Indenture and the Securities will be governed by, and construed in
accordance with, the internal laws of the State of New York,
without regard to conflict of law principles that would result in
the application of any law other than the laws of the State of New
York.
Section 10.11
No
Adverse Interpretation of Other Agreements.
This
Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary of the Company. Any
such indenture, loan or debt agreement may not be used to interpret
this Indenture.
Section 10.12
Successors.
All
agreements of the Company in this Indenture and the Securities
shall bind its successor. All agreements of the Trustee in this
Indenture shall bind its successor.
Section 10.13
Severability.
In
case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 10.14
Table
of Contents, Headings, Etc.
The
Table of Contents, Cross-Reference Table, and headings of the
Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or
provisions hereof.
Section 10.15
Securities
in a Foreign Currency.
Unless
otherwise specified in a Board Resolution, a supplemental indenture
hereto or an Officers’ Certificate delivered pursuant to
Section 2.02 of this Indenture with respect to a particular Series
of Securities, whenever for purposes of this Indenture any action
may be taken by the Holders of a specified percentage in aggregate
principal amount of Securities of all Series or all Series affected
by a particular action at the time outstanding and, at such time,
there are outstanding Securities of any Series which are
denominated in a coin or currency other than Dollars, then the
principal amount of Securities of such Series which shall be deemed
to be outstanding for the purpose of taking such action shall be
that amount of Dollars that could be obtained for such amount at
the Market Exchange Rate at such time. For purposes of this Section
10.15, “Market Exchange Rate” shall mean the noon
Dollar buying rate in New York City for cable transfers of that
currency as published by the Federal Reserve Bank of New York. If
such Market Exchange Rate is not available for any reason with
respect to such currency, the Trustee shall use, in its sole
discretion and without liability on its part, such quotation of the
Federal Reserve Bank of New York as of the most recent available
date, or quotations from one or more major banks in The City of New
York or in the country of issue of the currency in question or such
other quotations as the Trustee, upon consultation with the
Company, shall deem appropriate. The provisions of this paragraph
shall apply in determining the equivalent principal amount in
respect of Securities of a Series denominated in currency other
than Dollars in connection with any action taken by Holders of
Securities pursuant to the terms of this Indenture. All decisions
and determinations of the Trustee regarding the Market Exchange
Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence
of manifest error, to the extent permitted by law, be conclusive
for all purposes and irrevocably binding upon the Company and all
Holders.
Section 10.16
Judgment
Currency.
The
Company agrees, to the fullest extent that it may effectively do so
under applicable law, that (a) if for the purpose of obtaining
judgment in any court it is necessary to convert the sum due in
respect of the principal of or interest or other amount on the
Securities of any Series (the “
Required Currency
”) into a
currency in which a judgment will be rendered (the
“
Judgment
Currency
”), the rate of exchange used shall be the
rate at which in accordance with normal banking procedures the
Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the day on which final
unappealable judgment is entered, unless such day is not a New York
Banking Day, then the rate of exchange used shall be the rate at
which in accordance with normal banking procedures the Trustee
could purchase in The City of New York the Required Currency with
the Judgment Currency on the New York Banking Day preceding the day
on which final unappealable judgment is entered and (b) its
obligations under this Indenture to make payments in the Required
Currency (i) shall not be discharged or satisfied by any tender,
any recovery pursuant to any judgment (whether or not entered in
accordance with subsection (a)), in any currency other than the
Required Currency, except to the extent that such tender or
recovery shall result in the actual receipt, by the payee, of the
full amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be enforceable as an
alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which
such actual receipt shall fall short of the full amount of the
Required Currency so expressed to be payable and (iii) shall not be
affected by judgment being obtained for any other sum due under
this Indenture. For purposes of the foregoing, “New York
Banking Day” means any day except a Saturday, Sunday or a
legal holiday in The City of New York on which banking institutions
are authorized or required by law, regulation or executive order to
close.
ARTICLE XI
SINKING
FUNDS
Section 11.01
Applicability
of Article.
The
provisions of this Article shall be applicable to any sinking fund
for the retirement of the Securities of a Series, except as
otherwise permitted or required by any form of Security of such
Series issued pursuant to this Indenture. The minimum amount of any
sinking fund payment provided for by the terms of the Securities of
any Series is herein referred to as a “ mandatory sinking
fund payment “ and any other amount provided for by the terms
of Securities of such Series is herein referred to as an “
optional sinking fund payment .”If provided for by the terms
of Securities of any Series, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 11.02.
Each sinking fund payment shall be applied to the redemption of
Securities of any Series as provided for by the terms of the
Securities of such Series.
Section 11.02
Satisfaction
of Sinking Fund Payments with Securities.
The
Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of any Series to be made
pursuant to the terms of such Securities (1) deliver outstanding
Securities of such Series to which such sinking fund payment is
applicable (other than any of such Securities previously called for
mandatory sinking fund redemption) and (2) apply as credit
Securities of such Series to which such sinking fund payment is
applicable and which have been repurchased by the Company or
redeemed either at the election of the Company pursuant to the
terms of such Series of Securities (except pursuant to any
mandatory sinking fund) or through the application of permitted
optional sinking fund payments or other optional redemptions
pursuant to the terms of such Securities, provided that such
Securities have not been previously so credited. Such Securities
shall be received by the Trustee, together with an Officers’
Certificate with respect thereto, not later than 15 days prior to
the date on which the Trustee begins the process of selecting
Securities for redemption, and shall be credited for such purpose
by the Trustee at the price specified in such Securities for
redemption through operation of the sinking fund and the amount of
such sinking fund payment shall be reduced accordingly. If as a
result of the delivery or credit of Securities in lieu of cash
payments pursuant to this Section 11.02, the principal amount of
Securities of such Series to be redeemed in order to exhaust the
aforesaid cash payment shall be less than $100,000, the Trustee
need not call Securities of such Series for redemption, except upon
receipt of a Company Order that such action be taken, and such cash
payment shall be held by the Trustee or a Paying Agent and applied
to the next succeeding sinking fund payment, provided, however,
that the Trustee or such Paying Agent shall from time to time upon
receipt of a Company Order pay over and deliver to the Company any
cash payment so being held by the Trustee or such Paying Agent upon
delivery by the Company to the Trustee of Securities of that Series
purchased by the Company having an unpaid principal amount equal to
the cash payment required to be released to the
Company.
Section 11.03
Redemption
of Securities for Sinking Fund.
Not
less than 45 days (unless otherwise indicated in the Board
Resolution, supplemental indenture or Officers’ Certificate
in respect of a particular Series of Securities) prior to each
sinking fund payment date for any Series of Securities, the Company
will deliver to the Trustee an Officers’ Certificate
specifying the amount of the next ensuing mandatory sinking fund
payment for that Series pursuant to the terms of that Series, the
portion thereof if any, which is to be satisfied by payment of cash
and the portion thereof if any, which is to be satisfied by
delivering and crediting of Securities of that Series pursuant to
Section 11.02, and the optional amount, if any, to be added in cash
to the next ensuing mandatory sinking fund payment, and the Company
shall thereupon be obligated to pay the amount therein specified.
Not less than 30 days (unless otherwise indicated in the Board
Resolution, Officers’ Certificate or supplemental indenture
in respect of a particular Series of Securities) before each such
sinking fund payment date the Trustee shall select the Securities
to be redeemed upon such sinking fund payment date in the manner
specified in Section 3.02 and cause notice of the redemption
thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 3.03. Such notice having
been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 3.04, 3.05 and
3.06.
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed and attested, all as of the day and year first
above written.
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PALATIN
TECHNOLOGIES, INC.
By:___________________________________
Name:
Title:
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[ ], as
Trustee
By:___________________________________
Name:
Title:
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