As
filed with the Securities and Exchange Commission on July 19, 2023
Registration
No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
HALLADOR
ENERGY COMPANY
(Exact name of registrant as specified in its charter)
Colorado
(State or other jurisdiction of
incorporation or organization) |
84-1014610
(I.R.S. Employer
Identification Number) |
1183 East Canvasback Drive
Terre Haute, Indiana 47802
(303) 839-5504
(Address, including zip code,
and telephone number, including area code, of registrant’s principal executive offices)
Lawrence D. Martin
Chief Financial Officer and Corporate Secretary
1183 East Canvasback Drive
Terre Haute, Indiana 47802
(303) 839-5504
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Please
address a copy of all communications to:
Sean M. Ewen, Esq.
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, New York 10019
(212) 728-8000
From time to time after the effective date
of this registration statement.
(Approximate date of commencement of proposed sale
to the public)
If the only securities
being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following
box: ¨
If any of the
securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the
following box. x
If this Form is filed
to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective
amendment filed pursuant to Rule 462(c) under the Securities Act, 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 registration
statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the
Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ¨
If this Form is a post-effective
amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
Indicate by check mark whether
the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging
growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting
company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer |
¨
|
Accelerated filer |
x |
Non-accelerated filer |
¨ |
Smaller reporting company |
x |
|
Emerging growth company |
¨ |
If an emerging growth company,
indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
The registrant hereby
amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become effective on such date as the Commission, acting pursuant
to said Section 8(a), may determine.
The information in
this prospectus is not complete and may be changed. The securities may not be sold until the registration statement filed with the Securities
and Exchange Commission (“SEC”) is effective. This prospectus is not an offer to sell these securities and it is not soliciting
an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED
JULY 19, 2023
PROSPECTUS
HALLADOR ENERGY COMPANY
$150,000,000
Common Stock
Preferred Stock
Debt Securities
Depositary Shares
Warrants
Subscription Rights
Purchase Contracts
Units
We may issue securities from
time to time in one or more offerings, in amounts, at prices and on terms determined at the time of offering. This prospectus describes
the general terms of these securities and the general manner in which these securities will be offered. We will provide the specific terms
of these securities in supplements to this prospectus, which also will describe the specific manner in which these securities will be
offered and may supplement, update or amend information contained in this prospectus. You should read this prospectus and any applicable
prospectus supplement before you invest. The aggregate offering price of the securities we sell pursuant to this prospectus will not exceed
$150,000,000.
The securities may be sold
directly to you, through agents or through underwriters and dealers. If agents, underwriters or dealers are used to sell the securities,
we will name them and describe their compensation in a prospectus supplement. The price to the public of those securities and the net
proceeds we expect to receive from that sale will be set forth in a prospectus supplement.
Our
common stock is quoted on The Nasdaq Capital Market under the symbol “HNRG.” On July 17, 2023, the last reported
sale price of our common stock on the Nasdaq Capital Market was $8.36. None of the other securities that we may offer under this
prospectus are currently publicly traded. Each prospectus supplement will indicate whether the securities offered thereby will be listed
on any securities exchange.
Investing in our securities
involves risks. See “Risk Factors” beginning on page 4 of this prospectus and the Risk Factors set forth in our
Annual Report on Form 10-K for the fiscal year ended December 31, 2022, as supplemented by our Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2023, which are incorporated by reference in this prospectus.
Neither the Securities
and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy
or accuracy of this prospectus or any applicable prospectus supplement. Any representation to the contrary is a criminal offense.
The date
of this prospectus is                , 2023.
TABLE OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement on Form S-3 that we filed with the U.S. Securities and Exchange Commission, or the
SEC, using a “shelf” registration process. By using a shelf registration statement, we may sell securities from time to time
and in one or more offerings up to a total dollar amount of $150,000,000, as described in this prospectus. The securities may be
offered at prices and on terms described in one or more supplements to this prospectus.
This
prospectus provides you with a general description of the securities that may be offered. Each time we use this prospectus to offer securities,
we will provide one or more prospectus supplements that will contain specific information about the terms of such offering. The prospectus
supplement may add, update or change information contained in this prospectus. To the extent information in this prospectus is inconsistent
with information contained in a prospectus supplement, you should rely on the information in the prospectus supplement. You should read
both this prospectus and any applicable prospectus supplement together with the information incorporated by reference herein and therein
and the additional information described under the heading “Where You Can Find More Information.”
We have not authorized anyone
to provide you with information that is different from that contained, or incorporated by reference, in this prospectus, any applicable
prospectus supplement or in any related free writing prospectus. We take no responsibility for, and can provide no assurance as to the
reliability of, any other information that others may give you. This prospectus and any applicable prospectus supplement or any related
free writing prospectus do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the securities
described in the applicable prospectus supplement or an offer to sell or the solicitation of an offer to buy such securities in any circumstances
in which such offer or solicitation is unlawful. You should assume that the information appearing in this prospectus, any prospectus supplement,
the documents incorporated by reference and any related free writing prospectus is accurate only as of their respective dates. Our business,
financial condition, results of operations and prospects may have changed materially since those dates.
References in this prospectus
to “Hallador,” “we,” “us,” “our,” the “Company” or similar references mean
Hallador Energy Company and its subsidiaries. When we refer to “you” in this section, we mean all purchasers of the securities
being offered by this prospectus and any accompanying prospectus supplement, whether they are the holders or only indirect owners of those
securities.
This prospectus contains
our registered and unregistered trademarks and service marks, as well as trademarks and service marks of third parties. Solely for convenience,
these trademarks and service marks are referenced without the ®, ™ or similar symbols, but such references
are not intended to indicate, in any way, that we will not assert, to the fullest extent under applicable law, our rights to these trademarks
and service marks. All brand names, trademarks and service marks appearing in this prospectus are the property of their respective holders.
Cautionary
Statement Regarding Forward-Looking Statements
Certain statements and information
in this prospectus, any prospectus supplement and any related free writing prospectus, including the information incorporated by reference
herein and therein may constitute “forward-looking” statements. These statements are based on our beliefs as well as assumptions
made by, and information currently available to us. When used in this document, the words “anticipate,” “believe,”
“continue,” “estimate,” “expect,” “forecast,” “may,” “project,”
“will,” and similar expressions identify forward-looking statements. Without limiting the foregoing, all statements relating
to our future outlook, anticipated capital expenditures, future cash flows and borrowings and sources of funding are forward-looking statements.
These statements reflect our current views with respect to future events and are subject to numerous assumptions that we believe are open
to a wide range of uncertainties and business risks, and actual results may differ materially from those discussed in these statements.
Among the factors that could cause actual results to differ from those in the forward-looking statements are: changes in macroeconomic
and market conditions and market volatility, and the impact of such changes and volatility on our financial position; the outcome or escalation
of current hostilities in Ukraine; changes in competition in coal markets and our ability to respond to such changes; changes in coal
prices, demand, and availability which could affect our operating results and cash flows; risks associated with the expansion of our operations
and properties, including our recent acquisition of Hoosier Energy’s Merom Generation Station; legislation, regulations, and court
decisions and interpretations thereof, including those relating to the environment and the release of greenhouse gases, mining, miner
health and safety, and health care; deregulation of the electric utility industry or the effects of any adverse change in the coal industry,
electric utility industry, or general economic conditions; dependence on significant customer contracts, including renewing customer contracts
upon expiration of existing contracts; changing global economic conditions or in industries in which our customers operate; investors’,
suppliers’ and other counterparties’ increasing attention to environmental, social, and governance (“ESG”) matters; the effect
of changes in taxes or tariffs and other trade measures; risks relating to inflation and increasing interest rates; liquidity constraints,
including those resulting from any future unavailability of financing; customer bankruptcies, cancellations or breaches to existing contracts,
or other failures to perform; customer delays, failure to take coal under contracts or defaults in making payments; adjustments made in
price, volume or terms to existing coal supply agreements; our productivity levels and margins earned on our coal sales; changes in equipment,
raw material, service or labor costs or availability, including due to inflationary pressures; changes in the availability of skilled
labor; our ability to maintain satisfactory relations with our employees; increases in labor costs, adverse changes in work rules, or
cash payments or projections associated with workers’ compensation claims; increases in transportation costs and risk of transportation
delays or interruptions; operational interruptions due to geologic, permitting, labor, weather-related or other factors; risks associated
with major mine-related accidents, mine fires, mine floods or other interruptions; results of litigation, including claims not yet asserted;
difficulty maintaining our surety bonds for mine reclamation; decline in or change in the coal industry’s share of electricity generation,
including as a result of environmental concerns related to coal mining and combustion and the cost and perceived benefits of other sources
of electricity, such as natural gas, nuclear energy, and renewable fuels; difficulty in making accurate assumptions and projections regarding
post-mine reclamation; uncertainties in estimating and replacing our coal reserves; the impact of current and potential changes to federal
or state tax rules and regulations, including a loss or reduction of benefits from certain tax deductions and credits; difficulty
obtaining commercial property insurance; and/or evolving cybersecurity risks, such as those involving unauthorized access, denial-of-service
attacks, malicious software, data privacy breaches by employees, insiders or others with authorized access, cyber or phishing-attacks,
ransomware, malware, social engineering, physical breaches or other actions.
We qualify all of the
forward-looking statements contained in this prospectus, in the documents incorporated by reference herein and in any prospectus
supplement by these cautionary statements. These forward-looking statements speak only as of the date on which the statements were
made and are not guarantees of future performance. Although we undertake no obligation to revise or update any forward- looking
statements, whether as a result of new information, future events or otherwise, you are advised to review any additional disclosures
we make in the documents we subsequently file with the SEC that are incorporated by reference in this prospectus and any prospectus
supplement. See “Where You Can Find More Information.”
PROSPECTUS
SUMMARY
This summary highlights
selected information appearing elsewhere in or incorporated by reference into this prospectus. Because it is a summary, it may not contain
all of the information that may be important to you. To understand this offering fully, you should read this entire prospectus and the
documents incorporated by reference herein carefully, including the information referenced under the heading “Risk Factors”
and in our financial statements, together with any accompanying prospectus supplement. See the sections entitled “Where You Can
Find More Information” for a further discussion on incorporation by reference.
Overview
Hallador is an energy company operating in the
state of Indiana. Historically, the largest portion of our business has been devoted to coal mining in the state of Indiana through Sunrise
Coal, LLC (a wholly-owned subsidiary) serving the electric power generation industry.
On October 21, 2022, Hallador, through its
subsidiary Hallador Power Company, LLC, completed its acquisition of the one Gigawatt Merom Generating Station (“Merom”) located
in Sullivan County, Indiana pursuant to an Asset Purchase Agreement with Hoosier Energy. As a result of the Merom acquisition, the
Company has two reportable segments: coal operations (operated by Sunrise Coal, LLC) and electric operations (operated by Hallador Power
Company, LLC).
In addition to our reportable
segments, the remainder of our operations are presented as “Corporate and Other” and primarily are comprised of unallocated
corporate costs in addition to activities such as a 50% interest in Sunrise Energy, LLC, a private gas exploration company with operations
in Indiana, accounted for using the equity method, and our wholly-owned subsidiary Summit Terminal LLC, a logistics transport facility
located on the Ohio River.
Corporate
Information
We were incorporated under
the laws of the State of Colorado in 1985 and are headquartered at 1183 East Canvasback Drive, Terre Haute, Indiana. Our telephone
number is (303) 839-5504.
The Securities
That May Be Offered
We may offer or sell common
stock, preferred stock, depositary shares, debt securities, warrants, subscription rights, purchase contracts and units in one or more
offerings and in any combination. The aggregate offering price of the securities we sell pursuant to this prospectus will not exceed $150,000,000.
Each time securities are offered with this prospectus, we will provide a prospectus supplement that will describe the specific amounts,
prices and terms of the securities being offered and the net proceeds we expect to receive from that sale.
The securities may be sold
to or through underwriters, dealers or agents or directly to purchasers or as otherwise set forth in the section of this prospectus captioned
“Plan of Distribution” or in any applicable prospectus supplement. Each prospectus supplement will set forth the names of
any underwriters, dealers, agents or other entities involved in the sale of securities described in that prospectus supplement and any
applicable fee, commission or discount arrangements with them.
RISK
FACTORS
Investing in our securities
involves a high degree of risk. Before making a decision to invest in our securities, you should carefully consider the risks described
under the heading “Risk Factors” in any applicable prospectus supplement and any related free writing prospectus, and under
“Part I, Item 1A. Risk Factors” contained in our most recent annual report on Form 10-K and in subsequent quarterly
reports on Form 10-Q, as well as any amendments thereto, which are incorporated by reference into this prospectus and the applicable
prospectus supplement in their entirety, together with other information in this prospectus and the applicable prospectus supplement,
the documents incorporated by reference herein and therein, and any free writing prospectus that we may authorize for use in connection
with a specific offering. See “Where You Can Find More Information.”
USE
OF PROCEEDS
Unless otherwise provided
in the applicable prospectus supplement, we currently expect to use the net proceeds that we receive from sales of our securities under
this prospectus for general corporate purposes. The actual application of proceeds from the sale of any particular securities issued hereunder
will be described in the applicable prospectus supplement relating to such securities.
DESCRIPTION
OF SECURITIES WE MAY OFFER
This prospectus contains
summary descriptions of our common stock, preferred stock, debt securities, depositary shares, warrants, subscription rights, purchase
contracts and units that we may offer from time to time. These summary descriptions are not meant to be complete descriptions of each
security. The particular terms of any security will be described in the accompanying prospectus supplement and other offering material.
The accompanying prospectus supplement may add, update or change the terms and conditions of the securities as described in this prospectus.
DESCRIPTION
OF CAPITAL STOCK
The
following is a description of the rights of our authorized stock and related provisions of our Second Restated Articles of Incorporation
(the “Articles”) and bylaws, as amended (collectively, our “Organizational Documents”). This
description is qualified in its entirety by, and should be read in conjunction with, our Organizational Documents.
Authorized &
Outstanding Stock
We have a total of 110,000,000
shares authorized for issuance, which consists of 100,000,000 shares of common stock, par value $0.01, and 10,000,000 shares of preferred
stock, par value $0.10. The common and preferred stock are fully paid and nonassessable.
As
of May 8, 2023, only the Company’s common stock was registered under Section 12 of the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), and as of the same date, there were 33,137,011 outstanding shares of common stock
and no shares outstanding of the Company’s preferred stock.
Description of Common
Stock
Voting
Each shareholder of record
shall have one vote for each share of common stock standing in his or her name on the books of the Company and entitled to vote. Cumulative
voting shall not be allowed in the election of directors or for any other purpose.
At all meetings of shareholders,
one-third of the shares entitled to vote at such meeting represented in person or by proxy shall constitute a quorum, and at any meeting
at which a quorum is present, the affirmative vote of a majority of the shares represented at such meeting and entitled to vote on the
subject matters shall be the act of the shareholders; except that the following actions shall require the affirmative vote or concurrence
of the holders of at least a majority of all of the outstanding shares of the Company entitled to vote thereon: (1) adopting an amendment
or amendments to the Articles, (2) lending money to, guaranteeing the obligations of or otherwise assisting any of the directors
of the Company, (3) authorizing the sale, lease, exchange or other disposition of all or substantially all of the property and assets
of the Company, with or without its goodwill, not in the usual and regular course of business, (4) approving a plan of merger or
consolidation, (5) adopting a resolution submitted by the Board of Directors of the Company to dissolve the Company, and (6) adopting
a resolution submitted by the Board of Directors of the Company to revoke voluntary dissolution proceedings.
Shareholder Consent to Action
Any action required or permitted
under Colorado law to be taken by the shareholders may be taken by the shareholders without a meeting as evidenced by the written consent
of the shareholders holding at least a majority of all of the outstanding shares of the Company entitled to vote thereon, unless a greater
percentage is required by Colorado law or the Articles.
Transfer Agent and Registrar
The transfer agent and registrar
for the common stock is Computershare Trust Company, N.A.
Listing
The common stock is listed
on The Nasdaq Capital Market under the symbol “HNRG”.
Preferred Stock Description
Preferred stock may be issued
in one or more series or classes with designations, preferences, limitations and relative rights determined by our board of directors
without any vote or action by our shareholders, subject to limitations prescribed by Colorado law and the provisions of our Organizational
Documents.
Any of the voting powers,
designations, preferences, rights and qualifications, limitations or restrictions of any such series of preferred stock may be made dependent
upon facts ascertainable outside of our Organizational Documents or of any amendment hereto, or outside the resolution or resolutions
providing for the issue of such stock adopted by the Board of Directors of the Company pursuant to authority expressly vested in it by
these provisions, provided that such facts and the manner in which such facts shall operate upon the voting powers, designations, preferences,
rights and qualifications, limitations or restrictions of such series of stock are clearly and expressly set forth in the resolution or
resolutions providing for the issue of such stock adopted by the Board of Directors of the Company.
Dividend Rights
Our common stock and our
preferred stock are entitled to dividends if declared the Board of Directors of the Company out of legally available funds.
Payments Upon Partial
Liquidation
The Board of Directors of
the Company may from time to time distribute to the shareholders in partial liquidation, out of either stated capital or capital surplus
of the Company, a portion of its assets, in cash or property, subject to the limitations contained in the statutes of Colorado.
No Preemptive or Preferential
Rights
No
holder of any shares of any class of stock of the Company shall, as such holder, have any preemptive or preferential right to receive,
purchase, or subscribe to (1) any unissued or treasury shares of any class of stock, whether now or hereafter authorized, of the
Company, (2) any obligations, evidences of indebtedness, or other securities of the Company convertible into or exchangeable for,
or carrying or accompanied by any rights to receive, purchase, or subscribe to, any such unissued or treasury shares, (3) any warrant
or option for the purchase of, any of the foregoing securities, or (4) any other securities that may be issued or sold by the Company,
other than such (if any) as the Board of Directors of the Company, in its sole and absolute discretion, may determine from time to time.
DESCRIPTION
OF DEBT SECURITIES
The following description,
together with the additional information we include in any applicable prospectus supplement, summarizes certain general terms and provisions
of the debt securities that we may offer under this prospectus. When we offer to sell a particular series of debt securities, we will
describe the specific terms of the series in a supplement to this prospectus. We will indicate in the supplement to what extent the general
terms and provisions described in this prospectus apply to a particular series of debt securities.
We may issue debt securities
either separately, or together with, or upon the conversion or exercise of or in exchange for, other securities described in this prospectus.
Debt securities may be our senior or subordinated obligations and, unless otherwise specified in a supplement to this prospectus, the
debt securities will be our direct, unsecured obligations and may be issued in one or more series. We may issue debt securities that are
convertible into shares of our common stock.
The debt securities will
be issued under an indenture between us and a trustee to be specified in an accompanying prospectus supplement. We have summarized select
portions of the indenture below. The summary is not complete. The form of the indenture has been filed as an exhibit to the registration
statement of which this prospectus forms a part and you should read the indenture for provisions that may be important to you. Capitalized
terms used in the summary and not defined herein have the meanings specified in the indenture.
General
The terms of each series
of debt securities will be established by or pursuant to a resolution of our Board of Directors and set forth or determined in the manner
provided in a resolution of our Board of Directors, in an officer’s certificate, or by a supplemental indenture. The particular
terms of each series of debt securities will be described in a prospectus supplement relating to such series (including any pricing supplement
or term sheet). In addition, any changes to the description below also will be set forth in the applicable prospectus supplement.
We can issue an unlimited
amount of debt securities under the indenture that may be in one or more series with the same or various maturities, at par, at a premium,
or at a discount. We will set forth in a prospectus supplement (including any pricing supplement or term sheet) relating to any series
of debt securities being offered the aggregate principal amount and the following terms of the debt securities, if applicable:
| • | the title and ranking of the debt securities (including the terms of any subordination provisions); |
| • | the price or prices (expressed as a percentage of the principal amount) at which we will sell the debt
securities; |
| • | any limit upon the aggregate principal amount of the debt securities; |
| • | the date or dates on which the principal of the securities of the series is payable; |
| • | the rate or rates (which may be fixed or variable) per annum or the method used to determine the rate
or rates (including any commodity, commodity index, stock exchange index or financial index) at which the debt securities will bear interest,
the date or dates from which interest will accrue, the date or dates on which interest will commence and be payable and any regular record
date for the interest payable on any interest payment date; |
| • | the place or places where principal of, and interest, if any, on the debt securities will be payable (and
the method of such payment), where the securities of such series may be surrendered for registration of transfer or exchange, and where
notices and demands to us in respect of the debt securities may be delivered; |
| • | the period or periods within which, the price or prices at which and the terms and conditions upon which
we may redeem the debt securities; |
| • | any obligation we have to redeem or purchase the debt securities pursuant to any sinking fund or analogous
provisions or at the option of a holder of debt securities 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; |
| • | the dates on which and the price or prices at which we will repurchase debt securities at the option of
the holders of debt securities and other detailed terms and provisions of these repurchase obligations; |
| • | the denominations in which the debt securities will be issued, if other than denominations of $1,000 and
any integral multiple thereof; |
| • | whether the debt securities will be issued in the form of certificated debt securities or global debt
securities; |
| • | the portion of the principal amount of the debt securities payable upon declaration of acceleration
of the maturity date, if other than the principal amount; |
| • | the currency of denomination of the debt securities, which may be United States dollars or any foreign
currency, and if such currency of denomination is a composite currency, the agency or organization, if any, responsible for overseeing
such composite currency; |
| • | the designation of the currency, currencies or currency units in which payment of principal of, and premium
and interest on the debt securities will be made; |
| • | if payments of principal of, or premium or interest on the debt securities will be made in one or more
currencies or currency units other than those in which the debt securities are denominated, the manner in which the exchange rate with
respect to these payments will be determined; |
| • | the manner in which the amounts of payment of principal of, and premium, if any, or interest on the debt
securities will be determined, if these amounts may be determined by reference to an index based on a currency or currencies or by reference
to a commodity, commodity index, stock exchange index or financial index; |
| • | any provisions relating to any security provided for the debt securities; |
| • | any addition to, deletion of or change in the Events of Default described in this prospectus or in the
indenture with respect to the debt securities and any change in the acceleration provisions described in this prospectus or in the indenture
with respect to the debt securities; |
| • | any addition to, deletion of or change in the covenants described in this prospectus or in the indenture
with respect to the debt securities; |
| • | any depositaries, interest rate calculation agents, exchange rate calculation agents or other agents with
respect to the debt securities; |
| • | the provisions, if any, relating to conversion or exchange of any debt securities, including if applicable,
the conversion or exchange price, the conversion or exchange period, provisions as to whether conversion or exchange will be mandatory,
at the option of the holders thereof or at our option, the events requiring an adjustment of the conversion price or exchange price and
provisions affecting conversion or exchange if such debt securities are redeemed; |
| • | any other terms of the debt securities, which may supplement, modify or delete any provision of the indenture
as it applies to that series, including any terms that may be required under applicable law or regulations or advisable in connection
with the marketing of the securities; and |
| • | whether any of our direct or indirect subsidiaries will guarantee the debt securities of that series,
including the terms of subordination, if any, of such guarantees. |
We may issue debt securities
that provide for an amount less than their stated principal amount to be due and payable upon declaration of acceleration of their maturity
pursuant to the terms of the indenture. We will provide you with information on the federal income tax considerations and other special
considerations applicable to any of these debt securities in the applicable prospectus supplement.
If we denominate the purchase
price of any of the debt securities in a foreign currency or currencies or a foreign currency unit or units, or if the principal of and
any premium and interest on any series of debt securities is payable in a foreign currency or currencies or a foreign currency unit or
units, we will provide you with information on the restrictions, elections, general tax considerations, specific terms and other information
with respect to that issue of debt securities and such foreign currency or currencies or foreign currency unit or units in the applicable
prospectus supplement.
Transfer and
Exchange
Each debt security will be
represented by either one or more global securities registered in the name of a clearing agency registered under the Exchange Act, which
we refer to as the depositary, or a nominee of the depositary (we will refer to any debt security represented by a global debt security
as a “book-entry debt security”), or a certificate issued in definitive registered form (we will refer to any debt security
represented by a certificated security as a “certificated debt security”) as set forth in the applicable prospectus supplement.
Except as set forth under the heading “Global Debt Securities and Book-Entry System” below, book-entry debt securities will
not be issuable in certificated form.
Certificated
Debt Securities
You may transfer or exchange
certificated debt securities at any office we maintain for this purpose in accordance with the terms of the indenture. No service charge
will be made for any transfer or exchange of certificated debt securities, but we may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection with a transfer or exchange.
You may affect the transfer
of certificated debt securities and the right to receive the principal of, and premium and interest on certificated debt securities only
by surrendering the certificate representing those certificated debt securities and either reissuance by us or the trustee of the certificate
to the new holder or the issuance by us or the trustee of a new certificate to the new holder.
Global Debt
Securities and Book-Entry System
Each global debt security
representing book-entry debt securities will be deposited with, or on behalf of, the depositary, and registered in the name of the depositary
or a nominee of the depositary.
Covenants
We will set forth in the
applicable prospectus supplement any restrictive covenants applicable to any issue of debt securities.
Consolidation,
Merger and Sale of Assets
We may not consolidate with
or merge with or into, or convey, transfer or lease all or substantially all of our properties and assets to any person, which we refer
to as a successor person, unless:
| • | we are the surviving corporation or the successor person (if other than us) is a corporation organized
and validly existing under the laws of any U.S. domestic jurisdiction and expressly assumes our obligations on the debt securities and
under the indenture; and |
| • | immediately after giving effect to the transaction, no Default or Event of Default, shall have occurred
and be continuing. |
Notwithstanding the above,
any of our subsidiaries may consolidate with, merge into or transfer all or part of its assets or properties to us.
Events of
Default
“Event of Default”
means with respect to any series of debt securities, any of the following:
| • | default in the payment of any interest upon any debt security of that series when it becomes due and payable,
and continuance of such default for a period of 30 days (unless the entire amount of the payment is deposited by us with the trustee or
with a paying agent prior to the expiration of the 30- day period); |
| • | default in the payment of principal of any security of that series at its maturity; |
| • | default in the performance or breach of any other covenant or warranty by us in the indenture (other than
a covenant or warranty that has been included in the indenture solely for the benefit of a series of debt securities other than that series),
which default continues uncured for a period of 60 days after we receive written notice from the trustee, or we and the trustee receive
written notice from the holders of not less than 25% in principal amount of the outstanding debt securities of that series as provided
in the indenture; |
| • | certain voluntary or involuntary events of bankruptcy, insolvency or reorganization of us; and |
| • | any other Event of Default provided with respect to debt securities of that series that is described in
the applicable prospectus supplement. |
No Event of Default with
respect to a particular series of debt securities (except as to certain events of bankruptcy, insolvency or reorganization) necessarily
constitutes an Event of Default with respect to any other series of debt securities. The occurrence of certain Events of Default or an
acceleration under the indenture may constitute an event of default under certain indebtedness of ours or our subsidiaries outstanding
from time to time.
We will provide the trustee
written notice of any Default or Event of Default within 30 days of becoming aware of the occurrence of such Default or Event of Default,
which notice will describe in reasonable detail the status of such Default or Event of Default and what action we are taking or propose
to take in respect thereof.
If an Event of Default with
respect to debt securities of any series at the time outstanding occurs and is continuing, then the trustee or the holders of not less
than 25% in principal amount of the outstanding debt securities of that series may, by a notice in writing to us (and to the trustee if
given by the holders), declare to be due and payable immediately the principal of (or, if the debt securities of that series are discount
securities, that portion of the principal amount as may be specified in the terms of that series) and accrued and unpaid interest, if
any, on all debt securities of that series. In the case of an Event of Default resulting from certain events of bankruptcy, insolvency
or reorganization, the principal (or such specified amount) of and accrued and unpaid interest, if any, on all outstanding debt securities
will become and be immediately due and payable without any declaration or other act on the part of the trustee or any holder of outstanding
debt securities. At any time after a declaration of acceleration with respect to debt securities of any series has been made, but before
a judgment or decree for payment of the money due has been obtained by the trustee, the holders of a majority in principal amount of the
outstanding debt securities of that series may rescind and annul the acceleration if all Events of Default, other than the non-payment
of accelerated principal and interest, if any, with respect to debt securities of that series, have been cured or waived as provided in
the indenture. We refer you to the prospectus supplement relating to any series of debt securities that are discount securities for the
particular provisions relating to acceleration of a portion of the principal amount of such discount securities upon the occurrence of
an Event of Default.
The indenture provides that
the trustee may refuse to perform any duty or exercise any of its rights or powers under the indenture unless the trustee receives indemnity
satisfactory to it against any cost, liability or expense which might be incurred by it in performing such duty or exercising such right
or power. Subject to certain rights of the trustee, the holders of a majority in principal amount of the outstanding debt securities of
any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee
or exercising any trust or power conferred on the trustee with respect to the debt securities of that series.
No holder of any debt security
of any series will have any right to institute any proceeding, judicial or otherwise, with respect to the indenture or for the appointment
of a receiver or trustee, or for any remedy under the indenture, unless:
| • | that holder has previously given to the trustee written notice of a continuing Event of Default with respect
to debt securities of that series; and |
| • | the holders of not less than 25% in principal amount of the outstanding debt securities of that series
have made written request, and offered indemnity or security satisfactory to the trustee, to the trustee to institute the proceeding as
trustee, and the trustee has not received from the holders of not less than a majority in principal amount of the outstanding debt securities
of that series a direction inconsistent with that request and has failed to institute the proceeding within 60 days. |
Notwithstanding any other
provision in the indenture, the holder of any debt security will have an absolute and unconditional right to receive payment of the principal
of, and premium and any interest on that debt security on or after the due dates expressed in that debt security and to institute suit
for the enforcement of payment.
The indenture requires us,
within 120 days after the end of our fiscal year, to furnish to the trustee a statement as to compliance with the indenture. If a Default
or Event of Default occurs and is continuing with respect to the securities of any series and if it is known to a responsible officer
of the trustee, the trustee shall send to each securityholder of the securities of that series notice of a Default or Event of Default
within 90 days after it occurs or, if later, after a responsible officer of the trustee has knowledge of such Default or Event of Default.
The indenture provides that the trustee may withhold notice to the holders of debt securities of any series of any Default or Event of
Default (except in payment on any debt securities of that series) with respect to debt securities of that series if the trustee determines
in good faith that withholding notice is in the interest of the holders of those debt securities.
Modification
and Waiver
We and the trustee may modify,
amend or supplement the indenture or the debt securities of any series without the consent of any holder of any debt security:
| • | to cure any ambiguity, defect or inconsistency; |
| • | to comply with covenants in the indenture described above under the heading “Consolidation, Merger
and Sale of Assets”; |
| • | to provide for uncertificated securities in addition to or in place of certificated securities; |
| • | to add guarantees with respect to debt securities of any series or secure debt securities of any series; |
| • | to surrender any of our rights or powers under the indenture; |
| • | to add covenants or events of default for the benefit of the holders of debt securities of any series; |
| • | to comply with the applicable procedures of the applicable depositary; |
| • | to make any change that does not adversely affect the rights of any holder of debt securities; |
| • | to provide for the issuance of and establish the form and terms and conditions of debt securities of any
series as permitted by the indenture; |
| • | to effect the appointment of a successor trustee with respect to the debt securities of any series and
to add to or change any of the provisions of the indenture to provide for or facilitate administration by more than one trustee; |
| • | to comply with requirements of the SEC in order to effect or maintain the qualification of the indenture
under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”); |
| • | to add to, change or eliminate any provision of the indenture or the debt securities of any series in
accordance with the Trust Indenture Act, or to comply with the provisions of The Depository Trust Company, Euroclear Bank SA/NV or Clearstream
Banking, S.A. or the trustee with respect to provisions of the indenture or the debt securities of any series relating to transfers or
exchanges of the debt securities of such series or beneficial interests in such securities; or |
| • | to conform any provision of the indenture, insofar as it relates to the debt securities of any series,
to the description of the debt securities of such series in the prospectus supplement relating to the offering of the debt securities
of such series. |
We may modify and amend the
indenture with the consent of the holders of at least a majority in principal amount of the outstanding debt securities of each series
affected by the modifications or amendments. We may not make any modification or amendment without the consent of the holders of each
affected debt security then outstanding if that amendment will:
| • | reduce the amount of debt securities whose holders must consent to an amendment, supplement or waiver; |
| • | reduce the rate of or extend the time for payment of interest (including default interest) on any debt
security; |
| • | reduce the principal of or premium on or change the fixed maturity of any debt security or reduce the
amount of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation with respect to any series of debt
securities; |
| • | reduce the principal amount of discount securities payable upon acceleration of maturity; |
| • | waive a default in the payment of the principal of, or premium or interest on any debt security (except
a rescission of acceleration of the debt securities of any series by the holders of at least a majority in aggregate principal amount
of the then outstanding debt securities of that series and a waiver of the payment default that resulted from such acceleration); |
| • | make the principal of or premium or interest on any debt security payable in currency other than that
stated in the debt security; |
| • | make any change to certain provisions of the indenture relating to, among other things, the right of holders
of debt securities to receive payment of the principal of, or premium and interest on those debt securities and to institute suit for
the enforcement of any such payment; or |
| • | waive a redemption payment with respect to any debt security. |
Except for certain specified
provisions, the holders of at least a majority in principal amount of the outstanding debt securities of any series, may, on behalf of
the holders of all debt securities of that series, waive our compliance with provisions of the indenture. The holders of a majority in
principal amount of the outstanding debt securities of any series, may, on behalf of the holders of all the debt securities of such series,
waive any past default under the indenture with respect to that series and its consequences, except a default in the payment of the principal
of, premium or any interest on any debt security of that series; provided, however, that the holders of a majority in principal amount
of the outstanding debt securities of any series may rescind an acceleration and its consequences, including any related payment default
that resulted from the acceleration.
Defeasance
of Debt Securities and Certain Covenants in Certain Circumstances
Legal Defeasance
The indenture provides that,
unless otherwise provided by the terms of the applicable series of debt securities, we may be discharged from any and all obligations
in respect of the debt securities of any series (subject to certain exceptions). We will be so discharged upon the irrevocable deposit
with the trustee, in trust, of money and/or U.S. government obligations or, in the case of debt securities denominated in a single currency
other than U.S. dollars, government obligations that issued or caused to be issued such currency, that, through the payment of interest
and principal in accordance with their terms, will provide money or U.S. government obligations in an amount sufficient in the opinion
of a nationally recognized firm of independent public accountants or investment bank to pay and discharge each installment of principal,
premium and interest on and any mandatory sinking fund payments in respect of the debt securities of that series on the stated maturity
of those payments in accordance with the terms of the indenture and those debt securities.
This discharge may occur
only if, among other things, we have delivered to the trustee an opinion of counsel stating that we have received from, or there has been
published by, the United States Internal Revenue Service a ruling or, since the date of execution of the indenture, there has been a change
in the applicable United States federal income tax law, in either case to the effect that, and based thereon, such opinion shall confirm
that, the holders of the debt securities of that series will not recognize income, gain or loss for United States federal income tax purposes
as a result of the deposit, defeasance and discharge and will be subject to United States federal income tax on the same amounts and in
the same manner and at the same times as would have been the case if the deposit, defeasance and discharge had not occurred.
Defeasance
of Certain Covenants
The indenture provides that,
unless otherwise provided by the terms of the applicable series of debt securities, upon compliance with certain conditions:
| • | we may omit to comply with the covenant described under the heading “Consolidation, Merger and Sale
of Assets” and certain other covenants set forth in the indenture, as well as any additional covenants which may be set forth in
the applicable prospectus supplement; and |
| • | any omission to comply with those covenants will not constitute a Default or an Event of Default with
respect to the debt securities of that series. |
We refer to this as covenant
defeasance. The conditions include:
| • | depositing with the trustee money and/or U.S. government obligations or, in the case of debt securities
denominated in a single currency other than U.S. dollars, government obligations of the government that issued or caused to be issued
such currency, that, through the payment of interest and principal in accordance with their terms, will provide money in an amount sufficient
in the opinion of a nationally recognized firm of independent public accountants or investment bank to pay and discharge each installment
of principal of, premium and interest on and any mandatory sinking fund payments in respect of the debt securities of that series on the
stated maturity of those payments in accordance with the terms of the indenture and those debt securities; |
| • | such deposit will not result in a breach or violation of, or constitute a default under the indenture
or any other agreement to which we are a party; |
| • | no Default or Event of Default with respect to the applicable series of debt securities shall have occurred
or is continuing on the date of such deposit; and |
| • | delivering to the trustee an opinion of counsel to the effect that we have received from, or there has
been published by, the United States Internal Revenue Service a ruling or, since the date of execution of the indenture, there has been
a change in the applicable United States federal income tax law, in either case to the effect that, and based thereon such opinion shall
confirm that, the holders of the debt securities of that series will not recognize income, gain or loss for United States federal income
tax purposes as a result of the deposit and related covenant defeasance and will be subject to United States federal income tax on the
same amounts and in the same manner and at the same times as would have been the case if the deposit and related covenant defeasance had
not occurred. |
No Personal
Liability of Directors, Officers, Employees or Stockholders
None of our past, present
or future directors, officers, employees or stockholders, as such, will have any liability for any of our obligations under the debt securities
or the indenture or for any claim based on, or in respect or by reason of, such obligations or their creation. By accepting a debt security,
each holder waives and releases all such liability. This waiver and release is part of the consideration for the issue of the debt securities.
However, this waiver and release may not be effective to waive liabilities under U.S. federal securities laws, and it is the view of the
SEC that such a waiver is against public policy.
Governing
Law
The indenture and the debt
securities, including any claim or controversy arising out of or relating to the indenture or the securities, will be governed by the
laws of the State of New York.
The indenture will provide
that we, the trustee and the holders of the debt securities (by their acceptance of the debt securities) irrevocably waive, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to the indenture,
the debt securities or the transactions contemplated thereby.
The indenture will provide
that any legal suit, action or proceeding arising out of or based upon the indenture or the transactions contemplated thereby may be instituted
in the federal courts of the United States of America located in the City of New York or the courts of the State of New York in each case
located in the City of New York, and we, the trustee and the holder of the debt securities (by their acceptance of the debt securities)
irrevocably submit to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding. The indenture will provide
that service of any process, summons, notice or document by mail (to the extent allowed under any applicable statute or rule of court)
to such party’s address set forth in the indenture will be effective service of process for any suit, action or other proceeding
brought in any such court. The indenture will provide that we, the trustee and the holders of the debt securities (by their acceptance
of the debt securities) irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding
in the courts specified above and irrevocably and unconditionally waive and agree not to plead or claim any such suit, action or other
proceeding has been brought in an inconvenient forum.
DESCRIPTION
OF DEPOSITARY SHARES
We may elect to offer fractional
shares of preferred stock, or depositary shares, rather than full shares of preferred stock. If we do, we will issue to the public receipts,
called depositary receipts, for depositary shares, each of which will represent a fraction of a share of a particular series of preferred
stock, to be described in the applicable prospectus supplement. Unless otherwise provided in the prospectus supplement, each owner of
a depositary share will be entitled to all the rights and preferences of the preferred stock represented by the depositary share, in proportion
to the applicable fractional interest in a share of preferred stock represented by the depositary share. Those rights include dividend,
voting, redemption, conversion and liquidation rights.
The shares of preferred stock
underlying the depositary shares will be deposited with a bank or trust company selected by us to act as depositary under a deposit agreement
between us, the depositary and the holders of the depositary receipts. The depositary will be the transfer agent, registrar and dividend
disbursing agent for the depositary shares.
The depositary shares will
be evidenced by depositary receipts issued pursuant to the depositary agreement. Holders of depositary receipts agree to be bound by the
deposit agreement, which will require holders to take certain actions such as filing proof of residence and paying certain charges.
The summary of terms of the
depositary shares contained in this prospectus is not complete. You should refer to the form of the deposit agreement, our certificate
of incorporation and the certificate of designation for the applicable series of preferred stock that are, or will be, filed with the
SEC.
DESCRIPTION
OF WARRANTS
We may issue warrants to
purchase debt securities, preferred stock, depositary shares or common stock. We may offer warrants separately or together with one or
more additional warrants, debt securities, preferred stock, depositary shares or common stock, or any combination of those securities
in the form of units, as described in the applicable prospectus supplement. If we issue warrants as part of a unit, the applicable prospectus
supplement will specify whether those warrants may be separated from the other securities in the unit prior to the expiration date of
the warrants.
The applicable prospectus
supplement will describe the following terms of any warrants:
| • | the specific designation and aggregate number of, and the offering price at which we will issue, the warrants; |
| • | the currency or currency units in which the offering price, if any, and the exercise price are payable; |
| • | the date on which the right to exercise the warrants will begin and the date on which that right will
expire or, if you may not continuously exercise the warrants throughout that period, the specific date or dates on which you may exercise
the warrants; |
| • | whether the warrants are to be sold separately or with other securities as parts of units; |
| • | whether the warrants will be issued in definitive or global form or in any combination of these forms,
although, in any case, the form of a warrant included in a unit will correspond to the form of the unit and of any security included in
that unit; |
| • | any applicable material U.S. federal income tax consequences; |
| • | the identity of the warrant agent for the warrants and of any other depositaries, execution or paying
agents, transfer agents, registrars or other agents; |
| • | the proposed listing, if any, of the warrants or any securities purchasable upon exercise of the warrants
on any securities exchange; |
| • | the designation and terms of any equity securities purchasable upon exercise of the warrants; |
| • | the designation, aggregate principal amount, currency and terms of any debt securities that may be purchased
upon exercise of the warrants; |
| • | if applicable, the designation and terms of the debt securities, preferred stock, depositary shares or
common stock with which the warrants are issued and the number of warrants issued with each security; |
| • | if applicable, the date from and after which any warrants issued as part of a unit and the related debt
securities, preferred stock, depositary shares or common stock will be separately transferable; |
| • | the number of shares of preferred stock, the number of depositary shares or the number of shares of common
stock purchasable upon exercise of a warrant and the price at which those shares may be purchased; |
| • | if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; |
| • | information with respect to book-entry procedures, if any; |
| • | the antidilution provisions, and other provisions for changes to or adjustment in the exercise price,
of the warrants, if any; |
| • | any redemption or call provisions; and |
| • | any additional terms of the warrants, including terms, procedures and limitations relating to the exchange
or exercise of the warrants. |
DESCRIPTION
OF SUBSCRIPTION RIGHTS
We may issue subscription
rights to purchase our common stock, preferred stock, warrants or debt securities, or units consisting of some or all of these securities.
These subscription rights may be offered independently or together with any other security offered hereby and may or may not be transferable
by the stockholder receiving the subscription rights in such offering. In connection with any offering of subscription rights, we may
enter into a standby arrangement with one or more underwriters or other purchasers pursuant to which the underwriters or other purchasers
may be required to purchase any securities remaining unsubscribed for after such offering.
The prospectus supplement
relating to any subscription rights we offer, if any, will, to the extent applicable, include specific terms relating to the offering,
including some or all of the following:
| • | the price, if any, for the subscription rights; |
| • | the exercise price payable for our common stock, preferred stock, warrants or debt securities, or units
consisting of some or all of these securities, upon the exercise of the subscription rights; |
| • | the number of subscription rights to be issued to each stockholder; |
| • | the number and terms of our common stock, preferred stock, warrants or debt securities, or units consisting
of some or all of these securities, which may be purchased per each subscription right; |
| • | the extent to which the subscription rights are transferable; |
| • | any other terms of the subscription rights, including the terms, procedures and limitations relating to
the exchange and exercise of the subscription rights; |
| • | the date on which the right to exercise the subscription rights shall commence, and the date on which
the subscription rights shall expire; |
| • | the extent to which the subscription rights may include an over-subscription privilege with respect to
unsubscribed securities or an over-allotment privilege to the extent the securities are fully subscribed; and |
| • | if applicable, the material terms of any standby underwriting or purchase arrangement which may be entered
into by us in connection with the offering of subscription rights. |
The descriptions of the subscription
rights in this prospectus and in any prospectus supplement are summaries of the material provisions of the applicable subscription right
agreements. These descriptions do not restate those subscription right agreements in their entirety and may not contain all the information
that you may find useful. We urge you to read the applicable subscription right agreements because the agreements, and not the summaries,
define your rights as holders of the subscription rights. For more information, please review the forms of the relevant subscription right
agreements, which will be filed with the SEC promptly after the offering of subscription rights and will be available as described in
the section of this prospectus captioned “Where You Can Find More Information.”
DESCRIPTION
OF PURCHASE CONTRACTS
The following description
summarizes the general features of the purchase contracts that we may offer under this prospectus. Although the features we have summarized
below will generally apply to any future purchase contracts we may offer under this prospectus, we will describe the particular terms
of any purchase contracts that we may offer in more detail in the applicable prospectus supplement. The specific terms of any purchase
contracts may differ from the description provided below as a result of negotiations with third parties in connection with the issuance
of those purchase contracts, as well as for other reasons. Because the terms of any purchase contracts we offer under a prospectus supplement
may differ from the terms we describe below, you should rely solely on information in the applicable prospectus supplement if that summary
is different from the summary in this prospectus.
We will incorporate by reference
into the registration statement, of which this prospectus is a part, the form of any purchase contract that we may offer under this prospectus
before the sale of the related purchase contract. We urge you to read any applicable prospectus supplement related to specific purchase
contracts being offered, as well as the complete instruments that contain the terms of the securities that are subject to those purchase
contracts.
We may issue purchase contracts,
including contracts obligating holders to purchase from us, and for us to sell to holders, a specific or variable number of our securities
at a future date or dates. Alternatively, the purchase contracts may obligate us to purchase from holders, and obligate holders to sell
to us, a specific or varying number of our securities.
If we offer any purchase
contracts, certain terms of that series of purchase contracts will be described in the applicable prospectus supplement, including, without
limitation, the following:
| • | the price of the securities or other property subject to the purchase contracts (which may be determined
by reference to a specific formula described in the purchase contracts); |
| • | whether the purchase contracts are issued separately, or as a part of units each consisting of a purchase
contract and one or more of our other securities, securing the holder’s obligations under the purchase contract; |
| • | any requirement for us to make periodic payments to holders or vice versa, and whether the payments are
unsecured or pre-funded; |
| • | any provisions relating to any security provided for the purchase contracts; |
| • | whether the purchase contracts obligate the holder or us to purchase or sell, or both purchase and sell,
the securities subject to purchase under the purchase contract, and the nature and amount of each of those securities, or the method of
determining those amounts; |
| • | whether the purchase contracts are to be prepaid or not; |
| • | whether the purchase contracts are to be settled by delivery, or by reference or linkage to the value,
performance or level of the securities subject to purchase under the purchase contract; |
| • | any acceleration, cancellation, termination or other provisions relating to the settlement of the purchase
contracts; |
| • | a discussion of certain U.S. federal income tax considerations applicable to the purchase contracts; |
| • | whether the purchase contracts will be issued in fully registered or global form; and |
| • | any other terms of the purchase contracts and any securities subject to such purchase contracts. |
DESCRIPTION
OF UNITS
We may issue units comprising
two or more securities described in this prospectus in any combination. For example, we might issue units consisting of a combination
of debt securities and warrants to purchase common stock. 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.
The prospectus supplement
relating to any particular issuance of units will describe the terms of those units, including, to the extent applicable, the following:
| • | 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; |
| • | any provision for the issuance, payment, settlement, transfer or exchange of the units or of the securities
comprising the units; and |
| • | whether the units will be issued in fully registered or global form. |
PLAN
OF DISTRIBUTION
We may sell the securities
from time to time pursuant to underwritten public offerings, negotiated transactions, block trades or a combination of these methods or
through underwriters or dealers, through agents and/or directly to one or more purchasers. The securities may be distributed from time
to time in one or more transactions:
| • | at a fixed price or prices, which may be changed; |
| • | at market prices prevailing at the time of sale; |
| • | at prices related to such prevailing market prices; or |
Each time that we sell securities
covered by this prospectus, we will provide a prospectus supplement or supplements that will describe the method of distribution and set
forth the terms and conditions of the offering of such securities, including the offering price of the securities and the proceeds to
us, if applicable.
Offers to purchase the securities
being offered by this prospectus may be solicited directly. Agents may also be designated to solicit offers to purchase the securities
from time to time. Any agent involved in the offer or sale of our securities will be identified in a prospectus supplement.
If a dealer is utilized in
the sale of the securities being offered by this prospectus, the securities will be sold to the dealer, as principal. The dealer may then
resell the securities to the public at varying prices to be determined by the dealer at the time of resale.
If an underwriter is utilized
in the sale of the securities being offered by this prospectus, an underwriting agreement will be executed with the underwriter at the
time of sale and the name of any underwriter will be provided in the prospectus supplement that the underwriter will use to make resales
of the securities to the public. In connection with the sale of the securities, we or the purchasers of securities for whom the underwriter
may act as agent, may compensate the underwriter in the form of underwriting discounts or commissions. The underwriter may sell the securities
to or through dealers, and those dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters
and/or commissions from the purchasers for which they may act as agent. Unless otherwise indicated in a prospectus supplement, an agent
will be acting on a best efforts basis and a dealer will purchase securities as a principal, and may then resell the securities at varying
prices to be determined by the dealer.
Any compensation paid to
underwriters, dealers or agents in connection with the offering of the securities, and any discounts, concessions or commissions allowed
by underwriters to participating dealers will be provided in the applicable prospectus supplement. Underwriters, dealers and agents participating
in the distribution of the securities may be deemed to be underwriters within the meaning of the Securities Act of 1933 (the “Securities
Act”), and any discounts and commissions received by them and any profit realized by them on resale of the securities may be deemed
to be underwriting discounts and commissions. We may enter into agreements to indemnify underwriters, dealers and agents against civil
liabilities, including liabilities under the Securities Act, or to contribute to payments they may be required to make in respect thereof
and to reimburse those persons for certain expenses.
Any common stock will be
listed on The Nasdaq Capital Market, but any other securities may or may not be listed on a national securities exchange. To facilitate
the offering of securities, certain persons participating in the offering may engage in transactions that stabilize, maintain or otherwise
affect the price of the securities. This may include over-allotments or short sales of the securities, which involve the sale by persons
participating in the offering of more securities than were sold to them. In these circumstances, these persons would cover such over-allotments
or short positions by making purchases in the open market or by exercising their over-allotment option, if any. In addition, these persons
may stabilize or maintain the price of the securities by bidding for or purchasing securities in the open market or by imposing penalty
bids, whereby selling concessions allowed to dealers participating in the offering may be reclaimed if securities sold by them are repurchased
in connection with stabilization transactions. The effect of these transactions may be to stabilize or maintain the market price of the
securities at a level above that which might otherwise prevail in the open market. These transactions may be discontinued at any time.
We may engage in at the market
offerings into an existing trading market in accordance with Rule 415(a)(4) under the Securities Act. In addition, we may enter
into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated
transactions. If the applicable prospectus supplement so indicates, in connection with those derivatives, the third parties may sell securities
covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third party may
use securities pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings of stock,
and may use securities received from us in settlement of those derivatives to close out any related open borrowings of stock. The third
party in such sale transactions will be an underwriter and, if not identified in this prospectus, will be named in the applicable prospectus
supplement (or a post-effective amendment). In addition, we may otherwise loan or pledge securities to a financial institution or other
third party that in turn may sell the securities short using this prospectus and an applicable prospectus supplement. Such financial institution
or other third party may transfer its economic short position to investors in our securities or in connection with a concurrent offering
of other securities.
The specific terms of any
lock-up provisions in respect of any given offering will be described in the applicable prospectus supplement.
The underwriters, dealers
and agents may engage in transactions with us, or perform services for us, in the ordinary course of business for which they receive compensation.
LEGAL
MATTERS
Unless otherwise specified
in a prospectus supplement, the validity of our common stock has been passed upon for us by the Chief Legal Officer of the Company. The
validity of all other securities being offered by this prospectus will be passed upon by Willkie Farr & Gallagher LLP. Additional
legal matters may be passed upon for us or any underwriters, dealers or agents, by counsel that we will name in the applicable prospectus
supplement.
EXPERTS
The financial statements
of Hallador Energy Company as of December 31, 2022 and for the year ended December 31, 2022 and management’s assessment
of the effectiveness of internal control over financial reporting as of December 31, 2022, incorporated by reference in this prospectus
and elsewhere in the registration statement have been so incorporated by reference in reliance upon the reports of Grant Thornton LLP,
independent registered public accountants, upon the authority of said firm as experts in accounting and auditing.
The financial statements
of the Company as of and for the year ended December 31, 2021 incorporated in this prospectus by reference to the Company’s Annual Report on Form 10-K for the year ended December 31, 2022 have been so incorporated in reliance on the report of Plante & Moran, PLLC,
an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
The carve-out financial statements
of Merom Generating Station (a Component of Hoosier Energy Rural Electric Cooperative, Inc.) as of December 31, 2021 and 2020,
and for each of the two years in the period ended December 31, 2021, incorporated by reference in this prospectus by reference to
Hallador Energy Company’s current report on Form 8-K/A dated January 6, 2023 have been audited by Deloitte &
Touche LLP, an independent auditor, as stated in their report. Such financial statements are incorporated by reference in reliance upon
the report of such firm given their authority as experts in auditing and accounting.
WHERE
YOU CAN FIND MORE INFORMATION
We are subject to the information
reporting requirements of the Exchange Act and, in accordance with these requirements, we are required to file periodic reports and other
information with the SEC. The SEC also maintains an Internet website at http://www.sec.gov that contains our filed reports, proxy
and information statements, and other information we file electronically with the SEC.
Additionally, we make our
SEC filings available, free of charge, on our website at www.halladorenergy.com as soon as reasonably practicable after we electronically
file such materials with, or furnish them to, the SEC. The information on our website, other than the filings incorporated by reference
in this prospectus, is not, and should not be, considered part of this prospectus, is not incorporated by reference into this document,
and should not be relied upon in connection with making any investment decision with respect to our securities.
INFORMATION
INCORPORATED BY REFERENCE
We are “incorporating
by reference” into this prospectus certain information we file with the SEC, which means that we are disclosing important information
to you by referring you to those documents. The information we incorporate by reference in this prospectus is legally deemed to be a part
of this prospectus, and later information that we file with the SEC will automatically update and supersede the information included in
this prospectus and the documents listed below. We incorporate the documents listed below:
| • | All documents filed by us pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent
to the initial filing of the registration statement of which this prospectus forms a part until all of the securities being offered under
this prospectus or any prospectus supplement are sold (other than reports, documents or information that are furnished and not filed with
the SEC). |
We will furnish without charge
to you, on written or oral request, a copy of any or all of the documents incorporated by reference herein, other than exhibits to such
documents that are not specifically incorporated by reference therein. You should direct any requests for documents to us at the following
address or telephone number:
Hallador Energy Company
1183 East Canvasback Drive
Terre Haute, Indiana 47802
(303) 839-5504
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance
and Distribution.
The following is an estimate of the expenses (all
of which are to be paid by us) that we may incur in connection with the securities being registered hereby.
| |
Amount | |
SEC registration fee | |
$ | 16,530 | |
FINRA filing fee | |
| * | |
The New York Stock Exchange supplemental listing fee | |
| * | |
Legal fees and expenses | |
| * | |
Accounting fees and expenses | |
| * | |
Blue Sky, qualification fees and expenses | |
| * | |
Transfer agent fees and expenses | |
| * | |
Trustee fees and expenses | |
| * | |
Warrant agent fees and expenses | |
| * | |
Miscellaneous | |
| * | |
Total | |
$ | * | |
| * | These fees are calculated based on the securities offered and the number of issuances and accordingly
cannot be defined at this time. |
Item 15. Indemnification of Directors
and Officers.
The Company’s restated
Articles provide that a director of the Company shall not be personally liable to the Company or its shareholders for monetary damages
for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the Company
or its shareholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 7-5-114 of the Colorado Corporation Code (as repealed and amended by Section 7-108-403 of the Colorado Business Corporation
Act (the “CBCA”)), or (iv) for any transaction from which the director derived an improper personal benefit. If the CBCA is
amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director
of the Company will be eliminated or limited to the fullest extent permitted by the CBCA, as so amended.
The Company’s Articles
also provide that the Company may indemnify any person to the fullest extent allowed by the laws of Colorado. Section 7-109-102 of the
CBCA provides that a corporation has the power to indemnify a director against amounts paid and expenses incurred in connection with an
action, suit or proceeding to which he or she is a party or is threatened to be made a party by reason of such position, if he or she
acted in good faith and in a manner he or she reasonably believed to be in the best interests of the corporation in the case of a person’s
conduct in an official capacity with the corporation, or reasonably believed to be in the best interests of or not opposed to the best
interests of the corporation in all other cases, and, in any criminal proceeding, if such person had no reasonable cause to believe his
or her conduct was unlawful. The termination of a proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere,
or its equivalent, will not, of itself, create a presumption that the director did not meet such standard of conduct. A corporation may
not indemnify a director in the case of actions, suits or proceedings brought by or in the right of the corporation in which such person
shall have been adjudged to be liable to the corporation unless and only to the extent that the adjudicating court determines that such
indemnification is proper under the circumstances, and then only to the extent of reasonable expenses incurred in connection with such
action, suit or proceeding, including expenses incurred to obtain the court-ordered indemnification. Section 7-109-107 of the CBCA provides
that an officer of a corporation is entitled to mandatory and court-ordered indemnification as provided under the CBCA to the same extent
as a director. Section 7-109-107 of the CBCA also allows a corporation to indemnify and advance expenses to an officer, employee, fiduciary
or agent of the corporation to the same extent as to a director, and to a greater extent, if doing so would not be inconsistent with public
policy and if the corporation’s bylaws allow it to do so, the corporation is required to do so by contract, or the directors of
the corporation take action to authorize the corporation to do so.
The Company’s bylaws
provide that it will indemnify and hold harmless to the fullest extent permitted by the CBCA (as it replaces the Colorado Corporations
Code), as amended. any person who was or is made a party or is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, referred to herein as a “Proceeding”, by reason
of the fact that he or she, or a person of whom he or she is the legal representative, was or is a director or officer, employee or agent
of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against his or her expenses, liabilities and loss (including attorneys’ fees, judgments,
fines, Employee Retirement Income Security Act of 1974 excise taxes or penalties, and amounts paid or to be paid in settlement), reasonably
incurred by him or her in connection with a Proceeding. Under the Company’s bylaws, the indemnification provided by the Company
shall continue as to any person who ceases to be a director, officer, employee or agent of the Company, and shall inure to the benefit
of any such person’s heirs, executors and administrators.
The rights to indemnification
provided under the Company’s bylaws include the right to payment of reasonable expenses incurred in defending any Proceeding in
advance of the final disposition of the Proceeding, except that payments of expenses in advance of final disposition of a Proceeding to
be made to a director or officer of the Company that incurred such expenses in such capacity, and not for any other capacity in which
service was or is rendered by such person while a director or officer), will only be made upon:
| a) | delivery to the Company of an undertaking, by or on behalf of such director or officer, to repay all amounts
so advanced if it is ultimately determined that such director or officer is not entitled to indemnification, |
| b) | a written affirmation of such director’s or officer’s good faith belief that he or she conducted
himself or herself in good faith with regard to the actions giving rise to the Proceedings, and |
| c) | a determination as required under the CBCA (as it replaces the Colorado Corporations Code) of whether
the facts then known to those making the determination would not preclude advancement of such reasonable expenses. |
The Company may also, to the
extent authorized to do so by the Company’s board of directors, indemnify employees or agents of the Company to the same scope and
effect as the indemnification of directors and officers as described in the foregoing.
The Company will, unless ordered
otherwise by a court, indemnify a person pursuant to the provisions of the Company’s bylaws described above with respect to Proceedings
that are initiated by such person to enforce rights to indemnification by the Company only if such Proceeding was authorized by the Company’s
board of directors, or if such Proceeding was brought by such person upon the Company failing to pay any claim for indemnification within
sixty days after receipt of a written claim for indemnification and such claim is successful in whole or in part. The Company may assert
as a defense against any claim by a person making a claim for indemnification that such person’s conduct with respect to the matters
giving rise to the Proceedings in question does not satisfy the relevant standard of conduct under the CBCA that would make it permissible
for the Company to indemnify the claimant for the amount claimed. The Company carries the burden of proving that the claimant’s
conduct with respect to the matters giving rise to the Proceedings for which such claimant seeks indemnification does not satisfy the
standards of conduct under the CBCA. Neither the failure of the Company to make a determination prior to the commencement of such Proceedings
that indemnification is proper as the claimant has met the relevant standard of conduct under the CBCA, nor an actual determination by
the Company, including the Company’s board of directors, shareholders or independent legal counsel, that the claimant has not met
the relevant standard of conduct under the CBCA, will be a defense to an action by a claimant for indemnification or create a presumption
that the claimant has not met the applicable standard of conduct.
The rights to indemnification
and to payment of expenses in advance of the final disposition of a Proceeding that are provided by the Company’s bylaws are not
deemed to be exclusive of any other right to which a person seeking indemnification or advancement of expenses may be entitled or may
become entitled to under any law, the Company’s Articles, bylaws, agreement, vote of stockholders or approval by the Company’s
directors who are not parties to a Proceeding, or otherwise.
The Company’s bylaws
provide that it may purchase and maintain insurance on behalf of itself and any director, officer, employee or agent of the Company or
another corporation, partnership, joint venture, trust or other enterprise, against any expenses, liabilities or loss, whether or not
the Company would have the power to indemnify such person against such expenses, liabilities or loss under the CBCA (as it replaces the
Colorado Corporations Code).
Item 16. Exhibits.
Exhibit No. |
Description |
1.1** |
Form of
Underwriting Agreement for Debt Securities, Common Stock, Preferred Stock, Depositary Shares, Warrants, Subscription Rights, Purchase
Contracts or Units. |
2.1 |
Asset
and Purchase Agreement dated February 14, 2022 (1). |
3.1 |
Second
Restated Articles of Incorporation of Hallador Energy Company, effective December 24, 2009 (2). |
3.2 |
By-laws
of Hallador Energy Company, effective December 24, 2009. (3). |
4.1** |
Form of
Specimen Certificate Representing Preferred Stock. |
4.2** |
Form of
Debt Security. |
4.3** |
Form of
Depositary Agreement. |
4.4** |
Form of
Warrant Agreement. |
4.5** |
Form of
Subscription Agreement. |
4.6** |
Form of
Purchase Contract Agreement. |
4.7** |
Form of
Unit Agreement. |
4.8** |
Form of
Unit. |
4.9* |
Form of
Indenture. |
5.1* |
Opinion
of the Chief Legal Officer of the Company. |
5.2* |
Opinion
of Willkie Farr & Gallagher LLP. |
23.1* |
Consent
of Grant Thornton LLP (independent registered public accounting firm of Hallador Energy Company). |
23.2* |
Consent
of Plante & Moran, PLLC. |
23.3* |
Consent
of Deloitte & Touche LLP. |
23.4* |
Consent
of the Chief Legal Officer of the Company (included in Exhibit 5.1). |
23.5* |
Consent
of Willkie Farr & Gallagher LLP (included in Exhibit 5.2). |
24.1* |
Power
of Attorney (included on signature page hereto). |
25.1*** |
Statement
of Eligibility of Trustee to be named later with respect to Form of Indenture for Debt Security, listed above as Exhibit 4.1 |
107* |
Filing
Fee Table. |
| ** | To be filed by amendment or as an exhibit to a current report
on Form 8-K of the registrant. |
| *** | To be filed in accordance with the requirements of Section 305(b)(2) of
the Trust Indenture Act of 1939 and Rule 5b-3 thereunder. |
| (1) | Filed as an exhibit to the Company’s Current Report on
Form 8-K/A filed with the SEC on March 11, 2022 (as amended). |
| (2) | Filed as an exhibit to the Company’s Current Report on
Form 8-K filed with the SEC on December 31, 2009. |
| (3) | Filed as an exhibit to the Company’s Form 10-K/A
filed with the SEC on June 12, 2020. |
Item 17. Undertakings.
| (a) | The undersigned registrant hereby undertakes: |
| (1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this
registration statement: |
| (i) | to include any prospectus required by Section 10(a)(3) of the Securities Act; |
| (ii) | to reflect in the prospectus any facts or events arising after the effective date of the registration
statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no a more than 20 percent change in the maximum aggregate offering price set
forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
| (iii) | to include any material information with respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such information in the registration statement; |
provided,
however, that: Paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required
to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant
pursuant to Section 13 or Section 15(d) of the 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, 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 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
the date of the first contract of sale of securities in the offering described in the prospectus.
As provided in Rule 430B, for liability purposes of the issuer and any person that is
at that date an underwriter, such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the registration statement to which
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 the registration statement
or made in a document incorporated or deemed incorporated by reference into the registration
statement or prospectus that is part of the registration statement will, as to a purchaser
with a time of contract of sale prior to such effective date, supersede or modify any statement
that was made in the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective date. |
| (5) | That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser
in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned
registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser,
if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will
be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
| (i) | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required
to be filed pursuant to Rule 424; |
| (ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant
or used or referred to by the undersigned registrant; |
| (iii) | The portion of any other free writing prospectus relating to the offering containing material information
about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
| (iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
| (6) | The undersigned registrant hereby undertakes that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. |
| (7) | 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 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, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue. |
| (8) | The undersigned registrant hereby undertakes to file an application for the purpose of determining the
eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act. |
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, as amended, the Company 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 Terre Haute, State of Indiana on July 19, 2023.
|
HALLADOR ENERGY COMPANY |
|
|
|
By: |
/s/ Brent Bilsland |
|
|
Name: |
Brent Bilsland |
|
|
Title: |
Chairman, President and Chief Executive Officer |
Each person whose signature
appears below constitutes and appoints each of Brent Bilsland and Lawrence D. Martin his true and lawful attorney-in-fact and agent, with
full power of substitution and re-substitution, for him in his name, place and stead, in any and all capacities, to sign any and all amendments
to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, and hereby grants to such attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent or his substitute or substitutes may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements
of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated and on
the date set forth above.
/s/ Brent Bilsland |
|
/s/ Bryan H. Lawrence |
Brent Bilsland |
|
Bryan H. Lawrence |
Chairman, President and Chief Executive Officer |
|
Director |
|
|
|
/s/ Lawrence D. Martin |
|
/s/ David John Lubar |
Lawrence D. Martin |
|
David John Lubar |
Chief Financial Officer |
|
Director |
|
|
|
/s/ David Hardie |
|
/s/ Charles Ray Wesley IV |
David Hardie |
|
Charles Ray Wesley IV |
Director |
|
Director |
|
|
|
/s/ Steven Hardie |
|
|
Steven Hardie |
|
|
Director |
|
|
Exhibit 4.9
HALLADOR
ENERGY COMPANY
Indenture
Dated as of [●], 20[●]
As Trustee
Table of Contents |
|
|
Page |
|
|
|
Article I |
Definitions and Incorporation by Reference |
1 |
|
|
|
1.1 |
Definitions |
1 |
1.2 |
Other Definitions |
4 |
1.3 |
Incorporation by Reference of Trust Indenture Act |
5 |
1.4 |
Rules of Construction |
5 |
|
|
|
Article II |
The Securities |
6 |
|
|
|
2.1 |
Issuable in Series |
6 |
2.2 |
Establishment of Terms of Series of Securities |
6 |
2.3 |
Execution and Authentication |
8 |
2.4 |
Registrar and Paying Agent |
9 |
2.5 |
Paying Agent to Hold Money in Trust |
10 |
2.6 |
Securityholder Lists |
10 |
2.7 |
Transfer and Exchange |
10 |
2.8 |
Mutilated, Destroyed, Lost and Stolen Securities |
11 |
2.9 |
Outstanding Securities |
11 |
2.10 |
Treasury Securities |
12 |
2.11 |
Temporary Securities |
12 |
2.12 |
Cancellation |
12 |
2.13 |
Defaulted Interest |
12 |
2.14 |
Global Securities |
13 |
2.15 |
CUSIP Numbers |
15 |
|
|
|
Article III |
Redemption |
16 |
|
|
|
3.1 |
Notice to Trustee |
16 |
3.2 |
Selection of Securities to be Redeemed |
16 |
3.3 |
Notice of Redemption |
16 |
3.4 |
Effect of Notice of Redemption |
17 |
3.5 |
Deposit of Redemption Price |
17 |
3.6 |
Securities Redeemed in Part |
17 |
|
|
|
Article IV |
Covenants |
17 |
|
|
|
4.1 |
Payment of Principal and Interest |
17 |
4.2 |
SEC Reports |
18 |
4.3 |
Compliance Certificate |
18 |
4.4 |
Stay, Extension and Usury Laws |
18 |
Article V |
Successors |
19 |
|
|
|
5.1 |
When Company May Merge, Etc. |
19 |
5.2 |
Successor Corporation Substituted |
19 |
|
|
|
Article VI |
Defaults and Remedies |
19 |
|
|
|
6.1 |
Events of Default |
19 |
6.2 |
Acceleration of Maturity; Rescission and Annulment |
20 |
6.3 |
Collection of Indebtedness and Suits for Enforcement by Trustee |
21 |
6.4 |
Trustee May File Proofs of Claim |
22 |
6.5 |
Trustee May Enforce Claims Without Possession of Securities |
22 |
6.6 |
Application of Money Collected |
22 |
6.7 |
Limitation on Suits |
23 |
6.8 |
Unconditional Right of Holders to Receive Principal and Interest |
23 |
6.9 |
Restoration of Rights and Remedies |
23 |
6.10 |
Rights and Remedies Cumulative |
24 |
6.11 |
Delay or Omission Not Waiver |
24 |
6.12 |
Control by Holders |
24 |
6.13 |
Waiver of Past Defaults |
24 |
6.14 |
Undertaking for Costs |
25 |
|
|
|
Article VII |
Trustee |
25 |
|
|
|
7.1 |
Duties of Trustee |
25 |
7.2 |
Rights of Trustee |
26 |
7.3 |
Individual Rights of Trustee |
28 |
7.4 |
Trustee’s Disclaimer |
28 |
7.5 |
Notice of Defaults |
28 |
7.6 |
Reports by Trustee to Holders |
28 |
7.7 |
Compensation and Indemnity |
28 |
7.8 |
Replacement of Trustee |
29 |
7.9 |
Successor Trustee by Merger, Etc. |
30 |
7.10 |
Eligibility; Disqualification |
30 |
7.11 |
Preferential Collection of Claims Against Company |
30 |
|
|
|
Article VIII |
Satisfaction and Discharge; Defeasance |
31 |
|
|
|
8.1 |
Satisfaction and Discharge of Indenture |
31 |
8.2 |
Application of Trust Funds; Indemnification |
32 |
8.3 |
Legal Defeasance of Securities of any Series |
32 |
8.4 |
Covenant Defeasance |
34 |
8.5 |
Repayment to Company |
35 |
8.6 |
Reinstatement |
35 |
Article IX |
Amendments and Waivers |
36 |
|
|
|
9.1 |
Without Consent of Holders |
36 |
9.2 |
With Consent of Holders |
37 |
9.3 |
Limitations |
37 |
9.4 |
Compliance with Trust Indenture Act |
38 |
9.5 |
Revocation and Effect of Consents |
38 |
9.6 |
Notation on or Exchange of Securities |
38 |
9.7 |
Trustee Protected |
38 |
|
|
|
Article X |
Miscellaneous |
39 |
|
|
|
10.1 |
Trust Indenture Act Controls |
39 |
10.2 |
Notices |
39 |
10.3 |
Communication by Holders with Other Holders |
40 |
10.4 |
Certificate and Opinion as to Conditions Precedent |
40 |
10.5 |
Statements Required in Certificate or Opinion |
40 |
10.6 |
Rules by Trustee and Agents |
41 |
10.7 |
Legal Holidays |
41 |
10.8 |
No Recourse Against Others |
41 |
10.9 |
Counterparts |
41 |
10.10 |
Governing Law; Waiver of Jury Trial; Consent to Jurisdiction |
41 |
10.11 |
No Adverse Interpretation of Other Agreements |
42 |
10.12 |
Successors |
42 |
10.13 |
Severability |
42 |
10.14 |
Table of Contents, Headings, Etc. |
42 |
10.15 |
Securities in a Foreign Currency |
42 |
10.16 |
Judgment Currency |
43 |
10.17 |
Force Majeure |
43 |
10.18 |
U.S.A Patriot Act |
43 |
|
|
|
Article XI |
Sinking Funds |
43 |
|
|
|
11.1 |
Applicability of Article |
43 |
11.2 |
Satisfaction of Sinking Fund Payments with Securities |
44 |
11.3 |
Redemption of Securities for Sinking Fund |
44 |
HALLADOR
ENERGY COMPANY
Reconciliation and tie between Trust Indenture
Act of 1939 and Indenture, dated as of [●], 20[●]
§310(a)(1) |
7.10 |
(a)(2) |
7.10 |
(a)(3) |
Not Applicable |
(a)(4) |
Not Applicable |
(a)(5) |
7.10 |
(b) |
7.10 |
§311(a) |
7.11 |
(b) |
7.11 |
(c) |
Not Applicable |
§312(a) |
2.6 |
(b) |
10.3 |
(c) |
10.3 |
§313(a) |
7.6 |
(b)(1) |
7.6 |
(b)(2) |
7.6 |
(c)(1) |
7.6 |
(d) |
7.6 |
§314(a) |
4.2,10.5 |
(b) |
Not Applicable |
(c)(1) |
10.4 |
(c)(2) |
10.4 |
(c)(3) |
Not Applicable |
(d) |
Not Applicable |
(e) |
10.5 |
(f) |
Not Applicable |
§315(a) |
7.1 |
(b) |
7.5 |
(c) |
7.1 |
(d) |
7.1 |
(e) |
6.14 |
§316(a) |
2.10 |
(a)(1)(A) |
6.12 |
(a)(1)(B) |
6.13 |
(b) |
6.8 |
§317(a)(1) |
6.3 |
(a)(2) |
6.4 |
(b) |
2.5 |
§318(a) |
10.1 |
Note: This
reconciliation and tie shall not, for any purpose, be deemed to be part of the Indenture.
Indenture
Indenture
dated as of [●], 20[●], between HALLADOR ENERGY COMPANY, a company incorporated under the laws of Nevada (the “Company”),
and [●], a national banking association organized under the laws of the United
States, as trustee (the “Trustee”).
Each party agrees as follows
for the benefit of the other party and for the equal and ratable benefit of the Holders of the Securities issued under this Indenture.
Article I
Definitions
and Incorporation by Reference
1.1 Definitions.
“Additional Amounts”
means any additional amounts which are required hereby or by any Security, under circumstances specified herein or therein, to be paid
by the Company in respect of certain taxes imposed on Holders specified herein or therein and which are owing to such Holders.
“Affiliate”
of any specified person means any other person directly or indirectly controlling or controlled by or under common control with such specified
person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlled
by” and “under common control with”), as used with respect to any person, shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of such person, whether through the ownership of voting securities
or by agreement or otherwise.
“Agent”
means any Registrar, Paying Agent or Notice Agent.
“Board of Directors”
means the board of directors of the Company or any duly authorized committee thereof.
“Board Resolution”
means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been adopted by the Board of
Directors or pursuant to authorization by the Board of Directors and to be in full force and effect on the date of the certificate and
delivered to the Trustee.
“Business Day”
means, any day except a Saturday, Sunday or a Legal Holiday in the City of New York, New York (or in connection with any payment, the
place of payment) on which banking institutions are authorized or required by law, regulation or executive order to close.
“Capital Stock”
means any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock.
“Company”
means the party named as such above until a successor replaces it and thereafter means the successor.
“Company Order”
means a written order signed in the name of the Company by an Officer.
“Corporate Trust
Office” means the principal office of the Trustee at which at any time this Indenture shall be administered, which office as
of the date hereof is located at the address specified in Section 10.2. With respect to presentation for transfer or exchange,
conversions or principal payment, such address shall be at the address specified in Section 10.2, or such other address as the
Trustee may designate from time to time by written notice to the Holders and the Company, or the principal corporate trust office of
any successor Trustee (or such other address as such successor Trustee may designate from time to time by written notice to the Holders
and the Company).
“Default”
means any event which is, or after notice or passage of time or both would be, an Event of Default.
“Depositary”
means, with respect to the Securities of any Series issuable or issued in whole or in part in the form of one or more Global Securities,
the person designated as Depositary for such Series by the Company, which Depositary shall be a clearing agency registered under
the Exchange Act; and if at any time there is more than one such person, “Depositary” as used with respect to the Securities
of any Series shall mean the Depositary with respect to the Securities of such Series.
“Discount Security”
means any Security that provides for an amount less than the stated principal amount thereof to be due and payable upon declaration of
acceleration of the maturity thereof pursuant to Section 6.2.
“Dollars”
and “$” means the currency of the United States of America.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended.
“Foreign Currency”
means any currency or currency unit issued by a government other than the government of the United States of America.
“Foreign Government
Obligations” means, with respect to Securities of any Series that are denominated in a Foreign Currency, direct obligations
of, or obligations guaranteed by, the government that issued or caused to be issued such currency for the payment of which obligations
its full faith and credit is pledged and which are not callable or redeemable at the option of the issuer thereof.
“GAAP”
means accounting principles generally accepted in the United States of America set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession,
which are in effect as of the date of determination.
“Global Security”
or “Global Securities” means a Security or Securities, as the case may be, in the form established pursuant to Section 2.2
evidencing all or part of a Series of Securities, issued to the Depositary for such Series or its nominee, and registered in
the name of such Depositary or nominee.
“Holder”
or “Securityholder” means a person in whose name a Security is registered on the books of the Registrar.
“Indenture”
means this Indenture as amended or supplemented from time to time and shall include the form and terms of particular Series of Securities
established as contemplated hereunder.
“interest”
with respect to any Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.
“Maturity,”
when used with respect to any Security, means the date on which the principal of such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“Officer”
means the Chief Executive Officer, the Chief Financial Officer, the Treasurer or any Assistant Treasurer, the Secretary or any Assistant
Secretary, and any Vice President of the Company.
“Officer’s
Certificate” means a certificate signed by any Officer that meets the requirements of Section 10.5.
“Opinion of Counsel”
means a written opinion of legal counsel who is acceptable to the Trustee. The opinion may contain customary limitations, qualifications,
conditions and exceptions. The counsel may be an employee of or counsel to the Company.
“person”
means any individual, corporation, partnership, joint venture, association, limited liability company, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
“principal”
of a Security means the principal of the Security plus, when appropriate, the premium, if any, on, and any Additional Amounts in respect
of, the Security.
“Responsible Officer”
means any officer of the Trustee in its Corporate Trust Office having direct responsibility for the administration of this Indenture and
also means, with respect to a particular corporate trust matter, any other officer to whom any corporate trust matter is referred because
of his or her knowledge of and familiarity with a particular subject.
“SEC” means
the Securities and Exchange Commission.
“Securities”
means the debentures, notes or other debt instruments of the Company of any Series authenticated and delivered under this Indenture.
“Series”
or “Series of Securities” means each series of debentures, notes or other debt instruments of the Company created
pursuant to Sections 2.1 and 2.2 hereof.
“Stated Maturity”
when used with respect to any Security, means the date specified in such Security as the fixed date on which the principal of such Security
or interest is due and payable.
“Subsidiary”
of any specified person means any corporation, association or other business entity of which more than 50% of the total voting power of
shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled, directly or indirectly, by such person or one or more of the other Subsidiaries
of that person or a combination thereof.
“TIA” means
the Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) as in effect on the date of this Indenture; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such date, “TIA” means, to the extent required
by any such amendment, the Trust Indenture Act as so amended.
“Trustee”
means the person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each person who
is then a Trustee hereunder, and if at any time there is more than one such person, “Trustee” as used with respect to the
Securities of any Series shall mean the Trustee with respect to Securities of that Series.
“U.S. Government
Obligations” means securities which are direct obligations of, or guaranteed by, the United States of America for the payment
of which its full faith and credit is pledged and which are not callable or redeemable at the option of the issuer thereof, and shall
also include a depositary receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or
a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder
of a depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from
the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government
Obligation evidenced by such depositary receipt.
1.2 Other
Definitions.
Term |
Defined in Section |
|
|
“Bankruptcy Law” |
6.1 |
|
|
“Custodian” |
6.1 |
|
|
“Event of Default” |
6.1 |
|
|
“Judgment Currency” |
10.16 |
|
|
“Legal Holiday” |
10.7 |
|
|
“mandatory sinking fund payment” |
11.1 |
|
|
“New York Banking Day” |
10.16 |
|
|
“Notice Agent” |
2.4 |
“optional sinking
fund payment” |
11.1 |
|
|
“Paying Agent” |
2.4 |
|
|
“Registrar” |
2.4 |
|
|
“Required Currency” |
10.16 |
|
|
“Specified Courts” |
10.10 |
|
|
“successor person” |
5.1 |
1.3 Incorporation
by Reference of Trust Indenture Act. Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference
in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings:
“Commission”
means the SEC.
“indenture securities”
means the Securities.
“indenture security
holder” means a Securityholder.
“indenture to be
qualified” means this Indenture.
“indenture trustee”
or “institutional trustee” means the Trustee.
“obligor”
on the indenture securities means the Company and any successor obligor upon the Securities.
All other terms used in this
Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA and not otherwise
defined herein are used herein as so defined.
1.4 Rules of
Construction. Unless the context otherwise requires:
(a) (i) a
term has the meaning assigned to it;
(b) an
accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(c) ”or”
is not exclusive;
(d) words
in the singular include the plural, and in the plural include the singular; and
(e) provisions
apply to successive events and transactions.
Article II
The
Securities
2.1 Issuable
in Series. The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more Series. All Securities of a Series shall be identical except as may be set forth or determined
in the manner provided in a Board Resolution, a supplemental indenture or an Officer’s Certificate detailing the adoption of the
terms thereof pursuant to authority granted under a Board Resolution. In the case of Securities of a Series to be issued from time
to time, the Board Resolution, Officer’s Certificate or supplemental indenture detailing the adoption of the terms thereof pursuant
to authority granted under a Board Resolution may provide for the method by which specified terms (such as interest rate, maturity date,
record date or date from which interest shall accrue) are to be determined. Securities may differ between Series in respect of any
matters, provided that all Series of Securities shall be equally and ratably entitled to the benefits of the Indenture.
2.2 Establishment
of Terms of Series of Securities. At or prior to the issuance of any Securities within a Series, the following shall be established
(as to the Series generally, in the case of Subsection 2.2.1 and either as to such Securities within the Series or as
to the Series generally in the case of Subsections 2.2.2 through 2.2.23) by or pursuant to a Board Resolution, and
set forth or determined in the manner provided in a Board Resolution, supplemental indenture hereto or Officer’s Certificate:
2.2.1 the
title (which shall distinguish the Securities of that particular Series from the Securities of any other Series) and ranking (including
the terms of any subordination provisions) of the Series;
2.2.2 the
price or prices (expressed as a percentage of the principal amount thereof) at which the Securities of the Series will be issued;
2.2.3 any
limit upon the aggregate principal amount of the Securities of the Series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities
of the Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or 9.6);
2.2.4 the
date or dates on which the principal of the Securities of the Series is payable;
2.2.5 the
rate or rates (which may be fixed or variable) per annum or, if applicable, the method used to determine such rate or rates (including,
but not limited to, any commodity, commodity index, stock exchange index or financial index) at which the Securities of the Series shall
bear interest, if any, the date or dates from which such interest, if any, shall accrue, the date or dates on which such interest, if
any, shall commence and be payable and any regular record date for the interest payable on any interest payment date;
2.2.6 the
place or places where the principal of and interest, if any, on the Securities of the Series shall be payable, where the Securities
of such Series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of such Series and this Indenture may be delivered, and the method of such payment, if by wire transfer,
mail or other means;
2.2.7 if
applicable, the period or periods within which, the price or prices at which and the terms and conditions upon which the Securities of
the Series may be redeemed, in whole or in part, at the option of the Company;
2.2.8 the
obligation, if any, of the Company to redeem or purchase the Securities of the Series pursuant to any sinking fund or analogous provisions
or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions
upon which Securities of the Series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
2.2.9 the
dates, if any, on which and the price or prices at which the Securities of the Series will be repurchased by the Company at the option
of the Holders thereof and other detailed terms and provisions of such repurchase obligations;
2.2.10 if
other than denominations of $1,000 and any integral multiple thereof, the denominations in which the Securities of the Series shall
be issuable;
2.2.11 the
forms of the Securities of the Series and whether the Securities will be issuable as Global Securities;
2.2.12 if
other than the principal amount thereof, the portion of the principal amount of the Securities of the Series that shall be payable
upon declaration of acceleration of the maturity thereof pursuant to Section 6.2;
2.2.13 the
currency of denomination of the Securities of the Series, which may be Dollars or any Foreign Currency and, if such currency of denomination
is a composite currency, the agency or organization, if any, responsible for overseeing such composite currency;
2.2.14 the
designation of the currency, currencies or currency units in which payment of the principal of and interest, if any, on the Securities
of the Series will be made;
2.2.15 if
payments of principal of or interest, if any, on the Securities of the Series are to be made in one or more currencies or currency
units other than that or those in which such Securities are denominated, the manner in which the exchange rate with respect to such payments
will be determined;
2.2.16 the
manner in which the amounts of payment of principal of or interest, if any, on the Securities of the Series will be determined, if
such amounts may be determined by reference to an index based on a currency or currencies or by reference to a commodity, commodity index,
stock exchange index or financial index;
2.2.17 the
provisions, if any, relating to any security provided for the Securities of the Series;
2.2.18 any
addition to, deletion of or change in the Events of Default which applies to any Securities of the Series and any change in the right
of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 6.2;
2.2.19 any
addition to, deletion of or change in the covenants set forth in Articles IV or V which applies to Securities of the Series;
2.2.20 any
Depositaries, interest rate calculation agents, exchange rate calculation agents, conversion agents or other agents with respect to Securities
of such Series if other than those appointed herein;
2.2.21 the
provisions, if any, relating to conversion or exchange of any Securities of such Series, including if applicable, the conversion or exchange
price, the conversion or exchange period, provisions as to whether conversion or exchange will be mandatory, at the option of the Holders
thereof or at the option of the Company, the events requiring an adjustment of the conversion price or exchange price and provisions affecting
conversion or exchange if such Series of Securities are redeemed;
2.2.22 any
other terms of the Series (which may supplement, modify or delete any provision of this Indenture insofar as it applies to such Series),
including any terms that may be required under applicable law or regulations or advisable in connection with the marketing of Securities
of that Series; and
2.2.23 whether
any of the Company’s direct or indirect Subsidiaries will guarantee the Securities of that Series, including the terms of subordination,
if any, of such guarantees.
All Securities of any one
Series need not be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so
provided by or pursuant to the Board Resolution, supplemental indenture hereto or Officer’s Certificate referred to above. No Board
Resolution, supplemental indenture hereto or Officer’s Certificate may affect the Trustee’s own rights, duties or immunities
under this Indenture or otherwise with respect to any Series of Securities except as the Trustee may agree in writing.
2.3 Execution
and Authentication. An Officer shall sign the Securities for the Company by manual or facsimile signature.
If an Officer whose signature
is on a Security no longer holds that office at the time the Security is authenticated, the Security shall nevertheless be valid.
A Security shall not be valid
until authenticated by the manual signature of the Trustee or an authenticating agent. The signature shall be conclusive evidence that
the Security has been authenticated under this Indenture.
The Trustee shall at any time,
and from time to time, authenticate Securities for original issue in the principal amount provided in the Board Resolution, supplemental
indenture hereto or Officer’s Certificate, upon receipt by the Trustee of a Company Order. Each Security shall be dated the date
of its authentication.
The aggregate principal amount
of Securities of any Series outstanding at any time may not exceed any limit upon the maximum principal amount for such Series set
forth in the Board Resolution, supplemental indenture hereto or Officer’s Certificate delivered pursuant to Section 2.2,
except as provided in Section 2.8.
Prior to the issuance of Securities
of any Series, the Trustee shall have received and (subject to Section 7.2) shall be fully protected in relying on: (a) the
Board Resolution, supplemental indenture hereto or Officer’s Certificate establishing the form of the Securities of that Series or
of Securities within that Series and the terms of the Securities of that Series or of Securities within that Series, (b) an
Officer’s Certificate complying with Section 10.4, (c) an Opinion of Counsel complying with Section 10.4
and (d) an Opinion of Counsel (which may be the same Opinion of Counsel referred to in the preceding clause (c)) that such Securities,
when they have been duly executed, issued, and authenticated in accordance with the terms of the Indenture and delivered against payment
therefor in the circumstances described in such Opinion of Counsel, will be legally valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms.
The Trustee shall have the
right to decline to authenticate and deliver any Securities of such Series: (a) if the Trustee, being advised by counsel, determines
that such action may not be taken lawfully; or (b) if the Trustee in good faith shall determine that such action would expose the
Trustee to personal liability to Holders of any then-outstanding Series of Securities.
The Trustee may appoint an
authenticating agent acceptable to the Company to authenticate Securities. An authenticating agent may authenticate Securities whenever
the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating
agent has the same rights as an Agent to deal with the Company or an Affiliate of the Company.
2.4 Registrar
and Paying Agent. The Company shall maintain, with respect to each Series of Securities, at the place or places specified with
respect to such Series pursuant to Section 2.2, an office or agency where Securities of such Series may be presented
or surrendered for payment (“Paying Agent”), where Securities of such Series may be surrendered for registration
of transfer or exchange (“Registrar”) and where notices and demands to or upon the Company in respect of the Securities
of such Series and this Indenture may be delivered (“Notice Agent”). The Registrar shall keep a register with
respect to each Series of Securities and to their transfer and exchange. The Company will give prompt written notice to the Trustee
of the name and address, and any change in the name or address, of each Registrar, Paying Agent or Notice Agent. If at any time the Company
shall fail to maintain any such required Registrar, Paying Agent or Notice Agent or shall fail to furnish the Trustee with the name and
address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands; provided,
however, that any appointment of the Trustee as the Notice Agent shall exclude the appointment of the Trustee or any office of
the Trustee as an agent to receive the service of legal process on the Company.
The Company may from time
to time designate one or more co-registrars, additional paying agents or additional notice agents and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligations
to maintain a Registrar, Paying Agent and Notice Agent in each place so specified pursuant to Section 2.2 for Securities of
any Series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and
of any change in the name or address of any such co-registrar, additional paying agent or additional notice agent. The term “Registrar”
includes any co-registrar; the term “Paying Agent” includes any additional paying agent; and the term “Notice
Agent” includes any additional notice agent. The Company or any of its Affiliates may serve as Registrar or Paying Agent.
The Company hereby appoints
the Trustee the initial Registrar, Paying Agent and Notice Agent for each Series unless another Registrar, Paying Agent or Notice
Agent, as the case may be, is appointed prior to the time Securities of that Series are first issued.
2.5 Paying
Agent to Hold Money in Trust. The Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying
Agent will hold in trust, for the benefit of Securityholders of any Series of Securities, or the Trustee, all money held by the Paying
Agent for the payment of principal of or interest on the Series of Securities, and will notify the Trustee in writing of any default
by the Company in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held
by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over
to the Trustee, the Paying Agent (if other than the Company or a Subsidiary of the Company) shall have no further liability for the money.
If the Company or a Subsidiary of the Company acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit
of Securityholders of any Series of Securities all money held by it as Paying Agent. Upon any bankruptcy, reorganization or similar
proceeding with respect to the Company, the Trustee shall serve as Paying Agent for the Securities.
2.6 Securityholder
Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names
and addresses of Securityholders of each Series of Securities and shall otherwise comply with TIA § 312(a). If the Trustee is
not the Registrar, the Company shall furnish to the Trustee at least ten days before each interest payment date and at such other times
as the Trustee may request in writing a list, in such form and as of such date as the Trustee may reasonably require, of the names and
addresses of Securityholders of each Series of Securities.
2.7 Transfer
and Exchange. Where Securities of a Series are presented to the Registrar or a co-registrar with a request to register a transfer
or to exchange them for an equal principal amount of Securities of the same Series, the Registrar shall register the transfer or make
the exchange if its requirements for such transactions are met. To permit registrations of transfers and exchanges, the Trustee shall
authenticate Securities at the Registrar’s request. No service charge shall be made for any registration of transfer or exchange
(except as otherwise expressly permitted herein), but the Company may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than any such transfer tax or similar governmental charge payable upon
exchanges pursuant to Sections 2.11, 3.6 or 9.6).
Neither the Company nor the
Registrar shall be required (a) to issue, register the transfer of, or exchange Securities of any Series for the period beginning
at the opening of business fifteen days immediately preceding the sending of a notice of redemption of Securities of that Series selected
for redemption and ending at the close of business on the day such notice is sent, or (b) to register the transfer of or exchange
Securities of any Series selected, called or being called for redemption as a whole or the portion being redeemed of any such Securities
selected, called or being called for redemption in part.
2.8 Mutilated,
Destroyed, Lost and Stolen Securities. If any mutilated Security is surrendered to the Trustee, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security of the same Series and of like tenor and principal amount
and bearing a number not contemporaneously outstanding.
If there shall be delivered
to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such
security or indemnity bond as may be required by each of them to hold itself and any of its agents harmless, then, in the absence of notice
to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and, upon receipt
of a Company Order, the Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen Security,
a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing
a new Security, pay such Security.
Upon the issuance of any new
Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any
Series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that Series duly
issued hereunder.
The provisions of this Section are
exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
2.9 Outstanding
Securities. The Securities outstanding at any time are all the Securities authenticated by the Trustee except for those canceled by
it, those delivered to it for cancellation, those reductions in the interest on a Global Security effected by the Trustee in accordance
with the provisions hereof and those described in this Section as not outstanding.
If a Security is replaced
pursuant to Section 2.8, it ceases to be outstanding until the Trustee receives proof satisfactory to it that the replaced
Security is held by a bona fide purchaser.
If the Paying Agent (other
than the Company, a Subsidiary of the Company or an Affiliate of the Company) holds on the Maturity of Securities of a Series money
sufficient to pay such Securities payable on that date, then on and after that date such Securities of the Series cease to be outstanding
and interest on them ceases to accrue.
The Company may purchase or
otherwise acquire the Securities, whether by open market purchases, negotiated transactions or otherwise. A Security does not cease to
be outstanding because the Company or an Affiliate of the Company holds the Security (but see Section 2.10 below).
In determining whether the
Holders of the requisite principal amount of outstanding Securities have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, the principal amount of a Discount Security that shall be deemed to be outstanding for such purposes shall
be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 6.2.
2.10 Treasury
Securities. In determining whether the Holders of the required principal amount of Securities of a Series have concurred in any
request, demand, authorization, direction, notice, consent or waiver, Securities of a Series owned by the Company or any Affiliate
of the Company shall be disregarded, except that for the purposes of determining whether the Trustee shall be protected in relying on
any such request, demand, authorization, direction, notice, consent or waiver only Securities of a Series that a Responsible Officer
of the Trustee actually knows are so owned shall be so disregarded.
2.11 Temporary
Securities. Until definitive Securities are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary
Securities upon a Company Order. Temporary Securities shall be substantially in the form of definitive Securities but may have variations
that the Company considers appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee
upon receipt of a Company Order shall authenticate definitive Securities of the same Series and date of maturity in exchange for
temporary Securities. Until so exchanged, temporary securities shall have the same rights under this Indenture as the definitive Securities.
2.12 Cancellation.
The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for registration of transfer, exchange or payment. The Trustee shall cancel all Securities
surrendered for transfer, exchange, payment, replacement or cancellation in accordance with its customary procedures (subject to the record
retention requirements of the Exchange Act and the Trustee) and deliver a certificate of such cancellation to the Company upon written
request of the Company. The Company may not issue new Securities to replace Securities that it has paid or delivered to the Trustee for
cancellation.
2.13 Defaulted
Interest. If the Company defaults in a payment of interest on a Series of Securities, it shall pay the defaulted interest, plus,
to the extent permitted by law, any interest payable on the defaulted interest, to the persons who are Securityholders of the Series on
a subsequent special record date. The Company shall fix the record date and payment date. At least 10 days before the special record date,
the Company shall send to the Trustee and to each Securityholder of the Series a notice that states the special record date, the
payment date and the amount of interest to be paid. The Company may pay defaulted interest in any other lawful manner.
2.14 Global
Securities.
2.14.1 Terms
of Securities. A Board Resolution, a supplemental indenture hereto or an Officer’s Certificate shall establish whether the Securities
of a Series shall be issued in whole or in part in the form of one or more Global Securities and the Depositary for such Global Security
or Securities.
2.14.2 Transfer
and Exchange. Notwithstanding any provisions to the contrary contained in Section 2.7 of the Indenture and in addition
thereto, any Global Security shall be exchangeable pursuant to Section 2.7 of the Indenture for Securities registered in the
names of Holders other than the Depositary for such Security or its nominee only if (i) such Depositary notifies the Company that
it is unwilling or unable to continue as Depositary for such Global Security or if at any time such Depositary ceases to be a clearing
agency registered under the Exchange Act, and, in either case, the Company fails to appoint a successor Depositary registered as a clearing
agency under the Exchange Act within 90 days of such event or (ii) the Company executes and delivers to the Trustee an Officer’s
Certificate to the effect that such Global Security shall be so exchangeable. Any Global Security that is exchangeable pursuant to the
preceding sentence shall be exchangeable for Securities registered in such names as the Depositary shall direct in writing in an aggregate
principal amount equal to the principal amount of the Global Security with like tenor and terms.
Except as provided in this
Section 2.14.2, a Global Security may not be transferred except as a whole by the Depositary with respect to such Global Security
to a nominee of such Depositary, by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by the Depositary
or any such nominee to a successor Depositary or a nominee of such a successor Depositary.
Neither the Trustee nor any
Agent shall have any responsibility for any actions taken or not taken by the Depositary.
2.14.3 Legends.
Any Global Security issued hereunder shall bear a legend in substantially the following form:
“THIS SECURITY IS A GLOBAL SECURITY
WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY.
THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY,
BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY.”
In addition, so long as the
Depository Trust Company (“DTC”) is the Depositary, each Global Note registered in the name of DTC or its nominee shall
bear a legend in substantially the following form:
“UNLESS THIS GLOBAL NOTE IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY GLOBAL NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”
2.14.4 Acts
of Holders. The Depositary, as a Holder, may appoint agents and otherwise authorize participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a Holder is entitled to give or take under the Indenture.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument
or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of Holders signing such
instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section.
(b) The
fact and date of the execution by any person of any such instrument or writing may be proved by the affidavit of a witness of such execution
or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to such officer the execution thereof. Where such execution is by a signer acting in a
capacity other than such signer’s individual capacity, such certificate or affidavit shall also constitute sufficient proof of such
signer’s authority. The fact and date of the execution of any such instrument or writing, or the authority of the person executing
the same, may also be proved in any other manner which the Trustee deems sufficient.
(c) The
ownership of Global Securities or any Securities issued in certificated form shall be proved by the Registrar.
(d) Any
request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the holder of every Security issued upon the registration of transfer thereof or in exchange therefor
or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether
or not notation of such action is made upon such Security.
(e) If
the Company shall solicit from the Holders any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company
may, at its option, by or pursuant to a Board Resolution, fix in advance a record date for the determination of Holders entitled to give
such request, demand, authorization, direction, notice, consent, waiver or other Act, 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 Act may be given before
or after such record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders for
the purposes of determining whether Holders of the requisite proportion of Outstanding Securities have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities
shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders on such 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.
2.14.5 Payments.
Notwithstanding the other provisions of this Indenture, unless otherwise specified as contemplated by Section 2.2, payment
of the principal of and interest, if any, on any Global Security shall be made to the Holder thereof.
2.14.6 Consents,
Declaration and Directions. The Company, the Trustee and any Agent shall treat a person as the Holder of such principal amount of
outstanding Securities of such Series represented by a Global Security as shall be specified in a written statement of the Depositary
or by the applicable procedures of such Depositary with respect to such Global Security, for purposes of obtaining any consents, declarations,
waivers or directions required to be given by the Holders pursuant to this Indenture.
2.15 CUSIP
Numbers. The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee
shall use “CUSIP” numbers in notices of redemption as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice
of a redemption and that reliance may be placed only on the other elements of identification printed on the Securities, and any such redemption
shall not be affected by any defect in or omission of such numbers. The Company shall promptly notify the Trustee of any change that the
Company is aware of in the CUSIP numbers.
Article III
Redemption
3.1 Notice
to Trustee. The Company may, with respect to any Series of Securities, reserve the right to redeem and pay the Series of
Securities or may covenant to redeem and pay the Series of Securities or any part thereof prior to the Stated Maturity thereof at
such time and on such terms as provided for in such Securities. If a Series of Securities is redeemable and the Company wants or
is obligated to redeem prior to the Stated Maturity thereof all or part of the Series of Securities pursuant to the terms of such
Securities, it shall notify the Trustee in writing of the redemption date and the principal amount of Series of Securities to be
redeemed. The Company shall give the notice at least 5 days before the notice is delivered to the Holders, unless a shorter period is
satisfactory to the Trustee.
3.2 Selection
of Securities to be Redeemed. Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental indenture
hereto or an Officer’s Certificate, if less than all the Securities of a Series are to be redeemed, the Securities of the Series to
be redeemed will be selected as follows: (a) if the Securities are in the form of Global Securities, in accordance with the procedures
of the Depositary, (b) if the Securities are listed on any national securities exchange, in compliance with the requirements of the
principal national securities exchange, if any, on which the Securities are listed, or (c) if not otherwise provided for under clause
(a) or (b), in the manner that the Trustee deems fair and appropriate, including pro rata, by lot or other method, unless
otherwise required by law or applicable stock exchange requirements, subject, in the case of Global Securities, to the applicable rules and
procedures of the Depositary. The Securities to be redeemed shall be selected from Securities of the Series outstanding not previously
called for redemption. Portions of the principal of Securities of the Series that have denominations larger than $1,000 may be selected
for redemption. Securities of the Series and portions of such securities it selected for redemption shall be in amounts of $1,000
or whole multiples of $1,000 or, with respect to Securities of any Series issuable in other denominations pursuant to Section 2.2.10,
the minimum principal denomination for each Series and the authorized integral multiples thereof. Provisions of this Indenture that
apply to Securities of a Series called for redemption also apply to portions of Securities of that Series called for redemption.
3.3 Notice
of Redemption. Unless otherwise indicated for a particular Series by Board Resolution, a supplemental indenture hereto or an
Officer’s Certificate, at least 15 days but not more than 60 days before a redemption date, the Company shall send or cause to be
sent by first-class mail or electronically, in accordance with the procedures of the Depositary, a notice of redemption to each Holder
whose Securities are to be redeemed.
The notice shall identify
the Securities of the Series to be redeemed and shall state:
(a) the
redemption date;
(b) the
redemption price (or manner of calculation if not then known);
(c) the
name and address of the Paying Agent;
(d) if
any Securities are being redeemed in part, the portion of the principal amount of such Securities to be redeemed and that, after the redemption
date and upon surrender of such Security, a new Security or Securities in principal amount equal to the unredeemed portion of the original
Security shall be issued in the name of the Holder thereof upon cancellation of the original Security;
(e) that
Securities of the Series called for redemption must be surrendered to the Paying Agent to collect the redemption price;
(f) that
interest on Securities of the Series called for redemption ceases to accrue on and after the redemption date unless the Company defaults
in the deposit of the redemption price;
(g) the
CUSIP number, if any; and
(h) any
other information as may be required by the terms of the particular Series or the Securities of a Series being redeemed.
At the Company’s request,
the Trustee shall give the notice of redemption in the Company’s name and at its expense, provided, however, that
the Company has delivered to the Trustee, at least 5 days (unless a shorter time shall be acceptable to the Trustee) prior to the notice
date, an Officer’s Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such
notice.
3.4 Effect
of Notice of Redemption. Once notice of redemption is sent as provided in Section 3.3, Securities of a Series called
for redemption become due and payable on the redemption date and at the redemption price. Except as otherwise provided in the supplemental
indenture, Board Resolution or Officer’s Certificate for a Series, a notice of redemption may not be conditional. Upon surrender
to the Paying Agent, such Securities shall be paid at the redemption price plus accrued interest to the redemption date.
3.5 Deposit
of Redemption Price. On or before 11:00 a.m., New York City time, on the redemption date, the Company shall irrevocably deposit with
the Paying Agent money sufficient (as determined by the Company) to pay the redemption price of and accrued interest, if any, on all Securities
to be redeemed on that date.
3.6 Securities
Redeemed in Part. Upon surrender of a Security that is redeemed in part, the Trustee shall authenticate for the Holder a new Security
of the same Series and the same maturity equal in principal amount to the unredeemed portion of the Security surrendered.
Article IV
Covenants
4.1 Payment
of Principal and Interest. The Company covenants and agrees for the benefit of the Holders of each Series of Securities that
it will duly and punctually pay the principal of and interest, if any, on the Securities of that Series in accordance with the terms
of such Securities and this Indenture. On or before 11:00 a.m., New York City time, on the applicable payment date, the Company shall
deposit with the Paying Agent money sufficient to pay the principal of and interest, if any, on the Securities of each Series in
accordance with the terms of such Securities and this Indenture.
4.2 SEC
Reports. To the extent any Securities of a Series are outstanding, the Company shall deliver to the Trustee 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 SEC may by rules and
regulations prescribe) which the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act
within 15 days after it files such information, documents and reports with the SEC. The Company also shall comply with the other provisions
of TIA § 314(a). Reports, information and documents filed with the SEC via the EDGAR system (or any successor system thereto) will
be deemed to be delivered to the Trustee as of the time of such filing via EDGAR for purposes of this Section 4.2, it being
understood that the Trustee shall have no responsibility whatsoever to determine if such filings have been made, and that the Trustee
shall not be deemed to have knowledge of the information contained therein.
Delivery of reports, information
and documents to the Trustee under this Section 4.2 are for informational purposes only and the Trustee’s receipt of
the foregoing shall not constitute constructive or actual notice of any information contained therein or determinable from information
contained therein, including the Company’s compliance with any of their covenants hereunder (as to which the Trustee is entitled
to rely exclusively on Officer’s Certificates).
4.3 Compliance
Certificate. To the extent any Securities of a Series are outstanding, the Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company, an Officer’s Certificate stating that a review of the activities of the Company
and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining
whether the Company has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to each
such Officer signing such certificate, that to the best of his/her knowledge the Company has kept, observed, performed and fulfilled each
and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions
and conditions hereof (or, if a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default of
which the Officer may have knowledge).
4.4 Stay,
Extension and Usury Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or
at any time hereafter in force, which may affect the covenants or the performance of this Indenture or the Securities; and the Company
(to the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not,
by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law has been enacted.
Article V
Successors
5.1 When
Company May Merge, Etc. The Company shall not consolidate with or merge with or into, or convey, transfer or lease all or substantially
all of its properties and assets to, any person (a “successor person”) unless:
(a) the
Company is the surviving corporation or the successor person (if other than the Company) is a corporation organized and validly existing
under the laws of any U.S. domestic jurisdiction and expressly assumes, by a supplemental indenture, executed and delivered to the Trustee,
the Company’s obligations on the Securities and under this Indenture; and
(b) immediately
after giving effect to the transaction, no Default or Event of Default, shall have occurred and be continuing.
Where the Company is not the
surviving corporation, the Company shall deliver to the Trustee prior to the consummation of the proposed transaction an Officer’s
Certificate to the foregoing effect and an Opinion of Counsel stating that the proposed transaction and any supplemental indenture comply
with this Indenture.
Notwithstanding the above,
any Subsidiary of the Company may consolidate with, merge into or transfer all or part of its properties to the Company. Neither an Officer’s
Certificate nor an Opinion of Counsel shall be required to be delivered in connection therewith.
5.2 Successor
Corporation Substituted. Upon any consolidation or merger, or any sale, lease, conveyance or other disposition of all or substantially
all of the assets of the Company in accordance with Section 5.1, the successor corporation formed by such consolidation or
into or with which the Company is merged or to which such sale, lease, conveyance or other disposition is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor
person has been named as the Company herein; provided, however, that the predecessor Company in the case of a sale, conveyance
or other disposition (other than a lease) shall be released from all obligations and covenants under this Indenture and the Securities.
Article VI
Defaults
and Remedies
6.1 Events
of Default. “Event of Default”, wherever used herein with respect to Securities of any Series, means any one of
the following events, unless in the establishing Board Resolution, supplemental indenture or Officer’s Certificate, it is provided
that such Series shall not have the benefit of said Event of Default:
(a) default
in the payment of any interest on any Security of that Series when it becomes due and payable, and continuance of such default for
a period of 30 days (unless the entire amount of such payment is deposited by the Company with the Trustee or with a Paying Agent prior
to 11:00 a.m., New York City time, on the 30th day of such period); or
(b) default
in the payment of principal of any Security of that Series at its Maturity; or
(c) default
in the performance or breach of any covenant or warranty of the Company in this Indenture (other than defaults pursuant to paragraphs
(a) or (b) above or pursuant to a covenant or warranty that has been included in this Indenture solely for the benefit of Series of
Securities other than that Series), which default continues uncured for a period of 60 days after there has been given, by registered
or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount
of the outstanding Securities of that Series a written notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a “Notice of Default” hereunder; or
(d) 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, (iv) makes a general assignment for the benefit of its creditors, or (v) generally is unable to pay its
debts as the same become due; or
(e) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (i) is for relief against the Company in
an involuntary case, (ii) appoints a Custodian of the Company or for all or substantially all of its property, or (iii) orders
the liquidation of the Company, and the order or decree remains unstayed and in effect for 60 days; or
(f) any
other Event of Default provided with respect to Securities of that Series, which is specified in a Board Resolution, a supplemental indenture
hereto or an Officer’s Certificate, in accordance with Section 2.2.18.
The term “Bankruptcy
Law” means title 11, U.S. Code or any similar U.S. Federal or State law for the relief of debtors. The term “Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
The Company will provide the
Trustee written notice of any Default or Event of Default within 30 days of becoming aware of the occurrence of such Default or Event
of Default, which notice will describe in reasonable detail the status of such Default or Event of Default and what action the Company
is taking or proposes to take in respect thereof.
6.2 Acceleration
of Maturity; Rescission and Annulment. If an Event of Default with respect to Securities of any Series at the time outstanding
occurs and is continuing (other than an Event of Default referred to in Section 6.1(d) or (e)), then in every
such case, the Trustee or the Holders of not less than 25% in principal amount of the outstanding Securities of that Series may declare
the principal amount (or, if any Securities of that Series are Discount Securities, such portion of the principal amount as may be
specified in the terms of such Securities) of and accrued and unpaid interest, if any, on all of the Securities of that Series to
be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders) and, upon any such declaration,
such principal amount (or specified amount) and accrued and unpaid interest, if any, shall become immediately due and payable. If an Event
of Default specified in Section 6.1(d) or (e) shall occur, the principal amount (or specified amount) of
and accrued and unpaid interest, if any, on all outstanding Securities shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder.
At any time after such a declaration
of acceleration with respect to any Series has been made and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the outstanding Securities
of that Series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if all Events
of Default with respect to Securities of that Series, other than the non-payment of the principal and interest, if any, of Securities
of that Series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 6.13.
No such rescission shall affect
any subsequent Default or impair any right consequent thereon.
6.3 Collection
of Indebtedness and Suits for Enforcement by Trustee. The Company covenants that if
(a) default
is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period
of 30 days, or
(b) default
is made in the payment of principal of any Security at the Maturity thereof, or
(c) default
is made in the deposit of any sinking fund payment, if any, when and as due by the terms of a Security,
then, the Company will, upon demand of
the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for
principal and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal
and any overdue interest at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the compensation, reasonable expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay
such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding
for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against
the Company or any other obligor upon such Securities and collect the moneys adjudged or deemed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with
respect to any Securities of any Series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such Series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
6.4 Trustee
May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property
of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall
then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any
demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise, (a) to file and prove a claim for the whole amount of principal and interest owing and unpaid in respect of the Securities
and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any
claim for the compensation, reasonable expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding, and (b) to collect and receive any moneys or other property payable or deliverable on any such
claims and to distribute the same, and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the compensation, reasonable
expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.7.
Nothing herein contained shall
be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
6.5 Trustee
May Enforce Claims Without Possession of Securities. All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the compensation, reasonable expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has
been recovered.
6.6 Application
of Money Collected. Any money or property collected by the Trustee pursuant to this Article shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the distribution of such money or property on account of principal or
interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof
if fully paid:
First: To the payment
of all amounts due the Trustee under Section 7.7; and
Second: To the payment
of the amounts then due and unpaid for principal of and interest on the Securities in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities
for principal and interest, respectively; and
Third: To the Company.
6.7 Limitation
on Suits. No Holder of any Security of any Series shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
(a) such
Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that Series;
(b) the
Holders of not less than 25% in principal amount of the outstanding Securities of that Series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(c) such
Holder or Holders have offered to the Trustee indemnity or security satisfactory to the Trustee against the costs, expenses and liabilities
which might be incurred by the Trustee in compliance with such request;
(d) the
Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(e) no
direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the outstanding Securities of that Series;
it being understood, intended and expressly covenanted
by the Holder of every Security with every other Holder and the Trustee that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other
of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders of the applicable Series.
6.8 Unconditional
Right of Holders to Receive Principal and Interest. Notwithstanding any other provision in this Indenture, the Holder of any Security
shall have the right, which is absolute and unconditional, to receive payment of the principal of and interest, if any, on such Security
on the Maturity of such Security, including the Stated Maturity expressed in such Security (or, in the case of redemption, on the redemption
date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such
Holder.
6.9 Restoration
of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder,
then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.
6.10 Rights
and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities in Section 2.8, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion
or employment of any right or remedy hereunder, or otherwise, shall not, to the extent permitted by law, prevent the concurrent assertion
or employment of any other appropriate right or remedy.
6.11 Delay
or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing
upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
6.12 Control
by Holders. The Holders of a majority in principal amount of the outstanding Securities of any Series shall have the right to
direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, with respect to the Securities of such Series, provided that, (a) such direction shall not be in
conflict with any rule of law or with this Indenture, (b) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, (c) subject to the provisions of Section 7.1, the Trustee shall have the
right to decline to follow any such direction if the Trustee in good faith shall, by a Responsible Officer of the Trustee, determine that
the proceeding so directed would involve the Trustee in personal liability, and prior to taking any action as directed under this Section 6.12,
the Trustee shall be entitled to indemnity satisfactory to it against the losses, costs, expenses and liabilities which might be incurred
by it in compliance with such request or direction.
6.13 Waiver
of Past Defaults. The Holders of not less than a majority in principal amount of the outstanding Securities of any Series may
on behalf of the Holders of all the Securities of such Series, by written notice to the Trustee and the Company, waive any past Default
hereunder with respect to such Series and its consequences, except a Default in the payment of the principal of or interest on any
Security of such Series (provided, however, that the Holders of a majority in principal amount of the outstanding Securities
of any Series may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration).
Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent
thereon.
6.14 Undertaking
for Costs. All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable
attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Company, to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the outstanding Securities of any Series, or to any suit instituted by any Holder for the enforcement of the payment of the
principal of or interest on any Security on or after the Maturity of such Security, including the Stated Maturity expressed in such Security
(or, in the case of redemption, on the redemption date).
Article VII
Trustee
7.1 Duties
of Trustee.
(a) If
an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct
of such person’s own affairs.
(b) Except
during the continuance of an Event of Default:
(i) The
Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations
shall be read into this Indenture against the Trustee.
(ii) In
the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon Officer’s Certificates or Opinions of Counsel furnished to the Trustee and conforming to the requirements
of this Indenture; however, in the case of any such Officer’s Certificates or Opinions of Counsel which by any provisions
hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such Officer’s Certificates and Opinions
of Counsel to determine whether or not they conform to the form requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein).
(c) The
Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct,
except that:
(i) This
paragraph does not limit the effect of paragraph (b) of this Section.
(ii) The
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved in a court of competent
jurisdiction that the Trustee was negligent in ascertaining the pertinent facts.
(iii) The
Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it with respect to Securities of any
Series in good faith in accordance with the direction of the Holders of a majority in principal amount of the outstanding Securities
of such Series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such Series in accordance with
Section 6.12.
(d) Every
provision of this Indenture that in any way relates to the Trustee is subject to paragraph (a), (b) and (c) of this Section.
(e) The
Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against the losses,
costs, expenses and liabilities which might be incurred by it in performing such duty or exercising such right or power.
(f) The
Trustee shall not be liable for interest or investment on any money received by it except as the Trustee may agree in writing with the
Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
(g) No
provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties, or in the exercise of any of its rights or powers.
(h) The
Paying Agent, the Registrar and any authenticating agent shall be entitled to the protections and immunities as are set forth in paragraphs
(e), (f) and (g) of this Section and in Section 7.2, each with respect to the Trustee.
7.2 Rights
of Trustee.
(a) The
Trustee may conclusively rely on and shall be protected in acting or refraining from acting upon any document (whether in its original
or facsimile form) believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate
any fact or matter stated in the document.
(b) Before
the Trustee acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion
of Counsel.
(c) The
Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any attorney or agent
appointed with due care. No Depositary shall be deemed an agent of the Trustee and the Trustee shall not be responsible for any act or
omission by any Depositary.
(d) The
Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights
or powers, provided that the Trustee’s conduct does not constitute willful misconduct or negligence.
(e) The
Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder without willful misconduct or negligence, and in reliance
thereon.
(f) The
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities unless such Holders shall have offered (and, if requested, provided) to the Trustee security or indemnity
satisfactory to it against the losses, costs, expenses and liabilities which might be incurred by it in compliance with such request or
direction.
(g) The
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit.
(h) The
Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office
of the Trustee, and such notice references the existence of a Default or Event of Default, the Securities generally or the Securities
of a particular Series and this Indenture.
(i) In
no event shall the Trustee be responsible or liable to any person for special, punitive, indirect, consequential or incidental loss or
damage of any kind whatsoever (including but not limited to lost profits), even if the Trustee has been advised of the likelihood of such
loss or damage and regardless of the form of action.
(j) The
permissive right of the Trustee to take the actions permitted by this Indenture shall not be construed as an obligation or duty to do
so.
(k) No
bond or surety shall be required with respect to performance of Trustee’s duties and powers.
(l) Under
no circumstances shall the Trustee be liable in its individual capacity for the obligations evidenced by the Securities.
(m) Any
request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Order and any resolution of the Board
of Directors may be sufficiently evidenced by a Board Resolution.
(n) The
Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized
at such time to take specified actions pursuant to this Indenture.
(o) The
rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other person
employed to act hereunder.
7.3 Individual
Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise
deal with the Company or an Affiliate of the Company with the same rights it would have if it were not Trustee. Any Agent may do the same
with like rights. The Trustee is also subject to Sections 7.10 and 7.11.
7.4 Trustee’s
Disclaimer. The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture
or the Securities; the Trustee shall not be accountable for the Company’s use of the proceeds from the Securities, or any money
paid to the Company or upon the Company’s direction under any provision of this Indenture; the Trustee shall not be responsible
for the use or application of any money received by any Paying Agent other than the Trustee; and the Trustee shall not be responsible
for any statement herein or in the Securities or any other document in connection with the sale of the Securities other than its authentication.
The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the
statements of the Company, and the Trustee or any Authenticating Agent assumes no responsibility for their correctness.
7.5 Notice
of Defaults. If a Default or Event of Default occurs and is continuing with respect to the Securities of any Series and if it
is actually known to a Responsible Officer of the Trustee, the Trustee shall send to each Securityholder of the Securities of that Series notice
of a Default or Event of Default within 90 days after it occurs or, if later, after a Responsible Officer of the Trustee has knowledge
of such Default or Event of Default. Except in the case of a Default or Event of Default in payment of principal of or interest on any
Security of any Series, the Trustee may withhold the notice if and so long as it in good faith determines that withholding the notice
is in the interests of Securityholders of that Series.
7.6 Reports
by Trustee to Holders. Within 60 days after each [●], commencing [●], 20[●], the Trustee shall transmit by mail
to all Securityholders, as their names and addresses appear on the register kept by the Registrar, a brief report dated as of such anniversary
date, in accordance with, and to the extent required under, TIA § 313.
A copy of each report at the
time of its sending to Securityholders of any Series shall be filed with the SEC and each national securities exchange on which the
Securities of that Series are listed. The Company shall promptly notify the Trustee in writing when Securities of any Series are
listed on any national securities exchange or delisted from any national securities exchange.
7.7 Compensation
and Indemnity. The Company shall pay to the Trustee from time to time compensation for its services as the Company and the Trustee
shall from time to time agree upon in writing. The Trustee’s compensation shall not be limited by any law on compensation of a trustee
of an express trust. The Company shall reimburse the Trustee upon request for all reasonable out of pocket expenses incurred by it. Such
expenses shall include the reasonable compensation and expenses of the Trustee’s agents and counsel.
The Company shall indemnify
each of the Trustee and any predecessor Trustee (including for the cost of defending itself) against any cost, damages, losses, expense
or liability, including taxes (other than taxes based upon, measured by or determined by the income of the Trustee) incurred by it except
as set forth in the next paragraph in the performance of its duties under this Indenture or in connection with its acceptance of its obligations
hereunder, as Trustee or Agent. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. Failure by
the Trustee to so notify the Company shall not relieve the Company of its obligations hereunder, unless and to the extent that the Company
is materially prejudiced thereby. The Company shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement
made without its consent, which consent will not be unreasonably withheld. This indemnification shall apply to officers, directors, employees,
shareholders and agents of the Trustee.
The Company need not reimburse
any expense or indemnify against any loss or liability incurred by the Trustee or by any officer, director, employee, shareholder or agent
of the Trustee through willful misconduct or negligence, as finally adjudicated by a court of competent jurisdiction.
To secure the Company’s
payment obligations in this Section, the Trustee shall have a lien prior to the Securities of any Series on all money or property
held or collected by the Trustee, except that held in trust to pay principal of and interest on particular Securities of that Series.
When the Trustee incurs expenses
or renders services after an Event of Default specified in Section 6.1(d) or (e) occurs, the expenses and
the compensation for the services are intended to constitute expenses of administration under any Bankruptcy Law.
The provisions of this Section shall
survive the termination of this Indenture or the resignation or removal of the Trustee.
7.8 Replacement
of Trustee. A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor
Trustee’s acceptance of appointment as provided in this Section.
The Trustee may resign with
respect to the Securities of one or more Series by so notifying the Company at least 30 days prior to the date of the proposed resignation.
The Holders of a majority in principal amount of the Securities of any Series may remove the Trustee with respect to that Series by
so notifying the Trustee and the Company in writing at least 30 days prior to such removal. The Company may remove the Trustee with respect
to Securities of one or more Series with at least 30 days written notice if:
(a) the
Trustee fails to comply with Section 7.10;
(b) the
Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a
Custodian or public officer takes charge of the Trustee or its property; or
(d) the
Trustee becomes incapable of acting.
If the Trustee resigns or
is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. Within
one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then-outstanding Securities may
appoint a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee with
respect to the Securities of any one or more Series does not take office within 60 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company or the Holders of at least a majority in principal amount of the Securities of the applicable
Series may petition any court of competent jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall
deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Promptly after such acceptance, the retiring
Trustee shall transfer all property held by it as Trustee to the successor Trustee subject to the lien provided for in Section 7.7,
the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers
and duties of the Trustee with respect to each Series of Securities for which it is acting as Trustee under this Indenture. A successor
Trustee shall send a notice of its succession to each Securityholder of each such Series. Notwithstanding replacement of the Trustee pursuant
to this Section 7.8, the Company’s obligations under Section 7.7 hereof shall continue for the benefit of
the retiring Trustee with respect to expenses and liabilities incurred by it for actions taken or omitted to be taken in accordance with
its rights, powers and duties under this Indenture prior to such replacement.
7.9 Successor
Trustee by Merger, Etc. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate
trust business to, another corporation, or national banking association, the successor corporation or national banking association without
any further act shall be the successor Trustee, subject to Section 7.10.
7.10 Eligibility;
Disqualification. This Indenture always shall have a Trustee who satisfies the requirements of TIA § 310(a) (1), (2) and
(5). The Trustee always shall have a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual
report of condition. The Trustee shall comply with TIA § 310(b).
7.11 Preferential
Collection of Claims Against Company. The Trustee is subject to TIA § 311(a), excluding any creditor relationship listed in TIA
§ 311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated.
Article VIII
Satisfaction
and Discharge; Defeasance
8.1 Satisfaction
and Discharge of Indenture. This Indenture shall upon Company Order be discharged with respect to the Securities of any
Series and cease to be of further effect as to all Securities of such Series (except as hereinafter provided in this Section
8.1), and the Trustee, at the expense of the Company, shall execute instruments acknowledging satisfaction and discharge of
this Indenture, when
(a) either
(i) all
Securities of such Series theretofore authenticated and delivered (other than Securities that have been destroyed, lost or stolen
and that have been replaced or paid) have been delivered to the Trustee for cancellation; or
(ii) all
such Securities of such Series not theretofore delivered to the Trustee for cancellation
(1) have
become due and payable by reason of sending a notice of redemption or otherwise, or
(2) will
become due and payable at their Stated Maturity within one year, or
(3) have
been called for redemption or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the expense, of the Company, or
(4) are
deemed paid and discharged pursuant to Section 8.3, as applicable;
and the Company, in the case of (1), (2) or
(3) above, shall have irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust an amount of money
or U.S. Government Obligations, which amount shall be sufficient (as determined by the Company) for the purpose of paying and discharging
each installment of principal (including mandatory sinking fund or analogous payments) of and interest on all the Securities of such Series on
the dates such installments of principal or interest are due;
(b) the
Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(c) the
Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the satisfaction and discharge contemplated by this Section have been complied with.
Notwithstanding the satisfaction
and discharge of this Indenture, the obligations of the Company to the Trustee under Section 7.7, and, if money shall have
been deposited with the Trustee pursuant to clause (a) of this Section, the provisions of Sections 2.4, 2.7, 2.8,
8.2 and 8.5 shall survive.
8.2 Application
of Trust Funds; Indemnification.
(a) Subject
to the provisions of Section 8.5, all money and U.S. Government Obligations or Foreign Government Obligations deposited with
the Trustee pursuant to Section 8.1, 8.3 or 8.4 and all money received by the Trustee in respect of U.S. Government
Obligations or Foreign Government Obligations deposited with the Trustee pursuant to Section 8.1, 8.3 or 8.4,
shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the persons
entitled thereto, of the principal and interest for whose payment such money has been deposited with or received by the Trustee or to
make mandatory sinking fund payments or analogous payments as contemplated by Sections 8.1, 8.3 or 8.4.
(b) The
Company shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against U.S. Government
Obligations or Foreign Government Obligations deposited pursuant to Sections 8.1, 8.3 or 8.4 or the interest and
principal received in respect of such obligations other than any payable by or on behalf of Holders.
(c) The
Trustee shall deliver or pay to the Company from time to time upon Company Order any U.S. Government Obligations or Foreign Government
Obligations or money held by it as provided in Sections 8.3 or 8.4 which, in the opinion of a nationally recognized firm
of independent certified public accountants or investment bank expressed in a written certification thereof delivered to the Trustee,
are then in excess of the amount thereof which then would have been required to be deposited for the purpose for which such U.S. Government
Obligations or Foreign Government Obligations or money were deposited or received. This provision shall not authorize the sale by the
Trustee of any U.S. Government Obligations or Foreign Government Obligations held under this Indenture.
8.3 Legal
Defeasance of Securities of any Series. Unless this Section 8.3 is otherwise specified, pursuant to Section 2.2,
to be inapplicable to Securities of any Series, the Company shall be deemed to have paid and discharged the entire indebtedness on all
the outstanding Securities of any Series on the 91st day after the date of the deposit referred to in subparagraph (d) hereof,
and the provisions of this Indenture, as it relates to such outstanding Securities of such Series, shall no longer be in effect (and the
Trustee, at the expense of the Company, shall, upon receipt of a Company Order, execute instruments acknowledging the same), except as
to:
(a) the
rights of Holders of Securities of such Series to receive, from the trust funds described in subparagraph (d) hereof, (i) payment
of the principal of and each installment of principal of and interest on the outstanding Securities of such Series on the Maturity
of such principal or installment of principal or interest and (ii) the benefit of any mandatory sinking fund payments applicable
to the Securities of such Series on the day on which such payments are due and payable in accordance with the terms of this Indenture
and the Securities of such Series;
(b) the
provisions of Sections 2.4, 2.5, 2.7, 2.8, 7.7, 8.2, 8.3, 8.5 and 8.6;
and
(c) the
rights, powers, trusts and immunities of the Trustee hereunder and the Company’s obligations in connection therewith;
provided that, the following conditions
shall have been satisfied:
(d) the
Company shall have irrevocably deposited or caused to be deposited (except as provided in Section 8.2(c)) with the Trustee
as trust funds specifically pledged as security for and dedicated solely to the benefit of the Holders of such Securities (i) in
the case of Securities of such Series denominated in Dollars, cash in Dollars and/or U.S. Government Obligations, or (ii) in
the case of Securities of such Series denominated in a Foreign Currency (other than a composite currency), money and/or Foreign Government
Obligations, which through the payment of interest and principal in respect thereof in accordance with their terms, will provide (and
without reinvestment and assuming no tax liability will be imposed on such Trustee), not later than one day before the due date of any
payment of money, an amount in cash, sufficient, in the opinion of a nationally recognized firm of independent public accountants or investment
bank expressed in a written certification thereof delivered to the Trustee, to pay and discharge each installment of principal of and
interest, on and any mandatory sinking fund payments in respect of all the Securities of such Series on the dates such installments
of principal or interest and such sinking fund payments are due;
(e) such
deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound;
(f) no
Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such
deposit or during the period ending on the 91st day after such date;
(g) the
Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel to the effect that (i) the Company
has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii) since the date of execution of
this Indenture, there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon
such Opinion of Counsel shall confirm that, the Holders of the Securities of such Series will not recognize income, gain or loss
for Federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to Federal income tax on the
same amount and in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not
occurred;
(h) the
Company shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company with the
intent of defeating, hindering, delaying or defrauding any other creditors of the Company; and
(i) the
Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this Section have been complied with.
8.4 Covenant
Defeasance. Unless this Section 8.4 is otherwise specified pursuant to Section 2.2 to be inapplicable to Securities
of any Series, the Company may omit to comply with respect to the Securities of any Series with any term, provision or condition
set forth under Sections 4.2, 4.3, 4.4 and 5.1 and, unless otherwise specified therein, any additional covenants
specified in a supplemental indenture for such Series of Securities or a Board Resolution or an Officer’s Certificate delivered
pursuant to Section 2.2 (and the failure to comply with any such covenants shall not constitute a Default or Event of Default
with respect to such Series under Section 6.1) and the occurrence of any event specified in a supplemental indenture
for such Series of Securities or a Board Resolution or an Officer’s Certificate delivered pursuant to Section 2.2.18
and designated as an Event of Default shall not constitute a Default or Event of Default hereunder, with respect to the Securities of
such Series, but, except as specified above, the remainder of this Indenture and such Securities will be unaffected thereby; provided
that the following conditions shall have been satisfied:
(a) with
reference to this Section 8.4, the Company has irrevocably deposited or caused to be irrevocably deposited (except as provided
in Section 8.2(c)) with the Trustee as trust funds in trust for the purpose of making the following payments specifically
pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities (i) in the case of Securities of
such Series denominated in Dollars, cash in Dollars and/or U.S. Government Obligations, or (ii) in the case of Securities of
such Series denominated in a Foreign Currency (other than a composite currency), money and/or Foreign Government Obligations, which
through the payment of interest and principal in respect thereof in accordance with their terms, will provide (and without reinvestment
and assuming no tax liability will be imposed on such Trustee), not later than one day before the due date of any payment of money, an
amount in cash, sufficient, in the opinion of a nationally recognized firm of independent certified public accountants or investment bank
expressed in a written certification thereof delivered to the Trustee, to pay and discharge each installment of principal (including mandatory
sinking fund or analogous payments) of and interest on all the Securities of such Series on the dates such installments of principal
or interest are due;
(b) such
deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound;
(c) no
Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such
deposit;
(d) the
Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel to the effect that (i) the Company
has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii) since the date of execution of
this Indenture, there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon
such Opinion of Counsel shall confirm, subject to customary exclusions, the Holders of the Securities of such Series will not recognize
income, gain or loss for Federal income tax purposes as a result of such deposit, covenant defeasance and discharge and will be subject
to Federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit, covenant
defeasance and discharge had not occurred;
(e) the
Company shall have delivered to the Trustee an Officer’s Certificate stating the deposit was not made by the Company with the intent
of defeating, hindering, delaying or defrauding any other creditors of the Company; and
(f) the
Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the covenant defeasance contemplated by this Section have been complied with.
8.5 Repayment
to Company. Subject to applicable abandoned property law, the Trustee and the Paying Agent shall pay to the Company upon request any
money held by them for the payment of principal and interest that remains unclaimed for two years. After that, Securityholders entitled
to the money must look to the Company for payment as general creditors unless an applicable abandoned property law designates another
person, and the Trustee shall have no further liability with respect to such money.
8.6 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money deposited with respect to Securities of any Series in accordance
with Section 8.1 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the obligations of the Company under this Indenture with respect to
the Securities of such Series and under the Securities of such Series shall be revived and reinstated as though no deposit had
occurred pursuant to Section 8.1 until such time as the Trustee or the Paying Agent is permitted to apply all such money in
accordance with Section 8.1; provided, however, that if the Company has made any payment of principal of or
interest on or any Additional Amounts with respect to any Securities because of the reinstatement of its obligations, the Company shall
be subrogated to the rights of the Holders of such Securities to receive such payment from the money or U.S. Government Obligations held
by the Trustee or Paying Agent after payment in full to the Holders.
Article IX
Amendments
and Waivers
9.1 Without
Consent of Holders. The Company and the Trustee may amend or supplement this Indenture or the Securities of one or more Series without
the consent of any Securityholder:
(a) to
cure any ambiguity, defect or inconsistency as evidenced by an Officer’s Certificate;
(b) to
comply with Article V;
(c) to
provide for uncertificated Securities in addition to or in place of certificated Securities;
(d) to
add guarantees with respect to Securities of any Series or secure Securities of any Series;
(e) to
surrender any of the Company’s rights or powers under this Indenture;
(f) to
add covenants or events of default for the benefit of the holders of Securities of any Series;
(g) to
comply with the applicable procedures of the applicable depositary;
(h) to
make any change that does not adversely affect the rights of any Securityholder;
(i) to
provide for the issuance of and establish the form and terms and conditions of Securities of any Series as permitted by this Indenture;
(j) to
evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more
Series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee;
(k) to
comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA;
(l) to
add to, change or eliminate any provision of this Indenture or the Securities of such Series in accordance with the TIA, or to comply
with the provisions of DTC, Euroclear or Clearstream or the Trustee with respect to provisions of this Indenture or the Securities of
such Series relating to transfers or exchanges of the Securities of such Series or beneficial interests in the Securities of
such Series; or
(m) to
conform any provision of this Indenture, insofar as it relates to the Securities of such Series, to the description of the Securities
of such Series in the prospectus supplement relating to the offering of the Securities of such Series.
9.2 With
Consent of Holders. The Company and the Trustee may enter into a supplemental indenture with the written consent of the Holders of
at least a majority in aggregate principal amount of the outstanding Securities of each Series affected by such supplemental indenture
(including consents obtained in connection with a tender offer or exchange offer for the Securities of such Series), for the purpose of
adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture
or of modifying in any manner the rights of the Securityholders of each such Series. Except as provided in Section 6.13, the
Holders of at least a majority in aggregate principal amount of the outstanding Securities of any Series by notice to the Trustee
(including consents obtained in connection with a tender offer or exchange offer for the Securities of such Series) may waive compliance
by the Company with any provision of this Indenture or the Securities with respect to such Series.
It shall not be necessary
for the consent of the Holders of Securities under this Section 9.2 to approve the particular form of any proposed supplemental
indenture or waiver, but it shall be sufficient if such consent approves the substance thereof. After a supplemental indenture or waiver
under this Section becomes effective, the Company shall send to the Holders of Securities affected thereby, a notice briefly describing
the supplemental indenture or waiver. Any failure by the Company to send such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture or waiver.
9.3 Limitations.
Without the consent of each Securityholder affected, an amendment or waiver may not:
(a) reduce
the principal amount of Securities whose Holders must consent to an amendment, supplement or waiver;
(b) reduce
the rate of or extend the time for payment of interest (including default interest) on any Security;
(c) reduce
the principal or change the Stated Maturity of any Security or reduce the amount of, or postpone the date fixed for, the payment of any
sinking fund or analogous obligation;
(d) reduce
the principal amount of Discount Securities payable upon acceleration of the maturity thereof;
(e) waive
a Default or Event of Default in the payment of the principal of or interest, if any, on any Security (except a rescission of acceleration
of the Securities of any Series by the Holders of at least a majority in principal amount of the outstanding Securities of such Series and
a waiver of the payment default that resulted from such acceleration);
(f) make
the principal of or interest, if any, on any Security payable in any currency other than that stated in the Security;
(g) make
any change in Sections 6.8, 6.13 or 9.3 (this sentence); or
(h) waive
a redemption payment with respect to any Security, provided that such redemption is made at the Company’s option.
9.4 Compliance
with Trust Indenture Act. Every amendment to this Indenture or the Securities of one or more Series shall be set forth in a supplemental
indenture hereto that complies with the TIA as then in effect.
9.5 Revocation
and Effect of Consents. Until an amendment is set forth in a supplemental indenture or a waiver becomes effective, a consent to it
by a Holder of a Security is a continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder’s Security, even if notation of the consent is not made on any Security. However,
any such Holder or subsequent Holder may revoke the consent as to his Security or portion of a Security if the Trustee receives the notice
of revocation before the date of the supplemental indenture or the date the waiver becomes effective.
Any amendment or waiver once
effective shall bind every Securityholder of each Series affected by such amendment or waiver unless it is of the type described
in any of clauses (a) through (h) of Section 9.3. In that case, the amendment or waiver shall bind each Holder of
a Security who has consented to it and every subsequent Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder’s Security.
The Company may, but shall
not be obligated to, fix a record date for the purpose of determining the Holders entitled to give their consent or take any other action
described above or required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the second
immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those
persons, shall be entitled to give such consent or to revoke any consent previously given or take any such action, whether or not such
Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 120 days after such record
date.
9.6 Notation
on or Exchange of Securities. The Company or the Trustee may place an appropriate notation about an amendment or waiver on any Security
of any Series thereafter authenticated. The Company in exchange for Securities of that Series may issue, and the Trustee shall
authenticate upon receipt of a Company Order in accordance with Section 2.3, new Securities of that Series that reflect
the amendment or waiver.
9.7 Trustee
Protected. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or
the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 7.1)
shall be fully protected in relying upon, an Officer’s Certificate or an Opinion of Counsel or both complying with Section 10.4
and stating that the supplemental indenture is authorized or permitted by this Indenture and constitutes a legal valid and binding obligation
of the Company, enforceable against it in accordance with its terms. The Trustee shall sign all supplemental indentures upon delivery
of such an Officer’s Certificate or Opinion of Counsel or both, except that the Trustee need not sign any supplemental indenture
that adversely affects its rights, duties, liabilities or immunities under this Indenture.
Article X
Miscellaneous
10.1 Trust
Indenture Act Controls. If any provision of this Indenture limits, qualifies, or conflicts with another provision which is required
or deemed to be included in this Indenture by the TIA, such required or deemed provision shall control.
10.2 Notices.
Any notice or communication by the Company or the Trustee to the other, or by a Holder to the Company or the Trustee, is duly given if
in writing and delivered in person or mailed by first-class mail (registered or certified, return receipt requested), facsimile transmission,
email or overnight air courier guaranteeing next day delivery, to the others’ address:
if to the Company:
Hallador Energy Company
1183 East Canvasback Drive
Terre Haute, Indiana 47802
Attention: [●]
with a copy to:
Willkie Farr & Gallagher
LLP
787 Seventh Avenue
New York, New York 10019
Attention: [●]
if to the Trustee:
[●]
[●]
[●]
Attention: [●]
The Company or the Trustee
by notice to the other may designate additional or different addresses for subsequent notices or communications. Any notice or communication
delivered to the Trustee shall be deemed effective upon actual receipt thereof.
Any notice or communication
to a Securityholder shall be sent electronically or by first-class mail to his address shown on the register kept by the Registrar, in
accordance with the procedures of the Depositary. Failure to send a notice or communication to a Securityholder of any Series or
any defect in it shall not affect its sufficiency with respect to other Securityholders of that or any other Series.
If a notice or communication
is sent or published in the manner provided above, within the time prescribed, it is duly given, whether or not the Securityholder receives
it.
If the Company sends a notice
or communication to Securityholders, it shall send a copy to the Trustee and each Agent at the same time.
Notwithstanding any other
provision of this Indenture or any Security, where this Indenture or any Security provides for notice of any event (including any notice
of redemption) to a Holder of a Global Security (whether by mail or otherwise), such notice shall be sufficiently given to the Depositary
for such Security (or its designee) pursuant to the customary procedures of such Depositary.
10.3 Communication
by Holders with Other Holders. Securityholders of any Series may communicate pursuant to TIA § 312(b) with other Securityholders
of that Series or any other Series with respect to their rights under this Indenture or the Securities of that Series or
all Series. The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA § 312(c).
10.4 Certificate
and Opinion as to Conditions Precedent. Upon any request or application by the Company to the Trustee to take any action under this
Indenture, the Company shall furnish to the Trustee:
(a) an
Officer’s Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an
Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with.
10.5 Statements
Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a condition or covenant provided for
in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) shall comply with the provisions of TIA §
314(e) and shall include:
(a) a
statement that the person making such certificate or opinion has read such covenant or condition;
(b) a
brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a
statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a
statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
10.6 Rules by
Trustee and Agents. The Trustee may make reasonable rules for action by or a meeting of Securityholders of one or more Series.
Any Agent may make reasonable rules and set reasonable requirements for its functions.
10.7 Legal
Holidays. A “Legal Holiday” is any day that is not a Business Day. If a payment date is a Legal Holiday at a place
of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for
the intervening period.
10.8 No
Recourse Against Others. A director, officer, employee or stockholder (past or present), as such, of the Company shall not have any
liability for any obligations of the Company under the Securities or the Indenture or for any claim based on, in respect of or by reason
of such obligations or their creation. Each Securityholder by accepting a Security waives and releases all such liability. The waiver
and release are part of the consideration for the issue of the Securities.
10.9 Counterparts.
This Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. The exchange of
copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery
of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties
hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
10.10 Governing
Law; Waiver of Jury Trial; Consent to Jurisdiction. THIS INDENTURE AND THE SECURITIES, INCLUDING ANY CLAIM OR CONTROVERSY ARISING
OUT OF OR RELATING TO THE INDENTURE OR THE SECURITIES, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. THE COMPANY, THE TRUSTEE
AND THE HOLDERS (BY THEIR ACCEPTANCE OF THE SECURITIES) EACH HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
Any legal suit, action or
proceeding arising out of or based upon this Indenture or the transactions contemplated hereby may be instituted in the federal courts
of the United States of America located in the City of New York or the courts of the State of New York, in each case located in the City
of New York (collectively, the “Specified Courts”), and each party irrevocably submits to the nonexclusive jurisdiction
of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail (to the extent allowed
under any applicable statute or rule of court) to such party’s address set forth above shall be effective service of process
for any suit, action or other proceeding brought in any such court. The Company, the Trustee and the Holders (by their acceptance of the
Securities) each hereby irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding
in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim any such suit, action or other proceeding
has been brought in an inconvenient forum.
10.11 No
Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company or a Subsidiary of the Company. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
10.12 Successors.
All agreements of the Company in this Indenture and the Securities shall bind its successor. All agreements of the Trustee in this Indenture
shall bind its successor.
10.13 Severability.
In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired thereby.
10.14 Table
of Contents, Headings, Etc. The Table of Contents, Cross Reference Table, and headings of the Articles and Sections of this Indenture
have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any
of the terms or provisions hereof.
10.15 Securities
in a Foreign Currency. Unless otherwise specified in a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate
delivered pursuant to Section 2.2 of this Indenture with respect to a particular Series of Securities, whenever for purposes
of this Indenture any action may be taken by the Holders of a specified percentage in aggregate principal amount of Securities of all
Series or all Series affected by a particular action at the time outstanding and, at such time, there are outstanding Securities
of any Series which are denominated in more than one currency, then the principal amount of Securities of such Series which
shall be deemed to be outstanding for the purpose of taking such action shall be determined by converting any such other currency into
a currency that is designated upon issuance of any particular Series of Securities. Unless otherwise specified in a Board Resolution,
a supplemental indenture hereto or an Officer’s Certificate delivered pursuant to Section 2.2 of this Indenture with
respect to a particular Series of Securities, such conversion shall be at the spot rate for the purchase of the designated currency
as published in The Financial Times in the “Currency Rates” section (or, if The Financial Times is no longer published, or
if such information is no longer available in The Financial Times, such source as may be selected in good faith by the Company) on any
date of determination. The provisions of this paragraph shall apply in determining the equivalent principal amount in respect of Securities
of a Series denominated in currency other than Dollars in connection with any action taken by Holders of Securities pursuant to the
terms of this Indenture.
All decisions and determinations
provided for in the preceding paragraph shall, in the absence of manifest error, to the extent permitted by law, be conclusive for all
purposes and irrevocably binding upon the Trustee and all Holders.
10.16 Judgment
Currency. The Company agrees, to the fullest extent that it may effectively do so under applicable law, that (a) if for the purpose
of obtaining judgment in any court it is necessary to convert the sum due in respect of the principal of or interest or other amount on
the Securities of any Series (the “Required Currency”) into a currency in which a judgment will be rendered (the
“Judgment Currency”), the rate of exchange used shall be the rate at which in accordance with normal banking procedures
the Trustee could purchase in the City of New York the Required Currency with the Judgment Currency on the day on which final unappealable
judgment is entered, unless such day is not a New York Banking Day, then the rate of exchange used shall be the rate at which in accordance
with normal banking procedures the Trustee could purchase in the City of New York the Required Currency with the Judgment Currency on
the New York Banking Day preceding the day on which final unappealable judgment is entered and (b) its obligations under this Indenture
to make payments in the Required Currency (i) shall not be discharged or satisfied by any tender, any recovery pursuant to any judgment
(whether or not entered in accordance with subsection (a)), in any currency other than the Required Currency, except to the extent that
such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be
payable in respect of such payments, (ii) shall be enforceable as an alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the full amount of the Required
Currency so expressed to be payable, and (iii) shall not be affected by judgment being obtained for any other sum due under this
Indenture. For purposes of the foregoing, “New York Banking Day” means any day except a Saturday, Sunday or a Legal
Holiday in the City of New York on which banking institutions are authorized or required by law, regulation or executive order to close.
10.17 Force
Majeure. In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder
arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages,
accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions,
loss or malfunctions of utilities, communications or computer (software and hardware) services, it being understood that the Trustee shall
use reasonable best efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable
under the circumstances.
10.18 U.S.A.
Patriot Act. The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee is required
to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account
with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order
for the Trustee to satisfy the requirements of the U.S.A. Patriot Act.
Article XI
Sinking
Funds
11.1 Applicability
of Article. The provisions of this Article shall be applicable to any sinking fund for the retirement of the Securities of a
Series if so provided by the terms of such Securities pursuant to Section 2.2 and except as otherwise permitted or required
by any form of Security of such Series issued pursuant to this Indenture.
The minimum amount of any
sinking fund payment provided for by the terms of the Securities of any Series is herein referred to as a “mandatory sinking
fund payment” and any other amount provided for by the terms of Securities of such Series is herein referred to as an “optional
sinking fund payment”. If provided for by the terms of Securities of any Series, the cash amount of any sinking fund payment
may be subject to reduction as provided in Section 11.2. Each sinking fund payment shall be applied to the redemption of Securities
of any Series as provided for by the terms of the Securities of such Series.
11.2 Satisfaction
of Sinking Fund Payments with Securities. The Company may, in satisfaction of all or any part of any sinking fund payment with respect
to the Securities of any Series to be made pursuant to the terms of such Securities, (1) deliver outstanding Securities of such
Series to which such sinking fund payment is applicable (other than any of such Securities previously called for mandatory sinking
fund redemption) and (2) apply as credit Securities of such Series to which such sinking fund payment is applicable and which
have been repurchased by the Company or redeemed either at the election of the Company pursuant to the terms of such Series of Securities
(except pursuant to any mandatory sinking fund) or through the application of permitted optional sinking fund payments or other optional
redemptions pursuant to the terms of such Securities, provided that such Securities have not been previously so credited. Such
Securities shall be received by the Trustee, together with an Officer’s Certificate with respect thereto, not later than 15 days
prior to the date on which the Trustee begins the process of selecting Securities for redemption, and shall be credited for such purpose
by the Trustee at the price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly. If as a result of the delivery or credit of Securities in lieu of cash payments pursuant to
this Section 11.2, the principal amount of Securities of such Series to be redeemed in order to exhaust the aforesaid
cash payment shall be less than $100,000, the Trustee need not call Securities of such Series for redemption, except upon receipt
of a Company Order that such action be taken, and such cash payment shall be held by the Trustee or a Paying Agent and applied to the
next succeeding sinking fund payment, provided, however, that the Trustee or such Paying Agent shall from time to time upon
receipt of a Company Order pay over and deliver to the Company any cash payment so being held by the Trustee or such Paying Agent upon
delivery by the Company to the Trustee of Securities of that Series purchased by the Company having an unpaid principal amount equal
to the cash payment required to be released to the Company.
11.3 Redemption
of Securities for Sinking Fund. Not less than 45 days (unless otherwise indicated in the Board Resolution, supplemental indenture
hereto or Officer’s Certificate in respect of a particular Series of Securities) prior to each sinking fund payment date for
any Series of Securities, the Company will deliver to the Trustee an Officer’s Certificate specifying the amount of the next
ensuing mandatory sinking fund payment for that Series pursuant to the terms of that Series, the portion thereof, if any, which is
to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting of Securities
of that Series pursuant to Section 11.2, and the optional amount, if any, to be added in cash to the next ensuing mandatory
sinking fund payment, and the Company shall thereupon be obligated to pay the amount therein specified. Not less than 30 days (unless
otherwise indicated in the Board Resolution, Officer’s Certificate or supplemental indenture in respect of a particular Series of
Securities) before each such sinking fund payment date, the Securities to be redeemed upon such sinking fund payment date will be selected
in the manner specified in Section 3.2 and the Company shall send or cause to be sent a notice of the redemption thereof to
be given in the name of and at the expense of the Company in the manner provided in and in accordance with Section 3.3. Such
notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections
3.4, 3.5 and 3.6.
In
witness whereof, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.
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HALLADOR ENERGY COMPANY |
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[●] |
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Signature
Page to Indenture
Exhibit 5.1
Hallador Energy Company
1183 East Canvasback Drive
Terre Haute, Indiana 47802
(303) 839-5504
July 19, 2023
Ladies and Gentlemen:
I am the Chief Legal Officer
of Hallador Energy Company, a Colorado corporation, (the “Company”), and I and attorneys acting under my supervision
have acted as counsel in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”)
under the Securities Act of 1933, as amended (the “Securities Act”), of a Registration Statement on Form S-3 (the “Registration
Statement”) relating to the proposed issuance from time to time of (i) debt securities of the Company (the “Debt Securities”)
to be issued pursuant to an indenture (the “Indenture”) to be entered into between the Company and a trustee to be
appointed by the Company (the “Trustee”), (ii) shares of common stock of the Company, par value $0.01 per share (the
“Common Stock”), (iii) shares of preferred stock of the Company, par value $0.10 per share (the “Preferred
Stock”), (iv) depositary shares representing fractional interests in Preferred Stock (the “Depositary Shares”)
pursuant to a depositary agreement (the “Depositary Agreement”), (v) warrants representing rights to purchase Debt
Securities, Common Stock, Preferred Stock or Depositary Shares (the “Warrants”) pursuant to one or more warrant agreements
(“Warrant Agreements”), (vi) purchase contracts representing rights or obligations to purchase or sell Debt Securities,
Common Stock, Preferred Stock or other securities (the “Purchase Contracts”), (vii) subscription rights to purchase
Common Stock, Preferred Stock, Warrants, Debt Securities, or units consisting of some or all of these securities (the “Subscription
Rights”) pursuant to one or more subscription agreements (“Subscription Agreements”) and (viii) units comprising
two or more of Debt Securities, Common Stock, Preferred Stock, Depositary Shares, Warrants, Purchase Contracts or Subscription Rights.
In this opinion, units comprising two or more of Debt Securities, Depositary Shares, Warrants, Purchase Contracts or Subscription Rights
are referred to as the “Units” and, together with the Debt Securities, the Depositary Shares, the Warrants, the Purchase
Contracts and the Subscription Rights, the “Securities”. The Securities being registered under the Registration Statement
will have an aggregate initial offering price of up to $150,000,000 and will be offered on a continuous or delayed basis pursuant to the
provisions of Rule 415 under the Securities Act.
Hallador Energy Company
July 19, 2023
Page 2
I or attorneys acting
under my supervision have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents,
corporate records, certificates of public officials and other instruments and have conducted such other investigations of fact and
law as I have deemed necessary or advisable for the purposes of this opinion. In our examination, we have assumed, without inquiry,
the legal capacity of all natural persons, the genuineness of all signatures (other than those on behalf of the Company), the
authenticity of all documents submitted to us as originals and the conformity to authentic original documents of all documents
submitted to us as copies. I have obtained and relied upon, to the extent I deem appropriate, the certificates of officers or
executives of the Company as to factual matters. I call to your attention the fact that in rendering my opinion, I am expressing my
views only as to the internal laws of Colorado that counsel exercising customary due diligence would reasonably recognize as being
applicable to transactions contemplated by the Registration Statement but excluding any securities or blue sky laws, and I express
no opinion with respect to the applicability thereto, or the effect thereon, of the laws of any other jurisdiction or as to matters
of municipal law or the laws of any other local agencies within any state.
Based upon and subject to
the foregoing and the assumptions, qualifications and limitations hereinafter set forth, I am of the opinion that when (i) all necessary
corporate action on the part of the Company has been taken to authorize the issuance and sale of such shares of Common Stock proposed
to be sold by the Company under the Registration Statement and any prospectus supplement relating thereto, including upon conversion of
the Debt Securities or the Preferred Stock or exercise of Subscription Rights or Warrants, and (ii) such shares of Common Stock are issued,
delivered and paid for as contemplated by the Registration Statement and any prospectus supplement relating thereto, and in accordance
with the applicable underwriting or other agreement and the terms of such Debt Securities, Preferred Stock, Subscription Rights or Warrants,
as applicable, such shares of Common Stock will be validly issued, fully paid and non-assessable.
The foregoing opinion is subject
to the effects of (i) bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer, reorganization and moratorium laws, and other
similar laws relating to or affecting creditors’ rights or remedies generally, (ii) general equitable principles (whether considered
in a proceeding in equity or at law) and (iii) concepts of good faith, reasonableness and fair dealing, and standards of materiality.
I hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to my position as Chief
Legal Officer of the Company under the heading “Legal Matters” in the Prospectus forming a part of thereof and in any amendments
or supplements to the Registration Statement and Prospectus. In giving such consent, I do not thereby admit that I am in the category
of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ Ryan McManis, Esq.
Ryan McManis, Esq.
Chief Legal Officer
Hallador Energy Company
Exhibit 5.2
|
787 Seventh Avenue
New York, NY 10019-6099
Tel: 212 728 8000
Fax: 212 728 8111
|
July 19, 2023
Hallador Energy Company
1183 East Canvasback Drive
Terre Haute, Indiana 47802
Re: Registration
Statement On Form S-3
Ladies and Gentlemen:
We have acted as special
New York counsel to Hallador Energy Company, a Colorado corporation (the “Company”), in connection with the preparation
and filing with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended
(the “Securities Act”), of a Registration Statement on Form S-3 (the “Registration Statement”)
relating to the proposed issuance from time to time of (i) debt securities of the Company (the “Debt Securities”)
to be issued pursuant to an indenture (the “Indenture”) to be entered into between the Company and a trustee to be
appointed by the Company (the “Trustee”), (ii) shares of common stock of the Company, par value $0.01 per share
(the “Common Stock”), (iii) shares of preferred stock of the Company, par value $0.10 per share (the “Preferred
Stock”), (iv) depositary shares representing fractional interests in Preferred Stock (the “Depositary Shares”)
pursuant to a depositary agreement (the “Depositary Agreement”), (v) warrants representing rights to purchase
Debt Securities, Common Stock, Preferred Stock or Depositary Shares (the “Warrants”) pursuant to one or more warrant
agreements (“Warrant Agreements”), (vi) purchase contracts representing rights or obligations to purchase or
sell Debt Securities, Common Stock, Preferred Stock or other securities (the “Purchase Contracts”), (vii) subscription
rights to purchase Common Stock, Preferred Stock, Warrants, Debt Securities, or units consisting of some or all of these securities (the
“Subscription Rights”) pursuant to one or more subscription agreements (“Subscription Agreements”)
and (viii) units comprising two or more of Debt Securities, Common Stock, Preferred Stock, Depositary Shares, Warrants, Purchase
Contracts or Subscription Rights. In this opinion, units comprising two or more of Debt Securities, Depositary Shares, Warrants, Purchase
Contracts or Subscription Rights are referred to as the “Units” and, together with the Debt Securities, the Depositary
Shares, the Warrants, the Purchase Contracts and the Subscription Rights, the “Securities”. The Securities being registered
under the Registration Statement will have an aggregate initial offering price of up to $150,000,000 and will be offered on a continuous
or delayed basis pursuant to the provisions of Rule 415 under the Securities Act.
In rendering the opinions
expressed below, we have (a) relied on an opinion of the Chief Legal Officer of the Company and (b) made such investigations
of law as we have deemed necessary or appropriate as a basis for such opinions. As to all questions of fact material to our opinions
set forth below, we have relied without independent check or verification upon certificates of Company, its subsidiaries, and their respective
officers, employees, agents and representatives; and certificates of public officials.
Brussels
Chicago Frankfurt Houston London Los Angeles Milan
New York
Palo Alto Paris Rome San Francisco Washington
Hallador Energy Company
July 19, 2023
Page 2
In rendering the opinions
expressed below, we have assumed, with your permission, without independent investigation or inquiry, (i) the authenticity and completeness
of all documents submitted to us as originals, (ii) the genuineness of all signatures on all documents that we examined, (iii) the
conformity to authentic originals and completeness of documents submitted to us as certified, conformed or reproduction copies, (iv) the
legal capacity of all natural persons executing documents, (v) the due authorization, execution and delivery of the Indenture, any
depositary receipts evidencing Depositary Shares (“Depositary Receipts”) or Depositary Agreements, any Warrants or
Warrant Agreements, any Purchase Contracts and any Subscription Rights or Subscription Agreements by the Company, except to the extent
(if any) that such due execution and delivery are governed by New York law, (vi) the power and authority of the Trustee to enter
into and perform its obligations under the Indenture, (vii) the due authorization, execution and delivery of the Indenture by the
Trustee and (viii) the enforceability of the Indenture against the Trustee.
Based upon and subject to
the foregoing and the assumptions, qualifications and limitations hereinafter set forth, we are of the opinion that:
1. When
(i) the terms, and the execution and delivery, of the Indenture relating to any Debt Securities has been duly authorized and approved
by all necessary action of the board of directors of the Company or a duly authorized committee thereof (the “Board of Directors”),
(ii) the Indenture has been duly executed and delivered by the Company and the Trustee and the Indenture has been qualified under
the Trust Indenture Act of 1939, as amended, (iii)(a) the terms of the Debt Securities and their issuance and sale and any supplemental
indenture to be entered into in connection with the issuance of such Debt Securities have been duly authorized and approved by all necessary
action of the Board of Directors and (b) the terms of such Debt Securities have been duly established in accordance with the Indenture
and any supplemental indenture relating to such Debt Securities so as not to violate any applicable law, rule or regulation or result
in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction
imposed by any court or governmental body having jurisdiction over the Company, (iv) the supplemental indenture in respect of such
Debt Securities has been duly executed and delivered and (v) such Debt Securities have been duly executed, authenticated, issued
and delivered as contemplated by the Registration Statement and any prospectus supplement relating thereto, and in accordance with the
terms of the Indenture and any supplemental indenture and any underwriting agreement, Warrants or Warrant Agreements, Purchase Contracts,
Subscription Rights or Subscription Agreements relating to such issuance, against payment of the consideration fixed therefor by the
Board of Directors, such Debt Securities will be validly issued and will constitute valid and binding obligations of the Company enforceable
against the Company in accordance with their terms.
Hallador Energy Company
July 19, 2023
Page 3
2. When
(i) the terms, and the execution and delivery, of the Depositary Agreement relating to the Depositary Shares and the terms of the
Depositary Shares and of their issuance and sale have been duly authorized and approved by all necessary action of the Board of Directors,
(ii) the Depositary Agreement and the Depositary Receipts have been duly authorized, executed and delivered by the Company and such
depositary as shall have been duly appointed by the Company (the “Depositary”), (iii) the terms of the Depositary
Shares and the Depositary Receipts have been established in accordance with the applicable Depositary Agreement, so as not to violate
any applicable law, rule or regulation or result in a default under or breach of any agreement or instrument binding upon the Company
and so as to comply with any applicable requirement or restriction imposed by any court or governmental authority having jurisdiction
over the Company, (iv) the Preferred Stock relating to the Depositary Shares has been duly authorized and validly issued and is
fully paid and non-assessable and have been deposited with the Depositary under the applicable Depositary Agreement and (v) the
Depositary Receipts have been duly executed, countersigned, registered and delivered as contemplated by the Registration Statement and
any prospectus supplement related thereto, and in accordance with the terms of the Deposit Agreement and any underwriting agreement relating
to such issuance, against payment of the consideration fixed therefor by the Board of Directors, the Depositary Receipts evidencing the
Depositary Shares (including any Depositary Shares that may be issued upon exercise, conversion, exchange or otherwise pursuant to the
terms of any other Securities) will be validly issued and will entitle the holders thereof to the rights specified therein and in the
Deposit Agreement.
3. When
(i) the terms, and the execution and delivery, of the Warrants and any Warrant Agreement or Warrant Agreements relating to the Warrants
and the terms of the issuance and sale of the Warrants and related matters have been duly authorized and approved by all necessary action
of the Board of Directors, (ii) the Warrant Agreement or Warrant Agreements relating to the Warrants have been duly executed and
delivered by the Company and such warrant agent as shall have been duly appointed by the Company, (iii) the terms of the Warrants
have been established in accordance with the applicable Warrant Agreement, so as not to violate any applicable law, rule or regulation
or result in a default under or a breach of any agreement or instrument binding upon the Company and so as to comply with any requirement
or restriction imposed by any court or governmental body having jurisdiction over the Company, (iv) the Company has reserved for
issuance upon exercise of the Warrants the aggregate amount of underlying securities for which the Warrants are exercisable and (v) the
Warrants or certificates representing the Warrants have been duly executed, authenticated, issued and delivered as contemplated by the
Registration Statement and any prospectus supplement relating thereto, and in accordance with the terms of any Warrant Agreement, underwriting
agreement, Subscription Rights or Subscription Agreements relating to such issuance, against payment of the consideration fixed therefor
by the Board of Directors, the Warrants will constitute valid and binding obligations of the Company, enforceable against the Company
in accordance with their terms.
4. When
(i) the terms, and the execution and delivery, of the Purchase Contracts and the terms of the issuance and sale thereof and related
matters have been duly authorized and approved by all necessary action of the Board of Directors, (ii) the terms of the Purchase
Contracts have been established so as not to violate any applicable law, rule or regulation or result in a default under or a breach
of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court
or governmental body having jurisdiction over the Company, (iii) the Company has reserved for issuance upon performance of the Purchase
Contracts the aggregate amount of underlying securities issuable pursuant to the Purchase Contracts and (iv) the Purchase Contracts
have been duly executed and delivered by the Company and such contract agent as shall have been duly appointed by the Company and any
certificates representing Purchase Contracts have been duly executed, authenticated, if required, issued and delivered, in each case,
as contemplated by the Registration Statement and any prospectus supplement relating thereto, and in accordance with the terms of any
Purchase Contract and underwriting agreement related to such issuance, against payment of the consideration fixed therefor by the Board
of Directors, the Purchase Contracts will constitute valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms.
Hallador Energy Company
July 19, 2023
Page 4
5. When
(i) the terms, and the execution and delivery, of the Subscription Rights and any Subscription Agreement or Subscription Agreements
relating to the Subscription Rights and the terms of the issuance and sale of the Subscription Rights and related matters have been duly
authorized and approved by all necessary action of the Board of Directors, (ii) the Subscription Agreement or Subscription Agreements
relating to the Subscription Rights have been duly executed and delivered by the Company and such agent as shall have been duly appointed
by the Company, (iii) the terms of the Subscription Rights have been established in accordance with the applicable Subscription
Agreement, so as not to violate any applicable law, rule or regulation or result in a default under or a breach of any agreement
or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body
having jurisdiction over the Company, (iv) the Company has reserved for issuance upon exercise of the Subscription Rights the aggregate
amount of underlying securities for which the Subscription Rights are exercisable and (v) the Subscription Rights or certificates
representing the Subscription Rights have been duly executed, authenticated, issued and delivered as contemplated by the Registration
Statement and any prospectus supplement relating thereto, and in accordance with the terms of any Subscription Agreement and underwriting
agreement relating to such issuance, against payment of the consideration fixed therefor by the Board of Directors, the Subscription
Rights will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
6. When
(i) the terms of the Units and the terms of the issuance and sale thereof and related matters have been duly authorized and approved
by all necessary action of the Board of Directors, (ii) the terms of the Units have been established so as not to violate any applicable
law, rule or regulation or result in a default under or a breach of any agreement or instrument binding upon the Company and so
as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, (iii)(a)(1) the
Indenture relating to any Debt Securities that form a part of the Units has been duly authorized, executed and delivered by the Company
and the Trustee as contemplated in paragraph 1 above, and (2) such Debt Securities have been duly authorized, executed, authenticated,
issued and delivered as contemplated in paragraph 1 above, (b)(1) the Depositary Agreement relating to the Depositary Shares that
form a part of the Units, the related Depositary Shares and the Depositary Receipts evidencing such Depositary Shares have been duly
authorized, executed, authenticated, if required, and delivered as contemplated in paragraph 2 above, and (2) the Preferred Stock
has been duly authorized, executed, authenticated, issued and delivered, (c) the Warrants that form a part of the Units have been
duly authorized, executed, authenticated, issued and delivered as contemplated in paragraph 3 above, (d) the Purchase Contracts
that form a part of the Units have been duly authorized, executed, authenticated, issued and delivered as contemplated in paragraph 4
above or (e) the Subscription Rights that form a part of the Units have been duly authorized, executed, authenticated, issued and
delivered as contemplated in paragraph 5 above and (iv) the certificates representing the Units have been duly executed, authenticated,
if required, issued and delivered as contemplated by the Registration Statement and any prospectus supplement relating thereto, and in
accordance with the terms of any Purchase Contract, underwriting agreement, Subscription Rights or Subscription Agreement relating to
such issuance, against payment of the consideration fixed therefor by the Board of Directors, assuming the valid issuance of the Common
Stock, Preferred Stock or the Depositary Shares forming part of the Units as to which the Chief Legal Officer of the Company is issuing
the separate opinion referred to above, the Units will be validly issued.
Hallador Energy Company
July 19, 2023
Page 5
The foregoing opinions are
also subject to the following assumptions, qualifications and exceptions:
Our opinions set forth above
are subject to the effects of (i) bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer, reorganization and moratorium
laws, and other similar laws relating to or affecting creditors’ rights or remedies generally, (ii) general equitable principles
(whether considered in a proceeding in equity or at law) and (iii) concepts of good faith, reasonableness and fair dealing, and
standards of materiality.
We are members of the bar
of the State of New York, and the opinions expressed herein are limited to the laws of the State of New York and the federal laws of
the United States as in effect on the date of this opinion typically applicable to agreements comparable to those described herein and
to the specific legal matters expressly addressed herein, and no opinion is expressed or implied with respect to the laws of any other
jurisdiction or any legal matter not expressly addressed herein.
We express no opinion as
to the application of the securities or blue sky laws of the several states to the sale of the Securities. Without limiting the generality
of the foregoing, except as set forth herein, we express no opinion in connection with the matters contemplated in the Registration Statement,
and no opinion may be implied or inferred, except as expressly set forth herein.
We hereby consent to the
filing of this opinion as an exhibit to the Registration Statement and to the reference to our firm under the heading “Legal Matters”
in the Prospectus forming a part of thereof and in any amendments or supplements to the Registration Statement and Prospectus. In giving
such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities
Act or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ Willkie Farr & Gallagher LLP
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We have issued our reports
dated March 16, 2023 with respect to the consolidated financial statements and internal control over financial reporting of Hallador Energy
Company included in the Annual Report on Form 10-K for the year ended December 31, 2022, which are incorporated by reference in this Registration
Statement. We consent to the incorporation by reference of the aforementioned reports in this Registration Statement, and to the use of
our name as it appears under the caption “Experts.”
/s/ GRANT THORNTON LLP
Tulsa, Oklahoma
July 19, 2023
Exhibit 23.2
Consent
of Independent Registered Public Accounting Firm
We hereby consent to the incorporation
by reference in this Registration Statement on Form S-3 of Hallador Energy Company (the “Company”) of our report dated March
28, 2022, except for Note 18, as to which the date is March 16, 2023, relating to the financial statements as of and for the year ended
December 31, 2021, which appears on the Company’s Form 10-K filed with the Securities and Exchange Commission on March 16, 2023.
We also consent to the reference to our Firm under the caption “Experts” in the prospectus.
/S/PLANTE & MORAN, PLLC
Denver, Colorado
July 19, 2023
Exhibit 23.3
CONSENT
OF INDEPENDENT AUDITOR
We consent to the incorporation
by reference in this Registration Statement on Form S-3 of Hallador Energy Company of our report dated January 6, 2023, relating to the
financial statements of Merom Generating Station appearing in the Current Report on Form 8-K/A of Hallador Energy Company filed with the
Securities and Exchange Commission on January 6, 2023. We also consent to the reference to us under the heading “Experts”
in such Registration Statement.
/s/ Deloitte & Touche LLP
Indianapolis, Indiana
July 19, 2023
Exhibit 107
Calculation of Filing Fee Tables
Form S-3
(Form Type)
Hallador Energy Company
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered and Carry Forward
Securities
|
Security
Type |
Security
Class
Title |
Fee
Calculation
or Carry
Forward
Rule |
Amount
Registered |
Proposed
Maximum
Offering
Price Per
Unit |
Maximum
Aggregate
Offering
Price |
Fee
Rate |
Amount
of
Registration
Fee |
Carry
Forward
Form
Type |
Carry
Forward
File Number |
Carry
Forward
Initial
effective
date |
Filing
Fee
Previously
Paid In
Connection
with Unsold
Securities
to
be Carried
Forward |
Newly
Registered Securities |
Fees
to Be Paid |
Equity |
Common
Stock, par value $0.01 per share |
457(o) |
(1) |
|
(3)
|
|
|
|
|
|
|
Fees
to Be Paid |
Equity |
Common
Stock, par value $0.10 per share |
457(o) |
(1) |
|
(3) |
|
|
|
|
|
|
Fees
to Be Paid |
Debt |
Debt
Securities |
457(o) |
(1) |
|
(3) |
|
|
|
|
|
|
Fees
to Be Paid |
Other |
Depositary
Shares |
457(o) |
(1) |
|
(3) |
|
|
|
|
|
|
Fees
to Be Paid |
Other |
Warrants |
457(o) |
(1) |
|
(3) |
|
|
|
|
|
|
Fees
to Be Paid |
Other |
Subscription
Rights |
457(o) |
(1) |
|
(3) |
|
|
|
|
|
|
Fees
to Be Paid |
Other |
Purchase
Contracts |
457(o) |
(1) |
|
(3) |
|
|
|
|
|
|
Fees
to Be Paid |
Other |
Units |
457(o) |
(1) |
|
(3) |
|
|
|
|
|
|
|
Universal
Shelf |
n/a |
457(o) |
(1)(2) |
|
$150,000,000(4) |
$ 0.0001102 |
$16,530
(5) |
|
|
|
|
|
Total
Offering Amounts |
|
|
|
|
|
|
|
|
|
Total
Fees Previously Paid |
|
|
|
|
|
|
|
|
|
Total
Fee Offsets |
|
|
|
|
|
|
|
|
|
Net
Fee Due |
|
|
|
|
|
|
|
|
| (1) | An unspecified number of securities or
aggregate principal amount, as applicable, is being registered as may from time to time be
offered at unspecified prices and, in addition, an unspecified number of additional shares
of common stock is being registered as may be issued from time to time upon conversion of
any debt securities that are convertible into common stock or pursuant to any anti-dilution
adjustments with respect to any such convertible debt securities. |
| (2) | Includes rights to acquire common stock
or preferred stock of the Company under any shareholder rights plan then in effect, if applicable
under the terms of any such plan. |
| (3) | An indeterminate aggregate amount of
securities is being registered as may from time to time be offered for sale or sold at indeterminate
prices. |
| (4) | Estimated solely for the purpose of calculating
the registration fee. No separate consideration will be received for shares of common stock
that are issued upon conversion of debt securities, depositary shares or preferred stock
or upon exercise of common stock warrants registered hereunder. The aggregate maximum offering
price of all securities issued pursuant to this registration statement will not exceed $150,000,000. |
| (5) | The registration fee has been calculated
in accordance with Rule 457(o) under the Securities Act of 1933, as amended. |
Table 2: Fee Offset Claims and Sources
|
Registrant
or Filer
Name |
Form
or
Filing
Type |
File
Number |
Initial
Filing
Date |
Filing
Date |
Fee
Offset
Claimed |
Security
Type
Associated
with Fee
Offset
Claimed |
Security
Title
Associated
with Fee
Offset
Claimed |
Unsold
Securities
Associated
with Fee
Offset
Claimed |
Unsold
Aggregate
Offering
Amount
Associated
with
Fee
Offset
Claimed |
Fee
Paid
with
Fee
Offset
Source |
Rules 457(b) and
0-11(a)(2) |
Fee
Offset Claims |
|
— |
— |
— |
|
— |
|
|
|
|
|
Fee
Offset Sources |
— |
— |
— |
|
— |
|
|
|
|
|
— |
Rule 457(p) |
Fee
Offset Claims |
— |
— |
— |
— |
|
— |
— |
— |
— |
— |
|
Fee
Offset Sources |
— |
— |
— |
|
— |
|
|
|
|
|
— |
Table 3: Combined Prospectuses
Security
Type |
Security
Class Title |
Amount
of Securities
Previously Registered |
Maximum
Aggregate
Offering Price
of Securities
Previously Registered |
Form Type |
File
Number |
Initial
Effective Date |
— |
— |
— |
— |
— |
— |
— |
Hallador Energy (NASDAQ:HNRG)
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Hallador Energy (NASDAQ:HNRG)
過去 株価チャート
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