As filed with the Securities and Exchange
Commission on July 30, 2021.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
KAIVAL BRANDS INNOVATIONS GROUP, INC.
(Exact Name of Registrant as Specified in Its
Charter)
Delaware
(State or Other Jurisdiction of
Incorporation or Organization)
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83-3492907
(I.R.S. Employer
Identification Number)
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4460 Old Dixie Highway
Grant, FL 32949
(833) 452-4825
(Address, Including Zip Code, and Telephone
Number, Including Area Code, of Registrant’s Principal Executive Offices)
Nirajkumar Patel
President and Chief Executive Officer
4460 Old Dixie Highway
Grant, FL 32949
(833) 452-4825
(Name, Address, Including Zip Code, and Telephone
Number, Including Area Code, of Agent for Service)
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Copies
to:
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Justin
W. Chairman
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, PA 19103
(215) 963-5000
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Approximate date of commencement of proposed
sale to the public:
From time to time after this registration
statement becomes effective.
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.
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Large accelerated filer ☐
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Accelerated filer ☐
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Non-accelerated filer ☒
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Smaller reporting company ☒
Emerging growth company ☒
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If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities
Act. ☐
CALCULATION
OF REGISTRATION FEE
Title of each Class of Securities
to be Registered
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Amount to be
Registered(1)
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Proposed Maximum
Offering Price Per
unit(1)(2)
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Proposed Maximum
Aggregate Offering
Price(1)(3)
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Amount of
Registration Fee(1)
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Common Stock, $0.001 par value per share(4)(10)
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—
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—
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—
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—
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Preferred Stock, $0.001 par value per share(5)(10)
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—
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—
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—
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—
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Warrants(6)(10)
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—
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—
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—
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—
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Debt Securities(7)(10)
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—
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—
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—
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—
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Rights to purchase common stock, preferred stock, debt securities or units(8)(10)
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—
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—
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—
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—
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Units(9)(10)
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—
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—
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—
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—
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TOTAL
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$
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200,000,000
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100
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%
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$
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200,000,000
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(11)
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$
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21,820
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(1)
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Not specified as to each class of securities to be registered pursuant to General Instruction II.D. to Form S-3.
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(2)
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The proposed maximum offering price per unit will be determined from time to time by the registrant in connection with the issuance by the registrant of the securities registered hereunder.
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(3)
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o).
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(4)
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Subject to note (11) below, there is being registered an indeterminate number of shares of common stock.
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(5)
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Subject to note (11) below, there is being registered an indeterminate number of shares of preferred stock.
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(6)
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Subject to note (11) below, there is being registered hereunder an indeterminate amount and number of warrants. The warrants may represent the right to purchase shares of common stock, shares of preferred stock or debt securities.
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(7)
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Subject to note (11) below, there is being registered an indeterminate principal amount of debt securities, excluding accrued interest and accrued amortization of discount, if any, to the date of delivery.
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(8)
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Subject to note (11) below, there is being registered an indeterminate number of rights that may represent a right to purchase shares of common stock, preferred shares, debt securities or units.
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(9)
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Subject to note (11) below, there is being registered an indeterminate number of units. Each unit will be issued under a unit agreement and will represent an interest in a combination of one or more of the securities registered hereunder.
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(10)
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Subject to note (11) below, this registration statement also covers an indeterminate amount of securities as may be issued in exchange for, or upon conversion or exercise of, as the case may be, the shares of preferred stock or warrants registered hereunder. Any securities registered hereunder may be sold separately or as units with other securities registered hereunder. No separate consideration will be received for any securities registered hereunder that are issued in exchange for, or upon conversion of, as the case may be, the shares of preferred stock or warrants.
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(11)
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In no event will the aggregate initial offering price of all securities issued from time to time pursuant to the prospectus contained in this registration statement exceed $200,000,000 or the equivalent thereof in one or more foreign currencies or foreign currency units. Such amount represents the offering price of any shares of common stock or shares of preferred stock, the principal amount of any debt securities issued at their stated principal amount, the issue price rather than the principal amount of any debt securities issued at an original issue discount, the issue price of any warrants, the exercise price of any securities issuable upon the exercise of warrants, and the issue price of any securities issuable upon the exercise of rights. If any debt securities are issued at an original issue discount, then the offering price of such debt securities shall be equal to any such greater principal amount due at maturity, such aggregate principal amount not to exceed $200,000,000 less the value of securities previously issued hereunder. Any offering of securities denominated other than in United States dollars will be treated as the equivalent of United States dollars based on the exchange rate applicable to the purchase of such securities at the time of initial offering. The securities registered hereunder may be sold separately or as units with other securities registered hereunder.
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The registrant hereby amends this registration
statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further
amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a)
of the Securities Act of 1933, as amended, or until this registration statement shall become effective on such date as the Securities
and Exchange Commission, acting pursuant to such 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 Securities and Exchange Commission
is effective. This prospectus is not an offer to sell these securities and is not soliciting an offer to buy these securities in
any state where the offer or sale is not permitted.
Subject to Completion, Dated
July 30, 2021
PROSPECTUS
[KAIVAL LOGO]
$200,000,000
KAIVAL BRANDS INNOVATIONS GROUP, INC.
Common Stock
Preferred Stock
Warrants
Debt Securities
Rights to Purchase Common Stock, Preferred
Stock,
Debt Securities or Units
Units
We may offer and sell from time to time our
shares of common stock, shares of preferred stock, warrants, debt securities and rights to purchase common stock, preferred stock,
debt securities or units, as well as units that include any of these securities. We may sell any combination of these securities
in one or more offerings with an aggregate offering price of up to $200,000,000.
This prospectus provides you with a general
description of the securities we may offer. Each time we offer securities pursuant to this prospectus, we will provide a prospectus
supplement containing specific terms of the particular offering together with this prospectus. You should read this prospectus
and the applicable prospectus supplement carefully before you invest in any securities. The prospectus supplement also may add,
update or change information contained in this prospectus. This prospectus may not be used to offer and sell securities unless
accompanied by the applicable prospectus supplement.
Our common stock is listed on the Nasdaq Capital
Market under the symbol “KAVL.” On July 29, 2021, the closing price of our common stock was $8.80.
Investing in our securities involves significant
risks. We strongly recommend that you read carefully the risks we describe in this prospectus and in any accompanying prospectus
supplement, as well as the risk factors that are incorporated by reference into this prospectus from our filings made with the
Securities and Exchange Commission. See “Risk Factors” on page 3 of this prospectus.
We may sell the securities directly or to or
through underwriters or dealers, and also to other purchasers or through agents. The names of any underwriters or agents that are
included in a sale of securities to you, and any applicable commissions or discounts, will be stated in an accompanying prospectus
supplement. In addition, the underwriters, if any, may over-allot a portion of the securities.
Neither the Securities and Exchange Commission
nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of
this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2021.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement
that we filed with the Securities and Exchange Commission (the “SEC”), using a “shelf” registration process.
Under this shelf registration process, we may offer and sell from time to time any combination of the securities described in this
prospectus in one or more offerings in amounts, at prices and on terms that we determine at the time of the offering, with an aggregate
offering price of up to $200,000,000. This prospectus provides you with a general description of the securities we may offer. Each
time we offer securities under this registration statement we will provide a prospectus supplement that describes the terms of
the relevant offering. The prospectus supplement also may add, update or change information contained in this prospectus. Before
making an investment decision, you should read carefully both this prospectus and any prospectus supplement together with the documents
incorporated by reference into this prospectus as described below under the heading “Information Incorporated by Reference.”
The registration statement that contains this
prospectus, including the exhibits to the registration statement and the information incorporated by reference, provides additional
information about us and our securities. That registration statement can be read at the SEC website (www.sec.gov), as discussed
below under the heading “Where You Can Find More Information.”
You should rely only on the information provided
in the registration statement, this prospectus and in any prospectus supplement, including the information incorporated by reference.
We have not authorized anyone to provide you with different information. You should not assume that the information in this prospectus
or any supplement to this prospectus is accurate at any date other than the date indicated on the cover page of these documents
or the filing date of any document incorporated by reference, regardless of its time of delivery. We are not making an offer to
sell the securities in any jurisdiction where the offer or sale is not permitted.
We may sell our securities to or through underwriters,
initial purchasers, dealers or agents, directly to purchasers or through a combination of any of these methods of sale, as designated
from time to time. We and our agents reserve the sole right to accept or reject in whole or in part any proposed purchase of our
securities. An applicable prospectus supplement, which we will provide each time we offer the securities, will set forth the names
of any underwriters, initial purchasers, dealers or agents involved in the sale of our securities, and any related fee, commission
or discount arrangements. See “Plan of Distribution.”
The terms “Kaival,” the “Company,”
“our,” “us” and “we,” as used in this prospectus, refer to Kaival Brands Innovations Group, Inc.,
unless we state otherwise or the context indicates otherwise.
KAIVAL BRANDS INNOVATIONS GROUP, INC.
We are focused on growing and incubating innovative
and profitable products into mature, dominant brands. In March 2020, we commenced business operations as a result of becoming the
exclusive distributor of certain electronic nicotine delivery systems and related components (the “Products”) manufactured
by Bidi Vapor, LLC (“Bidi”), a Florida limited liability company, and a related party company that is also owned by
Nirajkumar Patel, our President and Chief Executive Officer.
On March 9, 2020, we entered
into an exclusive distribution agreement with Bidi, which agreement was amended and restated on May 21, 2020 and again on April 20,
2021 (the “A&R Distribution Agreement”). Pursuant to the A&R Distribution Agreement, Bidi granted to us an
exclusive worldwide right to distribute the Products for sale and resale to both retail level customers and non-retail level
customers, and accordingly we sell and resell electronic nicotine delivery systems, which we may refer to
herein as “ENDS Products,” or “e-cigarettes,” to both retail level customers and non-retail level customers.
Our primary resold Product is the “Bidi Stick,” a disposable, tamper-resistant ENDS Product that comes in a variety of
flavor options. In addition to the Bidi Stick, we distribute of the “Bidi Pouch,” which provides a tobacco-free nicotine
formulation, containing natural fibers and a chew-base filler, in six different flavors. We do not manufacture any of the Products
we resell. The Bidi Stick and Bidi Pouch are manufactured by Bidi Pursuant to the terms of the A&R Distribution Agreement, Bidi
provides us with all branding, logos, and marketing materials to be utilized by us in connection with our marketing and promotion of
the Products.
Our principal executive offices are located
at 4460 Old Dixie Highway, Grant, FL 32949, and our telephone number is (833) 452-4825. Our website address is www.kaivalbrands.com.
The information contained on our website is not incorporated by reference into this prospectus, and you should not consider any
information contained on, or that can be accessed through, our website as part of this prospectus or in deciding whether to purchase
our common stock.
Our filings with the SEC are posted on our
website at www.kaivalbrands.com. The information found on our website is not part of this or any other report we file with or
furnish to the SEC. The public can also obtain copies of these filings by accessing the SEC’s website at www.sec.gov.
Recent Development
On July 20, 2021, we effected a 1-for-12 reverse
split (the “Reverse Stock Split”) of our shares of the shares of the Company’s common stock, par value $0.001
per share. No fractional shares were issued in connection with the Reverse Stock Split. Any fractional shares of common stock that
would have otherwise resulted from the Reverse Stock Split was rounded up to the nearest whole number. In connection with the Reverse
Stock Split, our board of directors approved appropriate and proportional adjustments to all outstanding securities or other rights
convertible or exercisable into shares of common stock, including, without limitation, all preferred stock, warrants, options and
other equity compensation rights. Share amounts set forth in this prospectus have been adjusted to reflect the Reverse Stock Split.
FORWARD-LOOKING STATEMENTS
From time to time, in reports filed with the
SEC (including this prospectus), in press releases and in other communications to stockholders or the investment community, we
may provide forward-looking statements concerning possible or anticipated future results of operations or business developments.
These statements are based on our management’s current expectations or predictions of future conditions, events or results
based on various assumptions and our management’s estimates of trends and economic factors in the markets in which we are
active, as well as our business plans. Words such as “expects,” “anticipates,” “intends,” “plans,”
“believes,” “seeks,” “estimates,” “projects,” “forecasts,” “may,”
“should,” and variations of such words and similar expressions are intended to identify such forward-looking statements.
The forward-looking statements may include, without limitation, statements regarding product development and commercialization,
product candidate potential, regulatory environment, sales and marketing strategies, capital resources or operating performance.
The forward-looking statements are subject to risks and uncertainties, which may cause results to differ materially from those
set forth in the statements. Forward-looking statements in this prospectus should be evaluated together with the many uncertainties
that affect our business and our market to better understand the risks and uncertainties inherent in our business and underlying
any forward-looking statements. Forward-looking statements are not guarantees of future performance, and actual results may differ
materially from those projected. The forward-looking statements are representative only as of the date of this prospectus and except
as required by law, we assume no responsibility to update any forward-looking statements, whether as a result of new information,
future events or otherwise.
You should read this prospectus and the documents
that we reference in this prospectus and have been filed as exhibits to the registration statement of which this prospectus is
a part completely and with the understanding that our actual future results may be materially different from what we expect. The
information contained in this prospectus is accurate only as of the date of this prospectus, regardless of the time of delivery
of this prospectus or any issuance or sale of our common shares. Except as required by law, we do not assume any obligation to
update any forward-looking statements.
RISK FACTORS
Investing in our securities involves risk. You
should carefully consider the specific risks discussed or incorporated by reference into the applicable prospectus supplement,
together with all the other information contained in the prospectus supplement or incorporated by reference into this prospectus
and the applicable prospectus supplement, including without limitation any that may be contained in our Annual Reports on Form
10-K and our Quarterly Reports on Form 10-Q. These risk factors may be amended, supplemented or superseded from time to time by
other reports we file with the SEC in the future or by a prospectus supplement relating to a particular offering of our securities.
These risks and uncertainties are not the only risks and uncertainties we face. Additional risks and uncertainties not presently
known to us, or that we currently view as immaterial, may also impair our business. If any of the risks or uncertainties described
in our SEC filings or any prospectus supplement or any additional risks and uncertainties actually occur, our business, financial
condition and results of operations could be materially and adversely affected. In that case, the trading price of our securities
could decline and you might lose all or part of your investment.
USE OF PROCEEDS
Unless otherwise indicated in the applicable
prospectus supplement, we will use the net proceeds from the sale of the securities offered hereby for general corporate purposes,
which include, but are not limited to, capital expenditures, additions to working capital, general and administrative
expenses or other corporate obligations. We may use a portion of the net proceeds to pay off outstanding indebtedness, if any,
and/or acquire or invest in businesses, products and technologies. We have not determined the amount of net proceeds to be used
specifically for such purposes. As a result, management will retain broad
discretion over the allocation of net proceeds.
DESCRIPTION OF CAPITAL STOCK
The following description is a general summary
of the terms of the shares of common stock or shares of preferred stock that we may issue, and gives effect to the Reverse Stock
Split. The description below and in any prospectus supplement does not include all of the terms of the shares of common stock or
shares of preferred stock and should be read together with our Amended and Restated Certificate of Incorporation and Bylaws, copies
of which have been filed previously with the SEC. For more information on how you can obtain copies of our Amended and Restated
Certificate of Incorporation and Bylaws, see “Where You Can Find More Information.”
Common Stock
General
Our Amended and Restated Certificate of
Incorporation provides the authority to issue 1,000,000,000 shares of common stock, par value $0.001 per share. At July 23, 2021,
there were 23,600,597 shares of common stock outstanding. Each share of our common stock has the same relative rights and is
identical in all respects to each other share of our common stock. The rights, preferences and privileges of holders of our common
stock are subject to the rights, preferences and privileges of the holders of shares of any series of preferred stock that we have
issued or may issue in the future.
Voting Rights
The holders of our common stock are entitled
to one vote per share on any matter to be voted upon by our stockholders. Our Amended and Restated Certificate of Incorporation
does not permit cumulative voting in connection with the election of directors.
Dividends
The holders of our common stock are entitled
to dividends, if any, when and as declared by our board of directors out of funds legally available therefore for distribution
to stockholders, subject to the holders of other classes of stock, if any, at the time outstanding having prior rights as to dividends,
if any.
Liquidation Rights
Upon any voluntary or involuntary liquidation,
dissolution, or winding up of our affairs, the holders of our common stock are entitled to share ratably in all assets remaining
after the payment of creditors, subject to any prior liquidation distribution rights of holders of other classes of stock, if any,
at the time outstanding.
Miscellaneous
Holders of our common stock have no preemptive,
conversion, redemption or sinking fund rights. The outstanding shares of our common stock are, and the shares of common stock to
be offered hereby when issued will be, validly issued, fully paid and non-assessable.
Nasdaq Listing
Our common stock is listed on the Nasdaq Capital
Market under the symbol “KAVL.”
Transfer Agent and Registrar
The transfer agent and registrar for our common
stock is Vstock Transfer, LLC whose address is 18 Lafayette Place, Woodmere, NY 11598.
Preferred Stock
General
Our Amended and Restated Certificate of Incorporation
authorizes the issuance of up to 5,000,000 shares of preferred stock, par value $0.001 per share. Of the 5,000,000 shares of preferred
stock authorized, our board of directors has previously designated 3,000,000 shares of preferred stock as Series A Convertible
Preferred Stock (the “Series A Preferred Stock”), of which 3,000,000 shares remain outstanding. The 2,000,000 shares
of preferred stock not designated as Series A Convertible Preferred Stock remain available for designation by our board of directors.
Accordingly, our board of directors is empowered, without stockholder approval, to issue preferred stock with dividend, liquidation,
conversion, voting or other rights that could adversely affect the voting power or other rights of the holders of common stock.
The issuance of preferred stock could have the effect of restricting dividends on the common stock, diluting the voting power of
the common stock, impairing the liquidation rights of the common stock, or delaying or preventing a change in control of the Company,
all without further action by the stockholders.
The description of the terms of a particular
series of preferred stock in the applicable prospectus supplement will not be complete. You should refer to the applicable certificate
of designation for complete information regarding a series of preferred stock. The prospectus supplement will also contain a description
of U.S. federal income tax consequences relating to the preferred stock, if material.
The terms of any particular series of preferred
stock will be described in the prospectus supplement relating to that particular series of preferred stock, including, where applicable:
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the series designation, stated value and liquidation preference of
such preferred stock and the number of shares offered;
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the offering price;
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the dividend rate or rates (or method of calculation), the date or
dates from which dividends shall accrue, and whether such dividends shall be cumulative or noncumulative and, if cumulative, the
dates from which dividends shall commence to cumulate;
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any redemption or sinking fund provisions;
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the amount that shares of such series shall be entitled to receive
in the event of our liquidation, dissolution or winding-up;
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the terms and conditions, if any, on which shares of such series shall be convertible or exchangeable for shares of our stock of any other class or classes, or other series of the same class;
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the voting rights, if any, of shares of such series in addition to those set forth under the caption entitled, “Voting Rights” below;
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the status as to reissuance or sale of shares of such series redeemed, purchased or otherwise reacquired, or surrendered to us on conversion or exchange;
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the conditions and restrictions, if any, on the payment of dividends or on the making of other distributions on, or the purchase, redemption or other acquisition by us, of our common stock or of any other class of our stock ranking junior to the shares of such series as to dividends or upon liquidation (including, but not limited to, at such times as there are arrearages in the payment of dividends or sinking fund installments);
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the conditions and restrictions, if any, on the creation of Company indebtedness, or on the issue of any additional stock ranking on a parity with or prior to the shares of such series as to dividends or upon liquidation; and
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any additional dividend, liquidation, redemption, sinking or retirement fund and other rights, preferences, privileges, limitations and restrictions of such preferred stock.
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If we issue shares of preferred stock under
this prospectus and any related prospectus supplement, the shares will be fully paid and non-assessable and will not have, or be
subject to, any preemptive or similar rights.
Series A Preferred Stock
Each share of Series A Preferred Stock is convertible
into 8.333 shares of common stock. The holders of the Series A Preferred Stock may convert their Series A Preferred Stock at
any time on or after November 1, 2023. Notwithstanding the foregoing, the holders of the Series A Preferred Stock may convert their
shares of Series A Preferred Stock prior to November 1, 2023 if a change of control (as provided for in the Certificate of Designation
of Preferences, Rights, and Limitations of the Series A Preferred Stock) or upon the occurrence of any other event as determined
and agreed to by the Company and the holders holding a majority of the issued and outstanding shares of Series A Preferred Stock.
The shares of common stock to be issued upon conversion will bear a restricted legend. The holders of the Series A Preferred Stock
do not have any voting rights nor any preferential dividend rights, and are entitled to receive dividends, if any, only if, when,
and as declared by our board of directors in its sole and absolute discretion. In the event the Company liquidates, dissolves,
or winds up, holders of the Series A Preferred Stock will have the right to receive an amount equal to $12.00 in the aggregate
for all issued and outstanding shares of Series A Preferred Stock (as adjusted for any stock dividends, combinations, splits, recapitalizations,
and the like with respect to such shares) (“Preference Value”). After the payment of the full applicable Preference
Value of the then issued and outstanding shares of the Series A Preferred Stock, the Company’s remaining assets legally available
for distribution, if any, will be distributed ratably to the holders of Common Stock.
Share and dollar amounts set forth in the foregoing paragraph have been adjusted to reflect the Reverse Stock Split.
Voting Rights
The General Corporation Law of Delaware provides
that the holders of preferred stock will have the right to vote separately as a class on any proposal involving fundamental changes
in the rights of holders of that preferred stock. This right is in addition to any voting rights that may be provided for in the
applicable certificate of designation.
Transfer Agent and Registrar
The transfer agent and registrar for any series
of preferred stock will be set forth in the applicable prospectus supplement.
Other
Our issuance of preferred stock could decrease
the amount of earnings and assets available for distribution to the holders of common stock or could adversely affect the rights
and powers, including voting rights, of the holders of common stock. The issuance of preferred stock could have the effect of decreasing
the market price of our common stock.
Delaware Law and Certain Amended and Restated Certificate
of Incorporation and Bylaws Provisions
Our Amended and Restated Certificate of Incorporation
and Bylaws contain provisions that could delay or prevent a change of control of our company or changes in our board of directors
that our stockholders might consider favorable. Some of these provisions:
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Authorize the issuance of preferred stock which can be created and issued by the board of directors without prior stockholder approval, with rights senior to those of our common stock;
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Prohibit our stockholders from filling board vacancies or calling special stockholder meetings; and
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Require any action instituted against our officers or directors in connection with their service to the Company to be brought in the state of Delaware.
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These and other provisions in our Amended and
Restated Certificate of Incorporation, Bylaws and Delaware law could make it more difficult for stockholders or potential acquirors
to obtain control of our board of directors or initiate actions that are opposed by our then-current board of directors, including
a merger, tender offer or proxy contest involving our company. This provision could have the effect of delaying or preventing a
change of control, whether or not it is desired by or beneficial to our stockholders. Any delay or prevention of a change of control
transaction or changes in our board of directors could cause the market price of our common stock to decline.
Indemnification
Our Amended and Restated Certificate of Incorporation
and our Bylaws contain provisions permitted under the General Corporation Law of Delaware relating to the liability of directors.
The provisions eliminate, to the extent legally permissible, a director’s liability for monetary damages for a breach of
fiduciary duty, except in circumstances involving wrongful acts, such as the breach of a director’s duty of loyalty or acts
or omissions that involve intentional misconduct or a knowing violation of law. The limitation of liability described above does
not alter the liability of our directors and officers under federal securities laws. Furthermore, our Amended and Restated Certificate
of Incorporation and our Bylaws contains provisions to indemnify our directors and officers to the fullest extent permitted by
the General Corporation Law of Delaware. These provisions do not limit or eliminate our right or the right of any stockholder of
ours to seek non-monetary relief, such as an injunction or rescission in the event of a breach by a director or an officer of his
or her duty of care to us. We believe that these provisions assist us in attracting and retaining qualified individuals to serve
as directors.
DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of shares
of our common stock, shares of our preferred stock or debt securities. The following description sets forth certain general terms
and provisions of the warrants that we may offer pursuant to this prospectus. The particular terms of the warrants and the extent,
if any, to which the general terms and provisions may apply to the warrants so offered will be described in the applicable prospectus
supplement.
Warrants may be issued independently or together
with other securities and may be attached to or separate from any offered securities. Each series of warrants will be issued under
a separate warrant agreement to be entered into between us and a bank or trust company, as warrant agent. The warrant agent will
act solely as our agent in connection with the warrants and will not have any obligation or relationship of agency or trust for
or with any holders or beneficial owners of warrants.
A copy of the forms of the warrant agreement
and the warrant certificate relating to any particular issue of warrants will be filed with the SEC each time we issue warrants,
and you should read those documents for provisions that may be important to you. For more information on how you can obtain copies
of the forms of the warrant agreement and the related warrant certificate, see “Where You Can Find More Information.”
Stock Warrants
The prospectus supplement relating to a particular
offering of warrants exercisable for shares of our common stock or shares of our preferred stock will describe the terms of the
common share warrants and preferred share warrants, including the following:
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the title of the warrants;
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the offering price for the warrants, if any;
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the aggregate number of the warrants;
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the designation and terms of the shares of common stock or shares of
preferred stock that may be purchased upon exercise of the warrants;
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the terms for changes or adjustments to the exercise price of the warrants;
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if applicable, the designation and terms of the securities that the
warrants are issued with and the number of warrants issued with each security;
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if applicable, the date from and after which the warrants and any securities issued with the warrants will be separately transferable;
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the number of shares of common stock or shares of preferred stock that may be purchased upon exercise of a warrant and the price at which the shares may be purchased upon exercise;
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the dates on which the right to exercise the warrants commence and expire;
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if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time;
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the currency or currency units in which the offering price, if any, and the exercise price are payable;
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if applicable, a discussion of material United States federal income tax considerations;
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anti-dilution provisions of the warrants, if any;
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redemption or call provisions, if any, applicable to the warrants;
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any additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants; and
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any other information we think is important about the warrants.
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Debt Warrants
The prospectus supplement relating to a particular
offering of warrants exercisable for debt securities will describe the terms of those warrants, including the following:
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the title of the warrants;
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the offering price for the warrants, if any;
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the aggregate number of the warrants;
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the designation and terms of the debt securities purchasable upon exercise
of the warrants;
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the terms for changes or adjustments to the exercise price of the warrants;
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if applicable, the designation and terms of the debt securities that
the warrants are issued with and the number of warrants issued with each debt security;
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if applicable, the date from and after which the warrants and any debt
securities issued with them will be separately transferable;
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the principal amount of debt securities that may be purchased upon
exercise of a warrant and the price at which the debt securities may be purchased upon exercise;
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the dates on which the right to exercise the warrants will commence
and expire;
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if applicable, the minimum or maximum amount of the warrants that may
be exercised at any one time;
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whether the warrants represented by the warrant certificates or debt
securities that may be issued upon exercise of the warrants will be issued in registered or bearer form;
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information relating to book-entry procedures, if any;
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the currency or currency units in which the offering price, if any,
and the exercise price are payable;
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if applicable, a discussion of material United States federal income
tax considerations;
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anti-dilution provisions of the warrants, if any;
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redemption or call provisions, if any, applicable to the warrants;
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any additional terms of the warrants, including terms, procedures and
limitations relating to the exchange and exercise of the warrants; and
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any other information we think is important about the warrants.
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Exercise of Warrants
Each warrant will entitle the holder of the
warrant to purchase at the exercise price set forth in the applicable prospectus supplement the number of shares of common stock,
shares of preferred stock or the principal amount of debt securities being offered. Holders may exercise warrants at any time up
to the close of business on the expiration date set forth in the applicable prospectus supplement. After the close of business
on the expiration date, unexercised warrants are void. Holders may exercise warrants as set forth in the prospectus supplement
relating to the warrants being offered.
Until a holder exercises the warrants to purchase
our shares of common stock, shares of preferred stock or debt securities, the holder will not have any rights as a holder of our
shares of common stock, shares of preferred stock or debt securities, as the case may be, by virtue of ownership of warrants.
DESCRIPTION OF DEBT SECURITIES
The following is a general description of the
terms of debt securities we may issue from time to time unless we provide otherwise in the applicable prospectus supplement. Particular
terms of any debt securities we offer will be described in the prospectus supplement relating to such debt securities.
As required by Federal law for all bonds and
notes of companies that are publicly offered, any debt securities we issue will be governed by a document called an “indenture,”
formd of which are filed as an exhibit to the registration statement of which this prospectus forms a part.
Because this section is a summary, it does not
describe every aspect of any debt securities we may issue or the indenture governing any such debt securities. Particular terms
of any debt securities we offer will be described in the prospectus supplement relating to such debt securities, and we urge you
to read the applicable executed indenture, which will be filed with the SEC at the time of any offering of debt securities, because
it, and not this description, will define the rights of holders of such debt securities.
A prospectus supplement will describe the particular
terms of any series of debt securities we may issue, including some or all of the following:
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the designation or title of the series of debt securities;
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the total principal amount of the series of debt securities, the denominations
in which the offered debt securities will be issued and whether the offering may be reopened for additional securities of that
series and on what terms;
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the percentage of the principal amount at which the series of debt
securities will be offered;
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the date or dates on which principal will be payable;
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the rate or rates (which may be either fixed or variable) and/or the
method of determining such rate or rates of interest, if any;
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the date or dates from which any interest will accrue, or the method
of determining such date or dates, and the date or dates on which any interest will be payable;
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the terms for redemption, extension or early repayment, if any;
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the currencies in which the series of debt securities are issued and
payable;
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whether the amount of payments of principal, interest or premium, if
any, on a series of debt securities will be determined with reference to an index, formula or other method and how these amounts
will be determined;
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the place or places of payment, transfer, conversion and/or exchange
of the debt securities;
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the provision for any sinking fund;
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any restrictive covenants;
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events of default;
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whether the series of debt securities are issuable in certificated
form;
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any provisions for legal defeasance or covenant defeasance;
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whether and under what circumstances we will pay additional amounts
in respect of any tax, assessment or governmental charge and, if so, whether we will have the option to redeem the debt securities
rather than pay the additional amounts (and the terms of this option);
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any provisions for convertibility or exchangeability of the debt securities
into or for any other securities;
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whether the debt securities are subject to subordination and the terms
of such subordination;
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any listing of the debt securities on any securities exchange;
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if applicable, a discussion of certain U.S. Federal income tax considerations,
including those related to original issue discount, if applicable; and
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any other material terms.
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The debt securities may be secured or unsecured
obligations. Unless the prospectus supplement states otherwise, principal, interest and premium, if any, will be paid by us in
immediately available funds.
DESCRIPTION OF RIGHTS
The following is a general description of the
terms of the rights we may issue from time to time unless we provide otherwise in the applicable prospectus supplement. Particular
terms of any rights we offer will be described in the prospectus supplement relating to such rights.
General
We may issue rights to purchase common stock,
preferred stock, debt securities or units. Rights may be issued independently or together with other securities and may or may
not be transferable by the person purchasing or receiving the rights. In connection with any rights offering to our stockholders,
we may enter into a standby underwriting, backstop or other arrangement with one or more underwriters or other persons pursuant
to which such underwriters or other persons would purchase any offered securities remaining unsubscribed for after such rights
offering. In connection with a rights offering to our stockholders, we would distribute certificates evidencing the rights and
a prospectus supplement to our stockholders on or about the record date that we set for receiving rights in such rights offering.
The applicable prospectus supplement will describe
the following terms of any rights we may issue, including some or all of the following:
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the title and aggregate number of the rights;
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the subscription price or a formula for the determination of the subscription
price for the rights and the currency or currencies in which the subscription price may be payable;
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if applicable, the designation and terms of the securities with which
the rights are issued and the number of rights issued with each such security or each principal amount of such security;
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the number or a formula for the determination of the number of the
rights issued to each stockholder;
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the extent to which the rights are transferable;
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in the case of rights to purchase debt securities, the principal amount
of debt securities purchasable upon exercise of one right;
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in the case of rights to purchase common stock or preferred stock,
the type of stock and number of shares of stock purchasable upon exercise of one right;
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the date on which the right to exercise the rights will commence, and
the date on which the rights will expire (subject to any extension);
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if applicable, the minimum or maximum amount of the rights that may
be exercised at any one time;
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the extent to which such rights include an over-subscription privilege with respect to unsubscribed securities;
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if applicable, the procedures for adjusting the subscription price and number of shares of common stock or preferred stock purchasable upon the exercise of each right upon the occurrence of certain events, including stock splits, reverse stock splits, combinations, subdivisions or reclassifications of common stock or preferred stock;
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the effect on the rights of any merger, consolidation, sale or other disposition of our business;
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the terms of any rights to redeem or call the rights;
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information with respect to book-entry procedures, if any;
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the terms of the securities issuable upon exercise of the rights;
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if applicable, the material terms of any standby underwriting, backstop or other purchase arrangement that we may enter into in connection with the rights offering;
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if applicable, a discussion of certain U.S. Federal income tax considerations; and
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any other terms of the rights, including terms, procedures and limitations relating to the exchange and exercise of the rights.
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Exercise of Rights
Each right will entitle the holder to purchase
for cash or other consideration such shares of stock or principal amount of securities at the subscription price as shall in each
case be set forth in, or be determinable as set forth in, the prospectus supplement relating to the rights offered thereby. Rights
may be exercised as set forth in the applicable prospectus supplement beginning on the date specified therein and continuing until
the close of business on the expiration date set forth in the prospectus supplement relating to the rights offered thereby. After
the close of business on the expiration date, unexercised rights will become void.
Upon receipt of payment and a subscription certificate
properly completed and duly executed at the corporate trust office of the subscription agent or any other office indicated in the
prospectus supplement, we will, as soon as practicable, forward the securities purchasable upon such exercise. If less than all
of the rights represented by such subscription certificate are exercised, a new subscription certificate will be issued for the
remaining rights. If we so indicate in the applicable prospectus supplement, holders of the rights may surrender securities as
all or part of the exercise price for rights.
We may determine to offer any unsubscribed offered
securities directly to stockholders, persons other than stockholders, to or through agents, underwriters or dealers or through
a combination of such methods, including pursuant to standby underwriting, backstop or other arrangements, as set forth in the
applicable prospectus supplement.
Prior to exercising their rights, holders of
rights will not have any of the rights of holders of the securities purchasable upon subscription, including, in the case of rights
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 any voting rights or, in the case of rights to purchase debt securities, the right to receive principal,
premium, if any, or interest payments, on the debt securities purchasable upon exercise or to enforce covenants in the applicable
indenture.
DESCRIPTION OF UNITS
We may issue units comprising one or more securities
described in this prospectus in any combination. The following description sets forth certain general terms and provisions of the
units that we may offer pursuant to this prospectus. The particular terms of the units and the extent, if any, to which the general
terms and provisions may apply to the units so offered will be described in the applicable prospectus supplement.
Each unit will be issued so that the holder
of the unit also is the holder of each security included in the unit. Thus, the unit will have the rights and obligations of a
holder of each included security. Units will be issued pursuant to the terms of a unit agreement, which may provide that the securities
included in the unit may not be held or transferred separately at any time or at any time before a specified date. A copy of the
forms of the unit agreement and the unit certificate relating to any particular issue of units will be filed with the SEC each
time we issue units, and you should read those documents for provisions that may be important to you. For more information on how
you can obtain copies of the forms of the unit agreement and the related unit certificate, see “Where You Can Find More Information.”
The prospectus supplement relating to any particular
issuance of units will describe the terms of those units, including, to the extent applicable, the following:
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the designation and terms of the units and the securities comprising
the units, including whether and under what circumstances those securities may be held or transferred separately;
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any provision for the issuance, payment, settlement, transfer or exchange
of the units or of the securities comprising the units; and
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whether the units will be issued in fully registered or global form.
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PLAN OF DISTRIBUTION
We may sell the securities offered by this prospectus
in any one or more of the following ways from time to time:
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to or through one or more underwriters, initial purchasers, brokers or dealers;
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through agents to investors or the public;
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in short or long transactions;
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through put or call option transactions relating to our common stock;
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directly to agents or other purchasers;
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in “at the market offerings” within the meaning of Rule 415(a)(4) of the Securities Act of 1933, as amended, or the Securities Act, to or through a market maker or into an existing trading market, on an exchange or otherwise;
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though a combination of any such methods of sale; or
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through any other method described in the applicable prospectus supplement.
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The applicable prospectus supplement will set
forth the terms of the offering and the method of distribution and will identify any firms acting as underwriters, initial purchasers,
dealers or agents in connection with the offering, including:
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the terms of the offering;
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the names of any underwriters, dealers or agents;
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the name or names of any managing underwriter or underwriters;
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the purchase price of the securities and the proceeds to us from the
sale;
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any over-allotment options under which the underwriters may purchase
additional shares of common stock from us;
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any underwriting discounts, concessions, commissions or agency fees
and other items constituting compensation to underwriters, dealers or agents;
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any delayed delivery arrangements;
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any public offering price;
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any discounts or concessions allowed or re-allowed or paid by underwriters
or dealers to other dealers; or
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any securities exchange or market on which the common stock offered
in the prospectus supplement may be listed.
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If we use underwriters for a sale of securities,
the underwriters will acquire the securities for their own account for resale to the public, either on a firm commitment basis
or a best efforts basis. The underwriters may resell the securities in one or more transactions, including negotiated transactions,
at a fixed public offering price or at varying prices determined at the time of sale. Underwriters may offer the securities to
the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more firms
acting as underwriters. If an underwriter or underwriters are used in the sale of securities hereunder, an underwriting agreement
will be executed with the underwriter or underwriters at the time an agreement for sale is reached. Unless we inform you otherwise
in the applicable prospectus supplement, the obligations of the underwriters to purchase the securities will be subject to certain
conditions. We may change from time to time any public offering price and any discounts or concessions the underwriters allow or
pay to dealers.
During and after an offering through underwriters,
the underwriters may purchase and sell the securities in the open market. These transactions may include overallotment and stabilizing
transactions and purchases to cover syndicate short positions created in connection with the offering. The underwriters may also
impose a penalty bid, which means that selling concessions allowed to syndicate members or other broker-dealers for the offered
securities sold for their account may be reclaimed by the syndicate if the offered securities are repurchased by the syndicate
in stabilizing or covering transactions. These activities may stabilize, maintain or otherwise affect the market price of the offered
securities, which may be higher than the price that might otherwise prevail in the open market. If commenced, the underwriters
may discontinue these activities at any time.
Some or all of the securities that we offer
though this prospectus may be new issues of securities with no established trading market. Any underwriters to whom we sell our
securities for public offering and sale may make a market in those securities, but they will not be obligated to do so and they
may discontinue any market making at any time without notice. Accordingly, we cannot assure you of the liquidity of, or continued
trading markets for, any securities that we offer.
If dealers are used for the sale of securities,
we, or an underwriter, will sell the securities to them as principals. The dealers may then resell those securities to the public
at varying prices determined by the dealers at the time of resale. We will include in the applicable prospectus supplement the
names of the dealers and the terms of the transaction.
We may also sell the securities through agents
designated from time to time. In the applicable prospectus supplement, we will name any agent involved in the offer or sale of
the offered securities, and we will describe any commissions payable to the agent. Unless we inform you otherwise in the applicable
prospectus supplement, any agent will agree to use its reasonable best efforts to solicit purchases for the period of its appointment.
We may sell the securities directly in transactions
not involving underwriters, dealers or agents.
We may sell the securities directly to institutional
investors or others who may be deemed to be underwriters within the meaning of the Securities Act with respect to any sale of those
securities. We will describe the terms of any such sales in the prospectus supplement.
Underwriters, dealers and agents that participate
in the distribution of the securities may be underwriters as defined in the applicable securities laws and any discounts or commissions
they receive from us and any profit on their resale of the securities may be treated as underwriting discounts and commissions
under the applicable securities laws. We will identify in the applicable prospectus supplement any underwriters, dealers or agents
and will describe their compensation. We may have agreements with the underwriters, dealers and agents to indemnify them against
specified civil liabilities, including liabilities under the applicable securities laws.
Underwriters, dealers and agents may engage
in transactions with or perform services for us in the ordinary course of their businesses for which they may receive customary
fees and reimbursement of expenses.
We may use underwriters with whom we have a
material relationship. We will describe the nature of such relationship in the applicable prospectus supplement.
Under the securities laws of some states, the
securities offered by this prospectus may be sold in those states only through registered or licensed brokers or dealers.
We may enter into hedging transactions with
broker-dealers and the broker-dealers may engage in short sales of the securities in the course of hedging the positions they assume
with us, including, without limitation, in connection with distributions of the securities by those broker-dealers. We may enter
into option or other transactions with broker-dealers that involve the delivery of the securities offered hereby to the broker-dealers,
who may then resell or otherwise transfer those securities. We may also loan or pledge the securities offered hereby to a broker-dealer
and the broker-dealer may sell the securities offered hereby so loaned or upon a default may sell or otherwise transfer the pledged
securities offered hereby.
LEGAL MATTERS
The validity of the securities being offered
hereby will be passed upon for us by Morgan, Lewis & Bockius LLP.
EXPERTS
MaloneBailey, LLP, independent registered public
accounting firm, has audited our consolidated financial statements included in our Annual Report on Form 10-K for the year
ended October 31, 2020, as set forth in their report, which is incorporated by reference in this prospectus and elsewhere in
the registration statement. Our consolidated financial statements are incorporated by reference in reliance on MaloneBailey,
LLP’s report, given on their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports,
proxy statements and other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC’s
website at http://www.sec.gov. Copies of certain information filed by us with the SEC are also available on our website at www.kaivalbrands.com.
Our website is not a part of this prospectus and is not incorporated by reference in this prospectus.
INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to “incorporate by reference”
into this prospectus the information contained in documents that we file with them, which means that we can disclose important
information to you by referring you to those documents. The information incorporated by reference is considered to be part of this
prospectus. Information in this prospectus supersedes information incorporated by reference that we filed with the SEC before the
date of this prospectus, while information that we file later with the SEC will automatically update and supersede prior information.
Any information so updated and superseded shall not be deemed, except as so updated and superseded, to constitute a part of this
prospectus. We incorporate by reference the documents listed below and any future filings we will make with the SEC under Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, or the Exchange Act, prior to the termination of the offering.
Notwithstanding the foregoing, unless specifically stated to the contrary, none of the information that is not deemed “filed”
with the SEC, including information furnished under Items 2.02 or 7.01 of any Current Report on Form 8-K, will be incorporated
by reference into, or otherwise included in, this prospectus:
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|
●
|
our Annual Report on Form 10-K for the
fiscal year ended October 31, 2020 filed with the SEC on February 12, 2021;
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|
|
|
|
|
|
●
|
our Quarterly Reports on Form 10-Q for the fiscal quarters ended January
31, 2021 and April 30, 3031, filed with the SEC on March 16, 2021 and June 21, 2021, respectively;
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|
|
|
|
|
|
●
|
our Current Reports on Form 8-K filed with
the SEC on January 12, 2021, January 15, 2021, March 18, 2021, April 21, 2021 (Item 1.01 and Exhibit 10.1 only), May 10, 2021,
May 12, 2021, July 1, 2021 (Item 1.01 and Exhibits 10.1 and 10.2 only), July 20, 2021 (Items 3.03 and 5.03 and Exhibit 3.1
only) and July 23, 2021; and
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|
|
|
|
|
|
●
|
the description of our common stock, par
value $0.001 per share, contained in our Registration Statement on Form 8-A filed with the SEC on July 20, 2021, to register such
securities under the Exchange Act, including any amendments filed for the purpose of updating such information.
|
We make available, free of charge, through our
website our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and amendments
to those reports filed or furnished pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act as soon as reasonably
practicable after we electronically file such material with, or furnish it to, the SEC. You may also obtain, free of charge, a
copy of any of these documents (other than exhibits to these documents unless the exhibits are specifically incorporated by reference
into these documents or referred to in this prospectus) by writing or calling us at the following address and telephone number:
Kaival Brands Innovations Group, Inc.
4460 Old Dixie Highway
Grant, Florida 32949
(833) 452-4825
DISCLOSURE OF COMMISSION’S POSITION
ON INDEMNIFICATION
FOR SECURITIES ACT LIABILITY
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons controlling the Company pursuant to the foregoing provisions,
we have been informed that in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities
being registered, we will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such indemnification by us is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
$200,000,000
[KAIVAL LOGO]
Common Stock
Preferred Stock
Warrants
Debt Securities
Rights to Purchase Common Stock, Preferred
Stock, Debt Securities or Units
Units
PROSPECTUS
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the estimated
expenses in connection with the issuance and distribution of an amount of up to $200,000,000 of shares of our common stock registered
under this registration statement, other than any underwriting discounts and commissions. All amounts, except the SEC registration
fee, are estimates.
|
SEC registration fee
|
|
$
|
21,820
|
|
|
Legal fees and expenses
|
|
|
(1
|
)
|
|
Accounting fees and expenses
|
|
|
(1
|
)
|
|
Transfer agent and registrar fees and expenses
|
|
|
(1
|
)
|
|
Stock exchange listing fees
|
|
|
(1
|
)
|
|
Trustee fees and expenses
|
|
|
(1
|
)
|
|
Printing, FINRA filing fee (if applicable) and miscellaneous expenses
|
|
|
(1
|
)
|
|
Total
|
|
|
(1
|
)
|
|
|
(1)
|
These fees will be dependent on the number and amount of offerings under this registration statement and, therefore, cannot be estimated at this time. In accordance with Rule 430B, additional information regarding estimated fees and expenses will be provided at the time information as to an offering is included in a prospectus supplement.
|
Item 15. Indemnification of Directors and Officers
As permitted by the Delaware General Corporation
Law, we have adopted provisions in our Amended and Restated Certificate of Incorporation and Bylaws that limit or eliminate the
personal liability of our directors. Consequently, a director will not be personally liable to us or our stockholders for monetary
damages for breach of fiduciary duty as a director, except for liability for:
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|
●
|
any breach of the director’s duty of loyalty to us or our stockholders;
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|
|
|
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●
|
any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;
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|
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●
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any unlawful payments related to dividends or unlawful stock repurchases, redemptions or other distributions; or
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|
|
|
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|
|
●
|
any transaction from which the director derived an improper personal benefit.
|
These limitations of liability do not alter
director liability under the federal securities laws and do not affect the availability of equitable remedies such as an injunction
or rescission.
In addition, our Amended and Restated Bylaws
provide that:
|
|
●
|
we will indemnify our directors, officers and, in the discretion of our board of directors, certain employees to the fullest
extent permitted by the Delaware General Corporation Law; and
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|
|
|
|
|
|
●
|
advance expenses, including attorneys’ fees, to our directors and, in the discretion of our board of directors, to our
officers and certain employees, in connection with legal proceedings, subject to limited exceptions.
|
We also maintain general liability insurance
to provide insurance coverage to our directors and officers for losses arising out of claims based on acts or omissions in their
capacities as directors or officers, including liabilities under the Securities Act. Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers, or persons controlling the registrant pursuant to the
foregoing provisions, we have been informed that in the opinion of the SEC such indemnification is against public policy as expressed
in the Securities Act and is therefore unenforceable.
These provisions may discourage stockholders
from bringing a lawsuit against our directors in the future for any breach of their fiduciary duty. These provisions may also have
the effect of reducing the likelihood of derivative litigation against directors and officers, even though such an action, if successful,
might otherwise benefit us and our stockholders. Furthermore, a stockholder’s investment may be adversely affected to the
extent we pay the costs of settlement and damage awards against directors, officers and certain employees pursuant to these indemnification
provisions. We believe that these provisions, the indemnification agreements and the insurance are necessary to attract and retain
talented and experienced directors and officers.
At present, there is no pending litigation or
proceeding involving any of our directors, officers or employees in which indemnification will be required or permitted. We are
not aware of any threatened litigation or proceeding that might result in a claim for such indemnification.
Item 16. Exhibits
The following documents are filed as exhibits
to this registration statement, including those exhibits incorporated herein by reference to one of our prior filing under the
Securities Act or the Exchange Act as indicated in parentheses:
Exhibit
Number
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|
Document
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|
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|
1.1*
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|
Form of underwriting agreement.
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|
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3.1
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|
Amended and Restated Certificate of Incorporation (incorporated by reference
to Exhibit 3.1 to Kaival Brands Innovations Group, Inc.’s Registration Statement on Form 10-12G filed with the Securities
and Exchange Commission on March 25, 2019).
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|
|
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|
3.2
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|
Bylaws (incorporated by reference to Exhibit 3.2 to Kaival Brands
Innovations Group, Inc.’s Registration Statement on Form 10-12G filed with the Securities and Exchange Commission on February
19, 2019).
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|
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|
3.3
|
|
Certificate of Designation of the Preferences, Rights, and Limitations
of the Series A Preferred Stock, as filed with the Secretary of State of the State of Delaware on August 19, 2020 (incorporated
by reference to Exhibit 3.1 to Kaival Brands Innovations Group, Inc.’s Current Report on Form 8-K filed with the Securities
and Exchange Commission on August 21, 2020).
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|
|
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4.1*
|
|
Form of certificate of designation with respect to any preferred stock
issued hereunder and the related form of preferred stock certificate.
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|
|
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|
4.2*
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|
Form of warrant agreement.
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|
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4.3*
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|
Form of warrant certificate.
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|
4.4
|
|
Form of senior indenture.
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4.5
|
|
Form of subordinated indenture.
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|
*
|
To be filed by amendment or as an exhibit to a document filed under the Securities Exchange Act of 1934, as amended, and incorporated
by reference herein.
|
|
|
**
|
To be filed separately pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939, as amended, and the appropriate
rules and regulations thereunder.
|
Item 17. Undertakings
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;
(ii) To reflect in the prospectus
any facts or events arising after the effective date of this 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 and of the estimated maximum
offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth
in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information
with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such
information in this registration statement;
provided,
however, that paragraphs (1)(i), (1)(ii) and (1)(iii) above do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement,
or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining
any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration
by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining
liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the
registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus
was deemed part of and included in the registration statement; and
(ii) Each prospectus required to
be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating
to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required
by section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after effectiveness or date of the first 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 the 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 this registration statement or made in a document incorporated or deemed incorporated by
reference into this registration statement or prospectus that is a part of this registration statement will, as to a purchaser
with a time of contract sale prior to such effective date, supersede or modify any statement that was made in this registration
statement or prospectus that was a part of this registration statement or made in any such document immediately prior to such effective
date.
(5) That, for the purpose of determining
liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, in
a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting
method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of
the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell
such securities to such purchaser:
(i) Any preliminary prospectus or
prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus
relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free
writing prospectus relating to the offering containing material information about the undersigned registrant or its securities
provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that
is an offer in the offering made by the undersigned registrant to the purchaser.
(6) That, for purposes of determining
any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d)
of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d)
of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(7) If and when applicable, 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 Act.
Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid
by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is
asserted against the registrant 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 of whether such indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Grant, State of Florida on July 30, 2021.
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KAIVAL BRANDS INNOVATIONS GROUP,
INC.
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By:
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/s/ Nirajkumar Patel
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Nirajkumar Patel
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President and Chief Executive Officer
|
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each
person whose signature appears below constitutes and appoints Nirajkumar Patel, Eric Mosser and Mark Thoenes, and each of them,
as his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration
statement and sign any registration statement for the same offering covered by the registration statement that is to be effective
upon filing pursuant to Rule 462 promulgated under the Securities Act of 1933, as amended, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite
and necessary to be done in connection therewith and about the premises, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates
indicated.
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Signature
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Title
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|
Date
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|
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/s/ Nirajkumar Patel
|
|
President, Chief Executive Officer and
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|
July 30, 2021
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Nirajkumar Patel
|
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Director (Principal Executive Officer)
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|
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|
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/s/ Mark Thoenes
|
|
Interim Chief Financial Officer (Principal
|
|
July 30, 2021
|
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Mark Thoenes
|
|
Financial and Accounting Officer)
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/s/ Eric Mosser
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Chief Operating Officer and Director
|
|
July 30, 2021
|
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Eric Mosser
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/s/ Roger Brooks
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|
Director
|
|
July 30, 2021
|
|
Roger Brooks
|
|
|
|
|
|
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|
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|
|
|
/s/ George Chuang
|
|
Director
|
|
July 30, 2021
|
|
George Chuang
|
|
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/s/ Paul Reuter
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Director
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July 30, 2021
|
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Paul Reuter
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II-7
Exhibit 4.4
KAIVAL BRANDS INNOVATIONS GROUP, INC.,
ISSUER
AND
[TRUSTEE],
TRUSTEE
INDENTURE
DATED AS OF , 20
SENIOR DEBT SECURITIES
TABLE OF CONTENTS
|
|
|
Page
|
|
ARTICLE I DEFINITIONS
|
1
|
|
|
Section 1.01 Definitions of Terms
|
1
|
|
ARTICLE II ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
|
4
|
|
|
Section 2.01 Designation and Terms of Securities
|
4
|
|
|
Section 2.02 Form of Securities and Trustee’s Certificate
|
6
|
|
|
Section 2.03 Denominations: Provisions for Payment
|
6
|
|
|
Section 2.04 Execution and Authentications
|
7
|
|
|
Section 2.05 Registration of Transfer and Exchange
|
7
|
|
|
Section 2.06 Temporary Securities
|
8
|
|
|
Section 2.07 Mutilated, Destroyed, Lost or Stolen Securities
|
9
|
|
|
Section 2.08 Cancellation
|
9
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|
|
Section 2.09 Benefits of Indenture
|
9
|
|
|
Section 2.10 Authenticating Agent
|
10
|
|
|
Section 2.11 Global Securities
|
10
|
|
ARTICLE III REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
|
11
|
|
|
Section 3.01 Redemption
|
11
|
|
|
Section 3.02 Notice of Redemption
|
11
|
|
|
Section 3.03 Payment Upon Redemption
|
12
|
|
|
Section 3.04 Sinking Fund
|
12
|
|
|
Section 3.05 Satisfaction of Sinking Fund Payments with Securities
|
12
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|
Section 3.06 Redemption of Securities for Sinking Fund
|
12
|
|
ARTICLE IV COVENANTS
|
13
|
|
|
Section 4.01 Payment of Principal, Premium and Interest
|
13
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|
|
Section 4.02 Maintenance of Office or Agency
|
13
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|
Section 4.03 Paying Agents
|
13
|
|
|
Section 4.04 Appointment to Fill Vacancy in Office of Trustee
|
14
|
|
|
Section 4.05 Compliance with Consolidation Provisions
|
14
|
|
ARTICLE V SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
|
14
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|
|
Section 5.01 Company to Furnish Trustee Names and Addresses of Securityholders
|
14
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|
|
Section 5.02 Preservation Of Information; Communications With Securityholders
|
14
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|
|
Section 5.03 Reports by the Company
|
15
|
|
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Section 5.04 Reports by the Trustee
|
15
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ARTICLE VI REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
|
15
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|
|
Section 6.01 Events of Default
|
15
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|
|
Section 6.02 Collection of Indebtedness and Suits for Enforcement by Trustee
|
17
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|
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Section 6.03 Application of Moneys Collected
|
18
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Section 6.04 Limitation on Suits
|
18
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Section 6.05 Rights and Remedies Cumulative; Delay or Omission Not Waiver
|
19
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Section 6.06 Control by Securityholders
|
19
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|
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Section 6.07 Undertaking to Pay Costs
|
19
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|
ARTICLE VII CONCERNING THE TRUSTEE
|
20
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Section 7.01 Certain Duties and Responsibilities of Trustee
|
20
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Section 7.02 Certain Rights of Trustee
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20
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Section 7.03 Trustee Not Responsible for Recitals or Issuance or Securities
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21
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Section 7.04 May Hold Securities
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22
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Section 7.05 Moneys Held in Trust
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22
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Section 7.06 Compensation and Reimbursement
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22
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Section 7.07 Reliance on Officer’s Certificate
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22
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Section 7.08 Disqualification; Conflicting Interests
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22
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Section 7.09 Corporate Trustee Required; Eligibility
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23
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Section 7.10 Resignation and Removal; Appointment of Successor
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23
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Section 7.11 Acceptance of Appointment By Successor
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24
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Section 7.12 Merger, Conversion, Consolidation or Succession to Business
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25
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Section 7.13 Preferential Collection of Claims Against the Company
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25
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Section 7.14 Notice of Default
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25
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ARTICLE VIII CONCERNING THE SECURITYHOLDERS
|
25
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Section 8.01 Evidence of Action by Securityholders
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25
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Section 8.02 Proof of Execution by Securityholders
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26
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Section 8.03 Who May be Deemed Owners
|
26
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Section 8.04 Certain Securities Owned by Company Disregarded
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26
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Section 8.05 Actions Binding on Future Securityholders
|
26
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ARTICLE IX SUPPLEMENTAL INDENTURES
|
27
|
|
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Section 9.01 Supplemental Indentures Without the Consent of Securityholders
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27
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Section 9.02 Supplemental Indentures With Consent of Securityholders
|
28
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Section 9.03 Effect of Supplemental Indentures
|
28
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Section 9.04 Securities Affected by Supplemental Indentures
|
28
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Section 9.05 Execution of Supplemental Indentures
|
28
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ARTICLE X SUCCESSOR ENTITY
|
29
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Section 10.01 Company May Consolidate, Etc.
|
29
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Section 10.02 Successor Entity Substituted
|
29
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Section 10.03 Evidence of Consolidation, Etc.
|
30
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ARTICLE XI SATISFACTION AND DISCHARGE
|
30
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Section 11.01 Satisfaction and Discharge of Indenture
|
30
|
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Section 11.02 Discharge of Obligations
|
30
|
|
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Section 11.03 Deposited Moneys to be Held in Trust
|
30
|
|
|
Section 11.04 Payment of Moneys Held by Paying Agents
|
31
|
|
|
Section 11.05 Repayment to Company
|
31
|
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ARTICLE XII IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
|
31
|
|
|
Section 12.01 No Recourse
|
31
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ARTICLE XIII MISCELLANEOUS PROVISIONS
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Section 13.01 Effect on Successors and Assigns
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Section 13.02 Actions by Successor
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Section 13.03 Surrender of Company Powers
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Section 13.04 Notices
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Section 13.05 Governing Law
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Section 13.06 Treatment of Securities as Debt
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Section 13.07 Certificates and Opinions as to Conditions Precedent
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Section 13.08 Payments on Business Days
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Section 13.09 Conflict with Trust Indenture Act
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Section 13.10 Counterparts
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Section 13.11 Separability
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Section 13.12 Compliance Certificates
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INDENTURE
INDENTURE, dated as of [●], 20[●], among
Kaival Brands Innovations Group, Inc., a Delaware corporation (the “Company”), and [TRUSTEE], as trustee (the
“Trustee”):
WHEREAS, for its lawful corporate purposes,
the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance of debt securities (hereinafter
referred to as the “Securities”), in an unlimited aggregate principal amount to be issued from time to time in one or
more series as in this Indenture provided, as registered Securities without coupons, to be authenticated by the certificate of
the Trustee;
WHEREAS, to provide the terms and conditions
upon which the Securities are to be authenticated, issued and delivered, the Company has duly authorized the execution of this
Indenture; and
WHEREAS, all things necessary to make this
Indenture a valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises
and the purchase of the Securities by the holders thereof, it is mutually covenanted and agreed as follows for the equal and ratable
benefit of the holders of Securities:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions of Terms.
The terms defined in this Section (except as
in this Indenture or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires) for
all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section
and shall include the plural as well as the singular. All other terms used in this Indenture that are defined in the Trust Indenture
Act of 1939, as amended, or that are by reference in such Act defined in the Securities Act of 1933, as amended (except as herein
or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires), shall have the meanings
assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of the execution of this
instrument.
“Authenticating Agent” means an authenticating
agent with respect to all or any of the series of Securities appointed by the Trustee pursuant to Section 2.10.
“Bankruptcy Law” means Title 11,
U.S. Code, or any similar federal or state law for the relief of debtors.
“Board of Directors” means the Board
of Directors of the Company or any duly authorized committee of such Board.
“Board Resolution” means a copy of
a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of such certification.
“Business Day” means, with respect
to any series of Securities, any day other than a day on which federal or state banking institutions in the Borough of Manhattan,
the City of New York, or in the city of the Corporate Trust Office of the Trustee, are authorized or obligated by law, executive
order or regulation to close.
“Certificate” means a certificate
signed by any Officer. The Certificate need not comply with the provisions of Section 13.07.
“Company” means Kaival Brands Innovations
Group, Inc., a corporation duly organized and existing under the laws of the State of Delaware, and, subject to the provisions
of Article Ten, shall also include its successors and assigns.
“Corporate Trust Office” means the
office of the Trustee at which, at any particular time, its corporate trust business shall be principally administered, which office
at the date hereof is located at .
“Custodian” means any receiver, trustee,
assignee, liquidator or similar official under any Bankruptcy Law.
“Default” means any event, act or
condition that with notice or lapse of time, or both, would constitute an Event of Default.
“Defaulted Interest” has the meaning
set forth in Section 2.03.
“Depositary” means, with respect
to Securities of any series for which the Company shall determine that such Securities will be issued as a Global Security, The
Depository Trust Company, another clearing agency, or any successor registered as a clearing agency under the Exchange Act, or
other applicable statute or regulation, which, in each case, shall be designated by the Company pursuant to either Section 2.01
or 2.11.
“Event of Default” means, with respect
to Securities of a particular series, any event specified in Section 6.01, continued for the period of time, if any, therein designated.
“Exchange Act” means the Securities
and Exchange Act of 1934, as amended.
“Global Security” means, with respect
to any series of Securities, a Security executed by the Company and delivered by the Trustee to the Depositary or pursuant to the
Depositary’s instruction, all in accordance with the Indenture, which shall be registered in the name of the Depositary or its
nominee.
“Governmental Obligations” means
securities that are (a) direct obligations of the United States of America for the payment of which its full faith and credit is
pledged or (b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States
of America, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America
that, in either case, are not callable or redeemable at the option of the issuer thereof at any time prior to the stated maturity
of the Securities, and shall also include a depositary receipt issued by a bank or trust company as custodian with respect to any
such Governmental Obligation or a specific payment of principal of or interest on any such Governmental Obligation held by such
custodian for the account of the holder of such depositary receipt; provided, however, that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received
by the custodian in respect of the Governmental Obligation or the specific payment of principal of or interest on the Governmental
Obligation evidenced by such depositary receipt.
“herein”, “hereof” and
“hereunder”, and other words of similar import, refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
“Indenture” means this instrument
as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto
entered into in accordance with the terms hereof.
“Interest Payment Date”, when used
with respect to any installment of interest on a Security of a particular series, means the date specified in such Security or
in a Board Resolution or in an indenture supplemental hereto with respect to such series as the fixed date on which an installment
of interest with respect to Securities of that series is due and payable.
“Officer” means, with respect to
the Company, the chairman of the Board of Directors, a chief executive officer, a president, a chief financial officer, a chief
operating officer, any executive vice president, any senior vice president, any vice president, the treasurer or any assistant
treasurer, the controller or any assistant controller or the secretary or any assistant secretary.
“Officer’s Certificate” means a certificate
signed by any Officer. Each such certificate shall include the statements provided for in Section 13.07, if and to the extent required
by the provisions thereof.
“Opinion of Counsel” means an opinion
in writing subject to customary exceptions of legal counsel, who may be an employee of or counsel for the Company, that is delivered
to the Trustee in accordance with the terms hereof. Each such opinion shall include the statements provided for in Section 13.07,
if and to the extent required by the provisions thereof.
“Outstanding”, when used with reference
to Securities of any series, means, subject to the provisions of Section 8.04, as of any particular time, all Securities of that
series theretofore authenticated and delivered by the Trustee under this Indenture, except (a) Securities theretofore canceled
by the Trustee or any paying agent, or delivered to the Trustee or any paying agent for cancellation or that have previously been
canceled; (b) Securities or portions thereof for the payment or redemption of which moneys or Governmental Obligations in the necessary
amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been
set aside and segregated in trust by the Company (if the Company shall act as its own paying agent); provided, however, that if
such Securities or portions of such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall
have been given as provided in Article Three, or provision satisfactory to the Trustee shall have been made for giving such notice;
and (c) Securities in lieu of or in substitution for which other Securities shall have been authenticated and delivered pursuant
to the terms of Section 2.07.
“Person” means any individual, corporation,
partnership, joint venture, joint-stock company, limited liability company, association, trust, unincorporated organization, any
other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“Predecessor Security” of any particular
Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security;
and, for the purposes of this definition, any Security authenticated and delivered under Section 2.07 in lieu of a lost, destroyed
or stolen Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Security.
“Responsible Officer” when used with
respect to the Trustee means the chairman of its board of directors, the chief executive officer, the president, any vice president,
the secretary, the treasurer, any trust officer, any corporate trust officer or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of his or her knowledge of and familiarity with the particular subject.
“Securities” means the debt Securities
authenticated and delivered under this Indenture.
“Securityholder”, “holder of
Securities”, “registered holder”, or other similar term, means the Person or Persons in whose name or names a particular
Security shall be registered on the books of the Company kept for that purpose in accordance with the terms of this Indenture.
“Security Register” and “Security
Registrar” shall have the meanings as set forth in Section 2.05.
“Subsidiary” means, with respect
to any Person, (i) any corporation at least a majority of whose outstanding Voting Stock shall at the time be owned, directly or
indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, (ii) any
general partnership, joint venture or similar entity, at least a majority of whose outstanding partnership or similar interests
shall at the time be owned by such Person, or by one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries
and (iii) any limited partnership of which such Person or any of its Subsidiaries is a general partner.
“Trustee” means , and, subject to
the provisions of Article Seven, shall also include its successors and assigns, and, if at any time there is more than one Person
acting in such capacity hereunder, “Trustee” shall mean each such Person. The term “Trustee” as used with respect
to a particular series of the Securities shall mean the trustee with respect to that series.
“Trust Indenture Act” means the Trust
Indenture Act of 1939, as amended.
“Voting Stock”, as applied to stock
of any Person, means shares, interests, participations or other equivalents in the equity interest (however designated) in such
Person having ordinary voting power for the election of a majority of the directors (or the equivalent) of such Person, other
than shares, interests, participations or other equivalents having such power only by reason of the occurrence of a contingency.
ARTICLE II
ISSUE, DESCRIPTION,
TERMS, EXECUTION, REGISTRATION
AND EXCHANGE OF SECURITIES
Section 2.01 Designation and Terms of Securities.
(a) The aggregate principal amount of Securities
that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more series up
to the aggregate principal amount of Securities of that series from time to time authorized by or pursuant to a Board Resolution
or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of Securities of any series, there shall
be established in or pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established in one or more indentures
supplemental hereto:
(i) the title of the Securities of the series
(which shall distinguish the Securities of that series from all other Securities);
(ii) any limit upon the aggregate principal amount
of the Securities of that series that may be authenticated and delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of that series);
(iii) the date or dates on which the principal
of the Securities of the series is payable, any original issue discount that may apply to the Securities of that series upon their
issuance, the principal amount due at maturity, and the place(s) of payment;
(iv) the rate or rates at which the Securities
of the series shall bear interest or the manner of calculation of such rate or rates, if any;
(v) the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest will be payable or the manner of determination of such Interest
Payment Dates, the place(s) of payment, and the record date for the determination of holders to whom interest is payable on any
such Interest Payment Dates or the manner of determination of such record dates;
(vi) the right, if any, to extend the interest
payment periods and the duration of such extension;
(vii) the period or periods within which, the
price or prices at which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part,
at the option of the Company;
(viii) the obligation, if any, of the Company
to redeem or purchase Securities of the series pursuant to any sinking fund, mandatory redemption, or analogous provisions (including
payments made in cash in satisfaction of future sinking fund obligations) or at the option of a holder thereof and the period or
periods within which, the price or prices at which, and the terms and conditions upon which, Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such obligation;
(ix) the form of the Securities of the series
including the form of the Certificate of Authentication for such series;
(x) if other than denominations of one thousand
U.S. dollars ($1,000) or any integral multiple thereof, the denominations in which the Securities of the series shall be issuable;
(xi) any and all other terms (including terms,
to the extent applicable, relating to any auction or remarketing of the Securities of that series and any security for the obligations
of the Company with respect to such Securities) with respect to such series (which terms shall not be inconsistent with the terms
of this Indenture, as amended by any supplemental indenture) including any terms which may be required by or advisable under United
States laws or regulations or advisable in connection with the marketing of Securities of that series;
(xii) whether the Securities are issuable as
a Global Security and, in such case, the terms and the identity of the Depositary for such series;
(xiii) whether the Securities will be convertible
into or exchangeable for shares of common stock, preferred stock or other securities of the Company or any other Person and, if
so, the terms and conditions upon which such Securities will be so convertible or exchangeable, including the conversion or exchange
price, as applicable, or how it will be calculated and may be adjusted, any mandatory or optional (at the Company’s option or the
holders’ option) conversion or exchange features, and the applicable conversion or exchange period;
(xiv) if other than the principal amount thereof,
the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the
maturity thereof pursuant to Section 6.01;
(xv) any additional or different Events of Default
or restrictive covenants (which may include, among other restrictions, restrictions on the Company’s ability or the ability of
the Company’s Subsidiaries to: incur additional indebtedness; issue additional securities; create liens; pay dividends or make
distributions in respect of the capital stock of the Company or the Company’s Subsidiaries; redeem capital stock; place restrictions
on the Company’s Subsidiaries’ ability to pay dividends, make distributions or transfer assets; make investments or other restricted
payments; sell or otherwise dispose of assets; enter into sale- leaseback transactions; engage in transactions with stockholders
or affiliates; issue or sell stock of the Company’s Subsidiaries; or effect a consolidation or merger) or financial covenants (which
may include, among other financial covenants, financial covenants that require the Company and its Subsidiaries to maintain specified
interest coverage, fixed charge, cash flow-based, asset-based or other financial ratios) provided for with respect to the Securities
of the series;
(xvi) if other than dollars, the coin or currency
in which the Securities of the series are denominated (including, but not limited to, foreign currency);
(xvii) the terms and conditions, if any, upon
which the Company shall pay amounts in addition to the stated interest, premium, if any and principal amounts of the Securities
of the series to any Securityholder that is not a “United States person” for federal tax purposes; and
(xviii) any restrictions on transfer, sale or
assignment of the Securities of the series.
All Securities of any one series shall be substantially
identical except as may otherwise be provided in or pursuant to any such Board Resolution or in any indentures supplemental hereto.
If any of the terms of the series are established
by action taken pursuant to a Board Resolution of the Company, a copy of an appropriate record of such action shall be certified
by the secretary or an assistant secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officer’s
Certificate of the Company setting forth the terms of the series.
Securities of any particular series may be
issued at various times, with different dates on which the principal or any installment of principal is payable, with different
rates of interest, if any, or different methods by which rates of interest may be determined, with different dates on which such
interest may be payable and with different redemption dates.
Section 2.02 Form of Securities and Trustee’s Certificate.
The Securities of any series and the Trustee’s
certificate of authentication to be borne by such Securities shall be substantially of the tenor and purport as set forth in one
or more indentures supplemental hereto or as provided in a Board Resolution, and set forth in an Officer’s Certificate, and they
may have such letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed
or engraved thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as
may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any
securities exchange on which Securities of that series may be listed, or to conform to usage.
Section 2.03 Denominations: Provisions for Payment.
The Securities shall be issuable as registered
Securities and in the denominations of one thousand U.S. dollars ($1,000) or any integral multiple thereof, subject to Section
2.01(a)(10).
The Securities of a particular series shall
bear interest payable on the dates and at the rate specified with respect to that series. Subject to Section 2.01(a)(16), the principal
of and the interest on the Securities of any series, as well as any premium thereon in case of redemption thereof prior to maturity,
shall be payable in the coin or currency of the United States of America that at the time is legal tender for public and private
debt, at the office or agency of the Company maintained for that purpose. Each Security shall be dated the date of its authentication.
Interest on the Securities shall be computed on the basis of a 360-day year composed of twelve 30-day months.
The interest installment on any Security that
is payable, and is punctually paid or duly provided for, on any Interest Payment Date for Securities of that series shall be paid
to the Person in whose name said Security (or one or more Predecessor Securities) is registered at the close of business on the
regular record date for such interest installment. In the event that any Security of a particular series or portion thereof is
called for redemption and the redemption date is subsequent to a regular record date with respect to any Interest Payment Date
and prior to such Interest Payment Date, interest on such Security will be paid upon presentation and surrender of such Security
as provided in Section 3.03.
Any interest on any Security that is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date for Securities of the same series (herein called
“Defaulted Interest”) shall forthwith cease to be payable to the registered holder on the relevant regular record date
by virtue of having been such holder; and such Defaulted Interest shall be paid by the Company, at its election, as provided in
clause (1) or clause (2) below:
(i) The Company may make payment of any Defaulted
Interest on Securities to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered
at the close of business on a special record date for the payment of such Defaulted Interest, which shall be fixed in the following
manner: the Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each such Security
and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal
to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit
of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a special record
date for the payment of such Defaulted Interest which shall not be more than 15 nor less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such special record date and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the special record date therefor to be mailed, first class postage prepaid,
to each Securityholder at his or her address as it appears in the Security Register (as hereinafter defined), not less than 10
days prior to such special record date. Notice of the proposed payment of such Defaulted Interest and the special record date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names such Securities (or their
respective Predecessor Securities) are registered on such special record date.
(ii) The Company may make payment of any Defaulted
Interest on any Securities in any other lawful manner not inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company
to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.
Unless otherwise set forth in a Board Resolution
or one or more indentures supplemental hereto establishing the terms of any series of Securities pursuant to Section 2.01 hereof,
the term “regular record date” as used in this Section with respect to a series of Securities and any Interest Payment
Date for such series shall mean either the fifteenth day of the month immediately preceding the month in which an Interest Payment
Date established for such series pursuant to Section 2.01 hereof shall occur, if such Interest Payment Date is the first day of
a month, or the first day of the month in which an Interest Payment Date established for such series pursuant to Section 2.01 hereof
shall occur, if such Interest Payment Date is the fifteenth day of a month, whether or not such date is a Business Day.
Subject to the foregoing provisions of this
Section, each Security of a series delivered under this Indenture upon transfer of or in exchange for or in lieu of any other Security
of such series shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Security.
Section 2.04 Execution and Authentications.
The Securities shall be signed on behalf of
the Company by one of its Officers. Signatures may be in the form of a manual or facsimile signature.
The Company may use the facsimile signature
of any Person who shall have been an Officer, notwithstanding the fact that at the time the Securities shall be authenticated and
delivered or disposed of such Person shall have ceased to be such an officer of the Company. The Securities may contain such notations,
legends or endorsements required by law, stock exchange rule or usage. Each Security shall be dated the date of its authentication
by the Trustee.
A Security shall not be valid until authenticated
manually by an authorized signatory of the Trustee, or by an Authenticating Agent. Such signature shall be conclusive evidence
that the Security so authenticated has been duly authenticated and delivered hereunder and that the holder is entitled to the benefits
of this Indenture. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver
Securities of any series executed by the Company to the Trustee for authentication, together with a written order of the Company
for the authentication and delivery of such Securities, signed by an Officer, and the Trustee in accordance with such written order
shall authenticate and deliver such Securities.
In authenticating such Securities and accepting
the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive,
if requested, and (subject to Section 7.01) shall be fully protected in relying upon, an Opinion of Counsel stating that the form
and terms thereof have been established in conformity with the provisions of this Indenture.
The Trustee shall not be required to authenticate
such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities
under the Securities and this Indenture or otherwise in a manner that is not reasonably acceptable to the Trustee.
Section 2.05 Registration of Transfer and Exchange.
(a) Securities of any series may be exchanged
upon presentation thereof at the office or agency of the Company designated for such purpose, for other Securities of such series
of authorized denominations, and for a like aggregate principal amount, upon payment of a sum sufficient to cover any tax or other
governmental charge in relation thereto, all as provided in this Section. In respect of any Securities so surrendered for exchange,
the Company shall execute, the Trustee shall authenticate and such office or agency shall deliver in exchange therefor the Security
or Securities of the same series that the Securityholder making the exchange shall be entitled to receive, bearing numbers not
contemporaneously outstanding.
(b) The Company shall keep, or cause to be
kept, at its office or agency designated for such purpose a register or registers (herein referred to as the “Security Register”)
in which, subject to such reasonable regulations as it may prescribe, the Company shall register the Securities and the transfers
of Securities as in this Article provided and which at all reasonable times shall be open for inspection by the Trustee. The registrar
for the purpose of registering Securities and transfer of Securities as herein provided shall be appointed as authorized by Board
Resolution (the “Security Registrar”).
Upon surrender for transfer of any Security
at the office or agency of the Company designated for such purpose, the Company shall execute, the Trustee shall authenticate and
such office or agency shall deliver in the name of the transferee or transferees a new Security or Securities of the same series
as the Security presented for a like aggregate principal amount.
All Securities presented or surrendered for
exchange or registration of transfer, as provided in this Section, shall be accompanied (if so required by the Company or the Security
Registrar) by a written instrument or instruments of transfer, in form satisfactory to the Company or the Security Registrar, duly
executed by the registered holder or by such holder’s duly authorized attorney in writing.
(c) Except as provided pursuant to Section
2.01 pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established in one or more indentures supplemental
to this Indenture, no service charge shall be made for any exchange or registration of transfer of Securities, or issue of new
Securities in case of partial redemption of any series, but the Company may require payment of a sum sufficient to cover any tax
or other governmental charge in relation thereto, other than exchanges pursuant to Section 2.06, Section 3.03(b) and Section 9.04
not involving any transfer.
(d) The Company shall not be required (i) to
issue, exchange or register the transfer of any Securities during a period beginning at the opening of business 15 days before
the day of the mailing of a notice of redemption of less than all the Outstanding Securities of the same series and ending at the
close of business on the day of such mailing, nor (ii) to register the transfer of or exchange any Securities of any series or
portions thereof called for redemption, other than the unredeemed portion of any such Securities being redeemed in part. The provisions
of this Section 2.05 are, with respect to any Global Security, subject to Section 2.11 hereof.
Section 2.06 Temporary Securities.
Pending the preparation of definitive Securities
of any series, the Company may execute, and the Trustee shall authenticate and deliver, temporary Securities (printed, lithographed
or typewritten) of any authorized denomination. Such temporary Securities shall be substantially in the form of the definitive
Securities in lieu of which they are issued, but with such omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Company. Every temporary Security of any series shall be executed by the Company and
be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive
Securities of such series. Without unnecessary delay the Company will execute and will furnish definitive Securities of such series
and thereupon any or all temporary Securities of such series may be surrendered in exchange therefor (without charge to the holders),
at the office or agency of the Company designated for the purpose, and the Trustee shall authenticate and such office or agency
shall deliver in exchange for such temporary Securities an equal aggregate principal amount of definitive Securities of such series,
unless the Company advises the Trustee to the effect that definitive Securities need not be executed and furnished until further
notice from the Company. Until so exchanged, the temporary Securities of such series shall be entitled to the same benefits under
this Indenture as definitive Securities of such series authenticated and delivered hereunder.
Section 2.07 Mutilated, Destroyed, Lost or Stolen Securities.
In case any temporary
or definitive Security shall become mutilated or be destroyed, lost or stolen, the Company (subject to the next succeeding sentence)
shall execute, and upon the Company’s request the Trustee (subject as aforesaid) shall authenticate and deliver, a new Security
of the same series, bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Security, or in
lieu of and in substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substituted Security shall
furnish to the Company and the Trustee such security or indemnity as may be required by them to save each of them harmless, and, in every
case of destruction, loss or theft, the applicant shall also furnish to the Company and the Trustee evidence to their satisfaction of
the destruction, loss or theft of the applicant’s Security and of the ownership thereof. The Trustee may authenticate any such
substituted Security and deliver the same upon the written request or authorization of any officer of the Company. Upon the issuance
of any substituted Security, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
In case any Security that has matured or is
about to mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Security,
pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated Security) if the applicant
for such payment shall furnish to the Company and the Trustee such security or indemnity as they may require to save them harmless,
and, in case of destruction, loss or theft, evidence to the satisfaction of the Company and the Trustee of the destruction, loss
or theft of such Security and of the ownership thereof.
Every replacement Security issued pursuant
to the provisions of this Section shall constitute an additional contractual obligation of the Company whether or not the mutilated,
destroyed, lost or stolen Security shall be found at any time, or be enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Securities of the same series duly issued hereunder. All Securities
shall be held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities, and shall preclude (to the extent lawful) any and all other rights
or remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or
payment of negotiable instruments or other securities without their surrender.
Section 2.08 Cancellation.
All Securities surrendered for the purpose
of payment, redemption, exchange or registration of transfer shall, if surrendered to the Company or any paying agent, be delivered
to the Trustee for cancellation, or, if surrendered to the Trustee, shall be cancelled by it, and no Securities shall be issued
in lieu thereof except as expressly required or permitted by any of the provisions of this Indenture. On request of the Company
at the time of such surrender, the Trustee shall deliver to the Company canceled Securities held by the Trustee. In the absence
of such request the Trustee may dispose of canceled Securities in accordance with its standard procedures and deliver a certificate
of disposition to the Company. If the Company shall otherwise acquire any of the Securities, however, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are delivered
to the Trustee for cancellation.
Section 2.09 Benefits of Indenture.
Nothing in this Indenture or in the Securities,
express or implied, shall give or be construed to give to any Person, other than the parties hereto and the holders of the Securities
any legal or equitable right, remedy or claim under or in respect of this Indenture, or under any covenant, condition or provision
herein contained; all such covenants, conditions and provisions being for the sole benefit of the parties hereto and of the holders
of the Securities.
Section 2.10 Authenticating Agent.
So long as any of the Securities of any series remain
Outstanding there may be an Authenticating Agent for any or all such series of Securities which the Trustee shall have the right to appoint.
Said Authenticating Agent shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon exchange,
transfer or partial redemption thereof, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall
be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. All references in this Indenture to the authentication
of Securities by the Trustee shall be deemed to include authentication by an Authenticating Agent for such series. Each Authenticating
Agent shall be acceptable to the Company and shall be a corporation that has a combined capital and surplus, as most recently reported
or determined by it, sufficient under the laws of any jurisdiction under which it is organized or in which it is doing business to conduct
a trust business, and that is otherwise authorized under such laws to conduct such business and is subject to supervision or examination
by federal or state authorities. If at any time any Authenticating Agent shall cease to be eligible in accordance with these provisions,
it shall resign immediately.
Any Authenticating Agent may at any time resign
by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time (and upon request by the
Company shall) terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating
Agent and to the Company. Upon resignation, termination or cessation of eligibility of any Authenticating Agent, the Trustee may
appoint an eligible successor Authenticating Agent acceptable to the Company. Any successor Authenticating Agent, upon acceptance
of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder as if originally
named as an Authenticating Agent pursuant hereto.
Section 2.11 Global Securities.
(a) If the Company shall establish pursuant
to Section 2.01 that the Securities of a particular series are to be issued as a Global Security, then the Company shall execute
and the Trustee shall, in accordance with Section 2.04, authenticate and deliver, a Global Security that (i) shall represent,
and shall be denominated in an amount equal to the aggregate principal amount of, all of the Outstanding Securities of such series,
(ii) shall be registered in the name of the Depositary or its nominee, (iii) shall be delivered by the Trustee to the Depositary
or pursuant to the Depositary’s instruction and (iv) shall bear a legend substantially to the following effect: “Except as
otherwise provided in Section 2.11 of the Indenture, this Security may be transferred, in whole but not in part, only to another
nominee of the Depositary or to a successor Depositary or to a nominee of such successor Depositary.”
(b) Notwithstanding the provisions of Section
2.05, the Global Security of a series may be transferred, in whole but not in part and in the manner provided in Section 2.05,
only to another nominee of the Depositary for such series, or to a successor Depositary for such series selected or approved by
the Company or to a nominee of such successor Depositary.
(c) If at any time the Depositary for a series of
the Securities notifies the Company that it is unwilling or unable to continue as Depositary for such series or if at any time the Depositary
for such series shall no longer be registered or in good standing under the Exchange Act, or other applicable statute or regulation,
and a successor Depositary for such series is not appointed by the Company within 90 days after the Company receives such notice or becomes
aware of such condition, as the case may be, or if an Event of Default has occurred and is continuing and the Company has received a
request from the Depositary or from the Trustee, this Section 2.11 shall no longer be applicable to the Securities of such series and
the Company will execute, and subject to Section 2.04, the Trustee will authenticate and deliver the Securities of such series in definitive
registered form without coupons, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the
Global Security of such series in exchange for such Global Security. In addition, the Company may at any time determine that the Securities
of any series shall no longer be represented by a Global Security and that the provisions of this Section 2.11 shall no longer apply
to the Securities of such series. In such event the Company will execute and, subject to Section 2.04, the Trustee, upon receipt of an
Officer’s Certificate evidencing such determination by the Company, will authenticate and deliver the Securities of such series
in definitive registered form without coupons, in authorized denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security of such series in exchange for such Global Security. Upon the exchange of the Global Security for such
Securities in definitive registered form without coupons, in authorized denominations, the Global Security shall be canceled by the Trustee.
Such Securities in definitive registered form issued in exchange for the Global Security pursuant to this Section 2.11(c) shall be registered
in such names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Depositary for delivery to the Persons in
whose names such Securities are so registered.
ARTICLE III
REDEMPTION OF SECURITIES AND SINKING FUND
PROVISIONS
Section 3.01 Redemption.
The Company may redeem the Securities of any
series issued hereunder on and after the dates and in accordance with the terms established for such series pursuant to Section
2.01 hereof.
Section 3.02 Notice of Redemption.
(a) In case the Company shall desire to exercise
such right to redeem all or, as the case may be, a portion of the Securities of any series in accordance with any right the Company
reserved for itself to do so pursuant to Section 2.01 hereof, the Company shall, or shall cause the Trustee to, give notice of
such redemption to holders of the Securities of such series to be redeemed by mailing, first class postage prepaid, a notice of
such redemption not less than 30 days and not more than 90 days before the date fixed for redemption of that series to such holders
at their last addresses as they shall appear upon the Security Register, unless a shorter period is specified in the Securities
to be redeemed. Any notice that is mailed in the manner herein provided shall be conclusively presumed to have been duly given,
whether or not the registered holder receives the notice. In any case, failure duly to give such notice to the holder of any Security
of any series designated for redemption in whole or in part, or any defect in the notice, shall not affect the validity of the
proceedings for the redemption of any other Securities of such series or any other series. In the case of any redemption of Securities
prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture,
the Company shall furnish the Trustee with an Officer’s Certificate evidencing compliance with any such restriction.
Each such notice of redemption shall specify
the date fixed for redemption and the redemption price at which Securities of that series are to be redeemed, and shall state that
payment of the redemption price of such Securities to be redeemed will be made at the office or agency of the Company, upon presentation
and surrender of such Securities, that interest accrued to the date fixed for redemption will be paid as specified in said notice,
that from and after said date interest will cease to accrue and that the redemption is from a sinking fund, if such is the case.
If less than all the Securities of a series are to be redeemed, the notice to the holders of Securities of that series to be redeemed
in part shall specify the particular Securities to be so redeemed.
In case any Security is to be redeemed in part
only, the notice that relates to such Security shall state the portion of the principal amount thereof to be redeemed, and shall
state that on and after the redemption date, upon surrender of such Security, a new Security or Securities of such series in principal
amount equal to the unredeemed portion thereof will be issued.
(b) If less than all the Securities of a series
are to be redeemed, the Company shall give the Trustee at least 45 days’ notice (unless a shorter notice shall be satisfactory
to the Trustee) in advance of the date fixed for redemption as to the aggregate principal amount of Securities of the series to
be redeemed, and thereupon the Trustee shall select, by lot or in such other manner as it shall deem appropriate and fair in its
discretion and that may provide for the selection of a portion or portions (equal to one thousand U.S. dollars ($1,000) or any
integral multiple thereof) of the principal amount of such Securities of a denomination larger than $1,000, the Securities to be
redeemed and shall thereafter promptly notify the Company in writing of the numbers of the Securities to be redeemed, in whole
or in part. The Company may, if and whenever it shall so elect, by delivery of instructions signed on its behalf by an Officer,
instruct the Trustee or any paying agent to call all or any part of the Securities of a particular series for redemption and to
give notice of redemption in the manner set forth in this Section, such notice to be in the name of the Company or its own name
as the Trustee or such paying agent may deem advisable. In any case in which notice of redemption is to be given by the Trustee
or any such paying agent, the Company shall deliver or cause to be delivered to, or permit to remain with, the Trustee or such
paying agent, as the case may be, such Security Register, transfer books or other records, or suitable copies or extracts therefrom,
sufficient to enable the Trustee or such paying agent to give any notice by mail that may be required under the provisions of this
Section.
Section 3.03 Payment Upon Redemption.
(a) If the giving of notice of redemption shall
have been completed as above provided, the Securities or portions of Securities of the series to be redeemed specified in such
notice shall become due and payable on the date and at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption and interest on such Securities or portions of Securities shall cease to
accrue on and after the date fixed for redemption, unless the Company shall default in the payment of such redemption price and
accrued interest with respect to any such Security or portion thereof. On presentation and surrender of such Securities on or after
the date fixed for redemption at the place of payment specified in the notice, said Securities shall be paid and redeemed at the
applicable redemption price for such series, together with interest accrued thereon to the date fixed for redemption (but if the
date fixed for redemption is an interest payment date, the interest installment payable on such date shall be payable to the registered
holder at the close of business on the applicable record date pursuant to Section 2.03).
(b) Upon presentation of any Security of such
series that is to be redeemed in part only, the Company shall execute and the Trustee shall authenticate and the office or agency
where the Security is presented shall deliver to the holder thereof, at the expense of the Company, a new Security of the same
series of authorized denominations in principal amount equal to the unredeemed portion of the Security so presented.
Section 3.04 Sinking Fund.
The provisions of Sections 3.04, 3.05 and 3.06
shall be applicable to any sinking fund for the retirement of Securities of a series, except as otherwise specified as contemplated
by Section 2.01 for Securities of such series.
The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,” and
any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an
“optional sinking fund payment”. If provided for by the terms of Securities of any series, the cash amount of any sinking
fund payment may be subject to reduction as provided in Section 3.05. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of Securities of such series.
Section 3.05 Satisfaction of Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding Securities
of a series and (ii) may apply as a credit Securities of a series that have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the
terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities
of such series required to be made pursuant to the terms of such Securities as provided for by the terms of such series, provided
that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the
Trustee at the redemption price specified in such Securities for redemption through operation of the sinking fund and the amount
of such sinking fund payment shall be reduced accordingly.
Section 3.06 Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking
fund payment date for any series of Securities (unless a shorter period shall be satisfactory to the Trustee), the Company will
deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of the series, the portion thereof, if any, that is to be satisfied by delivering and crediting Securities
of that series pursuant to Section 3.05 and the basis for such credit and will, together with such Officer’s Certificate, deliver
to the Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 3.02 and cause
notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section
3.02. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated
in Section 3.03.
ARTICLE IV
COVENANTS
Section 4.01 Payment of Principal, Premium and Interest.
The Company will duly and punctually pay or
cause to be paid the principal of (and premium, if any) and interest on the Securities of that series at the time and place and
in the manner provided herein and established with respect to such Securities. Payments of principal on the Securities may be made
at the time provided herein and established with respect to such Securities by U.S. dollar check drawn on and mailed to the address
of the Securityholder entitled thereto as such address shall appear in the Security Register, or U.S. dollar wire transfer to,
a U.S. dollar account (such wire transfer to be made only to a Securityholder of an aggregate principal amount of Securities of
the applicable series in excess of U.S. $2,000,000 and only if such Securityholder shall have furnished wire instructions to the
Trustee no later than 15 days prior to the relevant payment date). Payments of interest on the Securities may be made at the time
provided herein and established with respect to such Securities by U.S. dollar check mailed to the address of the Securityholder
entitled thereto as such address shall appear in the Security Register, or U.S. dollar wire transfer to, a U.S. dollar account
(such a wire transfer to be made only to a Securityholder of an aggregate principal amount of Securities of the applicable series
in excess of U.S. $2,000,000 and only if such Securityholder shall have furnished wire instructions in writing to the Security
Registrar and the Trustee no later than 15 days prior to the relevant payment date.
Section 4.02 Maintenance of Office or Agency.
So long as any series of the Securities remain
Outstanding, the Company agrees to maintain an office or agency with respect to each such series and at such other location or
locations as may be designated as provided in this Section 4.02, where (i) Securities of that series may be presented for payment,
(ii) Securities of that series may be presented as herein above authorized for registration of transfer and exchange, and (iii)
notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be given or served,
such designation to continue with respect to such office or agency until the Company shall, by written notice signed by any officer
authorized to sign an Officer’s Certificate and delivered to the Trustee, designate some other office or agency for such purposes
or any of them. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish
the Trustee with the address thereof, such presentations, notices and demands may be made or served at the Corporate Trust Office
of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, notices and demands.
The Company initially appoints the Corporate Trust Office of the Trustee as its paying agent with respect to the Securities.
Section 4.03 Paying Agents.
(a) If the Company shall appoint one or more
paying agents for all or any series of the Securities, other than the Trustee, the Company will cause each such paying agent to
execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of
this Section:
(i) that it will hold all sums held by it as
such agent for the payment of the principal of (and premium, if any) or interest on the Securities of that series (whether such
sums have been paid to it by the Company or by any other obligor of such Securities) in trust for the benefit of the Persons entitled
thereto;
(ii) that it will give the Trustee notice of
any failure by the Company (or by any other obligor of such Securities) to make any payment of the principal of (and premium, if
any) or interest on the Securities of that series when the same shall be due and payable;
(iii) that it will, at any time during the continuance
of any failure referred to in the preceding paragraph (a)(2) above, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such paying agent; and
(iv) that it will perform all other duties of
paying agent as set forth in this Indenture.
(b) If the Company shall act as its own paying
agent with respect to any series of the Securities, it will on or before each due date of the principal of (and premium, if any)
or interest on Securities of that series, set aside, segregate and hold in trust for the benefit of the Persons entitled thereto
a sum sufficient to pay such principal (and premium, if any) or interest so becoming due on Securities of that series until such
sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of such action,
or any failure (by it or any other obligor on such Securities) to take such action. Whenever the Company shall have one or more
paying agents for any series of Securities, it will, prior to each due date of the principal of (and premium, if any) or interest
on any Securities of that series, deposit with the paying agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest,
and (unless such paying agent is the Trustee) the Company will promptly notify the Trustee of this action or failure so to act.
(c) Notwithstanding anything in this Section
to the contrary, (i) the agreement to hold sums in trust as provided in this Section is subject to the provisions of Section 11.05,
and (ii) the Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any
other purpose, pay, or direct any paying agent to pay, to the Trustee all sums held in trust by the Company or such paying agent,
such sums to be held by the Trustee upon the same terms and conditions as those upon which such sums were held by the Company or
such paying agent; and, upon such payment by the Company or any paying agent to the Trustee, the Company or such paying agent shall
be released from all further liability with respect to such money.
Section 4.04 Appointment to Fill Vacancy in Office
of Trustee.
The Company, whenever necessary to avoid or
fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so that there shall at
all times be a Trustee hereunder.
Section 4.05 Compliance with Consolidation Provisions.
The Company will not, while any of the Securities
remain Outstanding, consolidate with or merge into any other Person, in either case where the Company is not the survivor of such
transaction, or sell or convey all or substantially all of its property to any other Person unless the provisions of Article Ten
hereof are complied with.
ARTICLE V
SECURITYHOLDERS’ LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
Section 5.01 Company to Furnish Trustee Names and Addresses
of Securityholders.
The Company will furnish or cause to be furnished
to the Trustee (a) within 15 days after each regular record date (as defined in Section 2.03) a list, in such form as the Trustee
may reasonably require, of the names and addresses of the holders of each series of Securities as of such regular record date,
provided that the Company shall not be obligated to furnish or cause to furnish such list at any time that the list shall not differ
in any respect from the most recent list furnished to the Trustee by the Company and (b) at such other times as the Trustee may
request in writing within 30 days after the receipt by the Company of any such request, a list of similar form and content as of
a date not more than 15 days prior to the time such list is furnished; provided, however, that, in either case, no such list need
be furnished for any series for which the Trustee shall be the Security Registrar.
Section 5.02 Preservation Of Information; Communications
With Securityholders.
(a) The Trustee shall preserve, in as current
a form as is reasonably practicable, all information as to the names and addresses of the holders of Securities contained in the
most recent list furnished to it as provided in Section 5.01 and as to the names and addresses of holders of Securities received
by the Trustee in its capacity as Security Registrar (if acting in such capacity).
(b) The Trustee may destroy any list furnished
to it as provided in Section 5.01 upon receipt of a new list so furnished.
(c) Securityholders may communicate as provided
in Section 312(b) of the Trust Indenture Act with other Securityholders with respect to their rights under this Indenture or under
the Securities, and, in connection with any such communications, the Trustee shall satisfy its obligations under Section 312(b)
of the Trust Indenture Act in accordance with the provisions of Section 312(b) of the Trust Indenture Act.
Section 5.03 Reports by the Company.
The Company covenants and agrees to provide
(which delivery may be via electronic mail) to the Trustee, after the Company files the same with the Securities and Exchange Commission,
copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing
as the Securities and Exchange Commission may from time to time by rules and regulations prescribe) that the Company files with
the Securities and Exchange Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; provided, however, the Company
shall not be required to deliver to the Trustee any materials for which the Company has sought and received confidential treatment
by the Securities and Exchange Commission; and provided further, so long as such filings by the Company are available on the Securities
and Exchange Commission’s Electronic Data Gathering, Analysis and Retrieval System (EDGAR), such filings shall be deemed to have
been filed with the Trustee for purposes of this Section 5.03 without any further action required by the Company.
Section 5.04 Reports by the Trustee.
(a) If required by Section 313(a) of the Trust
Indenture Act, the Trustee, within sixty (60) days after each May 1, shall transmit by mail, first class postage prepaid, to the
Securityholders, as their names and addresses appear upon the Security Register, a brief report dated as of such May 1, which complies
with Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section 313(b)
and 313(c) of the Trust Indenture Act.
(c) A copy of each such report shall, at the
time of such transmission to Securityholders, be filed by the Trustee with the Company, with each securities exchange upon which
any Securities are listed (if so listed) and also with the Securities and Exchange Commission. The Company agrees to notify the
Trustee when any Securities become listed on any securities exchange.
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 6.01 Events of Default.
(a) Whenever used herein with respect to Securities
of a particular series, “Event of Default” means any one or more of the following events that has occurred and is continuing:
(i) the Company defaults in the payment of any
installment of interest upon any of the Securities of that series, as and when the same shall become due and payable, and such
default continues for a period of 90 days; provided, however, that a valid extension of an interest payment period by the Company
in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment of interest for
this purpose;
(ii) the Company defaults in the payment of the
principal of (or premium, if any, on) any of the Securities of that series as and when the same shall become due and payable whether
at maturity, upon redemption, by declaration or otherwise, or in any payment required by any sinking or analogous fund established
with respect to that series; provided, however, that a valid extension of the maturity of such Securities in accordance with the
terms of any indenture supplemental hereto shall not constitute a default in the payment of principal or premium, if any;
(iii) the Company fails to observe or perform
any other of its covenants or agreements with respect to that series contained in this Indenture or otherwise established with
respect to that series of Securities pursuant to Section 2.01 hereof (other than a covenant or agreement that has been expressly
included in this Indenture solely for the benefit of one or more series of Securities other than such series) for a period of 90
days after the date on which written notice of such failure, requiring the same to be remedied and stating that such notice is
a “Notice of Default” hereunder, shall have been given to the Company by the Trustee, by registered or certified mail,
or to the Company and the Trustee by the holders of at least 25% in principal amount of the Securities of that series at the time
Outstanding;
(iv) the Company pursuant to or within the meaning
of any Bankruptcy Law (i) commences a voluntary case, (ii) consents to the entry of an order for relief against it in an involuntary
case, (iii) consents to the appointment of a Custodian of it or for all or substantially all of its property or (iv) makes a general
assignment for the benefit of its creditors; or
(v) a court of competent jurisdiction enters
an order under any Bankruptcy Law that (i) is for relief against the Company in an involuntary case, (ii) appoints a Custodian
of the Company for all or substantially all of its property or (iii) orders the liquidation of the Company, and the order or decree
remains unstayed and in effect for 90 days.
(b) In each and every such case (other than
an Event of Default specified in clause (4) or clause (5) above), unless the principal of all the Securities of that series shall
have already become due and payable, either the Trustee or the holders of not less than 25% in aggregate principal amount of the
Securities of that series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by such
Securityholders), may declare the principal of (and premium, if any, on) and accrued and unpaid interest on all the Securities
of that series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately
due and payable. If an Event of Default specified in clause (4) or clause (5) above occurs, the principal of and accrued and unpaid
interest on all the Securities of that series shall automatically be immediately due and payable without any declaration or other
act on the part of the Trustee or the holders of the Securities.
(c) At any time after the principal of (and
premium, if any, on) and accrued and unpaid interest on the Securities of that series shall have been so declared due and payable,
and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided,
the holders of a majority in aggregate principal amount of the Securities of that series then Outstanding hereunder, by written
notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if: (i) the Company has paid
or deposited with the Trustee a sum sufficient to pay all matured installments of interest upon all the Securities of that series
and the principal of (and premium, if any, on) any and all Securities of that series that shall have become due otherwise than
by acceleration (with interest upon such principal and premium, if any, and, to the extent that such payment is enforceable under
applicable law, upon overdue installments of interest, at the rate per annum expressed in the Securities of that series to the
date of such payment or deposit) and the amount payable to the Trustee under Section 7.06, and (ii) any and all Events of Default
under the Indenture with respect to such series, other than the nonpayment of principal on (and premium, if any, on) and accrued
and unpaid interest on Securities of that series that shall not have become due by their terms, shall have been remedied or waived
as provided in Section 6.06.
No such rescission and annulment shall extend
to or shall affect any subsequent default or impair any right consequent thereon.
(d) In case the Trustee shall have proceeded
to enforce any right with respect to Securities of that series under this Indenture and such proceedings shall have been discontinued
or abandoned because of such rescission or annulment or for any other reason or shall have been determined adversely to the Trustee,
then and in every such case, subject to any determination in such proceedings, the Company and the Trustee shall be restored respectively
to their former positions and rights hereunder, and all rights, remedies and powers of the Company and the Trustee shall continue
as though no such proceedings had been taken.
Section 6.02 Collection of Indebtedness and Suits for
Enforcement by Trustee.
(a) The Company covenants that (i) in case
it shall default in the payment of any installment of interest on any of the Securities of a series, or in any payment required
by any sinking or analogous fund established with respect to that series as and when the same shall have become due and payable,
and such default shall have continued for a period of 90 days, or (ii) in case it shall default in the payment of the principal
of (or premium, if any, on) any of the Securities of a series when the same shall have become due and payable, whether upon maturity
of the Securities of a series or upon redemption or upon declaration or otherwise then, upon demand of the Trustee, the Company
will pay to the Trustee, for the benefit of the holders of the Securities of that series, the whole amount that then shall have
been become due and payable on all such Securities for principal (and premium, if any) or interest, or both, as the case may be,
with interest upon the overdue principal (and premium, if any) and (to the extent that payment of such interest is enforceable
under applicable law) upon overdue installments of interest at the rate per annum expressed in the Securities of that series; and,
in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, and the amount payable
to the Trustee under Section 7.06.
(b) If the Company shall fail to pay such amounts
forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to
institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree against the Company or
other obligor upon the Securities of that series and collect the moneys adjudged or decreed to be payable in the manner provided
by law or equity out of the property of the Company or other obligor upon the Securities of that series, wherever situated.
(c) In case of any receivership, insolvency,
liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or judicial proceedings affecting the Company,
or its creditors or property, the Trustee shall have power to intervene in such proceedings and take any action therein that may
be permitted by the court and shall (except as may be otherwise provided by law) be entitled to file such proofs of claim and other
papers and documents as may be necessary or advisable in order to have the claims of the Trustee and of the holders of Securities
of such series allowed for the entire amount due and payable by the Company under the Indenture at the date of institution of such
proceedings and for any additional amount that may become due and payable by the Company after such date, and to collect and receive
any moneys or other property payable or deliverable on any such claim, and to distribute the same after the deduction of the amount
payable to the Trustee under Section 7.06; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized
by each of the holders of Securities of such series to make such payments to the Trustee, and, in the event that the Trustee shall
consent to the making of such payments directly to such Securityholders, to pay to the Trustee any amount due it under Section
7.06.
(d) All rights of action and of asserting claims
under this Indenture, or under any of the terms established with respect to Securities of that series, may be enforced by the Trustee
without the possession of any of such Securities, or the production thereof at any trial or other proceeding relative thereto,
and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for payment to the Trustee of any amounts due under Section 7.06, be for the ratable
benefit of the holders of the Securities of such series.
In case of an Event of Default hereunder, the
Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in the Indenture or in aid
of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee
by this Indenture or by law.
Nothing contained herein shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities of that series or the rights of any holder thereof or to authorize
the Trustee to vote in respect of the claim of any Securityholder in any such proceeding.
Section 6.03 Application of Moneys Collected.
Any moneys collected by the Trustee pursuant
to this Article with respect to a particular series of Securities shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such moneys on account of principal (or premium, if any) or interest,
upon presentation of the Securities of that series, and notation thereon of the payment, if only partially paid, and upon surrender
thereof if fully paid:
FIRST: To the payment of reasonable costs and
expenses of collection and of all amounts payable to the Trustee under Section 7.06;
SECOND: To the payment of the amounts then
due and unpaid upon Securities of such series for principal (and premium, if any) and interest, in respect of which or for the
benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due
and payable on such Securities for principal (and premium, if any) and interest, respectively; and
THIRD: To the payment of the remainder, if
any, to the Company or any other Person lawfully entitled thereto.
Section 6.04 Limitation on Suits.
No holder of any Security of any series shall
have any right by virtue or by availing of any provision of this Indenture to institute any suit, action or proceeding in equity
or at law upon or under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless (i) such holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance
thereof with respect to the Securities of such series specifying such Event of Default, as hereinbefore provided; (ii) the holders
of not less than 25% in aggregate principal amount of the Securities of such series then Outstanding shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder; (iii) such holder or holders
shall have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby; (iv) the Trustee for 90 days after its receipt of such notice, request and offer of indemnity, shall
have failed to institute any such action, suit or proceeding and (v) during such 90 day period, the holders of a majority in principal
amount of the Securities of that series do not give the Trustee a direction inconsistent with the request.
Notwithstanding anything contained herein to
the contrary or any other provisions of this Indenture, the right of any holder of any Security to receive payment of the principal
of (and premium, if any) and interest on such Security, as therein provided, on or after the respective due dates expressed in
such Security (or in the case of redemption, on the redemption date), or to institute suit for the enforcement of any such payment
on or after such respective dates or redemption date, shall not be impaired or affected without the consent of such holder and
by accepting a Security hereunder it is expressly understood, intended and covenanted by the taker and holder of every Security
of such series with every other such taker and holder and the Trustee, that no one or more holders of Securities of such series
shall have any right in any manner whatsoever by virtue or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of the holders of any other of such Securities, or to obtain or seek to obtain priority over or preference
to any other such holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all holders of Securities of such series. For the protection and enforcement of the provisions of
this Section, each and every Securityholder and the Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 6.05 Rights and Remedies Cumulative; Delay or Omission
Not Waiver.
(a) Except as otherwise provided in Section
2.07, all powers and remedies given by this Article to the Trustee or to the Securityholders shall, to the extent permitted by
law, be deemed cumulative and not exclusive of any other powers and remedies available to the Trustee or the holders of the Securities,
by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this
Indenture or otherwise established with respect to such Securities.
(b) No delay or omission of the Trustee or
of any holder of any of the Securities to exercise any right or power accruing upon any Event of Default occurring and continuing
as aforesaid shall impair any such right or power, or shall be construed to be a waiver of any such default or an acquiescence
therein; and, subject to the provisions of Section 6.04, every power and remedy given by this Article or by law to the Trustee
or the Securityholders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
Section 6.06 Control by Securityholders.
The holders of a majority in aggregate principal
amount of the Securities of any series at the time Outstanding, determined in accordance with Section 8.04, shall have the right
to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee with respect to such series; provided, however, that such direction shall not be in conflict
with any rule of law or with this Indenture. Subject to the provisions of Section 7.01, the Trustee shall have the right to decline
to follow any such direction if the Trustee in good faith shall, by a Responsible Officer or officers of the Trustee, determine
that the proceeding so directed, subject to the Trustee’s duties under the Trust Indenture Act, would involve the Trustee in personal
liability or might be unduly prejudicial to the Securityholders not involved in the proceeding. The holders of a majority in aggregate
principal amount of the Securities of any series at the time Outstanding affected thereby, determined in accordance with Section
8.04, may on behalf of the holders of all of the Securities of such series waive any past default in the performance of any of
the covenants contained herein or established pursuant to Section 2.01 with respect to such series and its consequences, except
a default in the payment of the principal of, or premium, if any, or interest on, any of the Securities of that series as and when
the same shall become due by the terms of such Securities otherwise than by acceleration (unless such default has been cured and
a sum sufficient to pay all matured installments of interest and principal and any premium has been deposited with the Trustee
(in accordance with Section 6.01(c)). Upon any such waiver, the default covered thereby shall be deemed to be cured for all purposes
of this Indenture and the Company, the Trustee and the holders of the Securities of such series shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default or impair any
right consequent thereon.
Section 6.07 Undertaking to Pay Costs.
All parties to this Indenture agree, and each
holder of any Securities by such holder’s acceptance thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party
litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder,
or group of Securityholders, holding more than 10% in aggregate principal amount of the Outstanding Securities of any series, or
to any suit instituted by any Securityholder for the enforcement of the payment of the principal of (or premium, if any) or interest
on any Security of such series, on or after the respective due dates expressed in such Security or established pursuant to this
Indenture.
ARTICLE VII
CONCERNING THE TRUSTEE
Section 7.01 Certain Duties and Responsibilities of
Trustee.
(a) The Trustee, prior to the occurrence of
an Event of Default with respect to the Securities of a series and after the curing of all Events of Default with respect to the
Securities of that series that may have occurred, shall undertake to perform with respect to the Securities of such series such
duties and only such duties as are specifically set forth in this Indenture, and no implied covenants shall be read into this Indenture
against the Trustee. In case an Event of Default with respect to the Securities of a series has occurred (that has not been cured
or waived), the Trustee shall exercise with respect to Securities of that series such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
(b) No provision of this Indenture shall be
construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) prior to the occurrence of an Event of Default
with respect to the Securities of a series and after the curing or waiving of all such Events of Default with respect to that series
that may have occurred: (A) the duties and obligations of the Trustee shall with respect to the Securities of such series be determined
solely by the express provisions of this Indenture, and the Trustee shall not be liable with respect to the Securities of such
series except for the performance of such duties and obligations as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the Trustee; and (B) in the absence of bad faith on the part
of the Trustee, the Trustee may with respect to the Securities of such series conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; but in the case of any such certificates or opinions that by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture;
(2) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in accordance with the direction of the holders of not less than
a majority in principal amount of the Securities of any series at the time Outstanding relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee
under this Indenture with respect to the Securities of that series; and
(4) none of the provisions contained in this
Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance
of any of its duties or in the exercise of any of its rights or powers if there is reasonable ground for believing that the repayment
of such funds or liability is not reasonably assured to it under the terms of this Indenture or adequate indemnity against such
risk is not reasonably assured to it.
Section 7.02 Certain Rights of Trustee.
Except as otherwise provided in Section 7.01:
(a) The Trustee may rely and shall be protected
in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, security or other paper or document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) Any request, direction, order or demand
of the Company mentioned herein shall be sufficiently evidenced by a Board Resolution or an instrument signed in the name of the
Company by any authorized officer of the Company (unless other evidence in respect thereof is specifically prescribed herein);
(c) The Trustee may consult with counsel and
the written advice of such counsel or, if requested, any Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken or suffered or omitted hereunder in good faith and in reliance thereon;
(d) The Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Securityholders
pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee reasonable security
or indemnity against the costs, expenses and liabilities that may be incurred therein or thereby; nothing contained herein shall,
however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default with respect to a series of the Securities
(that has not been cured or waived), to exercise with respect to Securities of that series such of the rights and powers vested
in it by this Indenture, and to use the same degree of care and skill in their exercise, as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs;
(e) The Trustee shall not be liable for any
action taken or omitted to be taken by it in good faith and believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Indenture;
(f) The Trustee shall not be bound to make
any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond, security, or other papers or documents, unless requested in writing so to do by the holders
of not less than a majority in principal amount of the Outstanding Securities of the particular series affected thereby (determined
as provided in Section 8.04); provided, however, that if the payment within a reasonable time to the Trustee of the costs, expenses
or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require reasonable indemnity
against such costs, expenses or liabilities as a condition to so proceeding. The reasonable expense of every such examination shall
be paid by the Company or, if paid by the Trustee, shall be repaid by the Company upon demand; and
(g) The Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall
not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder.
In addition, the Trustee shall not be deemed
to have knowledge of any Default or Event of Default except (1) any Event of Default occurring pursuant to Sections 6.01(a)(1)
and 6.01(a)(2) or (2) any Default or Event of Default of which the Trustee shall have received written notification in the manner
set forth in this Indenture or a Responsible Officer of the Trustee shall have obtained actual knowledge. Delivery of reports,
information and documents to the Trustee under Section 5.03 is for informational purposes only and the information and the Trustee’s
receipt of the foregoing shall not constitute constructive notice of any information contained therein, or determinable from information
contained therein including the Company’s compliance with any of their covenants thereunder (as to which the Trustee is entitled
to rely exclusively on an Officer’s Certificate).
Section 7.03 Trustee Not Responsible for Recitals or
Issuance or Securities.
(a) The recitals contained herein and in the
Securities shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the
same.
(b) The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities.
(c) The Trustee shall not be accountable for
the use or application by the Company of any of the Securities or of the proceeds of such Securities, or for the use or application
of any moneys paid over by the Trustee in accordance with any provision of this Indenture or established pursuant to Section 2.01,
or for the use or application of any moneys received by any paying agent other than the Trustee.
Section 7.04 May Hold Securities.
The Trustee or any paying agent or Security
Registrar, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would
have if it were not Trustee, paying agent or Security Registrar.
Section 7.05 Moneys Held in Trust.
Subject to the provisions of Section 11.05,
all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which
they were received, but need not be segregated from other funds except to the extent required by law. The Trustee shall be under
no liability for interest on any moneys received by it hereunder except such as it may agree with the Company to pay thereon.
Section 7.06 Compensation and Reimbursement.
(a) The Company covenants and agrees to pay
to the Trustee, and the Trustee shall be entitled to, such reasonable compensation (which shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust) as the Company and the Trustee may from time to time agree
in writing, for all services rendered by it in the execution of the trusts hereby created and in the exercise and performance of
any of the powers and duties hereunder of the Trustee, and, except as otherwise expressly provided herein, the Company will pay
or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements
of its counsel and of all Persons not regularly in its employ), except any such expense, disbursement or advance as may arise from
its negligence or bad faith and except as the Company and Trustee may from time to time agree in writing. The Company also covenants
to indemnify the Trustee (and its officers, agents, directors and employees) for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or bad faith on the part of the Trustee and arising out of or in connection with the acceptance
or administration of this trust, including the reasonable costs and expenses of defending itself against any claim of liability
in the premises.
(b) The obligations of the Company under this
Section to compensate and indemnify the Trustee and to pay or reimburse the Trustee for reasonable expenses, disbursements and
advances shall constitute additional indebtedness hereunder. Such additional indebtedness shall be secured by a lien prior to that
of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit
of the holders of particular Securities.
Section 7.07 Reliance on Officer’s Certificate.
Except as otherwise provided in Section 7.01,
whenever in the administration of the provisions of this Indenture the Trustee shall deem it reasonably necessary or desirable
that a matter be proved or established prior to taking or suffering or omitting to take any action hereunder, such matter (unless
other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part
of the Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate delivered to the Trustee and such
certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any
action taken, suffered or omitted to be taken by it under the provisions of this Indenture upon the faith thereof.
Section 7.08 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire any “conflicting
interest” within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the Company shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture Act.
Section 7.09 Corporate Trustee
Required; Eligibility.
There shall at all times be a Trustee with
respect to the Securities issued hereunder which shall at all times be a corporation organized and doing business under the laws
of the United States of America or any state or territory thereof or of the District of Columbia, or a corporation or other Person
permitted to act as trustee by the Securities and Exchange Commission, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least fifty million U.S. dollars ($50,000,000), and subject to supervision or examination
by federal, state, territorial, or District of Columbia authority.
If such corporation or other Person publishes
reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such corporation or other Person shall be deemed to
be its combined capital and surplus as set forth in its most recent report of condition so published. The Company may not, nor
may any Person directly or indirectly controlling, controlled by, or under common control with the Company, serve as Trustee. In
case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 7.10.
Section 7.10 Resignation and Removal; Appointment of
Successor.
(a) The Trustee or any successor hereafter
appointed may at any time resign with respect to the Securities of one or more series by giving written notice thereof to the Company
and by transmitting notice of resignation by mail, first class postage prepaid, to the Securityholders of such series, as their
names and addresses appear upon the Security Register. Upon receiving such notice of resignation, the Company shall promptly appoint
a successor trustee with respect to Securities of such series by written instrument, in duplicate, executed by order of the Board
of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If
no successor trustee shall have been so appointed and have accepted appointment within 30 days after the mailing of such notice
of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor trustee
with respect to Securities of such series, or any Securityholder of that series who has been a bona fide holder of a Security or
Securities for at least six months may on behalf of himself and all others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, appoint
a successor trustee.
(b) In case at any time any one of the following
shall occur:
(1) the Trustee shall fail to comply with the
provisions of Section 7.08 after written request therefor by the Company or by any Securityholder who has been a bona fide holder
of a Security or Securities for at least six months; or
(2) the Trustee shall cease to be eligible in
accordance with the provisions of Section 7.09 and shall fail to resign after written request therefor by the Company or by any
such Securityholder; or
(3) the Trustee shall become incapable of acting,
or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding, or a receiver of the Trustee or of
its property shall be appointed or consented to, or any public officer shall take charge or control of the Trustee or of its property
or affairs for the purpose of rehabilitation, conservation or liquidation; then, in any such case, the Company may remove the Trustee
with respect to all Securities and appoint a successor trustee by written instrument, in duplicate, executed by order of the Board
of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee,
or any Securityholder who has been a bona fide holder of a Security or Securities for at least six months may, on behalf of that
holder and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment
of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, remove the Trustee
and appoint a successor trustee.
(c) The holders of a majority in aggregate
principal amount of the Securities of any series at the time Outstanding may at any time remove the Trustee with respect to such
series by so notifying the Trustee and the Company and may appoint a successor Trustee for such series with the consent of the
Company.
(d) Any resignation or removal of the Trustee
and appointment of a successor trustee with respect to the Securities of a series pursuant to any of the provisions of this Section
shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.11.
(e) Any successor trustee appointed pursuant
to this Section may be appointed with respect to the Securities of one or more series or all of such series, and at any time there
shall be only one Trustee with respect to the Securities of any particular series.
Section 7.11 Acceptance of Appointment By Successor.
(a) In case of the appointment hereunder of
a successor trustee with respect to all Securities, every such successor trustee so appointed shall execute, acknowledge and deliver
to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of
the retiring Trustee shall become effective and such successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor
trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor
trustee all the rights, powers, and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor
trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of
a successor trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each
successor trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor trustee shall accept such appointment and which (i) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor trustee relates,
(ii) shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee, and (iii) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust, that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any
other such Trustee and that no Trustee shall be responsible for any act or failure to act on the part of any other Trustee hereunder;
and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein, such retiring Trustee shall with respect to the Securities of that or those series to
which the appointment of such successor trustee relates have no further responsibility for the exercise of rights and powers or
for the performance of the duties and obligations vested in the Trustee under this Indenture, and each such successor trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the appointment of such successor trustee relates; but,
on request of the Company or any successor trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor
trustee, to the extent contemplated by such supplemental indenture, the property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment of such successor trustee relates.
(c) Upon request of any such successor trustee,
the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor trustee
all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor trustee shall accept its appointment
unless at the time of such acceptance such successor trustee shall be qualified and eligible under this Article.
(e) Upon acceptance of appointment by a successor
trustee as provided in this Section, the Company shall transmit notice of the succession of such trustee hereunder by mail, first
class postage prepaid, to the Securityholders, as their names and addresses appear upon the Security Register. If the Company fails
to transmit such notice within ten days after acceptance of appointment by the successor trustee, the successor trustee shall cause
such notice to be transmitted at the expense of the Company.
Section 7.12 Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Trustee may
be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation
to which the Trustee shall be a party, or any corporation succeeding to the corporate trust business of the Trustee, including
the administration of the trust created by this Indenture, shall be the successor of the Trustee hereunder, provided that such
corporation shall be qualified under the provisions of Section 7.08 and eligible under the provisions of Section 7.09, without
the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
Section 7.13 Preferential Collection of Claims Against
the Company.
The Trustee shall comply with Section 311(a)
of the Trust Indenture Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture Act. A Trustee
who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.
Section 7.14 Notice of Default
If any Default or any Event of Default occurs
and is continuing and if such Default or Event of Default is known to a Responsible Officer of the Trustee, the Trustee shall mail
to each Securityholder in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act notice of the Default
or Event of Default within the earlier of 90 days after it occurs and 30 days after it is known to a Responsible Officer of the
Trustee or written notice of it is received by the Trustee, unless such Default or Event of Default has been cured; provided, however,
that, except in the case of a default in the payment of the principal of (or premium, if any) or interest on any Security, the
Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Trustee in good faith determine that the withholding of such notice is
in the interest of the Securityholders.
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
Section 8.01 Evidence of Action by Securityholders.
Whenever in this Indenture it is provided that
the holders of a majority or specified percentage in aggregate principal amount of the Securities of a particular series may take
any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other
action), the fact that at the time of taking any such action the holders of such majority or specified percentage of that series
have joined therein may be evidenced by any instrument or any number of instruments of similar tenor executed by such holders of
Securities of that series in person or by agent or proxy appointed in writing.
If the Company shall solicit from the Securityholders
of any series any request, demand, authorization, direction, notice, consent, waiver or other action, the Company may, at its option,
as evidenced by an Officer’s Certificate, fix in advance a record date for such series for the determination of Securityholders
entitled to give such request, demand, authorization, direction, notice, consent, waiver or other action, but the Company shall
have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver
or other action may be given before or after the record date, but only the Securityholders of record at the close of business on
the record date shall be deemed to be Securityholders for the purposes of determining whether Securityholders of the requisite
proportion of Outstanding Securities of that series have authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other action, and for that purpose the Outstanding Securities of that series shall be computed
as of the record date; provided, however, that no such authorization, agreement or consent by such Securityholders on the record
date shall be deemed effective
unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
Section 8.02 Proof of Execution by Securityholders.
Subject to the provisions of Section 7.01,
proof of the execution of any instrument by a Securityholder (such proof will not require notarization) or his agent or proxy and
proof of the holding by any Person of any of the Securities shall be sufficient if made in the following manner:
(a) The fact and date of the execution by any
such Person of any instrument may be proved in any reasonable manner acceptable to the Trustee.
(b) The ownership of Securities shall be proved
by the Security Register of such Securities or by a certificate of the Security Registrar thereof.
The Trustee may require such additional proof
of any matter referred to in this Section as it shall deem necessary.
Section 8.03 Who May be Deemed Owners.
Prior to the due presentment for registration
of transfer of any Security, the Company, the Trustee, any paying agent and any Security Registrar may deem and treat the Person
in whose name such Security shall be registered upon the books of the Company as the absolute owner of such Security (whether or
not such Security shall be overdue and notwithstanding any notice of ownership or writing thereon made by anyone other than the
Security Registrar) for the purpose of receiving payment of or on account of the principal of, premium, if any, and (subject to
Section 2.03) interest on such Security and for all other purposes; and neither the Company nor the Trustee nor any paying agent
nor any Security Registrar shall be affected by any notice to the contrary.
Section 8.04 Certain Securities Owned by Company Disregarded.
In determining whether the holders of the requisite
aggregate principal amount of Securities of a particular series have concurred in any direction, consent or waiver under this Indenture,
the Securities of that series that are owned by the Company or any other obligor on the Securities of that series or by any Person
directly or indirectly controlling or controlled by or under common control with the Company or any other obligor on the Securities
of that series shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, except that for
the purpose of determining whether the Trustee shall be protected in relying on any such direction, consent or waiver, only Securities
of such series that the Trustee actually knows are so owned shall be so disregarded. The Securities so owned that have been pledged
in good faith may be regarded as Outstanding for the purposes of this Section, if the pledgee shall establish to the satisfaction
of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not a Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the Company or any such other obligor. In case of
a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee.
Section 8.05 Actions Binding on Future Securityholders.
At any time prior to (but not after) the evidencing
to the Trustee, as provided in Section 8.01, of the taking of any action by the holders of the majority or percentage in aggregate
principal amount of the Securities of a particular series specified in this Indenture in connection with such action, any holder
of a Security of that series that is shown by the evidence to be included in the Securities the holders of which have consented
to such action may, by filing written notice with the Trustee, and upon proof of holding as provided in Section 8.02, revoke such
action so far as concerns such Security. Except as aforesaid any such action taken by the holder of any Security shall be conclusive
and binding upon such holder and upon all future holders and owners of such Security, and of any Security issued in exchange therefor,
on registration of transfer thereof or in place thereof, irrespective of whether or not any notation in regard thereto is made
upon such Security. Any action taken by the holders of the majority or percentage in aggregate principal amount of the Securities
of a particular series specified in this Indenture in connection with such action shall be conclusively binding upon the Company,
the Trustee and the holders of all the Securities of that series.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without the Consent
of Securityholders.
In addition to any supplemental indenture otherwise
authorized by this Indenture, the Company and the Trustee may from time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as then in effect), without the consent of
the Securityholders, for one or more of the following purposes:
(a) to cure any ambiguity, defect, or inconsistency
herein or in the Securities of any series;
(b) to comply with Article Ten;
(c) to provide for uncertificated Securities
in addition to or in place of certificated Securities;
(d) to add to the covenants, restrictions,
conditions or provisions relating to the Company for the benefit of the holders of all or any series of Securities (and if such
covenants, restrictions, conditions or provisions are to be for the benefit of less than all series of Securities, stating that
such covenants, restrictions, conditions or provisions are expressly being included solely for the benefit of such series), to
make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants, restrictions, conditions
or provisions an Event of Default, or to surrender any right or power herein conferred upon the Company;
(e) to add to, delete from, or revise the conditions,
limitations, and restrictions on the authorized amount, terms, or purposes of issue, authentication, and delivery of Securities,
as herein set forth;
(f) to make any change that does not adversely
affect the rights of any Securityholder in any material respect;
(g) to provide for the issuance of and establish
the form and terms and conditions of the Securities of any series as provided in Section 2.01, to establish the form of any certifications
required to be furnished pursuant to the terms of this Indenture or any series of Securities, or to add to the rights of the holders
of any series of Securities;
(h) to evidence and provide for the acceptance
of appointment hereunder by a successor trustee; or
(i) to comply with any requirements of the
Securities and Exchange Commission or any successor in connection with the qualification of this Indenture under the Trust Indenture
Act.
The Trustee is hereby authorized to join with
the Company in the execution of any such supplemental indenture, and to make any further appropriate agreements and stipulations
that may be therein contained, but the Trustee shall not be obligated to enter into any such supplemental indenture that affects
the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the
provisions of this Section may be executed by the Company and the Trustee without the consent of the holders of any of the Securities
at the time Outstanding, notwithstanding any of the provisions of Section 9.02.
Section 9.02 Supplemental Indentures With Consent of
Securityholders.
With the consent (evidenced as provided in
Section 8.01) of the holders of not less than a majority in aggregate principal amount of the Securities of each series affected
by such supplemental indenture or indentures at the time Outstanding, the Company, when authorized by a Board Resolution, and the
Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to
the provisions of the Trust Indenture Act as then in effect) for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner not covered
by Section 9.01 the rights of the holders of the Securities of such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the holders of each Security then Outstanding and affected thereby, (a) extend
the fixed maturity of any Securities of any series, or reduce the principal amount thereof, or reduce the rate or extend the time
of payment of interest thereon, or reduce any premium payable upon the redemption thereof or (b) reduce the aforesaid percentage
of Securities, the holders of which are required to consent to any such supplemental indenture.
It shall not be necessary for the consent of
the Securityholders of any series affected thereby under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Section 9.03 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture
pursuant to the provisions of this Article or of Section 10.01, this Indenture shall, with respect to such series, be and be deemed
to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Company and the holders of Securities of the series affected thereby shall thereafter
be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture
for any and all purposes.
Section 9.04 Securities Affected by Supplemental Indentures.
Securities of any series affected by a supplemental
indenture, authenticated and delivered after the execution of such supplemental indenture pursuant to the provisions of this Article
or of Section 10.01, may bear a notation in form approved by the Company, provided such form meets the requirements of any securities
exchange upon which such series may be listed, as to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of that series so modified as to conform, in the opinion of the Board of Directors, to any modification
of this Indenture contained in any such supplemental indenture may be prepared by the Company, authenticated by the Trustee and
delivered in exchange for the Securities of that series then Outstanding.
Section 9.05 Execution of Supplemental Indentures.
Upon the request of the Company, accompanied
by its Board Resolutions authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of Securityholders required to consent thereto as aforesaid, the Trustee shall join with the Company in
the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its discretion but shall not be obligated to enter into such
supplemental indenture. The Trustee, subject to the provisions of Section 7.01, may receive an Officer’s Certificate or, if requested,
an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant to this Article is authorized or
permitted by, and conforms to, the terms of this Article and that it is proper for the Trustee under the provisions of this Article
to join in the execution thereof; provided, however, that such Officer’s Certificate or Opinion of Counsel need not be provided
in connection with the execution of a supplemental indenture that establishes the terms of a series of Securities pursuant to Section
2.01 hereof.
Promptly after the execution by the Company
and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Trustee shall transmit by mail, first
class postage prepaid, a notice, setting forth in general terms the substance of such supplemental indenture, to the Securityholders
of all series affected thereby as their names and addresses appear upon the Security Register. Any failure of the Trustee to mail
such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
ARTICLE X
SUCCESSOR ENTITY
Section 10.01 Company May Consolidate, Etc.
Except as provided pursuant to Section 2.01
pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established in one or more indentures supplemental
to this Indenture, nothing contained in this Indenture shall prevent any consolidation or merger of the Company with or into any
other Person (whether or not affiliated with the Company) or successive consolidations or mergers in which the Company or its successor
or successors shall be a party or parties, or shall prevent any sale, conveyance, transfer or other disposition of the property
of the Company or its successor or successors as an entirety, or substantially as an entirety, to any other corporation (whether
or not affiliated with the Company or its successor or successors) authorized to acquire and operate the same; provided, however,
(a) the Company hereby covenants and agrees that, upon any such consolidation or merger (in each case, if the Company is not the
survivor of such transaction), sale, conveyance, transfer or other disposition, the due and punctual payment of the principal of
(premium, if any) and interest on all of the Securities of all series in accordance with the terms of each series, according to
their tenor, and the due and punctual performance and observance of all the covenants and conditions of this Indenture with respect
to each series or established with respect to such series pursuant to Section 2.01 to be kept or performed by the Company shall
be expressly assumed, by supplemental indenture (which shall conform to the provisions of the Trust Indenture Act, as then in effect)
reasonably satisfactory in form to the Trustee executed and delivered to the Trustee by the entity formed by such consolidation,
or into which the Company shall have been merged, or by the entity which shall have acquired such property and (b) in the event
that the Securities of any series then Outstanding are convertible into or exchangeable for shares of common stock or other securities
of the Company, such entity shall, by such supplemental indenture, make provision so that the Securityholders of Securities of
that series shall thereafter be entitled to receive upon conversion or exchange of such Securities the number of securities or
property to which a holder of the number of shares of common stock or other securities of the Company deliverable upon conversion
or exchange of those Securities would have been entitled had such conversion or exchange occurred immediately prior to such consolidation,
merger, sale, conveyance, transfer or other disposition.
Section 10.02 Successor Entity Substituted.
(a) In case of any such consolidation, merger,
sale, conveyance, transfer or other disposition and upon the assumption by the successor entity by supplemental indenture, executed
and delivered to the Trustee and satisfactory in form to the Trustee, of the obligations set forth under Section 10.01 on all of
the Securities of all series Outstanding, such successor entity shall succeed to and be substituted for the Company with the same
effect as if it had been named as the Company herein, and thereupon the predecessor corporation shall be relieved of all obligations
and covenants under this Indenture and the Securities.
(b) In case of any such consolidation, merger,
sale, conveyance, transfer or other disposition, such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
(c) Nothing contained in this Article shall require
any action by the Company in the case of a consolidation or merger of any Person into the Company where the Company is the survivor
of such transaction, or the acquisition by the Company, by purchase or otherwise, of all or any part of the property of any other
Person (whether or not affiliated with the Company).
Section 10.03 Evidence of Consolidation, Etc. to Trustee.
The Trustee, subject to the provisions of Section
7.01, may receive an Officer’s Certificate and, if requested, an Opinion of Counsel as conclusive evidence that any such consolidation,
merger, sale, conveyance, transfer or other disposition, and any such assumption, comply with the provisions of this Article.
ARTICLE XI
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge of Indenture.
If at any time: (a) the Company shall have
delivered to the Trustee for cancellation all Securities of a series theretofore authenticated and not delivered to the Trustee
for cancellation (other than any Securities that shall have been destroyed, lost or stolen and that shall have been replaced or
paid as provided in Section 2.07 and Securities for whose payment money or Governmental Obligations have theretofore been deposited
in trust or segregated and held in trust by the Company and thereupon repaid to the Company or discharged from such trust, as provided
in Section 11.05); or (b) all such Securities of a particular series not theretofore delivered to the Trustee for cancellation
shall have become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and the Company shall deposit
or cause to be deposited with the Trustee as trust funds the entire amount in moneys or Governmental Obligations or a combination
thereof, sufficient in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay at maturity or upon redemption all Securities of that series not theretofore delivered
to the Trustee for cancellation, including principal (and premium, if any) and interest due or to become due to such date of maturity
or date fixed for redemption, as the case may be, and if the Company shall also pay or cause to be paid all other sums payable
hereunder with respect to such series by the Company then this Indenture shall thereupon cease to be of further effect with respect
to such series except for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03 and 7.10, that shall survive until the
date of maturity or redemption date, as the case may be, and Sections 7.06 and 11.05, that shall survive to such date and thereafter,
and the Trustee, on demand of the Company and at the cost and expense of the Company shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture with respect to such series.
Section 11.02 Discharge of Obligations.
If at any time all such Securities of a particular
series not heretofore delivered to the Trustee for cancellation or that have not become due and payable as described in Section
11.01 shall have been paid by the Company by depositing irrevocably with the Trustee as trust funds moneys or an amount of Governmental
Obligations sufficient to pay at maturity or upon redemption all such Securities of that series not theretofore delivered to the
Trustee for cancellation, including principal (and premium, if any) and interest due or to become due to such date of maturity
or date fixed for redemption, as the case may be, and if the Company shall also pay or cause to be paid all other sums payable
hereunder by the Company with respect to such series, then after the date such moneys or Governmental Obligations, as the case
may be, are deposited with the Trustee the obligations of the Company under this Indenture with respect to such series shall cease
to be of further effect except for the provisions of Sections 2.03, 2.05, 2.07, 4,01, 4.02, 4,03, 7.06, 7.10 and 11.05 hereof that
shall survive until such Securities shall mature and be paid. Thereafter, Sections 7.06 and 11.05 shall survive.
Section 11.03 Deposited Moneys to be Held in Trust.
All moneys or Governmental Obligations deposited
with the Trustee pursuant to Sections 11.01 or 11.02 shall be held in trust and shall be available for payment as due, either directly
or through any paying agent (including the Company acting as its own paying agent), to the holders of the particular series of
Securities for the payment or redemption of which such moneys or Governmental Obligations have been deposited with the Trustee.
Section 11.04 Payment of Moneys Held by Paying Agents.
In connection with the satisfaction and discharge
of this Indenture all moneys or Governmental Obligations then held by any paying agent under the provisions of this Indenture shall,
upon demand of the Company, be paid to the Trustee and thereupon such paying agent shall be released from all further liability
with respect to such moneys or Governmental Obligations.
Section 11.05 Repayment to Company.
Any moneys or Governmental Obligations deposited
with any paying agent or the Trustee, or then held by the Company, in trust for payment of principal of or premium, if any, or
interest on the Securities of a particular series that are not applied but remain unclaimed by the holders of such Securities for
at least two years after the date upon which the principal of (and premium, if any) or interest on such Securities shall have respectively
become due and payable, or such other shorter period set forth in applicable escheat or abandoned or unclaimed property law, shall
be repaid to the Company on May 31 of each year or upon the Company’s request or (if then held by the Company) shall be discharged
from such trust; and thereupon the paying agent and the Trustee shall be released from all further liability with respect to such
moneys or Governmental Obligations, and the holder of any of the Securities entitled to receive such payment shall thereafter,
as a general creditor, look only to the Company for the payment thereof.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 12.01 No Recourse.
No recourse under or upon any obligation, covenant
or agreement of this Indenture, or of any Security, or for any claim based thereon or otherwise in respect thereof, shall be had
against any incorporator, stockholder, officer or director, past, present or future as such, of the Company or of any predecessor
or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely corporate obligations, and that no such personal
liability whatever shall attach to, or is or shall be incurred by, the incorporators, stockholders, officers or directors as such,
of the Company or of any predecessor or successor corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom; and that any and all such personal liability of every name and nature, either at common law or in equity
or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, stockholder, officer
or director as such, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants
or agreements contained in this Indenture or in any of the Securities or implied therefrom, are hereby expressly waived and released
as a condition of, and as a consideration for, the execution of this Indenture and the issuance of such Securities.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01 Effect on Successors and Assigns.
All the covenants, stipulations, promises and
agreements in this Indenture made by or on behalf of the Company shall bind its successors and assigns, whether so expressed or
not.
Section 13.02 Actions by Successor.
Any act or proceeding by any provision of this
Indenture authorized or required to be done or performed by any board, committee or officer of the Company shall and may be done
and performed with like force and effect by the corresponding board, committee or officer of any corporation that shall at the
time be the lawful successor of the Company.
Section 13.03 Surrender of
Company Powers.
The Company by instrument in writing executed
by authority of its Board of Directors and delivered to the Trustee may surrender any of the powers reserved to the Company, and
thereupon such power so surrendered shall terminate both as to the Company and as to any successor corporation.
Section 13.04 Notices.
Except as otherwise expressly provided herein,
any notice, request or demand that by any provision of this Indenture is required or permitted to be given, made or served by the
Trustee or by the holders of Securities or by any other Person pursuant to this Indenture to or on the Company may be given or
served by being deposited in first class mail, postage prepaid, addressed (until another address is filed in writing by the Company
with the Trustee), as follows:
Any notice, election, request or demand by
the Company or any Securityholder or by any other Person pursuant to this Indenture to or upon the Trustee shall be deemed to have
been sufficiently given or made, for all purposes, if given or made in writing at the Corporate Trust Office of the Trustee.
Section 13.05 Governing Law.
This Indenture and each Security shall be deemed
to be a contract made under the internal laws of the State of New York, and for all purposes shall be construed in accordance with
the laws of said State, except to the extent that the Trust Indenture Act is applicable.
Section 13.06 Treatment of Securities as Debt.
It is intended that the Securities will be
treated as indebtedness and not as equity for federal income tax purposes. The provisions of this Indenture shall be interpreted
to further this intention.
Section 13.07 Certificates and Opinions as to Conditions
Precedent.
(a) Upon any application or demand by the Company
to the Trustee to take any action under any of the provisions of this Indenture, the Company shall furnish to the Trustee an Officer’s
Certificate stating that all conditions precedent provided for in this Indenture (other than the certificate to be delivered pursuant
to Section 13.12) relating to the proposed action have been complied with and, if requested, an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent have been complied with, except that in the case of any such application
or demand as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to
such particular application or demand, no additional certificate or opinion need be furnished.
(b) Each certificate or opinion provided for
in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant in this Indenture shall
include (i) a statement that the Person making such certificate or opinion has read such covenant or condition; (ii) a brief statement
as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate
or opinion are based; (iii) a statement that, in the opinion of such Person, he has made such examination or investigation as is
reasonably necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied
with; and (iv) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
Section 13.08 Payments on Business Days.
Except as provided pursuant to Section 2.01
pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established in one or more indentures supplemental
to this Indenture, in any case where the date of maturity of interest or principal of any Security or the date of redemption of
any Security shall not be a Business Day, then payment of interest or principal (and premium, if any) may be made on the next succeeding
Business Day with the same force and effect as if made on the nominal date of maturity or redemption, and no interest shall accrue
for the period after such nominal date.
Section 13.09 Conflict with Trust Indenture Act.
If and to the extent that any provision of
this Indenture limits, qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture
Act, such imposed duties shall control.
Section 13.10 Counterparts.
This Indenture may be executed in any number
of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.
Section 13.11 Separability.
In case any one or more of the provisions contained
in this Indenture or in the Securities of any series shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Indenture or of such Securities,
but this Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable provision had never been
contained herein or therein.
Section 13.12 Compliance Certificates.
The Company shall deliver to the Trustee, within
120 days after the end of each fiscal year during which any Securities of any series were outstanding, an officer’s certificate
stating whether or not the signers know of any Default or Event of Default that occurred during such fiscal year. Such certificate
shall contain a certification from the principal executive officer, principal financial officer or principal accounting officer
of the Company that a review has been conducted of the activities of the Company and the Company’s performance under this Indenture
and that the Company has complied with all conditions and covenants under this Indenture. For purposes of this Section 13.12, such
compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture. If
the officer of the Company signing such certificate has knowledge of such a Default or Event of Default, the certificate shall
describe any such Default or Event of Default and its status.
[Remainder of page intentionally left blank;
signature page follows]
IN WITNESS WHEREOF, the parties hereto have
caused this Indenture to be duly executed all as of the day and year first above written.
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KAIVAL BRANDS INNOVATIONS GROUP, INC.
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By:
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Name:
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Title:
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[TRUSTEE], as Trustee
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By:
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Name:
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Title:
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34
Exhibit 4.5
KAIVAL BRANDS INNOVATIONS GROUP, INC.,
ISSUER
AND
[TRUSTEE],
TRUSTEE
INDENTURE
DATED AS OF , 20
SUBORDINATED DEBT SECURITIES
TABLE OF CONTENTS
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Page
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ARTICLE 1 DEFINITIONS
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1
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Section 1.01 Definitions of Terms
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1
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ARTICLE 2 ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
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4
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Section 2.01 Designation and Terms of Securities
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4
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Section 2.02 Form of Securities and Trustee’s Certificate
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6
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Section 2.03 Denominations: Provisions for Payment
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6
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Section 2.04 Execution and Authentications
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7
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Section 2.05 Registration of Transfer and Exchange
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8
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Section 2.06 Temporary Securities
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8
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Section 2.07 Mutilated, Destroyed, Lost or Stolen Securities
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9
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Section 2.08 Cancellation
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9
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Section 2.09 Benefits of Indenture
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10
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Section 2.10 Authenticating Agent
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10
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Section 2.11 Global Securities
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10
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ARTICLE 3 REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
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11
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Section 3.01 Redemption
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11
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Section 3.02 Notice of Redemption
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11
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Section 3.03 Payment Upon Redemption
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12
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Section 3.04 Sinking Fund
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12
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Section 3.05 Satisfaction of Sinking Fund Payments with Securities
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12
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Section 3.06 Redemption of Securities for Sinking Fund
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13
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ARTICLE 4 COVENANTS
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13
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Section 4.01 Payment of Principal, Premium and Interest
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13
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Section 4.02 Maintenance of Office or Agency
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13
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Section 4.03 Paying Agents
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14
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Section 4.04 Appointment to Fill Vacancy in Office of Trustee
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14
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Section 4.05 Compliance with Consolidation Provisions
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14
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ARTICLE 5 SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
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15
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Section 5.01 Company to Furnish Trustee Names and Addresses of Securityholders
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15
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Section 5.02 Preservation Of Information; Communications With Securityholders
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15
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Section 5.03 Reports by the Company
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15
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Section 5.04 Reports by the Trustee
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15
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ARTICLE 6 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
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16
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Section 6.01 Events of Default
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16
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Section 6.02 Collection of Indebtedness and Suits for Enforcement by Trustee
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17
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Section 6.03 Application of Moneys Collected
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18
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Section 6.04 Limitation on Suits
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18
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Section 6.05 Rights and Remedies Cumulative; Delay or Omission Not Waiver
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19
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Section 6.06 Control by Securityholders
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19
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Section 6.07 Undertaking to Pay Costs
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20
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ARTICLE 7 CONCERNING THE TRUSTEE
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20
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Section 7.01 Certain Duties and Responsibilities of Trustee
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20
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Section 7.02 Certain Rights of Trustee
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21
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Section 7.03 Trustee Not Responsible for Recitals or Issuance or Securities
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22
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Section 7.04 May Hold Securities
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22
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Section 7.05 Moneys Held in Trust
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22
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Section 7.06 Compensation and Reimbursement
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22
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Section 7.07 Reliance on Officer’s Certificate
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23
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Section 7.08 Disqualification; Conflicting Interests
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23
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Section 7.09 Corporate Trustee Required; Eligibility
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23
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Section 7.10 Resignation and Removal; Appointment of Successor
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23
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Section 7.11 Acceptance of Appointment By Successor
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24
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Section 7.12 Merger, Conversion, Consolidation or Succession to Business
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25
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Section 7.13 Preferential Collection of Claims Against the Company
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25
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Section 7.14 Notice of Default
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25
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ARTICLE 8 CONCERNING THE SECURITYHOLDERS
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26
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Section 8.01 Evidence of Action by Securityholders
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26
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Section 8.02 Proof of Execution by Securityholders
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26
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Section 8.03 Who May be Deemed Owners
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26
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Section 8.04 Certain Securities Owned by Company Disregarded
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27
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Section 8.05 Actions Binding on Future Securityholders
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27
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ARTICLE 9 SUPPLEMENTAL INDENTURES
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27
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Section 9.01 Supplemental Indentures Without the Consent of Securityholders
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27
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Section 9.02 Supplemental Indentures With Consent of Securityholders
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28
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Section 9.03 Effect of Supplemental Indentures
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28
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Section 9.04 Securities Affected by Supplemental Indentures
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29
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Section 9.05 Execution of Supplemental Indentures
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29
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ARTICLE 10 SUCCESSOR ENTITY
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29
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Section 10.01 Company May Consolidate, Etc
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29
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Section 10.02 Successor Entity Substituted
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30
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Section 10.03 Evidence of Consolidation, Etc
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30
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ARTICLE 11 SATISFACTION AND DISCHARGE
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30
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Section 11.01 Satisfaction and Discharge of Indenture
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30
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Section 11.02 Discharge of Obligations
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31
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Section 11.03 Deposited Moneys to be Held in Trust
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31
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Section 11.04 Payment of Moneys Held by Paying Agents
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31
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Section 11.05 Repayment to Company
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31
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ARTICLE 12 IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
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31
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Section 12.01 No Recourse
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31
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ARTICLE 13 MISCELLANEOUS PROVISIONS
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32
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Section 13.01 Effect on Successors and Assigns
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32
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Section 13.02 Actions by Successor
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32
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Section 13.03 Surrender of Company Powers
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32
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Section 13.04 Notices
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32
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Section 13.05 Governing Law
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32
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Section 13.06 Treatment of Securities as Debt
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32
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Section 13.07 Certificates and Opinions as to Conditions Precedent
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33
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Section 13.08 Payments on Business Days
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33
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Section 13.09 Conflict with Trust Indenture Act
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33
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Section 13.10 Counterparts
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33
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Section 13.11 Separability
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33
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Section 13.12 Compliance Certificates
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33
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ARTICLE 14 SUBORDINATION OF SECURITIES
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34
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Section 14.01 Subordination Terms
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34
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(1) This Table of Contents does
not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions.
INDENTURE
INDENTURE, dated as of [£], 20[£],
among Kaival Brands Innovations Group, Inc., a Delaware corporation (the “Company”), and [TRUSTEE], as
trustee (the “Trustee”):
WHEREAS, for its lawful corporate purposes,
the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance of subordinated debt securities
(hereinafter referred to as the “Securities”), in an unlimited aggregate principal amount to be issued from time to time
in one or more series as in this Indenture provided, as registered Securities without coupons, to be authenticated by the certificate
of the Trustee;
WHEREAS, to provide the terms and conditions
upon which the Securities are to be authenticated, issued and delivered, the Company has duly authorized the execution of this
Indenture; and
WHEREAS, all things necessary to make this
Indenture a valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises
and the purchase of the Securities by the holders thereof, it is mutually covenanted and agreed as follows for the equal and ratable
benefit of the holders of Securities:
ARTICLE 1
DEFINITIONS
Section 1.01 Definitions of Terms.
The terms defined in this Section (except as
in this Indenture or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires) for
all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section
and shall include the plural as well as the singular. All other terms used in this Indenture that are defined in the Trust Indenture
Act of 1939, as amended, or that are by reference in such Act defined in the Securities Act of 1933, as amended (except as herein
or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires), shall have the meanings
assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of the execution of this
instrument.
“Authenticating Agent” means an authenticating
agent with respect to all or any of the series of Securities appointed by the Trustee pursuant to Section 2.10.
“Bankruptcy Law” means Title 11,
U.S. Code, or any similar federal or state law for the relief of debtors.
“Board of Directors” means the Board
of Directors of the Company or any duly authorized committee of such Board.
“Board Resolution” means a copy of
a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of such certification.
“Business Day” means, with respect
to any series of Securities, any day other than a day on which federal or state banking institutions in the Borough of Manhattan,
the City of New York, or in the city of the Corporate Trust Office of the Trustee, are authorized or obligated by law, executive
order or regulation to close.
“Certificate” means a certificate
signed by any Officer. The Certificate need not comply with the provisions of Section 13.07.
“Company” means Kaival Brands Innovations
Group, Inc., a corporation duly organized and existing under the laws of the State of Delaware, and, subject to the provisions
of Article Ten, shall also include its successors and assigns.
“Corporate Trust Office” means the
office of the Trustee at which, at any particular time, its corporate trust business shall be principally administered, which office
at the date hereof is located at .
“Custodian” means any receiver, trustee,
assignee, liquidator or similar official under any Bankruptcy Law.
“Default” means any event, act or
condition that with notice or lapse of time, or both, would constitute an Event of Default.
“Defaulted Interest” has the meaning
set forth in Section 2.03.
“Depositary” means, with respect
to Securities of any series for which the Company shall determine that such Securities will be issued as a Global Security, The
Depository Trust Company, another clearing agency, or any successor registered as a clearing agency under the Exchange Act, or
other applicable statute or regulation, which, in each case, shall be designated by the Company pursuant to either Section 2.01
or 2.11.
“Event of Default” means, with respect
to Securities of a particular series, any event specified in Section 6.01, continued for the period of time, if any, therein designated.
“Exchange Act” means the Securities
and Exchange Act of 1934, as amended.
“Global Security” means, with respect
to any series of Securities, a Security executed by the Company and delivered by the Trustee to the Depositary or pursuant to the
Depositary’s instruction, all in accordance with the Indenture, which shall be registered in the name of the Depositary or its
nominee.
“Governmental Obligations” means
securities that are (a) direct obligations of the United States of America for the payment of which its full faith and credit is
pledged or (b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States
of America, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America
that, in either case, are not callable or redeemable at the option of the issuer thereof at any time prior to the stated maturity
of the Securities, and shall also include a depositary receipt issued by a bank or trust company as custodian with respect to any
such Governmental Obligation or a specific payment of principal of or interest on any such Governmental Obligation held by such
custodian for the account of the holder of such depositary receipt; provided, however, that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received
by the custodian in respect of the Governmental Obligation or the specific payment of principal of or interest on the Governmental
Obligation evidenced by such depositary receipt.
“herein”, “hereof” and
“hereunder”, and other words of similar import, refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
“Indenture” means this instrument
as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto
entered into in accordance with the terms hereof.
“Interest Payment Date”, when used
with respect to any installment of interest on a Security of a particular series, means the date specified in such Security or
in a Board Resolution or in an indenture supplemental hereto with respect to such series as the fixed date on which an installment
of interest with respect to Securities of that series is due and payable.
“Officer” means, with respect to
the Company, the chairman of the Board of Directors, a chief executive officer, a president, a chief financial officer, a chief
operating officer, any executive vice president, any senior vice president, any vice president, the treasurer or any assistant
treasurer, the controller or any assistant controller or the secretary or any assistant secretary.
“Officer’s Certificate” means a certificate
signed by any Officer. Each such certificate shall include the statements provided for in Section 13.07, if and to the extent required
by the provisions thereof.
“Opinion of Counsel” means an opinion
in writing subject to customary exceptions of legal counsel, who may be an employee of or counsel for the Company, that is delivered
to the Trustee in accordance with the terms hereof. Each such opinion shall include the statements provided for in Section 13.07,
if and to the extent required by the provisions thereof.
“Outstanding”, when used with reference
to Securities of any series, means, subject to the provisions of Section 8.04, as of any particular time, all Securities of that
series theretofore authenticated and delivered by the Trustee under this Indenture, except (a) Securities theretofore canceled
by the Trustee or any paying agent, or delivered to the Trustee or any paying agent for cancellation or that have previously been
canceled; (b) Securities or portions thereof for the payment or redemption of which moneys or Governmental Obligations in the necessary
amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been
set aside and segregated in trust by the Company (if the Company shall act as its own paying agent); provided, however, that if
such Securities or portions of such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall
have been given as provided in Article Three, or provision satisfactory to the Trustee shall have been made for giving such notice;
and (c) Securities in lieu of or in substitution for which other Securities shall have been authenticated and delivered pursuant
to the terms of Section 2.07.
“Person” means any individual, corporation,
partnership, joint venture, joint-stock company, limited liability company, association, trust, unincorporated organization, any
other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“Predecessor Security” of any particular
Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security;
and, for the purposes of this definition, any Security authenticated and delivered under Section 2.07 in lieu of a lost, destroyed
or stolen Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Security.
“Responsible Officer” when used with
respect to the Trustee means the chairman of its board of directors, the chief executive officer, the president, any vice president,
the secretary, the treasurer, any trust officer, any corporate trust officer or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of his or her knowledge of and familiarity with the particular subject.
“Securities” means the debt Securities
authenticated and delivered under this Indenture.
“Securityholder”, “holder of
Securities”, “registered holder”, or other similar term, means the Person or Persons in whose name or names a particular
Security shall be registered on the books of the Company kept for that purpose in accordance with the terms of this Indenture.
“Security Register” and “Security
Registrar” shall have the meanings as set forth in Section 2.05.
“Subsidiary” means, with respect
to any Person, (i) any corporation at least a majority of whose outstanding Voting Stock shall at the time be owned, directly or
indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, (ii) any
general partnership, joint venture or similar entity, at least a majority of whose outstanding partnership or similar interests
shall at the time be owned by such Person, or by one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries
and (iii) any limited partnership of which such Person or any of its Subsidiaries is a general partner.
“Trustee” means , and, subject to
the provisions of Article Seven, shall also include its successors and assigns, and, if at any time there is more than one Person
acting in such capacity hereunder, “Trustee” shall mean each such Person. The term “Trustee” as used with respect
to a particular series of the Securities shall mean the trustee with respect to that series.
“Trust Indenture Act” means the Trust
Indenture Act of 1939, as amended.
“Voting Stock”, as applied to stock
of any Person, means shares, interests, participations or other equivalents in the equity interest (however designated) in such
Person having ordinary voting power for the election of a majority of the directors (or the equivalent) of such Person, other than
shares, interests, participations or other equivalents having such power only by reason of the occurrence of a contingency.
ARTICLE 2
ISSUE, DESCRIPTION,
TERMS, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES
Section 2.01 Designation and Terms of Securities.
(a) The aggregate principal amount of Securities
that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more series up
to the aggregate principal amount of Securities of that series from time to time authorized by or pursuant to a Board Resolution
or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of Securities of any series, there shall
be established in or pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established in one or more indentures
supplemental hereto:
(1) the title of the Securities of the series
(which shall distinguish the Securities of that series from all other Securities);
(2) any limit upon the aggregate principal amount
of the Securities of that series that may be authenticated and delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of that series);
(3) the date or dates on which the principal
of the Securities of the series is payable, any original issue discount that may apply to the Securities of that series upon their
issuance, the principal amount due at maturity, and the place(s) of payment;
(4) the rate or rates at which the Securities
of the series shall bear interest or the manner of calculation of such rate or rates, if any;
(5) the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest will be payable or the manner of determination of such Interest
Payment Dates, the place(s) of payment, and the record date for the determination of holders to whom interest is payable on any
such Interest Payment Dates or the manner of determination of such record dates;
(6) the right, if any, to extend the interest
payment periods and the duration of such extension;
(7) the period or periods within which, the price
or prices at which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the
option of the Company;
(8) the obligation, if any, of the Company to
redeem or purchase Securities of the series pursuant to any sinking fund, mandatory redemption, or analogous provisions (including
payments made in cash in satisfaction of future sinking fund obligations) or at the option of a holder thereof and the period or
periods within which, the price or prices at which, and the terms and conditions upon which, Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such obligation;
(9) the form of the Securities of the series
including the form of the Certificate of Authentication for such series;
(10) if other than denominations of one thousand
U.S. dollars ($1,000) or any integral multiple thereof, the denominations in which the Securities of the series shall be issuable;
(11) any and all other terms (including terms,
to the extent applicable, relating to any auction or remarketing of the Securities of that series and any security for the obligations
of the Company with respect to such Securities) with respect to such series (which terms shall not be inconsistent with the terms
of this Indenture, as amended by any supplemental indenture) including any terms which may be required by or advisable under United
States laws or regulations or advisable in connection with the marketing of Securities of that series;
(12) whether the Securities are issuable as a
Global Security and, in such case, the terms and the identity of the Depositary for such series;
(13) whether the Securities will be convertible
into or exchangeable for shares of common stock, preferred stock or other securities of the Company or any other Person and, if
so, the terms and conditions upon which such Securities will be so convertible or exchangeable, including the conversion or exchange
price, as applicable, or how it will be calculated and may be adjusted, any mandatory or optional (at the Company’s option or the
holders’ option) conversion or exchange features, and the applicable conversion or exchange period;
(14) if other than the principal amount thereof,
the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the
maturity thereof pursuant to Section 6.01;
(15) any additional or different Events of Default
or restrictive covenants (which may include, among other restrictions, restrictions on the Company’s ability or the ability of
the Company’s Subsidiaries to: incur additional indebtedness; issue additional securities; create liens; pay dividends or make
distributions in respect of the capital stock of the Company or the Company’s Subsidiaries; redeem capital stock; place restrictions
on the Company’s Subsidiaries’ ability to pay dividends, make distributions or transfer assets; make investments or other restricted
payments; sell or otherwise dispose of assets; enter into sale-leaseback transactions; engage in transactions with stockholders
or affiliates; issue or sell stock of the Company’s Subsidiaries; or effect a consolidation or merger) or financial covenants (which
may include, among other financial covenants, financial covenants that require the Company and its Subsidiaries to maintain specified
interest coverage, fixed charge, cash flow-based, asset-based or other financial ratios) provided for with respect to the Securities
of the series;
(16) if other than dollars, the coin or currency
in which the Securities of the series are denominated (including, but not limited to, foreign currency);
(17) the terms and conditions, if any, upon which
the Company shall pay amounts in addition to the stated interest, premium, if any and principal amounts of the Securities of the
series to any Securityholder that is not a “United States person” for federal tax purposes;
(18) any restrictions on transfer, sale or assignment
of the Securities of the series; and
(19) the subordination terms of the Securities
of the series.
All Securities of any one series shall be substantially
identical except as may otherwise be provided in or pursuant to any such Board Resolution or in any indentures supplemental hereto.
If any of the terms of the series are established
by action taken pursuant to a Board Resolution of the Company, a copy of an appropriate record of such action shall be certified
by the secretary or an assistant secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officer’s
Certificate of the Company setting forth the terms of the series.
Securities of any particular series may be
issued at various times, with different dates on which the principal or any installment of principal is payable, with different
rates of interest, if any, or different methods by which rates of interest may be determined, with different dates on which such
interest may be payable and with different redemption dates.
Section 2.02 Form of Securities and Trustee’s Certificate.
The Securities of any series and the Trustee’s
certificate of authentication to be borne by such Securities shall be substantially of the tenor and purport as set forth in one
or more indentures supplemental hereto or as provided in a Board Resolution, and set forth in an Officer’s Certificate, and they
may have such letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed
or engraved thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as
may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any
securities exchange on which Securities of that series may be listed, or to conform to usage.
Section 2.03 Denominations: Provisions for Payment.
The Securities shall be issuable as registered
Securities and in the denominations of one thousand U.S. dollars ($1,000) or any integral multiple thereof, subject to Section
2.01(a)(10). The Securities of a particular series shall bear interest payable on the dates and at the rate specified with respect
to that series. Subject to Section 2.01(a)(16), the principal of and the interest on the Securities of any series, as well as any
premium thereon in case of redemption thereof prior to maturity, shall be payable in the coin or currency of the United States
of America that at the time is
legal tender for public and private debt, at the office or agency
of the Company maintained for that purpose. Each Security shall be dated the date of its authentication. Interest on the Securities
shall be computed on the basis of a 360-day year composed of twelve 30-day months.
The interest installment on any Security that
is payable, and is punctually paid or duly provided for, on any Interest Payment Date for Securities of that series shall be paid
to the Person in whose name said Security (or one or more Predecessor Securities) is registered at the close of business on the
regular record date for such interest installment. In the event that any Security of a particular series or portion thereof is
called for redemption and the redemption date is subsequent to a regular record date with respect to any Interest Payment Date
and prior to such Interest Payment Date, interest on such Security will be paid upon presentation and surrender of such Security
as provided in Section 3.03.
Any interest on any Security that is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date for Securities of the same series (herein called
“Defaulted Interest”) shall forthwith cease to be payable to the registered holder on the relevant regular record date
by virtue of having been such holder; and such Defaulted Interest shall be paid by the Company, at its election, as provided in
clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted
Interest on Securities to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered
at the close of business on a special record date for the payment of such Defaulted Interest, which shall be fixed in the following
manner: the Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each such Security
and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal
to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit
of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a special record
date for the payment of such Defaulted Interest which shall not be more than 15 nor less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment.
The Trustee
shall promptly notify the Company of such special record date and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the special record date therefor to be mailed, first class postage prepaid,
to each Securityholder at his or her address as it appears in the Security Register (as hereinafter defined), not less than 10
days prior to such special record date. Notice of the proposed payment of such Defaulted Interest and the special record date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names such Securities (or their
respective Predecessor Securities) are registered on such special record date.
(2) The Company may make payment of any Defaulted
Interest on any Securities in any other lawful manner not inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company
to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.
Unless otherwise set forth in a Board Resolution
or one or more indentures supplemental hereto establishing the terms of any series of Securities pursuant to Section 2.01 hereof,
the term “regular record date” as used in this Section with respect to a series of Securities and any Interest Payment
Date for such series shall mean either the fifteenth day of the month immediately preceding the month in which an Interest Payment
Date established for such series pursuant to Section 2.01 hereof shall occur, if such Interest Payment Date is the first day of
a month, or the first day of the month in which an Interest Payment Date established for such series pursuant to Section 2.01 hereof
shall occur, if such Interest Payment Date is the fifteenth day of a month, whether or not such date is a Business Day.
Subject to the foregoing provisions of this
Section, each Security of a series delivered under this Indenture upon transfer of or in exchange for or in lieu of any other Security
of such series shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Security.
Section 2.04 Execution and Authentications.
The Securities shall be signed on behalf of
the Company by one of its Officers. Signatures may be in the form of a manual or facsimile signature.
The Company may use the facsimile signature
of any Person who shall have been an Officer, notwithstanding the fact that at the time the Securities shall be authenticated and
delivered or disposed of such Person shall have ceased to be such an officer of the Company. The Securities may contain such notations,
legends or endorsements required by law, stock exchange rule or usage. Each Security shall be dated the date of its authentication
by the Trustee.
A Security shall not be valid until authenticated
manually by an authorized signatory of the Trustee, or by an Authenticating Agent. Such signature shall be conclusive evidence
that the Security so authenticated has been duly authenticated and delivered hereunder and that the holder is entitled to the benefits
of this Indenture. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver
Securities of any series executed by the Company to the Trustee for authentication, together with a written order of the Company
for the authentication and delivery of such Securities, signed by an Officer, and the Trustee in accordance with such written order
shall authenticate and deliver such Securities.
In authenticating such Securities and accepting
the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive,
if requested, and (subject to Section 7.01) shall be fully protected in relying upon, an Opinion of Counsel stating that the form
and terms thereof have been established in conformity with the provisions of this Indenture.
The Trustee shall not be required to authenticate
such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities
under the Securities and this Indenture or otherwise in a manner that is not reasonably acceptable to the Trustee.
Section 2.05 Registration of Transfer and Exchange.
(a) Securities of any series may be exchanged
upon presentation thereof at the office or agency of the Company designated for such purpose, for other Securities of such series
of authorized denominations, and for a like aggregate principal amount, upon payment of a sum sufficient to cover any tax or other
governmental charge in relation thereto, all as provided in this Section. In respect of any Securities so surrendered for exchange,
the Company shall execute, the Trustee shall authenticate and such office or agency shall deliver in exchange therefor the Security
or Securities of the same series that the Securityholder making the exchange shall be entitled to receive, bearing numbers not
contemporaneously outstanding.
(b) The Company shall keep, or cause to be
kept, at its office or agency designated for such purpose a register or registers (herein referred to as the “Security Register”)
in which, subject to such reasonable regulations as it may prescribe, the Company shall register the Securities and the transfers
of Securities as in this Article provided and which at all reasonable times shall be open for inspection by the Trustee. The registrar
for the purpose of registering Securities and transfer of Securities as herein provided shall be appointed as authorized by Board
Resolution (the “Security Registrar”).
Upon surrender for transfer of any Security
at the office or agency of the Company designated for such purpose, the Company shall execute, the Trustee shall authenticate and
such office or agency shall deliver in the name of the transferee or transferees a new Security or Securities of the same series
as the Security presented for a like aggregate principal amount.
All Securities presented or surrendered for
exchange or registration of transfer, as provided in this Section, shall be accompanied (if so required by the Company or the Security
Registrar) by a written instrument or instruments of transfer, in form satisfactory to the Company or the Security Registrar, duly
executed by the registered holder or by such holder’s duly authorized attorney in writing.
(c) Except as provided pursuant to Section
2.01 pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established in one or more indentures supplemental
to this Indenture, no service charge shall be made for any exchange or registration of transfer of Securities, or issue of new
Securities in case of partial redemption of any series, but the Company may require payment of a sum sufficient to cover any tax
or other governmental charge in relation thereto, other than exchanges pursuant to Section 2.06, Section 3.03(b) and Section 9.04
not involving any transfer.
(d) The Company shall not be required (i) to
issue, exchange or register the transfer of any Securities during a period beginning at the opening of business 15 days before
the day of the mailing of a notice of redemption of less than all the Outstanding Securities of the same series and ending at the
close of business on the day of such mailing, nor (ii) to register the transfer of or exchange any Securities of any series or
portions thereof called for redemption, other than the unredeemed portion of any such Securities being redeemed in part. The provisions
of this Section 2.05 are, with respect to any Global Security, subject to Section 2.11 hereof.
Section 2.06 Temporary Securities.
Pending the preparation of definitive Securities
of any series, the Company may execute, and the Trustee shall authenticate and deliver, temporary Securities (printed, lithographed
or typewritten) of any authorized denomination. Such temporary Securities shall be substantially in the form of the definitive
Securities in lieu of which they are issued, but with such omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Company. Every temporary Security of any series shall be executed by the Company and
be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive
Securities of such series. Without unnecessary delay the Company will execute and will furnish definitive Securities of such series
and thereupon any or all temporary Securities of such series may be surrendered in exchange therefor (without charge to the holders),
at the office or agency of the Company designated for the purpose, and the Trustee shall authenticate and such office or agency
shall deliver in exchange for such temporary Securities an equal aggregate principal amount of definitive Securities of such series,
unless the Company advises the Trustee to the effect that definitive Securities need not be executed and furnished until further
notice from the Company. Until so exchanged, the temporary Securities of such series shall be entitled to the same benefits under
this Indenture as definitive Securities of such series authenticated and delivered hereunder.
Section 2.07 Mutilated, Destroyed, Lost or Stolen Securities.
In case any temporary or definitive Security
shall become mutilated or be destroyed, lost or stolen, the Company (subject to the next succeeding sentence) shall execute, and
upon the Company’s request the Trustee (subject as aforesaid) shall authenticate and deliver, a new Security of the same series,
bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Security, or in lieu of and
in substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substituted Security shall furnish
to the Company and the Trustee such security or indemnity as may be required by them to save each of them harmless, and, in every
case of destruction, loss or theft, the applicant shall also furnish to the Company and the Trustee evidence to their satisfaction
of the destruction, loss or theft of the applicant’s Security and of the ownership thereof. The Trustee may authenticate any such
substituted Security and deliver the same upon the written request or authorization of any officer of the Company. Upon the issuance
of any substituted Security, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
In case any Security that has matured or is
about to mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Security,
pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated Security) if the applicant
for such payment shall furnish to the Company and the Trustee such security or indemnity as they may require to save them harmless,
and, in case of destruction, loss or theft, evidence to the satisfaction of the Company and the Trustee of the destruction, loss
or theft of such Security and of the ownership thereof.
Every replacement Security issued pursuant
to the provisions of this Section shall constitute an additional contractual obligation of the Company whether or not the mutilated,
destroyed, lost or stolen Security shall be found at any time, or be enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Securities of the same series duly issued hereunder. All Securities
shall be held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities, and shall preclude (to the extent lawful) any and all other rights
or remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or
payment of negotiable instruments or other securities without their surrender.
Section 2.08 Cancellation.
All Securities surrendered for the purpose
of payment, redemption, exchange or registration of transfer shall, if surrendered to the Company or any paying agent, be delivered
to the Trustee for cancellation, or, if surrendered to the Trustee, shall be cancelled by it, and no Securities shall be issued
in lieu thereof except as expressly required or permitted by any of the provisions of this Indenture. On request of the Company
at the time of such surrender, the Trustee shall deliver to the Company canceled Securities held by the Trustee. In the absence
of such request the Trustee may dispose of canceled Securities in accordance with its standard procedures and deliver a certificate
of disposition to the Company. If the Company shall otherwise acquire any of the Securities, however, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are delivered
to the Trustee for cancellation.
Section 2.09 Benefits of Indenture.
Nothing in this Indenture or in the Securities,
express or implied, shall give or be construed to give to any Person, other than the parties hereto and the holders of the Securities
(and, with respect to the provisions of Article Fourteen, the holders of any indebtedness of the Company to which the Securities
of any series are subordinated) any legal or equitable right, remedy or claim under or in respect of this Indenture, or under any
covenant, condition or provision herein contained; all such covenants, conditions and provisions being for the sole benefit of
the parties hereto and of the holders of the Securities (and, with respect to the provisions of Article Fourteen, the holders of
any indebtedness of the Company to which the Securities of any series are subordinated).
Section 2.10 Authenticating Agent.
So long as any of the Securities of any series
remain Outstanding there may be an Authenticating Agent for any or all such series of Securities which the Trustee shall have the
right to appoint. Said Authenticating Agent shall be authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, transfer or partial redemption thereof, and Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. All references
in this Indenture to the authentication of Securities by the Trustee shall be deemed to include authentication by an Authenticating
Agent for such series. Each Authenticating Agent shall be acceptable to the Company and shall be a corporation that has a combined
capital and surplus, as most recently reported or determined by it, sufficient under the laws of any jurisdiction under which it
is organized or in which it is doing business to conduct a trust business, and that is otherwise authorized under such laws to
conduct such business and is subject to supervision or examination by federal or state authorities. If at any time any Authenticating
Agent shall cease to be eligible in accordance with these provisions, it shall resign immediately.
Any Authenticating Agent may at any time resign
by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time (and upon request by the
Company shall) terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating
Agent and to the Company. Upon resignation, termination or cessation of eligibility of any Authenticating Agent, the Trustee may
appoint an eligible successor Authenticating Agent acceptable to the Company. Any successor Authenticating Agent, upon acceptance
of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder as if originally
named as an Authenticating Agent pursuant hereto.
Section 2.11 Global Securities.
(a) If the Company shall establish pursuant
to Section 2.01 that the Securities of a particular series are to be issued as a Global Security, then the Company shall execute
and the Trustee shall, in accordance with Section 2.04, authenticate and deliver, a Global Security that (i) shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of, all of the Outstanding Securities of such series,
(ii) shall be registered in the name of the Depositary or its nominee, (iii) shall be delivered by the Trustee to the Depositary
or pursuant to the Depositary’s instruction and (iv) shall bear a legend substantially to the following effect: “Except as
otherwise provided in Section 2.11 of the Indenture, this Security may be transferred, in whole but not in part, only to another
nominee of the Depositary or to a successor Depositary or to a nominee of such successor Depositary.”
(b) Notwithstanding the provisions of Section
2.05, the Global Security of a series may be transferred, in whole but not in part and in the manner provided in Section 2.05,
only to another nominee of the Depositary for such series, or to a successor Depositary for such series selected or approved by
the Company or to a nominee of such successor Depositary.
(c) If at any time the Depositary for a series
of the Securities notifies the Company that it is unwilling or unable to continue as Depositary for such series or if at any time
the Depositary for such series shall no longer be registered or in good standing under the Exchange Act, or other applicable statute
or regulation, and a successor Depositary for such series is not appointed by the Company within 90 days after the Company receives
such notice or becomes aware of such condition, as the case may be, or if an Event of Default has occurred and is continuing and
the Company has received a request from the Depositary or from the Trustee, this Section 2.11 shall no longer be applicable to
the Securities of such series and the Company will execute, and subject to Section 2.04, the Trustee will authenticate and deliver
the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Security of such series in exchange for such Global Security.
In addition, the
Company may at any time determine that the Securities of any series shall no longer be represented by a Global Security and that
the provisions of this Section 2.11 shall no longer apply to the Securities of such series. In such event the Company will execute
and, subject to Section 2.04, the Trustee, upon receipt of an Officer’s Certificate evidencing such determination by the Company,
will authenticate and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations,
and in an aggregate principal amount equal to the principal amount of the Global Security of such series in exchange for such Global
Security. Upon the exchange of the Global Security for such Securities in definitive registered form without coupons, in authorized
denominations, the Global Security shall be canceled by the Trustee. Such Securities in definitive registered form issued in exchange
for the Global Security pursuant to this Section 2.11(c) shall be registered in such names and in such authorized denominations
as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee.
The Trustee shall deliver such Securities to the Depositary for delivery to the Persons in whose names such Securities are so registered.
ARTICLE 3
REDEMPTION OF SECURITIES AND SINKING FUND
PROVISIONS
Section 3.01 Redemption.
The Company may redeem the Securities of any
series issued hereunder on and after the dates and in accordance with the terms established for such series pursuant to Section
2.01 hereof.
Section 3.02 Notice of Redemption.
(a) In case the Company shall desire to exercise
such right to redeem all or, as the case may be, a portion of the Securities of any series in accordance with any right the Company
reserved for itself to do so pursuant to Section 2.01 hereof, the Company shall, or shall cause the Trustee to, give notice of
such redemption to holders of the Securities of such series to be redeemed by mailing, first class postage prepaid, a notice of
such redemption not less than 30 days and not more than 90 days before the date fixed for redemption of that series to such holders
at their last addresses as they shall appear upon the Security Register, unless a shorter period is specified in the Securities
to be redeemed. Any notice that is mailed in the manner herein provided shall be conclusively presumed to have been duly given,
whether or not the registered holder receives the notice. In any case, failure duly to give such notice to the holder of any Security
of any series designated for redemption in whole or in part, or any defect in the notice, shall not affect the validity of the
proceedings for the redemption of any other Securities of such series or any other series. In the case of any redemption of Securities
prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture,
the Company shall furnish the Trustee with an Officer’s Certificate evidencing compliance with any such restriction.
Each such notice of redemption shall specify
the date fixed for redemption and the redemption price at which Securities of that series are to be redeemed, and shall state that
payment of the redemption price of such Securities to be redeemed will be made at the office or agency of the Company, upon presentation
and surrender of such Securities, that interest accrued to the date fixed for redemption will be paid as specified in said notice,
that from and after said date interest will cease to accrue and that the redemption is from a sinking fund, if such is the case.
If less than all the Securities of a series are to be redeemed, the notice to the holders of Securities of that series to be redeemed
in part shall specify the particular Securities to be so redeemed.
In case any Security is to be redeemed in part
only, the notice that relates to such Security shall state the portion of the principal amount thereof to be redeemed, and shall
state that on and after the redemption date, upon surrender of such Security, a new Security or Securities of such series in principal
amount equal to the unredeemed portion thereof will be issued.
(b) If less than all the Securities of a series
are to be redeemed, the Company shall give the Trustee at least 45 days’ notice (unless a shorter notice shall be satisfactory
to the Trustee) in advance of the date fixed for redemption as to the aggregate principal amount of Securities of the series to
be redeemed, and thereupon the Trustee shall select, by lot or in such other manner as it shall deem appropriate and fair in its
discretion and that may provide for the selection of a portion or portions (equal to one thousand U.S. dollars ($1,000) or any
integral multiple thereof) of the principal amount of such Securities of a denomination larger than $1,000, the Securities to be
redeemed and shall thereafter promptly notify the Company in writing of the numbers of the Securities to be redeemed, in whole
or in part. The Company may, if and whenever it shall so elect, by delivery of instructions signed on its behalf by an Officer,
instruct the Trustee or any paying agent to call all or any part of the Securities of a particular series for redemption and to
give notice of redemption in the manner set forth in this Section, such notice to be in the name of the Company or its own name
as the Trustee or such paying agent may deem advisable. In any case in which notice of redemption is to be given by the Trustee
or any such paying agent, the Company shall deliver or cause to be delivered to, or permit to remain with, the Trustee or such
paying agent, as the case may be, such Security Register, transfer books or other records, or suitable copies or extracts therefrom,
sufficient to enable the Trustee or such paying agent to give any notice by mail that may be required under the provisions of this
Section.
Section 3.03 Payment Upon Redemption.
(a) If the giving of notice of redemption shall
have been completed as above provided, the Securities or portions of Securities of the series to be redeemed specified in such
notice shall become due and payable on the date and at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption and interest on such Securities or portions of Securities shall cease to
accrue on and after the date fixed for redemption, unless the Company shall default in the payment of such redemption price and
accrued interest with respect to any such Security or portion thereof. On presentation and surrender of such Securities on or after
the date fixed for redemption at the place of payment specified in the notice, said Securities shall be paid and redeemed at the
applicable redemption price for such series, together with interest accrued thereon to the date fixed for redemption (but if the
date fixed for redemption is an interest payment date, the interest installment payable on such date shall be payable to the registered
holder at the close of business on the applicable record date pursuant to Section 2.03).
(b) Upon presentation of any Security of such
series that is to be redeemed in part only, the Company shall execute and the Trustee shall authenticate and the office or agency
where the Security is presented shall deliver to the holder thereof, at the expense of the Company, a new Security of the same
series of authorized denominations in principal amount equal to the unredeemed portion of the Security so presented.
Section 3.04 Sinking Fund.
The provisions of Sections 3.04, 3.05 and 3.06
shall be applicable to any sinking fund for the retirement of Securities of a series, except as otherwise specified as contemplated
by Section 2.01 for Securities of such series.
The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,” and
any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an
“optional sinking fund payment”. If provided for by the terms of Securities of any series, the cash amount of any sinking
fund payment may be subject to reduction as provided in Section 3.05. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of Securities of such series.
Section 3.05 Satisfaction of Sinking Fund Payments
with Securities.
The Company (i) may deliver Outstanding Securities
of a series and (ii) may apply as a credit Securities of a series that have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the
terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities
of such series required to be made pursuant to the terms of such Securities as provided for by the terms of such series, provided
that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the
Trustee at the redemption price specified in such Securities for redemption through operation of the sinking fund and the amount
of such sinking fund payment shall be reduced accordingly.
Section 3.06 Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking
fund payment date for any series of Securities (unless a shorter period shall be satisfactory to the Trustee), the Company will
deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of the series, the portion thereof, if any, that is to be satisfied by delivering and crediting Securities
of that series pursuant to Section 3.05 and the basis for such credit and will, together with such Officer’s Certificate, deliver
to the Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 3.02 and cause
notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section
3.02. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated
in Section 3.03.
ARTICLE 4
COVENANTS
Section 4.01 Payment of Principal, Premium and Interest.
The Company will duly and punctually pay or
cause to be paid the principal of (and premium, if any) and interest on the Securities of that series at the time and place and
in the manner provided herein and established with respect to such Securities. Payments of principal on the Securities may be made
at the time provided herein and established with respect to such Securities by U.S. dollar check drawn on and mailed to the address
of the Securityholder entitled thereto as such address shall appear in the Security Register, or U.S. dollar wire transfer to,
a U.S. dollar account (such wire transfer to be made only to a Securityholder of an aggregate principal amount of Securities of
the applicable series in excess of U.S. $2,000,000 and only if such Securityholder shall have furnished wire instructions to the
Trustee no later than 15 days prior to the relevant payment date). Payments of interest on the Securities may be made at the time
provided herein and established with respect to such Securities by U.S. dollar check mailed to the address of the Securityholder
entitled thereto as such address shall appear in the Security Register, or U.S. dollar wire transfer to, a U.S. dollar account
(such a wire transfer to be made only to a Securityholder of an aggregate principal amount of Securities of the applicable series
in excess of U.S. $2,000,000 and only if such Securityholder shall have furnished wire instructions in writing to the Security
Registrar and the Trustee no later than 15 days prior to the relevant payment date.
Section 4.02 Maintenance of Office or Agency.
So long as any series of the Securities remain
Outstanding, the Company agrees to maintain an office or agency with respect to each such series and at such other location or
locations as may be designated as provided in this Section 4.02, where (i) Securities of that series may be presented for payment,
(ii) Securities of that series may be presented as herein above authorized for registration of transfer and exchange, and (iii)
notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be given or served,
such designation to continue with respect to such office or agency until the Company shall, by written notice signed by any officer
authorized to sign an Officer’s Certificate and delivered to the Trustee, designate some other office or agency for such purposes
or any of them. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, notices and demands may be made or served at the Corporate Trust Office of
the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, notices and demands. The
Company initially appoints the Corporate Trust Office of the Trustee as its paying agent with respect to the Securities.
Section 4.03 Paying Agents.
(a) If the Company shall appoint one or more
paying agents for all or any series of the Securities, other than the Trustee, the Company will cause each such paying agent to
execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of
this Section:
(1) that it will hold all sums held by it as
such agent for the payment of the principal of (and premium, if any) or interest on the Securities of that series (whether such
sums have been paid to it by the Company or by any other obligor of such Securities) in trust for the benefit of the Persons entitled
thereto;
(2) that it will give the Trustee notice of any
failure by the Company (or by any other obligor of such Securities) to make any payment of the principal of (and premium, if any)
or interest on the Securities of that series when the same shall be due and payable;
(3) that it will, at any time during the continuance
of any failure referred to in the preceding paragraph (a)(2) above, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such paying agent; and
(4) that it will perform all other duties of
paying agent as set forth in this Indenture.
(b) If the Company shall act as its own paying
agent with respect to any series of the Securities, it will on or before each due date of the principal of (and premium, if any)
or interest on Securities of that series, set aside, segregate and hold in trust for the benefit of the Persons entitled thereto
a sum sufficient to pay such principal (and premium, if any) or interest so becoming due on Securities of that series until such
sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of such action,
or any failure (by it or any other obligor on such Securities) to take such action. Whenever the Company shall have one or more
paying agents for any series of Securities, it will, prior to each due date of the principal of (and premium, if any) or interest
on any Securities of that series, deposit with the paying agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest,
and (unless such paying agent is the Trustee) the Company will promptly notify the Trustee of this action or failure so to act.
(c) Notwithstanding anything in this Section
to the contrary, (i) the agreement to hold sums in trust as provided in this Section is subject to the provisions of Section 11.05,
and (ii) the Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any
other purpose, pay, or direct any paying agent to pay, to the Trustee all sums held in trust by the Company or such paying agent,
such sums to be held by the Trustee upon the same terms and conditions as those upon which such sums were held by the Company or
such paying agent; and, upon such payment by the Company or any paying agent to the Trustee, the Company or such paying agent shall
be released from all further liability with respect to such money.
Section 4.04 Appointment to Fill Vacancy in Office of Trustee.
The Company, whenever necessary to avoid or
fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so that there shall at
all times be a Trustee hereunder.
Section 4.05 Compliance with Consolidation Provisions.
The Company will not, while any of the Securities
remain Outstanding, consolidate with or merge into any other Person, in either case where the Company is not the survivor of such
transaction, or sell or convey all or substantially all of its property to any other Person unless the provisions of Article Ten
hereof are complied with.
ARTICLE 5
SECURITYHOLDERS’ LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
Section 5.01 Company to Furnish Trustee Names and Addresses
of Securityholders.
The Company will furnish or cause to be furnished
to the Trustee (a) within 15 days after each regular record date (as defined in Section 2.03) a list, in such form as the Trustee
may reasonably require, of the names and addresses of the holders of each series of Securities as of such regular record date,
provided that the Company shall not be obligated to furnish or cause to furnish such list at any time that the list shall not differ
in any respect from the most recent list furnished to the Trustee by the Company and (b) at such other times as the Trustee may
request in writing within 30 days after the receipt by the Company of any such request, a list of similar form and content as of
a date not more than 15 days prior to the time such list is furnished; provided, however, that, in either case, no such list need
be furnished for any series for which the Trustee shall be the Security Registrar.
Section 5.02 Preservation Of Information; Communications
With Securityholders.
(a) The Trustee shall preserve, in as current
a form as is reasonably practicable, all information as to the names and addresses of the holders of Securities contained in the
most recent list furnished to it as provided in Section 5.01 and as to the names and addresses of holders of Securities received
by the Trustee in its capacity as Security Registrar (if acting in such capacity).
(b) The Trustee may destroy any list furnished
to it as provided in Section 5.01 upon receipt of a new list so furnished.
(c) Securityholders may communicate as provided
in Section 312(b) of the Trust Indenture Act with other Securityholders with respect to their rights under this Indenture or under
the Securities, and, in connection with any such communications, the Trustee shall satisfy its obligations under Section 312(b)
of the Trust Indenture Act in accordance with the provisions of Section 312(b) of the Trust Indenture Act.
Section 5.03 Reports by the Company.
The Company covenants and agrees to provide
(which delivery may be via electronic mail) to the Trustee, after the Company files the same with the Securities and Exchange Commission,
copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing
as the Securities and Exchange Commission may from time to time by rules and regulations prescribe) that the Company files with
the Securities and Exchange Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; provided, however, the Company
shall not be required to deliver to the Trustee any materials for which the Company has sought and received confidential treatment
by the Securities and Exchange Commission; and provided further, so long as such filings by the Company are available on the Securities
and Exchange Commission’s Electronic Data Gathering, Analysis and Retrieval System (EDGAR), such filings shall be deemed to have
been filed with the Trustee for purposes of this Section 5.03 without any further action required by the Company.
Section 5.04 Reports by the Trustee.
(a) If required by Section 313(a) of the Trust
Indenture Act, the Trustee, within sixty (60) days after each May 1, shall transmit by mail, first class postage prepaid, to the
Securityholders, as their names and addresses appear upon the Security Register, a brief report dated as of such May 1, which complies
with Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section 313(b)
and 313(c) of the Trust Indenture Act.
(c) A copy of each such report shall, at the
time of such transmission to Securityholders, be filed by the Trustee with the Company, with each securities exchange upon which
any Securities are listed (if so listed) and also with the Securities and Exchange Commission. The Company agrees to notify the
Trustee when any Securities become listed on any securities exchange.
ARTICLE 6
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 6.01 Events of Default.
(a) Whenever used herein with respect to Securities
of a particular series, “Event of Default” means any one or more of the following events that has occurred and is continuing:
(1) the Company defaults in the payment of any
installment of interest upon any of the Securities of that series, as and when the same shall become due and payable, and such
default continues for a period of 90 days; provided, however, that a valid extension of an interest payment period by the Company
in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment of interest for
this purpose;
(2) the Company defaults in the payment of the
principal of (or premium, if any, on) any of the Securities of that series as and when the same shall become due and payable whether
at maturity, upon redemption, by declaration or otherwise, or in any payment required by any sinking or analogous fund established
with respect to that series; provided, however, that a valid extension of the maturity of such Securities in accordance with the
terms of any indenture supplemental hereto shall not constitute a default in the payment of principal or premium, if any;
(3) the Company fails to observe or perform any
other of its covenants or agreements with respect to that series contained in this Indenture or otherwise established with respect
to that series of Securities pursuant to Section 2.01 hereof (other than a covenant or agreement that has been expressly included
in this Indenture solely for the benefit of one or more series of Securities other than such series) for a period of 90 days after
the date on which written notice of such failure, requiring the same to be remedied and stating that such notice is a “Notice
of Default” hereunder, shall have been given to the Company by the Trustee, by registered or certified mail, or to the Company
and the Trustee by the holders of at least 25% in principal amount of the Securities of that series at the time Outstanding;
(4) the Company pursuant to or within the meaning
of any Bankruptcy Law (i) commences a voluntary case, (ii) consents to the entry of an order for relief against it in an involuntary
case, (iii) consents to the appointment of a Custodian of it or for all or substantially all of its property or (iv) makes a general
assignment for the benefit of its creditors; or
(5) a court of competent jurisdiction enters
an order under any Bankruptcy Law that (i) is for relief against the Company in an involuntary case, (ii) appoints a Custodian
of the Company for all or substantially all of its property or (iii) orders the liquidation of the Company, and the order or decree
remains unstayed and in effect for 90 days.
(b) In each and every such case (other than
an Event of Default specified in clause (4) or clause (5) above), unless the principal of all the Securities of that series shall
have already become due and payable, either the Trustee or the holders of not less than 25% in aggregate principal amount of the
Securities of that series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by such
Securityholders), may declare the principal of (and premium, if any, on) and accrued and unpaid interest on all the Securities
of that series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately
due and payable. If an Event of Default specified in clause (4) or clause (5) above occurs, the principal of and accrued and unpaid
interest on all the Securities of that series shall automatically be immediately due and payable without any declaration or other
act on the part of the Trustee or the holders of the Securities.
(c) At any time after the principal of (and premium,
if any, on) and accrued and unpaid interest on the Securities of that series shall have been so declared due and payable, and before
any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the holders of
a majority in aggregate principal amount of the Securities of that series then Outstanding hereunder, by written notice to the Company
and the Trustee, may rescind and annul such declaration and its consequences if: (i) the Company has paid or deposited with the Trustee
a sum sufficient to pay all matured installments of interest upon all the Securities of that series and the principal of (and premium,
if any, on) any and all Securities of that series that shall have become due otherwise than by acceleration (with interest upon such
principal and premium, if any, and, to the extent that such payment is enforceable under applicable law, upon overdue installments of
interest, at the rate per annum expressed in the Securities of that series to the date of such payment or deposit) and the amount payable
to the Trustee under Section 7.06, and (ii) any and all Events of Default under the Indenture with respect to such series, other than
the nonpayment of principal on (and premium, if any, on) and accrued and unpaid interest on Securities of that series that shall not
have become due by their terms, shall have been remedied or waived as provided in Section 6.06.
No such rescission and annulment shall extend
to or shall affect any subsequent default or impair any right consequent thereon.
(d) In case the Trustee shall have proceeded
to enforce any right with respect to Securities of that series under this Indenture and such proceedings shall have been discontinued
or abandoned because of such rescission or annulment or for any other reason or shall have been determined adversely to the Trustee,
then and in every such case, subject to any determination in such proceedings, the Company and the Trustee shall be restored respectively
to their former positions and rights hereunder, and all rights, remedies and powers of the Company and the Trustee shall continue
as though no such proceedings had been taken.
Section 6.02 Collection of Indebtedness and Suits for
Enforcement by Trustee.
(a) The Company covenants that (i) in case
it shall default in the payment of any installment of interest on any of the Securities of a series, or in any payment required
by any sinking or analogous fund established with respect to that series as and when the same shall have become due and payable,
and such default shall have continued for a period of 90 days, or (ii) in case it shall default in the payment of the principal
of (or premium, if any, on) any of the Securities of a series when the same shall have become due and payable, whether upon maturity
of the Securities of a series or upon redemption or upon declaration or otherwise then, upon demand of the Trustee, the Company
will pay to the Trustee, for the benefit of the holders of the Securities of that series, the whole amount that then shall have
been become due and payable on all such Securities for principal (and premium, if any) or interest, or both, as the case may be,
with interest upon the overdue principal (and premium, if any) and (to the extent that payment of such interest is enforceable
under applicable law) upon overdue installments of interest at the rate per annum expressed in the Securities of that series; and,
in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, and the amount payable
to the Trustee under Section 7.06.
(b) If the Company shall fail to pay such amounts
forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to
institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree against the Company or
other obligor upon the Securities of that series and collect the moneys adjudged or decreed to be payable in the manner provided
by law or equity out of the property of the Company or other obligor upon the Securities of that series, wherever situated.
(c) In case of any receivership, insolvency,
liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or judicial proceedings affecting the Company,
or its creditors or property, the Trustee shall have power to intervene in such proceedings and take any action therein that may
be permitted by the court and shall (except as may be otherwise provided by law) be entitled to file such proofs of claim and
other papers and documents as may be necessary or advisable in order to have the claims of the Trustee and of the holders of Securities
of such series allowed for the entire amount due and payable by the Company under the Indenture at the date of institution of
such proceedings and for any additional amount that may become due and payable by the Company after such date, and to collect
and receive any moneys or other property payable or deliverable on any such claim, and to distribute the same after the deduction
of the amount payable to the Trustee under Section 7.06; and any receiver, assignee or trustee in bankruptcy or reorganization
is hereby authorized by each of the holders of Securities of such series to make such payments to the Trustee, and, in the event
that the Trustee shall consent to the making of such payments directly to such Securityholders, to pay to the Trustee any amount
due it under Section 7.06.
(d) All rights of action and of asserting claims
under this Indenture, or under any of the terms established with respect to Securities of that series, may be enforced by the Trustee
without the possession of any of such Securities, or the production thereof at any trial or other proceeding relative thereto,
and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for payment to the Trustee of any amounts due under Section 7.06, be for the ratable
benefit of the holders of the Securities of such series.
In case of an Event of Default hereunder, the
Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in the Indenture or in aid
of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee
by this Indenture or by law.
Nothing contained herein shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities of that series or the rights of any holder thereof or to authorize
the Trustee to vote in respect of the claim of any Securityholder in any such proceeding.
Section 6.03 Application of Moneys Collected.
Any moneys collected by the Trustee pursuant
to this Article with respect to a particular series of Securities shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such moneys on account of principal (or premium, if any) or interest,
upon presentation of the Securities of that series, and notation thereon of the payment, if only partially paid, and upon surrender
thereof if fully paid:
FIRST: To the payment of all indebtedness of
the Company to which such series of Securities is subordinated to the extent required by Section 7.06 and Article Fourteen;
SECOND: To the payment of the amounts then
due and unpaid upon Securities of such series for principal (and premium, if any) and interest, in respect of which or for the
benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due
and payable on such Securities for principal (and premium, if any) and interest, respectively; and
THIRD: To the payment of the remainder, if
any, to the Company or any other Person lawfully entitled thereto.
Section 6.04 Limitation on Suits.
No holder of any Security of any series shall
have any right by virtue or by availing of any provision of this Indenture to institute any suit, action or proceeding in equity
or at law upon or under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless (i) such holder previously shall have given to the Trustee written notice of an Event of Default and of the
continuance thereof with respect to the Securities of such series specifying such Event of Default, as hereinbefore provided;
(ii) the holders of not less than 25% in aggregate principal amount of the Securities of such series then Outstanding shall have
made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder; (iii)
such holder or holders shall have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby; (iv) the Trustee for 90 days after its receipt of such notice, request and offer
of indemnity, shall have failed to institute any such action, suit or proceeding and (v) during such 90 day period, the holders
of a majority in principal amount of the Securities of that series do not give the Trustee a direction inconsistent with the request.
Notwithstanding anything contained herein to
the contrary or any other provisions of this Indenture, the right of any holder of any Security to receive payment of the principal
of (and premium, if any) and interest on such Security, as therein provided, on or after the respective due dates expressed in
such Security (or in the case of redemption, on the redemption date), or to institute suit for the enforcement of any such payment
on or after such respective dates or redemption date, shall not be impaired or affected without the consent of such holder and
by accepting a Security hereunder it is expressly understood, intended and covenanted by the taker and holder of every Security
of such series with every other such taker and holder and the Trustee, that no one or more holders of Securities of such series
shall have any right in any manner whatsoever by virtue or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of the holders of any other of such Securities, or to obtain or seek to obtain priority over or preference
to any other such holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all holders of Securities of such series. For the protection and enforcement of the provisions of
this Section, each and every Securityholder and the Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 6.05 Rights and Remedies Cumulative; Delay
or Omission Not Waiver.
(a) Except as otherwise provided in Section
2.07, all powers and remedies given by this Article to the Trustee or to the Securityholders shall, to the extent permitted by
law, be deemed cumulative and not exclusive of any other powers and remedies available to the Trustee or the holders of the Securities,
by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this
Indenture or otherwise established with respect to such Securities.
(b) No delay or omission of the Trustee or
of any holder of any of the Securities to exercise any right or power accruing upon any Event of Default occurring and continuing
as aforesaid shall impair any such right or power, or shall be construed to be a waiver of any such default or an acquiescence
therein; and, subject to the provisions of Section 6.04, every power and remedy given by this Article or by law to the Trustee
or the Securityholders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
Section 6.06 Control by Securityholders.
The holders of a majority in aggregate principal
amount of the Securities of any series at the time Outstanding, determined in accordance with Section 8.04, shall have the right
to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee with respect to such series; provided, however, that such direction shall not be in conflict
with any rule of law or with this Indenture. Subject to the provisions of Section 7.01, the Trustee shall have the right to decline
to follow any such direction if the Trustee in good faith shall, by a Responsible Officer or officers of the Trustee, determine
that the proceeding so directed, subject to the Trustee’s duties under the Trust Indenture Act, would involve the Trustee in personal
liability or might be unduly prejudicial to the Securityholders not involved in the proceeding. The holders of a majority in aggregate
principal amount of the Securities of any series at the time Outstanding affected thereby, determined in accordance with Section
8.04, may on behalf of the holders of all of the Securities of such series waive any past default in the performance of any of
the covenants contained herein or established pursuant to Section 2.01 with respect to such series and its consequences, except
a default in the payment of the principal of, or premium, if any, or interest on, any of the Securities of that series as and when
the same shall become due by the terms of such Securities otherwise than by acceleration (unless such default has been cured and
a sum sufficient to pay all matured installments of interest and principal and any premium has been deposited with the Trustee
(in accordance with Section 6.01(c)). Upon any such waiver, the default covered thereby shall be deemed to be cured for all purposes
of this Indenture and the Company, the Trustee and the holders of the Securities of such series shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default or impair any
right consequent thereon.
Section 6.07 Undertaking to Pay Costs.
All parties to this Indenture agree, and each
holder of any Securities by such holder’s acceptance thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party
litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder,
or group of Securityholders, holding more than 10% in aggregate principal amount of the Outstanding Securities of any series, or
to any suit instituted by any Securityholder for the enforcement of the payment of the principal of (or premium, if any) or interest
on any Security of such series, on or after the respective due dates expressed in such Security or established pursuant to this
Indenture.
ARTICLE 7
CONCERNING THE TRUSTEE
Section 7.01 Certain Duties and Responsibilities of
Trustee.
(a) The Trustee, prior to the occurrence of
an Event of Default with respect to the Securities of a series and after the curing of all Events of Default with respect to the
Securities of that series that may have occurred, shall undertake to perform with respect to the Securities of such series such
duties and only such duties as are specifically set forth in this Indenture, and no implied covenants shall be read into this Indenture
against the Trustee. In case an Event of Default with respect to the Securities of a series has occurred (that has not been cured
or waived), the Trustee shall exercise with respect to Securities of that series such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
(b) No provision of this Indenture shall be
construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of an Event of Default
with respect to the Securities of a series and after the curing or waiving of all such Events of Default with respect to that series
that may have occurred:
(A) the duties and obligations of the Trustee
shall with respect to the Securities of such series be determined solely by the express provisions of this Indenture, and the Trustee
shall not be liable with respect to the Securities of such series except for the performance of such duties and obligations as
are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against
the Trustee; and
(B) in the absence of bad faith on the part
of the Trustee, the Trustee may with respect to the Securities of such series conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; but in the case of any such certificates or opinions that by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture;
(ii) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in accordance with the direction of the holders of not less than
a majority in principal amount of the Securities of any series at the time Outstanding relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee
under this Indenture with respect to the Securities of that series; and
(iv) None of the provisions contained in this
Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance
of any of its duties or in the exercise of any of its rights or powers if there is reasonable ground for believing that the repayment
of such funds or liability is not reasonably assured to it under the terms of this Indenture or adequate indemnity against such
risk is not reasonably assured to it.
Section 7.02 Certain Rights of Trustee.
Except as otherwise provided in Section 7.01:
(a) The Trustee may rely and shall be protected
in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, security or other paper or document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) Any request, direction, order or demand
of the Company mentioned herein shall be sufficiently evidenced by a Board Resolution or an instrument signed in the name of the
Company by any authorized officer of the Company (unless other evidence in respect thereof is specifically prescribed herein);
(c) The Trustee may consult with counsel and
the written advice of such counsel or, if requested, any Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken or suffered or omitted hereunder in good faith and in reliance thereon;
(d) The Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Securityholders
pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee reasonable security
or indemnity against the costs, expenses and liabilities that may be incurred therein or thereby; nothing contained herein shall,
however, relieve the Trustee of the obligation, upon the occurrence of an Event of Default with respect to a series of the Securities
(that has not been cured or waived), to exercise with respect to Securities of that series such of the rights and powers vested
in it by this Indenture, and to use the same degree of care and skill in their exercise, as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs;
(e) The Trustee shall not be liable for any
action taken or omitted to be taken by it in good faith and believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Indenture;
(f) The Trustee shall not be bound to make
any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond, security, or other papers or documents, unless requested in writing so to do by the holders
of not less than a majority in principal amount of the Outstanding Securities of the particular series affected thereby (determined
as provided in Section 8.04); provided, however, that if the payment within a reasonable time to the Trustee of the costs, expenses
or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require reasonable indemnity
against such costs, expenses or liabilities as a condition to so proceeding. The reasonable expense of every such examination shall
be paid by the Company or, if paid by the Trustee, shall be repaid by the Company upon demand; and
(g) The Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall
not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder.
In addition, the Trustee shall not be deemed
to have knowledge of any Default or Event of Default except (1) any Event of Default occurring pursuant to Sections 6.01(a)(1)
and 6.01(a)(2) or (2) any Default or Event of Default of which the Trustee shall have received written notification in the manner
set forth in this Indenture or a Responsible Officer of the Trustee shall have obtained actual knowledge. Delivery of reports,
information and documents to the Trustee under Section 5.03 is for informational purposes only and the information and the Trustee’s
receipt of the foregoing shall not constitute constructive notice of any information contained therein, or determinable from information
contained therein including the Company’s compliance with any of their covenants thereunder (as to which the Trustee is entitled
to rely exclusively on an Officer’s Certificate).
Section 7.03 Trustee Not Responsible for Recitals or
Issuance or Securities.
(a) The recitals contained herein and in the
Securities shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the
same.
(b) The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities.
(c) The Trustee shall not be accountable for
the use or application by the Company of any of the Securities or of the proceeds of such Securities, or for the use or application
of any moneys paid over by the Trustee in accordance with any provision of this Indenture or established pursuant to Section 2.01,
or for the use or application of any moneys received by any paying agent other than the Trustee.
Section 7.04 May Hold Securities.
The Trustee or any paying agent or Security
Registrar, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would
have if it were not Trustee, paying agent or Security Registrar.
Section 7.05 Moneys Held in Trust.
Subject to the provisions of Section 11.05,
all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which
they were received, but need not be segregated from other funds except to the extent required by law. The Trustee shall be under
no liability for interest on any moneys received by it hereunder except such as it may agree with the Company to pay thereon.
Section 7.06 Compensation and Reimbursement.
(a) The Company covenants and agrees to pay
to the Trustee, and the Trustee shall be entitled to, such reasonable compensation (which shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust) as the Company and the Trustee may from time to time agree
in writing, for all services rendered by it in the execution of the trusts hereby created and in the exercise and performance of
any of the powers and duties hereunder of the Trustee, and, except as otherwise expressly provided herein, the Company will pay
or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements
of its counsel and of all Persons not regularly in its employ), except any such expense, disbursement or advance as may arise from
its negligence or bad faith and except as the Company and Trustee may from time to time agree in writing. The Company also covenants
to indemnify the Trustee (and its officers, agents, directors and employees) for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or bad faith on the part of the Trustee and arising out of or in connection with the acceptance
or administration of this trust, including the reasonable costs and expenses of defending itself against any claim of liability
in the premises.
(b) The obligations of the Company under this
Section to compensate and indemnify the Trustee and to pay or reimburse the Trustee for reasonable expenses, disbursements and
advances shall constitute indebtedness of the Company to which the Securities are subordinated. Such additional indebtedness shall
be secured by a lien prior to that of the Securities upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the benefit of the holders of particular Securities.
Section 7.07 Reliance on Officer’s Certificate.
Except as otherwise provided in Section 7.01,
whenever in the administration of the provisions of this Indenture the Trustee shall deem it reasonably necessary or desirable
that a matter be proved or established prior to taking or suffering or omitting to take any action hereunder, such matter (unless
other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part
of the Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate delivered to the Trustee and such
certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any
action taken, suffered or omitted to be taken by it under the provisions of this Indenture upon the faith thereof.
Section 7.08 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire any “conflicting
interest” within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the Company shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture Act.
Section 7.09 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee with
respect to the Securities issued hereunder which shall at all times be a corporation organized and doing business under the laws
of the United States of America or any state or territory thereof or of the District of Columbia, or a corporation or other Person
permitted to act as trustee by the Securities and Exchange Commission, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least fifty million U.S. dollars ($50,000,000), and subject to supervision or examination
by federal, state, territorial, or District of Columbia authority.
If such corporation or other Person publishes
reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such corporation or other Person shall be deemed to
be its combined capital and surplus as set forth in its most recent report of condition so published. The Company may not, nor
may any Person directly or indirectly controlling, controlled by, or under common control with the Company, serve as Trustee. In
case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 7.10.
Section 7.10 Resignation and Removal; Appointment of
Successor.
(a) The Trustee or any successor hereafter
appointed may at any time resign with respect to the Securities of one or more series by giving written notice thereof to the Company
and by transmitting notice of resignation by mail, first class postage prepaid, to the Securityholders of such series, as their
names and addresses appear upon the Security Register. Upon receiving such notice of resignation, the Company shall promptly appoint
a successor trustee with respect to Securities of such series by written instrument, in duplicate, executed by order of the Board
of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If
no successor trustee shall have been so appointed and have accepted appointment within 30 days after the mailing of such notice
of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor trustee
with respect to Securities of such series, or any Securityholder of that series who has been a bona fide holder of a Security or
Securities for at least six months may on behalf of himself and all others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, appoint
a successor trustee.
(b) In case at any time any one of the following
shall occur:
(i) the Trustee shall fail to comply with the
provisions of Section 7.08 after written request therefor by the Company or by any Securityholder who has been a bona fide holder
of a Security or Securities for at least six months; or
(ii) the Trustee shall cease to be eligible in
accordance with the provisions of Section 7.09 and shall fail to resign after written request therefor by the Company or by any
such Securityholder; or
(iii) the Trustee shall become incapable of
acting, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding, or a receiver of the Trustee
or of its property shall be appointed or consented to, or any public officer shall take charge or control of the Trustee or of
its property or affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Company may remove
the Trustee with respect to all Securities and appoint a successor trustee by written instrument, in duplicate, executed by order
of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor
trustee, or any Securityholder who has been a bona fide holder of a Security or Securities for at least six months may, on behalf
of that holder and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate
principal amount of the Securities of any series at the time Outstanding may at any time remove the Trustee with respect to such
series by so notifying the Trustee and the Company and may appoint a successor Trustee for such series with the consent of the
Company.
(d) Any resignation or removal of the Trustee
and appointment of a successor trustee with respect to the Securities of a series pursuant to any of the provisions of this Section
shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.11.
(e) Any successor trustee appointed pursuant
to this Section may be appointed with respect to the Securities of one or more series or all of such series, and at any time there
shall be only one Trustee with respect to the Securities of any particular series.
Section 7.11 Acceptance of Appointment By Successor.
(a) In case of the appointment hereunder of
a successor trustee with respect to all Securities, every such successor trustee so appointed shall execute, acknowledge and deliver
to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of
the retiring Trustee shall become effective and such successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor
trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor
trustee all the rights, powers, and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor
trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of
a successor trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each
successor trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor trustee shall accept such appointment and which (i) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor trustee relates,
(ii) shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee, and (iii) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust, that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any
other such
Trustee and that no Trustee shall be responsible for any act or failure to act on the part of any other Trustee hereunder;
and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein, such retiring Trustee shall with respect to the Securities of that or those series to
which the appointment of such successor trustee relates have no further responsibility for the exercise of rights and powers or
for the performance of the duties and obligations vested in the Trustee under this Indenture, and each such successor trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the appointment of such successor trustee relates; but,
on request of the Company or any successor trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor
trustee, to the extent contemplated by such supplemental indenture, the property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment of such successor trustee relates.
(c) Upon request of any such successor trustee,
the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor trustee
all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor trustee shall accept its appointment
unless at the time of such acceptance such successor trustee shall be qualified and eligible under this Article.
(e) Upon acceptance of appointment by a successor
trustee as provided in this Section, the Company shall transmit notice of the succession of such trustee hereunder by mail, first
class postage prepaid, to the Securityholders, as their names and addresses appear upon the Security Register. If the Company fails
to transmit such notice within ten days after acceptance of appointment by the successor trustee, the successor trustee shall cause
such notice to be transmitted at the expense of the Company.
Section 7.12 Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Trustee may
be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation
to which the Trustee shall be a party, or any corporation succeeding to the corporate trust business of the Trustee, including
the administration of the trust created by this Indenture, shall be the successor of the Trustee hereunder, provided that such
corporation shall be qualified under the provisions of Section 7.08 and eligible under the provisions of Section 7.09, without
the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
Section 7.13 Preferential Collection of Claims Against
the Company.
The Trustee shall comply with Section 311(a)
of the Trust Indenture Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture Act. A Trustee
who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.
Section 7.14 Notice of Default
If any Default or any Event of Default occurs
and is continuing and if such Default or Event of Default is known to a Responsible Officer of the Trustee, the Trustee shall mail
to each Securityholder in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act notice of the Default
or Event of Default within the earlier of 90 days after it occurs and 30 days after it is known to a Responsible Officer of the
Trustee or written notice of it is received by the Trustee, unless such Default or Event of Default has been cured; provided, however,
that, except in the case of a default in the payment of the principal of (or premium, if any) or interest on any Security, the
Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Trustee in good faith determine that the withholding of such notice is
in the interest of the Securityholders.
ARTICLE 8
CONCERNING THE SECURITYHOLDERS
Section 8.01 Evidence of Action by Securityholders.
Whenever in this Indenture it is provided that
the holders of a majority or specified percentage in aggregate principal amount of the Securities of a particular series may take
any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other
action), the fact that at the time of taking any such action the holders of such majority or specified percentage of that series
have joined therein may be evidenced by any instrument or any number of instruments of similar tenor executed by such holders of
Securities of that series in person or by agent or proxy appointed in writing.
If the Company shall solicit from the Securityholders
of any series any request, demand, authorization, direction, notice, consent, waiver or other action, the Company may, at its option,
as evidenced by an Officer’s Certificate, fix in advance a record date for such series for the determination of Securityholders
entitled to give such request, demand, authorization, direction, notice, consent, waiver or other action, but the Company shall
have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver
or other action may be given before or after the record date, but only the Securityholders of record at the close of business on
the record date shall be deemed to be Securityholders for the purposes of determining whether Securityholders of the requisite
proportion of Outstanding Securities of that series have authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other action, and for that purpose the Outstanding Securities of that series shall be computed
as of the record date; provided, however, that no such authorization, agreement or consent by such Securityholders on the record
date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six
months after the record date.
Section 8.02 Proof of Execution by Securityholders.
Subject to the provisions of Section 7.01,
proof of the execution of any instrument by a Securityholder (such proof will not require notarization) or his agent or proxy and
proof of the holding by any Person of any of the Securities shall be sufficient if made in the following manner:
(a) The fact and date of the execution by any
such Person of any instrument may be proved in any reasonable manner acceptable to the Trustee.
(b) The ownership of Securities shall be proved
by the Security Register of such Securities or by a certificate of the Security Registrar thereof.
The Trustee may require such additional proof of any matter referred
to in this Section as it shall deem necessary.
Section 8.03 Who May be Deemed Owners.
Prior to the due presentment for registration
of transfer of any Security, the Company, the Trustee, any paying agent and any Security Registrar may deem and treat the Person
in whose name such Security shall be registered upon the books of the Company as the absolute owner of such Security (whether or
not such Security shall be overdue and notwithstanding any notice of ownership or writing thereon made by anyone other than the
Security Registrar) for the purpose of receiving payment of or on account of the principal of, premium, if any, and (subject to
Section 2.03) interest on such Security and for all other purposes; and neither the Company nor the Trustee nor any paying agent
nor any Security Registrar shall be affected by any notice to the contrary.
Section 8.04 Certain Securities Owned by Company Disregarded.
In determining whether the holders of the requisite
aggregate principal amount of Securities of a particular series have concurred in any direction, consent or waiver under this Indenture,
the Securities of that series that are owned by the Company or any other obligor on the Securities of that series or by any Person
directly or indirectly controlling or controlled by or under common control with the Company or any other obligor on the Securities
of that series shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, except that for
the purpose of determining whether the Trustee shall be protected in relying on any such direction, consent or waiver, only Securities
of such series that the Trustee actually knows are so owned shall be so disregarded. The Securities so owned that have been pledged
in good faith may be regarded as Outstanding for the purposes of this Section, if the pledgee shall establish to the satisfaction
of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not a Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the Company or any such other obligor. In case of
a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee.
Section 8.05 Actions Binding on Future Securityholders.
At any time prior to (but not after) the evidencing
to the Trustee, as provided in Section 8.01, of the taking of any action by the holders of the majority or percentage in aggregate
principal amount of the Securities of a particular
series specified in this Indenture in connection with such action,
any holder of a Security of that series that is shown by the evidence to be included in the Securities the holders of which have
consented to such action may, by filing written notice with the Trustee, and upon proof of holding as provided in Section 8.02,
revoke such action so far as concerns such Security. Except as aforesaid any such action taken by the holder of any Security shall
be conclusive and binding upon such holder and upon all future holders and owners of such Security, and of any Security issued
in exchange therefor, on registration of transfer thereof or in place thereof, irrespective of whether or not any notation in regard
thereto is made upon such Security. Any action taken by the holders of the majority or percentage in aggregate principal amount
of the Securities of a particular series specified in this Indenture in connection with such action shall be conclusively binding
upon the Company, the Trustee and the holders of all the Securities of that series.
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without the Consent
of Securityholders.
In addition to any supplemental indenture otherwise
authorized by this Indenture, the Company and the Trustee may from time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as then in effect), without the consent of
the Securityholders, for one or more of the following purposes:
(a) to cure any ambiguity, defect, or inconsistency
herein or in the Securities of any series;
(b) to comply with Article Ten;
(c) to provide for uncertificated Securities
in addition to or in place of certificated Securities;
(d) to add to the covenants, restrictions,
conditions or provisions relating to the Company for the benefit of the holders of all or any series of Securities (and if such
covenants, restrictions, conditions or provisions are to be for the benefit of less than all series of Securities, stating that
such covenants, restrictions, conditions or provisions are expressly being included solely for the benefit of such series), to
make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants, restrictions, conditions
or provisions an Event of Default, or to surrender any right or power herein conferred upon the Company;
(e) to add to, delete from, or revise the conditions,
limitations, and restrictions on the authorized amount, terms, or purposes of issue, authentication, and delivery of Securities,
as herein set forth;
(f) to make any change that does not adversely
affect the rights of any Securityholder in any material respect;
(g) to provide for the issuance of and establish
the form and terms and conditions of the Securities of any series as provided in Section 2.01, to establish the form of any certifications
required to be furnished pursuant to the terms of this Indenture or any series of Securities, or to add to the rights of the holders
of any series of Securities;
(h) to evidence and provide for the acceptance
of appointment hereunder by a successor trustee; or
(i) to comply with any requirements of the
Securities and Exchange Commission or any successor in connection with the qualification of this Indenture under the Trust Indenture
Act.
The Trustee is hereby authorized to join with
the Company in the execution of any such supplemental indenture, and to make any further appropriate agreements and stipulations
that may be therein contained, but the Trustee shall not be obligated to enter into any such supplemental indenture that affects
the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the
provisions of this Section may be executed by the Company and the Trustee without the consent of the holders of any of the Securities
at the time Outstanding, notwithstanding any of the provisions of Section 9.02.
Section 9.02 Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in
Section 8.01) of the holders of not less than a majority in aggregate principal amount of the Securities of each series affected
by such supplemental indenture or indentures at the time Outstanding, the Company, when authorized by a Board Resolution, and the
Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to
the provisions of the Trust Indenture Act as then in effect) for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner not covered
by Section 9.01 the rights of the holders of the Securities of such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the holders of each Security then Outstanding and affected thereby, (a) extend
the fixed maturity of any Securities of any series, or reduce the principal amount thereof, or reduce the rate or extend the time
of payment of interest thereon, or reduce any premium payable upon the redemption thereof or (b) reduce the aforesaid percentage
of Securities, the holders of which are required to consent to any such supplemental indenture.
It shall not be necessary for the consent of
the Securityholders of any series affected thereby under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Section 9.03 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture
pursuant to the provisions of this Article or of Section 10.01, this Indenture shall, with respect to such series, be and be deemed
to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Company and the holders of Securities of the series affected thereby shall thereafter
be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture
for any and all purposes.
Section 9.04 Securities Affected by Supplemental Indentures.
Securities of any series affected by a supplemental
indenture, authenticated and delivered after the execution of such supplemental indenture pursuant to the provisions of this Article
or of Section 10.01, may bear a notation in form approved by the Company, provided such form meets the requirements of any securities
exchange upon which such series may be listed, as to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of that series so modified as to conform, in the opinion of the Board of Directors, to any modification
of this Indenture contained in any such supplemental indenture may be prepared by the Company, authenticated by the Trustee and
delivered in exchange for the Securities of that series then Outstanding.
Section 9.05 Execution of Supplemental Indentures.
Upon the request of the Company, accompanied
by its Board Resolutions authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of Securityholders required to consent thereto as aforesaid, the Trustee shall join with the Company in
the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its discretion but shall not be obligated to enter into such
supplemental indenture. The Trustee, subject to the provisions of Section 7.01, may receive an Officer’s Certificate or, if requested,
an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant to this Article is authorized or
permitted by, and conforms to, the terms of this Article and that it is proper for the Trustee under the provisions of this Article
to join in the execution thereof; provided, however, that such Officer’s Certificate or Opinion of Counsel need not be provided
in connection with the execution of a supplemental indenture that establishes the terms of a series of Securities pursuant to Section
2.01 hereof.
Promptly after the execution by the Company
and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Trustee shall transmit by mail,
first class postage prepaid, a notice, setting forth in general terms the substance of such supplemental indenture, to the Securityholders
of all series affected thereby as their names and addresses appear upon the Security Register. Any failure of the Trustee to mail
such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
ARTICLE 10
SUCCESSOR ENTITY
Section 10.01 Company May Consolidate, Etc.
Except as provided pursuant to Section 2.01
pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established in one or more indentures supplemental
to this Indenture, nothing contained in this Indenture shall prevent any consolidation or merger of the Company with or into any
other Person (whether or not affiliated with the Company) or successive consolidations or mergers in which the Company or its successor
or successors shall be a party or parties, or shall prevent any sale, conveyance, transfer or other disposition of the property
of the Company or its successor or successors as an entirety, or substantially as an entirety, to any other corporation (whether
or not affiliated with the Company or its successor or successors) authorized to acquire and operate the same; provided, however,
(a) the Company hereby covenants and agrees that, upon any such consolidation or merger (in each case, if the Company is not the
survivor of such transaction), sale, conveyance, transfer or other disposition, the due and punctual payment of the principal of
(premium, if any) and interest on all of the Securities of all series in accordance with the terms of each series, according to
their tenor, and the due and punctual performance and observance of all the covenants and conditions of this Indenture with respect
to each series or established with respect to such series pursuant to Section 2.01 to be kept or performed by the Company shall
be expressly assumed, by supplemental indenture (which shall conform to the provisions of the Trust Indenture Act, as then in effect)
reasonably satisfactory in form to the Trustee executed and delivered to the Trustee by the entity formed by such consolidation,
or into which the Company shall have been merged, or by the entity which shall have acquired such property and (b) in the event
that the Securities of any series then Outstanding are convertible into or exchangeable for shares of common stock or other securities
of the Company, such entity shall, by such supplemental indenture, make provision so that the Securityholders of Securities of
that series shall thereafter be entitled to receive upon conversion or exchange of such Securities the number of securities or
property to which a holder of the number of shares of common stock or other securities of the Company deliverable upon conversion
or exchange of those Securities would have been entitled had such conversion or exchange occurred immediately prior to such consolidation,
merger, sale, conveyance, transfer or other disposition.
Section 10.02 Successor Entity Substituted.
(a) In case of any such consolidation, merger,
sale, conveyance, transfer or other disposition and upon the assumption by the successor entity by supplemental indenture, executed
and delivered to the Trustee and satisfactory in form to the Trustee, of the obligations set forth under Section 10.01 on all of
the Securities of all series Outstanding, such successor entity shall succeed to and be substituted for the Company with the same
effect as if it had been named as the Company herein, and thereupon the predecessor corporation shall be relieved of all obligations
and covenants under this Indenture and the Securities.
(b) In case of any such consolidation, merger,
sale, conveyance, transfer or other disposition, such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
(c) Nothing contained in this Article shall
require any action by the Company in the case of a consolidation or merger of any Person into the Company where the Company is
the survivor of such transaction, or the acquisition by the Company, by purchase or otherwise, of all or any part of the property
of any other Person (whether or not affiliated with the Company).
Section 10.03 Evidence of Consolidation, Etc. to
Trustee.
The Trustee, subject to the provisions of Section
7.01, may receive an Officer’s Certificate and, if requested, an Opinion of Counsel as conclusive evidence that any such consolidation,
merger, sale, conveyance, transfer or other disposition, and any such assumption, comply with the provisions of this Article.
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge of Indenture.
If at any time: (a) the Company shall have
delivered to the Trustee for cancellation all Securities of a series theretofore authenticated and not delivered to the Trustee
for cancellation (other than any Securities that shall have been destroyed, lost or stolen and that shall have been replaced or
paid as provided in Section 2.07 and Securities for whose payment money or Governmental Obligations have theretofore been deposited
in trust or segregated and held in trust by the Company and thereupon repaid to the Company or discharged from such trust, as provided
in Section 11.05); or (b) all such Securities of a particular series not theretofore delivered to the Trustee for cancellation
shall have become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and the Company shall deposit
or cause to be deposited with the Trustee as trust funds the entire amount in moneys or Governmental Obligations or a combination
thereof, sufficient in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay at maturity or upon redemption all Securities of that series not theretofore delivered
to the Trustee for cancellation, including principal (and premium, if any) and interest due or to become due to such date of maturity
or date fixed for redemption, as the case may be, and if the Company shall also pay or cause to be paid all other sums payable
hereunder with respect to such series by the Company then this Indenture shall thereupon cease to be of further effect with respect
to such series except for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03 and 7.10, that shall survive until the
date of maturity or redemption date, as the case may be, and Sections 7.06 and 11.05, that shall survive to such date and thereafter,
and the Trustee, on demand of the Company and at the cost and expense of the Company shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture with respect to such series.
Section 11.02 Discharge of Obligations.
If at any time all such Securities of a particular
series not heretofore delivered to the Trustee for cancellation or that have not become due and payable as described in Section
11.01 shall have been paid by the Company by depositing irrevocably with the Trustee as trust funds moneys or an amount of Governmental
Obligations sufficient to pay at maturity or upon redemption all such Securities of that series not theretofore delivered to the
Trustee for cancellation, including principal (and premium, if any) and interest due or to become due to such date of maturity
or date fixed for redemption, as the case may be, and if the Company shall also pay or cause to be paid all other sums payable
hereunder by the Company with respect to such series, then after the date such moneys or Governmental Obligations, as the case
may be, are deposited with the Trustee the obligations of the Company under this Indenture with respect to such series shall cease
to be of further effect except for the provisions of Sections 2.03, 2.05, 2.07, 4,01, 4.02, 4,03, 7.06, 7.10 and 11.05 hereof that
shall survive until such Securities shall mature and be paid. Thereafter, Sections 7.06 and 11.05 shall survive.
Section 11.03 Deposited Moneys to be Held in Trust.
All moneys or Governmental Obligations deposited
with the Trustee pursuant to Sections 11.01 or 11.02 shall be held in trust and shall be available for payment as due, either directly
or through any paying agent (including the Company acting as its own paying agent), to the holders of the particular series of
Securities for the payment or redemption of which such moneys or Governmental Obligations have been deposited with the Trustee.
Section 11.04 Payment of Moneys Held by Paying Agents.
In connection with the satisfaction and discharge
of this Indenture all moneys or Governmental Obligations then held by any paying agent under the provisions of this Indenture shall,
upon demand of the Company, be paid to the Trustee and thereupon such paying agent shall be released from all further liability
with respect to such moneys or Governmental Obligations.
Section 11.05 Repayment to Company.
Any moneys or Governmental Obligations deposited
with any paying agent or the Trustee, or then held by the Company, in trust for payment of principal of or premium, if any, or
interest on the Securities of a particular series that are not applied but remain unclaimed by the holders of such Securities for
at least two years after the date upon which the principal of (and premium, if any) or interest on such Securities shall have respectively
become due and payable, or such other shorter period set forth in applicable escheat or abandoned or unclaimed property law, shall
be repaid to the Company on May 31 of each year or upon the Company’s request or (if then held by the Company) shall be discharged
from such trust; and thereupon the paying agent and the Trustee shall be released from all further liability with respect to such
moneys or Governmental Obligations, and the holder of any of the Securities entitled to receive such payment shall thereafter,
as a general creditor, look only to the Company for the payment thereof.
ARTICLE 12
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 12.01 No Recourse.
No recourse under or upon any obligation, covenant
or agreement of this Indenture, or of any Security, or for any claim based thereon or otherwise in respect thereof, shall be had
against any incorporator, stockholder, officer or director, past, present or future as such, of the Company or of any predecessor
or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely corporate obligations, and that no such personal
liability whatever shall attach to, or is or shall be incurred by, the incorporators, stockholders, officers or directors as such,
of the Company or of any predecessor or successor corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom; and that any and all such personal liability of every name and nature, either at common law or in equity
or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, stockholder, officer
or director as such, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants
or agreements contained in this Indenture or in any of the Securities or implied therefrom, are hereby expressly waived and released
as a condition of, and as a consideration for, the execution of this Indenture and the issuance of such Securities.
ARTICLE 13
MISCELLANEOUS PROVISIONS
Section 13.01 Effect on Successors and Assigns.
All the covenants, stipulations, promises and
agreements in this Indenture made by or on behalf of the Company shall bind its successors and assigns, whether so expressed or
not.
Section 13.02 Actions by Successor.
Any act or proceeding by any provision of this
Indenture authorized or required to be done or performed by any board, committee or officer of the Company shall and may be done
and performed with like force and effect by the corresponding board, committee or officer of any corporation that shall at the
time be the lawful successor of the Company.
Section 13.03 Surrender of Company Powers.
The Company by instrument in writing executed
by authority of its Board of Directors and delivered to the Trustee may surrender any of the powers reserved to the Company, and
thereupon such power so surrendered shall terminate both as to the Company and as to any successor corporation.
Section 13.04 Notices.
Except as otherwise expressly provided herein,
any notice, request or demand that by any provision of this Indenture is required or permitted to be given, made or served by the
Trustee or by the holders of Securities or by any other Person pursuant to this Indenture to or on the Company may be given or
served by being deposited in first class mail, postage prepaid, addressed (until another address is filed in writing by the Company
with the Trustee), as follows: Any notice, election, request or demand by the Company or any Securityholder or by any other Person
pursuant to this Indenture to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if
given or made in writing at the Corporate Trust Office of the Trustee.
Section 13.05 Governing Law.
This Indenture and each Security shall be deemed
to be a contract made under the internal laws of the State of New York, and for all purposes shall be construed in accordance with
the laws of said State, except to the extent that the Trust Indenture Act is applicable.
Section 13.06 Treatment of Securities as Debt.
It is intended that the Securities will be
treated as indebtedness and not as equity for federal income tax purposes. The provisions of this Indenture shall be interpreted
to further this intention.
Section 13.07 Certificates and Opinions as to Conditions
Precedent.
(a) Upon any application or demand by the Company
to the Trustee to take any action under any of the provisions of this Indenture, the Company shall furnish to the Trustee an Officer’s
Certificate stating that all conditions precedent provided for in this Indenture (other than the certificate to be delivered pursuant
to Section 13.12) relating to the proposed action have been complied with and, if requested, an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent have been complied with, except that in the case of any such application
or demand as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to
such particular application or demand, no additional certificate or opinion need be furnished.
(b) Each certificate or opinion provided for
in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant in this Indenture shall
include (i) a statement that the Person making such certificate or opinion has read such covenant or condition; (ii) a brief statement
as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate
or opinion are based; (iii) a statement that, in the opinion of such Person, he has made such examination or investigation as is
reasonably necessary to enable him to express an informed opinion
as to whether or not such covenant or condition has been complied with; and (iv) a statement as to whether or not, in the opinion
of such Person, such condition or covenant has been complied with.
Section 13.08 Payments on Business Days.
Except as provided pursuant to Section 2.01
pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established in one or more indentures supplemental
to this Indenture, in any case where the date of maturity of interest or principal of any Security or the date of redemption of
any Security shall not be a Business Day, then payment of interest or principal (and premium, if any) may be made on the next succeeding
Business Day with the same force and effect as if made on the nominal date of maturity or redemption, and no interest shall accrue
for the period after such nominal date.
Section 13.09 Conflict with Trust Indenture Act.
If and to the extent that any provision of
this Indenture limits, qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture
Act, such imposed duties shall control.
Section 13.10 Counterparts.
This Indenture may be executed in any number
of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.
Section 13.11 Separability.
In case any one or more of the provisions contained
in this Indenture or in the Securities of any series shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Indenture or of such Securities,
but this Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable provision had never been
contained herein or therein.
Section 13.12 Compliance Certificates.
The Company shall deliver to the Trustee, within
120 days after the end of each fiscal year during which any Securities of any series were outstanding, an officer’s certificate
stating whether or not the signers know of any Default or Event of Default that occurred during such fiscal year. Such certificate
shall contain a certification from the principal executive officer, principal financial officer or principal accounting officer
of the Company that a review has been conducted of the activities of the Company and the Company’s performance under this Indenture
and that the Company has complied with all conditions and covenants under this Indenture. For purposes of this Section 13.12, such
compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture. If
the officer of the Company signing such certificate has knowledge of such a Default or Event of Default, the certificate shall
describe any such Default or Event of Default and its status.
ARTICLE 14
SUBORDINATION OF SECURITIES
Section 14.01 Subordination Terms.
The payment by the Company of the principal
of, premium, if any, and interest on any series of Securities issued hereunder shall be subordinated to the extent set forth in
an indenture supplemental hereto relating to such series.
[Remainder of page intentionally left blank;
signature page follows]
IN WITNESS WHEREOF, the parties hereto
have caused this Indenture to be duly executed all as of the day and year first above written.
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KAIVAL BRANDS INNOVATIONS GROUP, INC.
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By:
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Name:
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Title:
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[TRUSTEE], as Trustee
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By:
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Name:
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Title:
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35
Exhibit 5.1
July 30, 2021
Kaival Brands Innovations Group, Inc.
4460 Old Dixie Highway
Grant, FL 32949
Re: Registration Statement on Form S-3 of Kaival Brands Innovations
Group, Inc.
Ladies and Gentlemen:
We have acted as counsel to Kaival Brands Innovations
Group, Inc., a Delaware corporation (the “Company”), in connection with the registration under the Securities
Act of 1933, as amended (the “Act”), by a Registration Statement on Form S-3 filed on July 30, 2021 (as may
be amended, the “Registration Statement”), of an indeterminate amount of the Company’s securities having
an aggregate public offering price not to exceed $200,000,000 to be offered from time to time on a delayed or continuous basis
pursuant to Rule 415 of the Act. Such securities may include (i) shares of the Company’s common stock, $0.001 par value
per share (the “Common Stock”), (ii) shares of the Company’s preferred stock, $0.001 par value per
share (the “Preferred Stock”), (iii) one or more series (senior and subordinated) of the Company’s debt
securities (collectively, “Debt Securities”), (iv) warrants to purchase Common Stock, Preferred Stock or Debt
Securities (the “Warrants”), (v) rights that may represent a right to purchase shares of Common Stock, Preferred
Shares, Debt Securities or Units (as defined below), (vi) units consisting of Warrants, Debt Securities, shares of Preferred Stock,
shares of Common Stock or any combination of such securities (the “Units” and, together with the Common Stock,
Preferred Stock, Debt Securities, Rights and Warrants, the “Securities”), and (vii) any combination of two or
more of the above Securities. The Registration Statement will be supplemented by one or more prospectus supplements.
The Securities may be sold pursuant to an underwriting
agreement, placement agency agreement, subscription agreement, rights agreement or other contract (each, an “Issuance
Agreement”), which will be in substantially the form to be filed as an exhibit to a report filed pursuant to the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), or an amendment to the Registration Statement. The Common
Stock, Preferred Stock, Debt Securities, Warrants, Rights and Units are to be issued in forms to be filed as exhibits to a report
filed pursuant to the Exchange Act or an amendment to the Registration Statement.
As to all matters of fact (including factual
conclusions and characterizations and descriptions of purpose, intention or other state of mind), we have relied, with your permission,
entirely upon written actions and minutes of the board of directors of the Company and certificates of certain officers of the
Company and have assumed, without independent inquiry, the accuracy of those certificates, written actions and minutes of the board
of directors of the Company.
July 30, 2021
Page 2
As counsel to the Company, in rendering the
opinions hereinafter expressed, we have examined and relied upon originals or copies of such corporate records, agreements, documents
and instruments as we have deemed necessary or advisable for purposes of this opinion, including (i) the Amended and Restated Certificate
of Incorporation, as amended to date (as so amended, the “Certificate of Incorporation”) and the Bylaws of the
Company (the “Bylaws”), and (ii) the Registration Statement.
We have assumed:
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(i)
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the
genuineness
of
all
signatures,
the
conformity
to
the
originals
of
all
documents
reviewed
by
us
as
copies,
the
authenticity
and
completeness
of
all
original
documents
reviewed
by
us
in
original
or
copy
form
and
the
legal
competence
of
each
individual
executing
any
document;
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(ii)
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that
any
shares
of
Common
Stock
issued
pursuant
to
the
Registration
Statement
from
time
to
time
will
not
exceed
the
maximum
authorized
number
of
shares
of
Common
Stock
under
the
current
Certificate
of
Incorporation
of
the
Company,
as
the
same
may
have
been
amended,
minus
that
number
of
shares
of
Common
Stock
that
may
have
been
issued
and
are
outstanding,
or
are
reserved
for
issuance
for
other
purposes,
at
such
time;
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(iii)
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that
any
shares
of
Preferred
Stock
issued
pursuant
to
the
Registration
Statement
from
time
to
time
will
not
exceed
the
maximum
authorized
number
of
shares
of
Preferred
Stock
under
the
current
Certificate
of
Incorporation
of
the
Company,
as
the
same
may
have
been
amended,
minus
that
number
of
shares
of
Preferred
Stock
that
may
have
been
issued
and
are
outstanding,
or
are
reserved
for
issuance
for
other
purposes,
at
such
time
and
that
an
appropriate
certificate
of
designation
relating
to
each
such
series
of
Preferred
Stock
will
have
been
duly
authorized
and
established
by
proper
action
of
the
board
of
directors
of
the
Company
or
a
duly
constituted
and
acting
committee
thereof
(such
board
of
directors
or
committee
being
hereinafter
referred
to
as
the
“Board”
of
the
Company)
and
filed
with
the
Secretary
of
State
of
the
State
of
Delaware
as
required
under
Delaware
General
Corporation
Law
(the
“DGCL”),
and
in
accordance
with
the
Certificate
of
Incorporation
of
the
Company,
as
amended
from
time
to
time,
the
Bylaws
of
the
Company,
as
amended
from
time
to
time,
and
applicable
Delaware
law;
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(iv)
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that any Debt Securities issued pursuant
to the Registration Statement will be issued under and pursuant to a senior indenture and/or a subordinated indenture, a form
of which will be filed as an exhibit to the Registration Statement (the “Indenture”) and is to be entered into, in
each case, between the Company and a trustee (the “Trustee”). Each Indenture may be supplemented, as applicable, in
connection with the issuance of each series of Debt Securities by a supplemental indenture or other appropriate action of the
Company creating such series;
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(v)
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that (1) the execution, delivery and performance
by the Company of the applicable Indenture will not, and the execution, delivery and performance by the Company of any warrant
agreement or other similar agreement entered into in connection with the issuance of any Securities will not, violate the laws
of the jurisdiction of incorporation of the Company or any other applicable laws (excepting the internal, substantive laws of
the State of New York and, to the limited extent provided herein, the DGCL); and (2) the execution, delivery and performance by
the Company of the applicable Indenture will not, and the execution, delivery and performance by the Company of any warrant agreement
or other similar agreement entered into in connection with the issuance of any Securities will not, constitute a breach or violation
of any agreement or instrument that is binding upon the Company;
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July 30, 2021
Page 3
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(vi)
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that when the applicable Issuance Agreement
providing for the specific terms of a particular issuance of Warrants, Rights or Units, as the case may be, has been duly authorized
by the Company and has been duly executed and delivered by the Company and the warrant agent, rights agent or units agent, if
any, named in such Issuance Agreement, and Warrants, Rights or Units conforming to the requirements of the related Issuance Agreement
have been duly countersigned or authenticated, as required, by the warrant agent, rights agent or units agent, as the case may
be, and duly executed and delivered by the Company against payment for such Warrants, Rights or Units in accordance with the terms
of such Issuance Agreement, such Warrants, Rights or Units will constitute valid and binding obligations of the Company.
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(vii)
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that, at the time of each issuance and
sale of the Securities, the Company will continue to be validly existing and in good standing under the laws of its jurisdiction
of organization with the requisite corporate power and authority to issue and sell such Securities.
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This opinion is limited solely to the DGCL,
as applied by courts located in Delaware, and the internal, substantive laws of the State of New York as applied by courts located
in New York without regard to choice of law, in each case to the extent that the same may apply to or govern the transactions contemplated
by the Registration Statement, and we express no opinion with respect to the laws of any other state or jurisdiction. We express
no opinion as to the effect of events occurring, circumstances arising, or changes of law becoming effective or occurring, after
the date hereof on the matters addressed in this opinion.
Each opinion set forth below with respect to
enforceability is subject to the following general qualifications:
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(a)
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enforceability may be limited by the effect
of applicable bankruptcy, insolvency, reorganization, moratorium, marshaling, fraudulent conveyance or other similar laws and
rules of law affecting the enforcement generally of creditors’ or secured parties’ rights and remedies;
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(b)
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rights to indemnification and contribution
may be limited by applicable law or equitable principles, and exculpatory provisions and waivers of the benefits of statutory
provisions may be limited on public policy grounds;
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July 30, 2021
Page 4
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(c)
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enforceability
may
be
limited
by
general
principles
of
equity,
including
without
limitation
concepts
of
materiality,
reasonableness,
good
faith
and
fair
dealing,
and
the
possible
unavailability
of
specific
performance
or
injunctive
relief
and
limitation
of
rights
of
acceleration,
regardless
of
whether
such
enforceability
is
considered
in
a
proceeding
in
equity
or
at
law;
and
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(d)
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we
express
no
opinion
with
respect
to
the
enforceability
of:
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i.
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consents to, or restrictions upon, judicial relief or, except to the extent that such waivers or consents are made enforceable by New York General Obligations Law (as applied by a New York State court), jurisdiction or venue;
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ii.
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advance waivers of claims, defenses, rights granted by law, or notice, opportunity for hearing, evidentiary requirements, statutes of limitation, trial by jury or at law, or other procedural rights;
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iii.
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waivers of broadly or vaguely stated rights; and
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iv.
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provisions for liquidated damages, default interest, late charges, monetary penalties, make-whole premiums or other economic remedies to the extent such provisions are deemed to constitute a penalty or a forfeiture.
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Based on such examination and subject to the
foregoing, we are of the opinion that:
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1.
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With respect to shares of Common Stock, when the shares of Common Stock have been duly registered and delivered, either (i) in accordance with the applicable definitive placement agency, underwriting, subscription or similar agreement approved by the board of directors of the Company (the “Board”), upon payment of the consideration therefor (not less than the par value of the Common Stock), (ii) upon the exercise of Warrants to purchase Common Stock and payment of the consideration therefor (not less than the par value of the Common Stock) provided for therein, or (iii) upon conversion or exercise of any other Security, in accordance with the terms of such Security or the instrument governing such Security providing for such conversion or exercise as approved by the Board, for the stated consideration (not less than the par value of the Common Stock), then the shares of Common Stock will be validly issued, fully paid and nonassessable.
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2.
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With respect to any particular series of shares of Preferred Stock, when both (a) the Board has adopted a certificate of designation relating to such Preferred Stock conforming to the DGCL (a “Certificate”) and the Certificate has been filed with the Secretary of State of the State of Delaware, and (b) the shares of Preferred Stock have been duly registered and delivered, either (i) in accordance with the applicable definitive placement agency, underwriting, subscription or similar agreement approved by the Board, upon payment of the consideration therefor (not less than the par value of the Preferred Stock), (ii) upon the exercise of Warrants to purchase Preferred Stock and payment of the consideration therefor (not less than the par value of the Preferred Stock) provided for therein, or (iii) upon conversion or exercise of any other Security, in accordance with the terms of such Security or the instrument governing such Security providing for such conversion or exercise as approved by the Board and for the stated consideration (not less than the par value of the Preferred Stock), then the shares of Preferred Stock will be validly issued, fully paid and nonassessable.
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July 30, 2021
Page 5
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3.
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With respect to Debt Securities to be issued under the applicable Indenture, when (a) the Trustee is qualified to act as Trustee under the applicable Indenture, (b) the Trustee has duly authorized, validly executed and delivered the Indenture, (c) the applicable Indenture has been duly authorized and validly executed and delivered by the Company to the Trustee, (d) the applicable Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended, and (e) such Debt Securities have been duly executed, authenticated, issued and delivered in accordance with the provisions of the applicable Indenture, and the applicable definitive placement agency, underwriting, subscription or similar agreement approved by the Board, or upon the exercise of Warrants to purchase Debt Securities, upon payment of the consideration therefor provided for therein, then such Debt Securities will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the applicable Indenture.
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4.
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With respect to the Warrants, when the Warrants have been duly executed and delivered against payment therefor, pursuant to the applicable definitive placement agency, underwriting, subscription, warrant or similar agreement duly authorized, executed and delivered by the Company and any applicable warrant agent and the certificates for the Warrants have been duly executed and delivered by the Company and any applicable warrant agent, then the Warrants will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
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5.
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With respect to the Rights, when the Rights have been duly executed and delivered against payment therefor, pursuant to the applicable definitive placement agency, underwriting, subscription, rights or similar agreement duly authorized, executed and delivered by the Company and any applicable rights agent and the certificates for the Rights have been duly executed and delivered by the Company and any applicable rights agent, then the Rights will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
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6.
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With respect to the Units, when the Units have been duly executed and delivered against payment therefor, pursuant to the applicable definitive placement agency, underwriting, subscription, unit or similar agreement duly authorized, executed and delivered by the Company and any applicable unit agent and the certificates for the Units have been duly executed and delivered by the Company and any applicable unit agent, then the Units will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
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July 30, 2021
Page 6
We hereby consent to the filing of this opinion
as an exhibit to the Registration Statement and to the reference to this firm under the heading “Legal Matters” in
the Prospectus included in the Registration Statement. In giving this consent, we do not admit that we are in the category of persons
whose consent is required under Section 7 of the Act, or the rules and regulations of the Securities and Exchange Commission thereunder.
In rendering this opinion, we are opining only as to the specific legal issues expressly set forth herein, and no opinion shall
be inferred as to any other matter or matters. This opinion is intended solely for use in connection with the issuance and sale
of the Securities subject to the Registration Statement and is not to be relied upon for any other purpose.
Very truly yours,
/s/ Morgan, Lewis & Bockius LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED
PUBLIC ACCOUNTING FIRM
We consent to the incorporation by
reference in this Registration Statement on Form S-3 of our report dated February 12, 2021 with respect to the audited consolidated financial
statements of Kaival Brands Innovations Group, Inc. (collectively, the “Company”) for the years ended October 31, 2020 and
2019.
We also consent to the references to
us under the heading “Experts” in such Registration Statement.
/s/ MaloneBailey, LLP
www.malonebailey.com
Houston, Texas
July 30, 2021