As
filed with the Securities and Exchange Commission on November 22, 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
LIPOCINE
INC.
(Exact
name of Registrant as specified in its charter)
Delaware |
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2834 |
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99-0370688 |
(State
or other jurisdiction of
incorporation or organization) |
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(Primary
Standard Industrial
Classification Code Number) |
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(I.R.S.
Employer
Identification Number) |
675
Arapeen Drive, Suite 202
Salt Lake City, Utah 84108
(801) 994-7383
(Address,
including zip code and telephone number, of Registrant’s principal executive offices)
Mahesh
V. Patel
President and Chief Executive Officer
Lipocine Inc.
675 Arapeen Drive, Suite 202
Salt Lake City, Utah 84108
(801) 994-7383
(Name,
address, including zip code and telephone number, including area code, of agent for service)
Copies
to:
Nolan
S. Taylor
David
F. Marx
Dorsey
& Whitney LLP
111 South Main Street, Suite 2100
Salt Lake City, Utah 84111
(801) 933-7360
Approximate
date of commencement of proposed sale to the public: from time to time after the effective date of this registration statement.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box. ☐
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following
box. ☒
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
Large
accelerated filer |
☐ |
Accelerated
filer |
☐ |
Non-accelerated
filer |
☒ |
Smaller
reporting company |
☒ |
Emerging
growth company |
☐ |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of 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 that 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 Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. We may not sell these securities or accept an offer to buy these securities
until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell
these securities, and it is not soliciting offers to buy these securities in any state where such offer or sale is not permitted.
SUBJECT
TO COMPLETION, DATED NOVEMBER 22, 2023
PROSPECTUS
LIPOCINE
INC.
$150,000,000
Common
Stock, Preferred Stock,
Debt Securities,
Warrants and Units
From
time to time, we may offer and sell up to $150,000,000 of any combination of the securities described in this prospectus, either individually
or in combination. We may also offer common stock or preferred stock upon conversion of debt securities, common stock upon conversion
of preferred stock, or common stock, preferred stock or debt securities upon the exercise of warrants.
This
prospectus provides a general description of the securities we may offer. Each time we sell securities, we will provide specific terms
of the securities offered in a supplement to this prospectus. We may also authorize one or more free writing prospectuses to be provided
to you in connection with these offerings. The prospectus supplement and any related free writing prospectus may also add, update or
change information contained in this prospectus. You should carefully read this prospectus, the applicable prospectus supplement and
any related free writing prospectus, as well as any documents incorporated by reference in this prospectus before you invest in any securities.
This prospectus may not be used to consummate a sale of securities unless accompanied by the applicable prospectus supplement.
Our
common stock is listed on The Nasdaq Capital Market under the symbol “LPCN”. On November 21, 2023, the last reported sale
price for our common stock was $2.51 per share. As of November 22, 2023, the aggregate market value of our outstanding common
stock held by non-affiliates, or the public float, was approximately $15,997,342, which was calculated based on 5,160,433 shares of outstanding
common stock held by non-affiliates and on a price per share of $3.10, the closing price of our common stock on The Nasdaq Capital Market
on September 25, 2023. During the 12 calendar months prior to and including the date of this prospectus, we have sold $434,209 shares
of common stock pursuant to General Instruction I.B.6 of Form S-3. Pursuant to General Instruction I.B.6 of Form S-3, in no event will
we sell securities registered on this registration statement in a public primary offering with a value exceeding more than one-third
of our public float (the market value of our common stock held by our non-affiliates) in any 12-month period so long as our public float
remains below $75.0 million. As of November 22, 2023, one-third of our public float is equal to approximately $5,332,447. The applicable
prospectus supplement will contain information, where applicable, as to any other listing on The Nasdaq Capital Market or any securities
market or other exchange of the securities, if any, covered by the prospectus supplement.
INVESTING
IN OUR SECURITIES INVOLVES RISKS. YOU SHOULD REVIEW CAREFULLY THE RISKS AND UNCERTAINTIES DESCRIBED UNDER THE HEADING “RISK
FACTORS” ON PAGE 5 AND CONTAINED IN THE APPLICABLE PROSPECTUS SUPPLEMENT AND ANY RELATED FREE WRITING PROSPECTUS AND UNDER
SIMILAR HEADINGS IN THE OTHER DOCUMENTS THAT ARE INCORPORATED BY REFERENCE INTO THIS PROSPECTUS.
The
securities may be sold directly to investors, through agents designated from time to time or to or through underwriters or dealers. For
additional information on the methods of sale, you should refer to the section entitled “Plan of Distribution” in this prospectus.
If any underwriters or agents are involved in the sale of any securities with respect to which this prospectus is being delivered, the
names of such underwriters or agents and any applicable commissions or discounts and over-allotment options will be set forth in a prospectus
supplement. The price to the public of such securities and the net proceeds we expect to receive from such sale will also be set forth
in a prospectus supplement.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined
if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The
date of this prospectus is , 2023
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus is a part of a registration statement that we filed with the Securities and Exchange Commission, or SEC, utilizing a “shelf”
registration process. Under this shelf registration process, we may sell any combination of the securities described in this prospectus
in one or more offerings up to a total dollar amount of $150,000,000. This prospectus provides you with a general description of the
securities we may offer. Each time we sell securities under this shelf registration, we will provide a prospectus supplement that will
contain specific information about the terms of that offering. We may also authorize one or more free writing prospectuses to be provided
to you that may contain material information relating to these offerings. The prospectus supplement and any related free writing prospectus
that we may authorize to be provided to you may also add, update or change information contained in this prospectus or in any documents
that we have incorporated by reference into this prospectus. You should read this prospectus, any applicable prospectus supplement and
any related free writing prospectus, together with the information incorporated herein by reference as described under the heading “Incorporation
by Reference.”
You
should rely only on the information that we have provided or incorporated by reference in this prospectus, any applicable prospectus
supplement and any related free writing prospectus that we may authorize to be provided to you. We have not authorized any dealer, salesman
or other person to give any information or to make any representation other than those contained or incorporated by reference in this
prospectus, any applicable prospectus supplement or any related free writing prospectus that we may authorize to be provided to you.
You must not rely upon any information or representation not contained or incorporated by reference in this prospectus or any accompanying
prospectus supplement. This prospectus and any accompanying supplement to this prospectus do not constitute an offer to sell or the solicitation
of an offer to buy any securities other than the registered securities to which they relate, nor do this prospectus and any accompanying
supplement to this prospectus constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any
person to whom it is unlawful to make such offer or solicitation in such jurisdiction. You should not assume that the information contained
in this prospectus, any applicable prospectus supplement or any related free writing prospectus is accurate on any date subsequent to
the date set forth on the front of the document or that any information we have incorporated by reference is correct on any date subsequent
to the date of the document incorporated by reference, even though this prospectus, any applicable prospectus supplement or any related
free writing prospectus is delivered or securities sold on a later date.
References
in this prospectus and the documents incorporated by reference to the “Company,” “Lipocine,” “our,”
“us” or “we” refer to Lipocine Inc. and its subsidiaries.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus and the documents incorporated by reference contain forward-looking statements within the meaning of Section 27A of the Securities
Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, which involve risks and uncertainties. Forward-looking
statements provide current expectations of future events based on certain assumptions and include any statement that does not directly
relate to any historical or current fact. Forward-looking statements may refer to such matters as products, product benefits, pre-clinical
and clinical development timelines, clinical and regulatory expectations and plans, regulatory developments and requirements, the receipt
of regulatory approvals, the results of clinical trials, patient acceptance of Lipocine’s products, manufacturing and commercialization
of Lipocine’s products, anticipated financial performance, future revenues or earnings, business prospects, projected ventures,
new products and services, anticipated market performance, future expectations for liquidity and capital resources needs and similar
matters. These are based on our management’s current beliefs, expectations and assumptions about future events, conditions and
results and on information currently available to us. Discussions containing these forward-looking statements may be found, among other
places, in the Sections of this prospectus entitled “Prospectus Summary” and “Risk Factors.”
All
statements, other than statements of historical fact, included or incorporated herein regarding our strategy, future operations, financial
position, future revenues, projected costs, plans, prospects and objectives are forward-looking statements. In some cases, you can identify
forward-looking statements by terms such as “anticipate,” “believe,” “could,” “estimate,”
“expect,” “intend,” “may,” “plan,” “potential,” “predict,” “project,”
“should,” “will,” “would” and similar expressions. These statements involve risks, uncertainties
and other factors that may cause our actual results, performance, time frames or achievements to be materially different from any future
results, performance, time frames or achievements expressed or implied by the forward-looking statements. Risks, uncertainties and other
factors that might cause or contribute to such differences include, but are not limited to, those discussed in the Section entitled “Risk
Factors” in our most recent Annual Report on Form 10-K and Quarterly Reports on Form 10-Q. Given these risks, uncertainties and
other factors, many of which are beyond our control, you should not place undue reliance on these forward-looking statements.
In
addition, past financial and/or operating performance is not necessarily a reliable indicator of future performance and you should not
use our historical performance to anticipate results or future period trends. We can give no assurances that any of the events anticipated
by the forward-looking statements will occur or, if any of them do, what impact they will have on our results of operations and financial
condition. Except as required by law, we assume no obligation to update these forward-looking statements publicly, or to revise any forward-looking
statements to reflect events or developments occurring after the date of this prospectus, even if new information becomes available in
the future.
Prospectus
Summary
This
summary is not complete and does not contain all of the information that you should consider before investing in the securities offered
by this prospectus. You should carefully read the entire prospectus, including the risks of investing discussed under “Risk Factors”
beginning on page 5, the information incorporated by reference, including our financial statements, and the exhibits to the registration
statement of which this prospectus is a part. This prospectus includes forward-looking statements that involve risks and uncertainties.
Overview
of Our Business
We
are a biopharmaceutical company focused on leveraging our proprietary Lip’ral platform to develop differentiated products through
the oral delivery of previously difficult to deliver molecules, focused on treating Central Nervous System (“CNS”) disorders.
Our proprietary delivery technologies are designed to improve patient compliance and safety through orally available treatment options.
Our primary development programs are based on oral delivery solutions for poorly bioavailable drugs. We have a portfolio of differentiated
innovative product candidates that target high unmet needs for neurological and psychiatric CNS disorders, liver diseases, and hormone
supplementation for men and women.
On
October 14, 2021, we entered into a license agreement (the “Antares License Agreement”) with Antares Pharma, Inc. (“Antares”
or our “Licensee”) for the development and commercialization of our product candidate, TLANDO®, an oral testosterone
replacement therapy (“TRT”) comprised of testosterone undecanoate (“TU”), pursuant to which we granted to Antares
an exclusive, royalty-bearing, sublicensable right and license to develop and commercialize the TLANDO product for TRT in the U.S. TLANDO
is a registered trademark assigned to Antares. On October 2, 2023, the Company received notice from Antares of Antares’ termination
of the License Agreement, effective January 31, 2024. All rights and licenses granted by the Company to Antares will terminate and all
rights in TLANDO will revert to us. While we plan to seek a commercialization partner for TLANDO, there can be no guarantee that the
Company will be able to enter into such a transaction on terms favorable to us or at all. Any FDA required post-marketing studies which
were the responsibility of our Licensee will revert to us or a new licensee after the termination of the License Agreement. On March
28, 2022, Antares received approval from the FDA for TLANDO as a TRT in adult males for conditions associated with a deficiency of endogenous
testosterone, also known as hypogonadism. On May 24, 2022, Halozyme Therapeutics completed an acquisition of Antares Pharma Inc. through
a merger of a wholly owned subsidiary of Halozyme with and into Antares, with Antares continuing as the surviving corporation and becoming
a wholly owned subsidiary of Halozyme. On June 7, 2022, Halozyme announced the commercial launch of TLANDO, an oral treatment indicated
for testosterone replacement therapy in adult males for conditions associated with a deficiency or absence of endogenous testosterone
(primary or hypogonadotropic hypogonadism).
Additional
clinical development pipeline candidates include: LPCN 1154 for postpartum depression (“PPD”); LPCN 2101 for epilepsy; and
LPCN 1148 comprising a novel prodrug of testosterone, testosterone laurate (“TL”), for the management of decompensated cirrhosis.
In addition to our CNS product candidates, we have assets for which we expect to seek partnerships to enable further development including
LPCN 1144, an oral prodrug of androgen receptor modulator for the treatment of non-cirrhotic non-alcoholic steatohepatitis (“NASH”)
which has completed Phase 2 testing; LPCN 1111, a next generation oral TRT product comprised of testosterone tridecanoate (“TT”)
with the potential for once daily dosing which has completed Phase 2 testing; and LPCN 1107, potentially the first oral hydroxy progesterone
caproate (“HPC”) product indicated for the prevention of recurrent preterm birth (“PTB”), which has completed
a dose finding clinical study in pregnant women and has been granted orphan drug designation by the FDA.
To
date, we have not generated any revenues from product sales and do not expect to generate revenue other than from TLANDO royalties
and licensing fees until one of our product candidates receives approval from the FDA. Revenues to date have been generated substantially
from license fees, royalty and milestone payments and research support from our licensees. Since our inception through September 30,
2023, we have generated $41.7 million in revenue under our various license and collaboration arrangements and from government grants.
Based on the terms of the Antares License Agreement, in the fourth quarter of 2021 we recorded $4.1 million in revenue and an associated
contract asset for future contractual minimum royalties. We reduced our contract asset by $218,000 in 2022 due to a royalty payment received
from Antares under the terms of our license agreement, based on net sales of TLANDO in 2022. We received a payment of approximately $772,000
in the third quarter of 2023 in accordance with the terms of the license agreement, of which approximately $580,000 was applied to the
contract asset and $192,000 was applied to imputed interest receivable. On October 2, 2023, we received notice from Antares of Antares’
termination of the License Agreement effective January 31, 2024. Based on the termination notice, we recorded a non-cash reduction of
revenue related to the reversal of variable consideration revenue for minimum guaranteed royalties of $3.1 million for the balance of
the contract asset, which is the contract asset balance which would have remained after the anticipated fourth quarter royalty payment
of approximately $131,000, based on net sales in the third quarter of 2023. As a result of the termination of the License Agreement,
we do not anticipate recognizing any future material revenue from Antares after January 31, 2024. We may never generate revenues from
any of our clinical or pre-clinical development programs other than TLANDO, and we may never succeed in obtaining regulatory approval
or commercializing any of these product candidates.
Research
and development expenses consist primarily of salaries, benefits, stock-based compensation and related personnel costs, fees paid to
external service providers such as contract research organizations and contract manufacturing organizations, contractual obligations
for clinical development, clinical sites, manufacturing and scale-up for late stage clinical trials, formulation of clinical drug supplies,
and expenses associated with regulatory submissions. Research and development expenses also include an allocation of indirect costs,
such as those for facilities, office expense, and depreciation of equipment based on the ratio of direct labor hours for research and
development personnel to total direct labor hours for all personnel. We expense research and development expenses as incurred. Since
our inception, we have spent approximately $145.6 million in research and development expenses through September 30, 2023.
We
expect to continue to incur significant costs as we develop our other product candidates, including our CNS product candidates and the
ongoing Phase 2 POC study in male subjects with cirrhosis with LPCN 1148, as well as the development of any future pipeline product candidates.
Given
the stage of clinical development and the significant risks and uncertainties inherent in the clinical development, manufacturing, and
regulatory approval process, we are unable to estimate with any certainty the time or cost to complete the development of LPCN 1154,
LPCN 2101, LPCN 1148, LPCN 1144, LPCN 1111, LPCN 1107 and other product candidates. Clinical development timelines, the probability of
success and development costs can differ materially from expectations and results from our clinical trials may not be favorable. If we
are successful in progressing LPCN 1154, LPCN 2101, or other future product candidates into later stage development, we will require
additional capital. The amount and timing of our future research and development expenses for these product candidates will depend on
the pre-clinical and clinical success of both our current development activities and potential development of new product candidates,
as well as ongoing assessments of the commercial potential of such activities. We will continue efforts to enter into partnership arrangements
for the continued development and/or marketing of LPCN 1144, LPCN 1148, LPCN 1111, LPCN 1107 and TLANDO both inside and outside
of the U.S.
We
will continue to incur significant research and development expenses as we are conducting on-going clinical studies, including the studies
for our CNS product candidates and the Phase 2 POC study in male subjects with cirrhosis with LPCN 1148, and as we conduct future clinical
studies, including when and if we conduct Phase 2 clinical studies with our development product candidates and when and if we conduct
Phase 3 clinical studies with LPCN 1144, LPCN 1148, LPCN 1111 and LPCN 1107. We are exploring the possibility of licensing LPCN 1144,
LPCN 1148, LPCN 1111 and LPCN 1107, although we have not entered into a licensing agreement and no assurance can be given that any license
agreement will be completed, or, if an agreement is completed, that such an agreement would be on terms favorable to us. If we are unable
to raise additional capital or obtain non-dilutive financing, we may need to reduce research and development expenses in order to extend
our ability to continue as a going concern.
Corporate
Information
Marathon
Bar Corp. (“Marathon Bar”) was incorporated on October 13, 2011, in the State of Delaware. On July 24, 2013, Marathon Bar
and MBAR Acquisition Corp. (“Merger Sub”), a wholly owned subsidiary of Marathon Bar, and Lipocine Operating Inc. (“Lipocine
Operating”), a privately held company incorporated in Delaware, executed an Agreement and Plan of Merger (“Merger Agreement”).
Pursuant to the Merger Agreement, Merger Sub merged with and into Lipocine Operating and Lipocine Operating was the surviving entity.
Additionally, pursuant to the Merger Agreement, Marathon Bar changed its name to Lipocine Inc.
Our
principal executive offices are located at 675 Arapeen Drive, Suite 202, Salt Lake City, Utah 84108 and our telephone number is (801)
994-7383. We maintain a website at www.lipocine.com. Information contained in or accessible through our website does not constitute a
part of this prospectus.
The
Securities We May Offer
We
may offer shares of our common stock and preferred stock, various series of debt securities and warrants to purchase any of such securities,
either individually or in units, with a total value of up to $150 million from time to time under this prospectus, together with any
applicable prospectus supplement and related free writing prospectus, at prices and on terms to be determined by market conditions at
the time of offering. This prospectus provides you with a general description of the securities we may offer. Each time we offer a type
or series of securities, we will provide a prospectus supplement that will describe the specific amounts, prices and other important
terms of the securities, including, to the extent applicable:
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or exchange prices or rates, if any, and, if applicable, any provisions for changes to or adjustments in the conversion or exchange
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A
prospectus supplement and any related free writing prospectus that we may authorize to be provided to you may also add, update or change
information contained in this prospectus or in documents we have incorporated by reference. However, no prospectus supplement or free
writing prospectus will offer a security that is not registered and described in this prospectus at the time of the effectiveness of
the registration statement of which this prospectus is a part.
We
may sell the securities directly to or through underwriters, dealers or agents. We, and our underwriters or agents, reserve the right
to accept or reject all or part of any proposed purchase of securities. If we do offer securities through underwriters or agents, we
will include in the applicable prospectus supplement:
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Common
Stock. Our Board of Directors has the authority under our Amended and Restated Certificate of Incorporation, as amended, without
further action by our stockholders, to issue up to 200,000,000 shares of common stock (including shares of common stock outstanding as
of the date hereof). We may offer shares of our common stock from time to time. Each outstanding share of common stock entitles the holder
thereof to one vote per share on all matters. Holders of our common stock do not have cumulative voting rights. Accordingly, the holders
of a majority of the shares of our common stock entitled to vote can elect all of the directors standing for election. Our bylaws provide
that any vacancy occurring in the board of directors may be filled by the affirmative vote of a majority of the remaining directors.
Stockholders do not have preemptive rights to purchase shares in any future issuance of our common stock. In the event of our liquidation,
dissolution or winding up, holders of our common stock are entitled to receive, ratably, the net assets available to stockholders after
payment of all creditors. All of the issued and outstanding shares of our common stock are duly authorized, validly issued, fully paid
and non-assessable. Our common stock is described in greater detail in this prospectus under “Description of Capital Stock —
Common Stock.”
Preferred
Stock. Our board of directors has the authority under our amended and restated certificate of incorporation, without further
action by our stockholders, to issue up to 10,000,000 shares of preferred stock in one or more series, to establish from time to time
the number of shares to be included in each such series, to fix the rights, preferences, privileges and restrictions of the shares of
each wholly unissued series, including dividend rights, conversion rights, voting rights, terms of redemption, liquidation preference
and sinking fund terms, and to increase or decrease the number of shares of any such series (but not below the number of shares of such
series then outstanding). Our Preferred Stock is described in greater detail in this prospectus under “Description of Capital Stock
— Preferred Stock.”
We
will fix the rights, preferences, privileges, qualifications and restrictions of the preferred stock of each series that we sell under
this prospectus and applicable prospectus supplements in the certificate of designation relating to that series. We will incorporate
by reference into the registration statement of which this prospectus is a part the form of any certificate of designation that describes
the terms of the series of preferred stock we are offering before the issuance of the related series of preferred stock. We urge you
to read the prospectus supplements and any free writing prospectus that we may authorize to be provided to you related to the series
of preferred stock being offered, as well as the complete certificate of designation that contains the terms of the applicable series
of preferred stock.
Debt
Securities. We may offer secured or unsecured obligations in the form of one or more series of senior or subordinated debt. The
senior debt securities and the subordinated debt securities are together referred to in this prospectus as the “debt securities.”
The subordinated debt securities generally will be entitled to payment only after payment of our senior debt. Senior debt generally includes
all debt for money borrowed by us, except debt that is stated in the instrument governing the terms of that debt to be not senior to,
or to have the same rank in right of payment as, or to be expressly junior to, the subordinated debt securities. We may issue debt securities
that are convertible into shares of our common stock.
The
senior and subordinated debt securities will be issued under separate indentures between us and a trustee. We have summarized the general
features of the debt securities to be governed by the indentures. These indentures have been filed as exhibits to the registration statement
of which this prospectus forms a part. We encourage you to read these indentures. Instructions on how you can get copies of these documents
are provided in the section titled “Where You Can Find More Information.”
Warrants.
We may offer warrants for the purchase of our common stock, preferred stock and/or debt securities in one or more series, from time to
time. We may issue warrants independently or together with common stock, preferred stock and/or debt securities, and the warrants may
be attached to or separate from those securities.
In
this prospectus, we have summarized certain general features of the warrants under “Description of Warrants.” We urge you,
however, to read the prospectus supplements and any free writing prospectus that we may authorize to be provided to you related to the
particular warrants being offered, as well as the complete warrant document or agreement that contain the terms of the warrants. Specific
warrant documents or agreements will contain additional important terms and provisions and will be filed as exhibits to the registration
statement of which this prospectus is a part, or incorporated by reference from a current report on Form 8-K that we file with the SEC.
Units.
We may offer units consisting of common stock, preferred stock, debt securities and/or warrants to purchase any of such securities in
one or more series. In this prospectus, we have summarized certain general features of the units under “Description of Units.”
We urge you, however, to read the prospectus supplements and any free writing prospectus that we may authorize to be provided to you
related to the particular units being offered, as well as the unit agreements that contain the terms of the units. We will file as exhibits
to the registration statement of which this prospectus is a part, or will incorporate by reference from a current report on Form 8-K
that we file with the SEC, the form of unit agreement and any supplemental agreements that describe the terms of the units we are offering
before the issuance of the related units.
THIS
PROSPECTUS MAY NOT BE USED TO OFFER OR SELL ANY SECURITIES UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
Nasdaq
Capital Market Listing
Our
common stock is listed on The Nasdaq Capital Market under the symbol “LPCN”. The applicable prospectus supplement will contain
information, where applicable, as to other listings, if any, on the Nasdaq Capital Market or other securities exchange of the securities
covered by the applicable prospectus supplement.
RISK
FACTORS
An
investment in our securities involves a high degree of risk. The prospectus supplement applicable to each offering of our securities
will contain a discussion of the risks applicable to an investment in our securities. Prior to making a decision about investing in our
securities, you should carefully consider the specific factors discussed under the heading “Risk Factors” in the applicable
prospectus supplement, together with all of the other information contained or incorporated by reference in the prospectus supplement
or appearing or incorporated by reference in this prospectus. You should also consider the risks, uncertainties and assumptions discussed
under Item 1A, “Risk Factors,” in our Annual Report on Form 10-K for the fiscal year ended December 31, 2022, and our Quarterly
Reports on Form 10-Q for the quarterly periods ended March 31, 2023, June 30, 2023, and September 30, 2023, each of which are incorporated
herein by reference, and may be amended, supplemented or superseded from time to time by other reports we file with the Securities and
Exchange Commission in the future. The risks and uncertainties we have described are not the only ones we face. Additional risks and
uncertainties not presently known to us or that we currently deem immaterial may also affect our operations.
USE
OF PROCEEDS
Except
as described in any applicable prospectus, prospectus supplement and in any free writing prospectuses in connection with a specific offering,
we currently intend to use the net proceeds from this offering primarily for general corporate purposes.
DESCRIPTION
OF CAPITAL STOCK
As
of the date of this prospectus, our certificate of incorporation authorizes us to issue 200,000,000 shares of common stock, par value
$0.0001 per share, and 10,000,000 shares of preferred stock, par value $0.0001 per share. The following is a summary of the rights of
our common and preferred stock and some of the provisions of our amended and restated certificate of incorporation and amended and restated
bylaws, our registration rights agreements and the Delaware General Corporation Law. Because it is only a summary, it does not contain
all the information that may be important to you and is subject to and qualified in its entirety by our amended and restated certificate
of incorporation and our amended and restated bylaws, a copy of each of which has been incorporated as an exhibit to the registration
statement of which this prospectus forms a part.
Our
amended and restated certificate of incorporation and our amended and restated bylaws contain certain provisions that are intended to
enhance the likelihood of continuity and stability in the composition of the board of directors, which may have the effect of delaying,
deferring or preventing a future takeover or change in control of Lipocine unless such takeover or change in control is approved by our
board of directors.
Common
Stock
As
of September 30, 2023, there were 5,315,830 shares of common stock outstanding. In addition, as of September 30, 2023 there were: (i)
264,069 shares of common stock subject to outstanding options; (ii) 46,600 shares of common stock reserved for future issuance under
our Amended and Restated 2014 Stock and Incentive Plan; and (iii) 113,795 shares of common stock underlying outstanding common stock
purchase warrants. Each outstanding share of common stock entitles the holder thereof to one vote per share on all matters properly submitted
to the stockholders for their vote; provided, however, that, except as otherwise required by law, holders of common stock shall not be
entitled to vote on any amendment to the certificate of incorporation that relates solely to the terms of one or more outstanding series
of preferred stock if the holders of such affected series are entitled to vote thereon. Our bylaws provide that any vacancy occurring
in the board of directors may be filled by the affirmative vote of a majority of the remaining directors. Stockholders do not have preemptive
rights to purchase shares in any future issuance of our common stock. In the event of our liquidation, dissolution or winding up, holders
of our common stock are entitled to receive, ratably, the net assets available to stockholders after payment of all creditors.
All
outstanding shares of common stock are, and all shares of common stock to be outstanding upon the closing of this offering will be, fully
paid and nonassessable.
Additional
shares of authorized common stock may be issued, as authorized by our board of directors from time to time, without stockholder approval,
except as may be required by applicable stock exchange requirements.
The
transfer agent and registrar for our common stock is Equiniti Trust Company, LLC. Our common stock is listed on The Nasdaq
Capital Market under the symbol “LPCN”.
Preferred
Stock
Our
board of directors has the authority under our amended and restated certificate of incorporation, without further action by our stockholders,
to issue up to 10,000,000 shares of preferred stock in one or more series, to establish from time to time the number of shares to be
included in each such series, to fix the rights, preferences, privileges and restrictions of the shares of each wholly unissued series,
including dividend rights, conversion rights, voting rights, terms of redemption, liquidation preference and sinking fund terms, and
to increase or decrease the number of shares of any such series (but not below the number of shares of such series then outstanding).
Our
board of directors may authorize the issuance of preferred stock with voting or conversion rights that could have the effect of restricting
dividends on our common stock, diluting the voting power of our common stock, impairing the liquidation rights of our common stock or
otherwise adversely affecting the rights of holders of our common stock. The issuance of preferred stock, while providing flexibility
in connection with possible acquisitions and other corporate purposes, could, among other things, have the effect of delaying, deferring
or preventing a change of control and may adversely affect the market price of our common stock. As of September 30, 2023, no shares
of preferred stock were outstanding, and we have no current plans to issue any shares of preferred stock.
Future
Preferred Stock. Our board of directors will fix the rights, preferences, privileges, qualifications and restrictions of the
preferred stock of each series that we sell under this prospectus and applicable prospectus supplements in the certificate of designation
relating to that series. We will file as an exhibit to the registration statement of which this prospectus is a part, or incorporate
by reference into the registration statement of which this prospectus is a part the form of any certificate of designation that describes
the terms of the series of preferred stock we are offering before the issuance of the related series of preferred stock. This description
will include:
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the
title and stated value; |
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the
number of shares we are offering; |
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the
liquidation preference per share; |
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the
purchase price per share; |
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the
dividend rate per share, dividend period and payment dates and method of calculation for dividends; |
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whether
dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate; |
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our
right, if any, to defer payment of dividends and the maximum length of any such deferral period; |
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the
procedures for any auction and remarketing, if any; |
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the
provisions for a sinking fund, if any; |
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the
provisions for redemption or repurchase, if applicable, and any restrictions on our ability to exercise those redemption and repurchase
rights; |
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any
listing of the preferred stock on any securities exchange or market; |
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whether
the preferred stock will be convertible into our common stock or other securities of ours, including warrants, and, if applicable,
the conversion period, the conversion price, or how it will be calculated, and under what circumstances it may be adjusted; |
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whether
the preferred stock will be exchangeable into debt securities, and, if applicable, the exchange period, the exchange price, or how
it will be calculated, and under what circumstances it may be adjusted; |
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voting
rights, if any, of the preferred stock; |
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preemptive
rights, if any; |
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restrictions
on transfer, sale or other assignment, if any; |
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a
discussion of any material or special United States federal income tax considerations applicable to the preferred stock; |
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the
relative ranking and preferences of the preferred stock as to dividend rights and rights if we liquidate, dissolve or wind up our
affairs; |
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any
limitations on issuances of any class or series of preferred stock ranking senior to or on a parity with the series of preferred
stock being issued as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; and |
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any
other specific terms, rights, preferences, privileges, qualifications or restrictions of the preferred stock. |
When
we issue shares of preferred stock under this prospectus, the shares will be fully paid and nonassessable and will not have, or be subject
to, any preemptive or similar rights.
February
2020 Common Stock Purchase Warrants
In
February 2020, we issued 296,593 common stock purchase warrants (the “February 2020 Warrants”) in a registered
offering. As of September 30, 2023, there were 49,433 February 2020 Warrants outstanding. The material terms and provisions of the February
2020 Warrants are summarized below. This summary of some provisions of the February 2020 Warrants is not complete and is qualified in
its entirety by reference to the form of common stock purchase warrant included as Exhibit 4.5 to the registration statement of which
this prospectus forms a part.
Each
whole February 2020 Warrant is exercisable to purchase one share of our Common Stock at an exercise price of $9.01 per share at any time
for up to five years after the date of the closing of the offering. The holder of a February 2020 Warrant will not be deemed a holder
of our underlying common stock until the February 2020 Warrant is exercised, except as set forth in the February 2020 Warrant.
Subject
to limited exceptions, a holder of February 2020 Warrants does not have the right to exercise any portion of its February 2020
Warrants if the holder (together with such holder’s affiliates, and any persons acting as a group together with such holder or
any of such holder’s affiliates) would beneficially own a number of shares of our common stock in excess of 4.99% (or, at the election
of the holder, 9.99%) of the shares of our common stock then outstanding after giving effect to such exercise (the “February
2020 Beneficial Ownership Limitation”); provided, however, that upon notice to the Company, the holder may increase or decrease
the February 2020 Beneficial Ownership Limitation, provided that in no event shall the February 2020 Beneficial Ownership Limitation
exceed 9.99% and any increase in the February 2020 Beneficial Ownership Limitation will not be effective until 61 days following notice
of such increase from the holder to us.
The
exercise price and the number of shares issuable upon exercise of the February 2020 Warrants is subject to appropriate adjustment in
the event of recapitalization events, stock dividends, stock splits, stock combinations, reclassifications, reorganizations or similar
events affecting our common stock. The holders of February 2020 Warrants must pay the exercise price in cash upon exercise of the February
2020 Warrants, unless such holders are utilizing the cashless exercise provision of the February 2020 Warrants, which is only available
in certain circumstances such as if the underlying shares are not registered with the SEC pursuant to an effective registration statement.
We intend to use commercially reasonable efforts to have the registration statement of which this prospectus forms a part, effective
when the February 2020 Warrants are exercised.
In
addition, in the event we consummate a merger or consolidation with or into another person or other reorganization event in which our
common stock is converted or exchanged for securities, cash or other property, or we sell, lease, license, assign, transfer, convey or
otherwise dispose of all or substantially all of our assets or we or another person acquire 50% or more of the outstanding shares of
our common stock, then following such event, the holders of the February 2020 Warrants will be entitled to receive upon exercise of the
February 2020 Warrants the same kind and amount of securities, cash or property which the holders would have received had they exercised
the February 2020 Warrants immediately prior to such fundamental transaction. Any successor to us or surviving entity shall assume the
obligations under the February 2020 Warrants.
November
2019 Common Stock Purchase Warrants
Also,
in November 2019, we issued 705,883 common stock purchase warrants (the “November 2019 Warrants”) in a registered
offering. As of September 30, 2023, there were 64,362 November 2019 Warrants outstanding. The material terms and provisions of the November
2019 Warrants are summarized below. This summary of some provisions of the November 2019 Warrants is not complete and is qualified in
its entirety by reference to the form of common stock purchase warrant included as Exhibit 4.4 to the registration statement of which
this prospectus forms a part.
Each
whole November 2019 Warrant is exercisable to purchase one share of our Common Stock at an exercise price of $8.50 per share at any time
for up to five years after the date of the closing of issuance. The holder of a November 2019 Warrant will not be deemed a holder of
our underlying common stock until the November 2019 Warrant is exercised, except as set forth in the November 2019 Warrant.
Subject
to limited exceptions, a holder of November 2019 Warrants will not have the right to exercise any portion of its November 2019 Warrants
if the holder (together with such holder’s affiliates, and any persons acting as a group together with such holder or any of such
holder’s affiliates) would beneficially own a number of shares of our common stock in excess of 4.99% (or, at the election of the
holder, 9.99%) of the shares of our common stock then outstanding after giving effect to such exercise (the “November 2019 Warrant
Beneficial Ownership Limitation”); provided, however, that upon notice to the Company, the holder may increase or decrease
the November 2019 Warrant Beneficial Ownership Limitation, provided that in no event shall the November 2019 Warrant Beneficial Ownership
Limitation exceed 9.99% and any increase in the November 2019 Warrant Beneficial Ownership Limitation will not be effective until 61
days following notice of such increase from the holder to us.
The
exercise price and the number of shares issuable upon exercise of the November 2019 Warrants is subject to appropriate adjustment in
the event of recapitalization events, stock dividends, stock splits, stock combinations, reclassifications, reorganizations or similar
events affecting our common stock. The holders of November 2019 Warrants must pay the exercise price in cash upon exercise of the November
2019 Warrants, unless such holders are utilizing the cashless exercise provision of the November 2019 Warrants, which is only available
in certain circumstances such as if the underlying shares are not registered with the SEC pursuant to an effective registration statement.
We intend to use commercially reasonable efforts to have the registration statement of which this prospectus forms a part, effective
when the November 2019 Warrants are exercised.
In
addition, in the event we consummate a merger or consolidation with or into another person or other reorganization event in which our
common stock is converted or exchanged for securities, cash or other property, or we sell, lease, license, assign, transfer, convey or
otherwise dispose of all or substantially all of our assets or we or another person acquire 50% or more of the outstanding shares of
our common stock, then following such event, the holders of the November 2019 Warrants will be entitled to receive upon exercise of the
November 2019 Warrants the same kind and amount of securities, cash or property which the holders would have received had they exercised
the November 2019 Warrants immediately prior to such fundamental transaction. Any successor to us or surviving entity shall assume the
obligations under the November 2019 Warrants. Additionally, as more fully described in the November 2019 Warrants, in the event of certain
fundamental transactions, the holders of the November 2019 Warrants will be entitled to, at their option exercisable at any time within
30 days after such fundamental transaction, receive consideration in an amount equal to the Black Scholes value of the November 2019
Warrants on the date of consummation of such transaction.
Upon
the holder’s exercise of a November 2019 Warrant, we will issue the shares of our common stock issuable upon exercise of the November
2019 Warrant within two trading days following our receipt of a notice of exercise, provided that payment of the exercise price has been
made (unless exercised via the “cashless” exercise provision).
Prior
to the exercise of a November 2019 Warrant, holders of the November 2019 Warrant will not have any of the rights of holders of our common
stock purchasable upon exercise, including the right to vote, except as set forth therein.
Holders
of November 2019 Warrants may exercise the November 2019 Warrants only if the issuance of the shares of our common stock upon exercise
of the November 2019 Warrants is covered by an effective registration statement, or an exemption from registration is available under
the Securities Act and the securities laws of the state in which the holder resides. We intend to use commercially reasonable efforts
to have the registration statement of which this prospectus forms a part effective when the November 2019 Warrants are exercised. The
holders of November 2019 Warrants must pay the exercise price in cash upon exercise of the November 2019 Warrants unless there is not
an effective registration statement or, if required, there is not an effective state law registration or exemption covering the issuance
of the shares of our common stock underlying the November 2019 Warrants (in which case, the November 2019 Warrants may only be exercised
via a “cashless” exercise provision).
Anti-Takeover
Effects of Our Certificate of Incorporation and Bylaws
Our
amended and restated certificate of incorporation and amended and restated bylaws contain certain provisions that may have anti-takeover
effects, making it more difficult for or preventing a third party from acquiring control of Lipocine or changing our board of directors
and management. According to our amended and restated certificate of incorporation and amended and restated bylaws, the holders of our
common stock do not have cumulative voting rights in the election of our directors. The combination of the present ownership and control
of 2.9% of our issued and outstanding common stock by our executive officers and directors as a group as of September 30, 2023 and the
lack of cumulative voting, may make it more difficult for other stockholders to replace our board of directors or for a third party to
obtain control of the company by replacing our board of directors.
Delaware
Anti-Takeover Law
We
are subject to Section 203 of the Delaware General Corporation Law, or Section 203. Section 203 generally prohibits a public Delaware
corporation from engaging in a “business combination” with an “interested stockholder” for a period of three
years after the date of the transaction in which the person became an interested stockholder, unless:
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to the date of the transaction, the board of directors of the corporation approved either the business combination or the transaction
that resulted in the stockholder becoming an interested stockholder; |
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upon
consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder
owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced; or |
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at
or subsequent to the time of the transaction, the business combination is approved by the board of directors of the corporation and
authorized at an annual or special meeting of its stockholders, and not by written consent, by the affirmative vote of at least 66
2/3% of our outstanding voting stock that is not owned by the interested stockholder. |
In
general, Section 203 defines a “business combination” to include mergers, asset sales and other transactions resulting in
financial benefit to a stockholder and an “interested stockholder” as a person who, together with affiliates and associates,
owns (or within three years, did own) 15% or more of a corporation’s voting stock.
Section
203 could prohibit or delay mergers or other takeover or change in control attempts not approved in advance by our board of directors
and, accordingly, may discourage attempts to acquire us even though such a transaction may offer our stockholders the opportunity to
sell their stock at a price above the prevailing market price.
Amended
and Restated Certificate of Incorporation and Amended and Restated Bylaws
Provisions
of our amended and restated certificate of incorporation and amended and restated bylaws, which became effective following the closing
of the Merger, may delay or discourage transactions involving an actual or potential change of control or change in our Board of directors
or our management, including transactions in which stockholders might otherwise receive a premium for their shares, or transactions that
our stockholders might otherwise deem to be in their best interests. Therefore, these provisions could adversely affect the price of
our common stock. Among other things, our amended and restated certificate of incorporation and bylaws:
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permit
our Board of directors to issue up to 10,000,000 shares of preferred stock, with any rights, preferences and privileges as they may
designate (including the right to approve an acquisition or other change of control); |
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provide
that the authorized number of directors may be changed only by resolution of our Board of directors; |
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provide
that directors may only be removed, subject to any limitation imposed by law, by the holders of at least a majority of all of our
then-outstanding shares of the capital stock entitled to vote generally at an election of directors; |
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provide
that all vacancies, including newly created directorships, may, except as otherwise required by law, be filled by the affirmative
vote of a majority of directors then in office, even if less than a quorum; |
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require
that any action to be taken by our stockholders must be effected at a duly called annual or special meeting of stockholders and not
be taken by written consent or electronic transmission; |
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provide
that stockholders seeking to present proposals before a meeting of stockholders or to nominate candidates for election as directors
at a meeting of stockholders must provide advance notice in writing, and also specify requirements as to the form and content of
a stockholder’s notice; |
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provide
that special meetings of our stockholders may be called only by the chairman of our Board of directors, our chief executive officer
or by our Board of directors pursuant to a resolution adopted by a majority of the total number of authorized directors; and |
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do
not provide for cumulative voting rights (therefore allowing the holders of a majority of the shares of common stock entitled to
vote in any election of directors to elect all of the directors standing for election, if they should so choose). |
The
amendment of any of these provisions would require approval by the holders of at least 66 2/3% of the voting power of all of our then-outstanding
common stock entitled to vote generally in the election of directors, voting together as a single class.
DESCRIPTION
OF DEBT SECURITIES
This
section describes the general terms and provisions of the debt securities that we may offer using this prospectus and the related indenture.
This section is only a summary and does not purport to be complete. You must look to the relevant form of debt security and the related
indenture for a full understanding of all terms of any series of debt securities. The form of debt security and the related indenture
have been or will be filed or incorporated by reference as exhibits to the registration statement of which this prospectus is a part.
See “Where You Can Find More Information” for information on how to obtain copies.
We
may issue debt securities from time to time, in one or more series, as either senior or subordinated debt or as senior or subordinated
convertible debt. The senior debt securities will rank equally with any other unsecured and unsubordinated debt. The subordinated debt
securities will be subordinate and junior in right of payment, to the extent and in the manner described in the instrument governing
the debt, to all of our senior indebtedness. Convertible debt securities will be convertible into our common stock or preferred stock.
Conversion may be mandatory or at the holder’s option and would be at prescribed conversion rates. While the terms we have summarized
herein will apply generally to any debt securities that we may offer under this prospectus, we will describe the particular terms of
any debt securities that we may offer in more detail in the applicable prospectus supplement. The terms of any debt securities offered
under a prospectus supplement may differ from the terms described below. Unless otherwise mentioned or unless the context requires otherwise,
whenever we refer to the indenture, we also are referring to any supplemental indentures thereto that specify the terms of a particular
series of debt securities.
We
will issue the debt securities under an indenture that we will enter into with the trustee named in the indenture. The indentures will
be qualified under the Trust Indenture Act of 1939, as amended, or the Trust Indenture Act. We have filed the forms of indentures as
exhibits to the registration statement of which this prospectus is a part, and supplemental indentures and forms of debt securities containing
the terms of the debt securities being offered will be filed as exhibits to the registration statement of which this prospectus is a
part or will be incorporated by reference from reports that we file with the SEC.
The
following summary of material provisions of the debt securities and the indentures is subject to, and qualified in its entirety by reference
to, all of the provisions of the indenture applicable to a particular series of debt securities. We urge you to read the applicable prospectus
supplements and any related free writing prospectuses related to the debt securities that we may offer under this prospectus, as well
as the complete indenture that contains the terms of the debt securities.
General
The
indentures do not limit the amount of debt securities that we may issue. They provide that we may issue debt securities up to the principal
amount that we may authorize and may be in any currency or currency unit that we may designate. Except for the limitations on consolidation,
merger and sale of all or substantially all of our assets contained in the indentures, the terms of the indentures do not contain any
covenants or other provisions designed to give holders of any debt securities protection against changes in our operations, financial
condition or transactions involving us.
We
may issue the debt securities issued under the indentures as “discount securities,” which means they may be sold at a discount
below their stated principal amount. These debt securities, as well as other debt securities that are not issued at a discount, may be
issued with “original issue discount,” or OID, for U.S. federal income tax purposes because of interest payment and other
characteristics or terms of the debt securities. Material U.S. federal income tax considerations applicable to debt securities issued
with OID will be described in more detail in the applicable prospectus supplement.
We
will describe in the applicable prospectus supplement the terms of the series of debt securities being offered, including:
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title of the series of debt securities; |
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any
limit upon the aggregate principal amount that may be issued; |
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the
maturity date or dates; |
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the
form of the debt securities of the series; |
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the
applicability of any guarantees; |
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whether
or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
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whether
the debt securities rank as senior debt, senior subordinated debt, or subordinated debt; |
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if
the price (expressed as a percentage of the aggregate principal amount thereof) at which such debt securities will be issued is a
price other than the principal amount thereof, the portion of the principal amount thereof payable upon declaration of acceleration
of the maturity thereof, or if applicable, the portion of the principal amount of such debt securities that is convertible into another
security or the method by which any such portion shall be determined; |
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the
interest rate or rates, which may be fixed or variable, or the method for determining the rate and the date interest will begin to
accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining
such dates; |
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our
right, if any, to defer payment of interest and the maximum length of any such deferral period; |
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if
applicable, the date or dates after which, or the period or periods during which, and the price or prices at which, we may, at our
option, redeem the series of debt securities pursuant to any optional or provisional redemption provisions and the terms of those
redemption provisions; |
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the
date or dates, if any, on which, and the price or prices at which we are obligated, pursuant to any mandatory sinking fund, mandatory
redemption or analogous provisions or otherwise, to repurchase, at the holder’s option, the series of debt securities; |
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the
denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral multiple
thereof; |
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any
and all terms, if applicable, relating to any auction or remarketing of the debt securities of that series and any security for our
obligations with respect to such debt securities and any other terms which may be advisable in connection with the marketing of debt
securities of that series; |
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whether
the debt securities of the series shall be issued in whole or in part in the form of a global security or securities; the terms and
conditions, if any, upon which such global security or securities may be exchanged in whole or in part for other individual securities;
and the depositary for such global security or securities; |
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if
applicable, the provisions relating to conversion or exchange of any debt securities of the series and the terms and conditions upon
which such debt securities will be so convertible or exchangeable, including the conversion or exchange price, as applicable, or
how it will be calculated and may be adjusted, any mandatory or optional (at our option or the holders’ option) conversion
or exchange features, the applicable conversion or exchange period and the manner of settlement for any conversion or exchange; |
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if
other than the full principal amount thereof, the portion of the principal amount of debt securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof; |
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additions
to or changes in the covenants applicable to the particular debt securities being issued, including, among others, the consolidation,
merger or sale covenant; |
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additions
to or changes in the events of default with respect to the securities and any change in the right of the trustee or the holders to
declare the principal, premium, if any, and interest, if any, with respect to such securities to be due and payable; |
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additions
to or changes in or deletions of the provisions relating to covenant defeasance and legal defeasance; |
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additions
to or changes in the provisions relating to satisfaction and discharge of the applicable indenture; |
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additions
to or changes in the provisions relating to the modification of the applicable indenture both with and without the consent of holders
of debt securities issued under the applicable indenture; |
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the
currency or currencies, including composite currencies, in which payment of debt securities if other than U.S. dollars and the manner
of determining the equivalent amount in U.S. dollars; |
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whether
interest will be payable in cash or additional debt securities at our or the holders’ option and the terms and conditions upon
which the election may be made; |
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the
terms and conditions, if any, upon which we will pay amounts in addition to the stated interest, premium, if any, and principal amounts
of the debt securities of the series to any holder that is not a “United States person” for federal tax purposes; |
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any
restrictions on transfer, sale or assignment of the debt securities of the series; |
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any
other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities, any other additions or changes
in the provisions of the applicable indenture, and any terms that may be required by us or advisable under applicable laws or regulations;
and |
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the
subordination terms of the debt securities of the series, if any. |
Conversion
or Exchange Rights
We
will set forth in the applicable prospectus supplement the terms on which a series of debt securities may be convertible into or exchangeable
for our common stock or our other securities. We will include provisions as to settlement upon conversion or exchange and whether conversion
or exchange is mandatory, at the option of the holder or at our option. We may include provisions pursuant to which the number of shares
of our common stock or our other securities that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation,
Merger or Sale
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the indenture will not contain
any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of our assets as an entirety
or substantially as an entirety. However, any successor to or acquirer of such assets (other than a subsidiary of ours) must assume all
of our obligations under the indenture or the debt securities, as appropriate.
Events
of Default under the Indentures
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, the following are events of default
under the indentures with respect to any series of debt securities that we may issue:
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if
we fail to pay any installment of interest on any series of debt securities, as and when the same shall become due and payable, and
such default continues for a period of 90 days; provided, however, that a valid extension of an interest payment period by us in
accordance with the terms of any indenture supplemental thereto shall not constitute a default in the payment of interest for this
purpose; |
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if
we fail to pay the principal of, or premium, if any, on any series of debt securities as and when the same shall become due and payable
whether at maturity, upon redemption, by declaration or otherwise, or in any payment required by any sinking or analogous fund established
with respect to such series; provided, however, that a valid extension of the maturity of such debt securities in accordance with
the terms of any indenture supplemental thereto shall not constitute a default in the payment of principal or premium, if any; |
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if
we fail to observe or perform any other covenant or agreement contained in the debt securities or the indenture, other than a covenant
specifically relating to another series of debt securities, and our failure continues for 90 days after we receive written notice
of such failure, requiring the same to be remedied and stating that such is a notice of default thereunder, from the trustee or holders
of at least 25% in aggregate principal amount of the outstanding debt securities of the applicable series; and |
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if
specified events of bankruptcy, insolvency or reorganization occur. |
If
an event of default with respect to debt securities of any series occurs and is continuing, other than an event of default specified
in the last bullet point above, the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities
of that series, by notice to us in writing, and to the trustee if notice is given by such holders, may declare the unpaid principal,
premium, if any, and accrued interest, if any, of such series of debt securities due and payable immediately. If an event of default
specified in the last bullet point above occurs with respect to us, the principal amount of and accrued interest, if any, of each issue
of debt securities then outstanding shall be due and payable without any notice or other action on the part of the trustee or any holder.
The
holders of a majority in principal amount of the outstanding debt securities of an affected series may waive any default or event of
default with respect to the series and its consequences, except defaults or events of default regarding payment of principal, premium,
if any, or interest, unless we have cured the default or event of default in accordance with the indentures. Any waiver shall cure the
default or event of default.
Subject
to the terms of the indentures, if an event of default under an indenture shall occur and be continuing, the trustee will be under no
obligation to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of the applicable
series of debt securities, unless such holders have offered the trustee reasonable indemnity. The holders of a majority in principal
amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt securities
of that series, provided that:
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the
direction so given by the holder is not in conflict with any law or the applicable indenture; and |
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subject
to its duties under the Trust Indenture Act, the trustee need not take any action that might involve it in personal liability or
might be unduly prejudicial to the holders not involved in the proceeding. |
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a
holder of the debt securities of any series will have the right to institute a proceeding under the indenture or to appoint a receiver
or trustee, or to seek other remedies only if: |
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the
holder has given written notice to the trustee of a continuing event of default with respect to that series; |
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the
holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made written request; |
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such
holders have offered to the trustee indemnity satisfactory to it against the costs, expenses and liabilities to be incurred by the
trustee in compliance with the request; and |
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the
trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount of the
outstanding debt securities of that series other conflicting directions within 90 days after the notice, request and offer. |
These
limitations do not apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium,
if any, or interest on, the debt securities.
We
will periodically file statements with the trustee regarding our compliance with specified covenants in the indenture.
Modification
of Indenture; Waiver
Unless
we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, we and the trustee may change
an indenture without the consent of any holders with respect to specific matters:
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to
cure any ambiguity, defect or inconsistency in the indenture or in the debt securities of any series; |
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to
comply with the provisions described above under “Description of Debt Securities—Consolidation, Merger or Sale; |
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to
provide for uncertificated debt securities in addition to or in place of certificated debt securities; |
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to
add to our covenants, restrictions, conditions or provisions such new covenants, restrictions, conditions or provisions for the benefit
of the holders of all or any series of debt securities, to make the occurrence, or the occurrence and the continuance, of a default
in any such additional covenants, restrictions, conditions or provisions an event of default or to surrender any right or power conferred
upon us in the indenture; |
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to
add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue,
authentication and delivery of debt securities, as set forth in the indenture; |
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to
make any change that does not adversely affect the interests of any holder of debt securities of any series in any material respect; |
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to
provide for the issuance of and establish the form and terms and conditions of the debt securities of any series as provided above
under “Description of Debt Securities—General” to establish the form of any certifications required to be furnished
pursuant to the terms of the indenture or any series of debt securities, or to add to the rights of the holders of any series of
debt securities; |
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to
evidence and provide for the acceptance of appointment under any indenture by a successor trustee; or |
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to
comply with any requirements of the SEC in connection with the qualification of any indenture under the Trust Indenture Act. |
In
addition, under the indentures, the rights of holders of a series of debt securities may be changed by us and the trustee with the written
consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of each series that is
affected. However, unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, we
and the trustee may make the following changes only with the consent of each holder of any outstanding debt securities affected:
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extending
the fixed maturity of any debt securities of any series; |
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reducing
the principal amount, reducing the rate of or extending the time of payment of interest, or reducing any premium payable upon the
redemption of any series of any debt securities; or |
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reducing
the percentage of debt securities, the holders of which are required to consent to any amendment, supplement, modification or waiver. |
Discharge
The
indentures provide that we can elect to be discharged from our obligations with respect to one or more series of debt securities, except
for specified obligations, including obligations to:
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provide
for payment; |
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register
the transfer or exchange of debt securities of the series; |
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replace
stolen, lost or mutilated debt securities of the series; |
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pay
principal of and premium and interest on any debt securities of the series; |
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maintain
paying agencies; |
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hold
monies for payment in trust; |
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recover
excess money held by the trustee; |
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compensate
and indemnify the trustee; and |
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appoint
any successor trustee. |
In
order to exercise our rights to be discharged, we must deposit with the trustee money or government obligations sufficient to pay all
the principal of, any premium, if any, and interest on, the debt securities of the series on the dates payments are due.
Form,
Exchange and Transfer
We
will issue the debt securities of each series only in fully registered form without coupons and, unless we provide otherwise in the applicable
prospectus supplement, in denominations of $1,000 and any integral multiple thereof. The indentures provide that we may issue
debt securities of a series in temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf
of, The Depository Trust Company, or DTC, or another depositary named by us and identified in the applicable prospectus supplement with
respect to that series. To the extent the debt securities of a series are issued in global form and as book-entry, a description of terms
relating to any book-entry securities will be set forth in the applicable prospectus supplement.
At
the option of the holder, subject to the terms of the applicable indenture and the limitations applicable to global securities described
in the applicable prospectus supplement, the holder of the debt securities of any series can exchange the debt securities for other debt
securities of the same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject
to the terms of the applicable indenture and the limitations applicable to global securities set forth in the applicable prospectus supplement,
holders of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the
form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the security registrar
or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder
presents for transfer or exchange, we will impose no service charge for any registration of transfer or exchange, but we may require
payment of any taxes or other governmental charges.
We
will name in the applicable prospectus supplement the security registrar, and any transfer agent in addition to the security registrar,
that we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation
of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required to maintain
a transfer agent in each place of payment for the debt securities of each series.
If
we elect to redeem the debt securities of any series, we will not be required to:
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issue,
register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business 15
days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption and ending at
the close of business on the day of the mailing; or |
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register
the transfer of or exchange of any debt securities so selected for redemption, in whole or in part, except the unredeemed portion
of any debt securities we are redeeming in part. |
Information
Concerning the Trustee
The
trustee, other than during the occurrence and continuance of an event of default under an indenture, undertakes to perform only those
duties as are specifically set forth in the applicable indenture. Upon an event of default under an indenture, the trustee must use the
same degree of care as a prudent person would exercise or use in the conduct of his or her own affairs. Subject to this provision, the
trustee is under no obligation to exercise any of the powers given it by the indenture at the request of any holder of debt securities
unless it is offered reasonable security and indemnity against the costs, expenses and liabilities that it might incur.
Payment
and Paying Agents
Unless
we otherwise indicate in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest
payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business
on the regular record date for the interest.
We
will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents designated
by us, except that unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments by check that
we will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable prospectus supplement,
we will designate the corporate trust office of the trustee as our sole paying agent for payments with respect to debt securities of
each series. We will name in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities
of a particular series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All
money we pay to a paying agent or the trustee for the payment of the principal of or any premium or interest on any debt securities that
remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid to us,
and the holder of the debt security thereafter may look only to us for payment thereof.
Governing
Law
The
indentures and the debt securities, and any claim, controversy or dispute arising under or related to the indenture or the debt securities,
will be governed by and construed in accordance with the laws of the State of New York, except to the extent that the Trust Indenture
Act is applicable.
DESCRIPTION
OF WARRANTS
The
following description, together with the additional information we may include in any applicable prospectus supplements and free writing
prospectuses, summarizes the material terms and provisions of the warrants that we may offer under this prospectus, which may consist
of warrants to purchase common stock, preferred stock or debt securities and may be issued in one or more series. Warrants may be offered
independently or together with common stock, preferred stock or debt securities offered by any prospectus supplement, and may be attached
to or separate from those securities. While the terms we have summarized below will apply generally to any warrants that we may offer
under this prospectus, we will describe the particular terms of any warrants that we may offer in more detail in the applicable prospectus
supplement and any applicable free writing prospectus. The terms of any warrants offered under a prospectus supplement may differ from
the terms described below. However, no prospectus supplement will fundamentally change the terms that are set forth in this prospectus
or offer a security that is not registered and described in this prospectus at the time of its effectiveness.
We
will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from a current
report on Form 8-K that we file with the SEC, the form of warrant document or agreement that describes the terms of the particular warrants
we are offering before the issuance of the related warrants. The following summaries of material provisions of the warrants are subject
to, and qualified in their entirety by reference to, all the provisions of the warrant document or agreement applicable to particular
warrants. We urge you to read the applicable prospectus supplement and any applicable free writing prospectus related to the particular
warrants that we sell under this prospectus, as well as the complete warrant document or agreement that contain the terms of the warrants.
General
We
will describe in the applicable prospectus supplement the terms relating to the warrants, including, if applicable:
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the
offering price and aggregate number of warrants offered; |
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the
currency for which the warrants may be purchased; |
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if
applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with
each such security or each principal amount of such security; |
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if
applicable, the date on and after which the warrants and the related securities will be separately transferable; |
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in
the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one warrant
and the price at, and currency in which, this principal amount of debt securities may be purchased upon such exercise; |
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in
the case of warrants to purchase common stock or preferred stock, the number of shares of common stock or preferred stock, as the
case may be, purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon such exercise; |
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the
effect of any merger, consolidation, sale or other disposition of our business on the warrant agreements and the warrants; |
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the
terms of any rights to redeem or call the warrants; |
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any
provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants; |
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the
dates on which the right to exercise the warrants will commence and expire; |
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the
manner in which the warrant agreements and warrants may be modified; |
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material
United States federal income tax consequences of holding or exercising the warrants; |
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the
terms of the securities issuable upon exercise of the warrants; and |
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any
other specific terms, preferences, rights or limitations of or restrictions on the warrants. |
Before
exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such exercise,
including:
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in
the case of warrants to purchase debt securities, the right to receive payments of principal of, or premium, if any, or interest
on, the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture; or |
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in
the case of warrants to purchase common stock or preferred stock, the right to receive dividends, if any, or, payments upon our liquidation,
dissolution or winding up or to exercise voting rights, if any. |
Exercise
of Warrants
Each
warrant will entitle the holder to purchase the securities that we specify in the applicable prospectus supplement at the exercise price
that we describe in the applicable prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement, holders
of the warrants may exercise the warrants at any time up to the specified time on the expiration date that we set forth in the applicable
prospectus supplement. After the close of business on the expiration date, unexercised warrants will become void.
Holders
of the warrants may exercise the warrants by delivering the warrant certificate representing the warrants to be exercised together with
specified information, and paying the required amount to the warrant agent in immediately available funds, as provided in the applicable
prospectus supplement. We will set forth in the warrant agreement or documents and in the applicable prospectus supplement the information
that the holder of the warrant will be required to deliver to the warrant agent.
Upon
receipt of the required payment and the warrant documents properly completed and duly executed at the office of the warrant agent or
any other office indicated in the applicable prospectus supplement, we will issue and deliver the securities purchasable upon such exercise.
If we so indicate in the applicable prospectus supplement, holders of the warrants may surrender securities as all or part of the exercise
price for warrants.
DESCRIPTION
OF UNITS
The
following description, together with the additional information we may include in any applicable prospectus supplements, summarizes the
material terms and provisions of the units that we may offer under this prospectus. While the terms we have summarized below will apply
generally to any units that we may offer under this prospectus, we will describe the particular terms of any series of units in more
detail in the applicable prospectus supplement. The terms of any units offered under a prospectus supplement may differ from the terms
described below. However, no prospectus supplement will fundamentally change the terms that are set forth in this prospectus or offer
a security that is not registered and described in this prospectus at the time of its effectiveness.
We
will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from a current
report on Form 8-K that we file with the SEC, the form of unit agreement that describes the terms of the units we are offering, and any
supplemental agreements, before the issuance of the related units. The following summaries of material terms and provisions of the units
are subject to, and qualified in their entirety by reference to, all the provisions of the unit agreement and any supplemental agreements
applicable to particular units. We urge you to read the applicable prospectus supplements related to the particular units that we sell
under this prospectus, as well as the complete unit agreement and any supplemental agreements that contain the terms of the units.
General
We
may issue units comprised of one or more debt securities, shares of common stock, shares of preferred stock and warrants in any combination.
Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of
a unit will have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may
provide that the securities included in the unit may not be held or transferred separately, at any time or at any time before a specified
date.
We
will describe in the applicable prospectus supplement the terms of the units, including:
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the
designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those
securities may be held or transferred separately; |
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any
provisions of the governing unit agreement that differ from those described below; and |
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any
provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units. |
The
provisions described in this section, as well as those described under “Description of Capital Stock,” “Description
of Debt Securities” and “Description of Warrants” will apply to each unit and to any common stock, preferred stock,
debt security or warrant included in each unit, respectively.
Issuance
in Series
We
may issue units in such amounts and in numerous distinct series as we determine.
Enforceability
of Rights by Holders of Units
A
single bank or trust company may act as unit agent for more than one series of units. A unit agent will have no duty or responsibility
in case of any default by us under the applicable unit agreement or unit, including any duty or responsibility to initiate any proceedings
at law or otherwise, or to make any demand upon us. Any holder of a unit may, without the consent of the related unit agent or the holder
of any other unit, enforce by appropriate legal action its rights as holder under any security included in the unit.
We,
the unit agents, and any of their agents may treat the registered holder of any unit certificate as an absolute owner of the units evidenced
by that certificate for any purpose and as the person entitled to exercise the rights attaching to the units so requested, despite any
notice to the contrary.
PLAN
OF DISTRIBUTION
We
may sell the securities offered through this prospectus (1) to or through underwriters or dealers, (2) directly to purchasers, including
our affiliates, (3) through agents, including ordinary brokerage transactions, block trades, placements, “at the market”
transactions, put or call transactions or in any other way not involving market makers or established trading markets, (4) through a
combination of any of these methods or (5) through any other methods described in a prospectus supplement. The securities may be distributed
at a fixed price or prices, which may be changed, market prices prevailing at the time of sale, prices related to the prevailing market
prices, or negotiated prices. Any prospectus supplement will include, to the extent applicable, the following information:
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the
terms of the offering; |
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the
names of any underwriters or agents; |
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the
name or names of any managing underwriter or underwriters; |
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the
purchase price of the securities; |
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the
net proceeds from the sale of the securities; |
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any
delayed delivery arrangements; |
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any
underwriting discounts, commissions and other items constituting underwriters’ compensation; |
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any
initial public offering price; |
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any
discounts or concessions allowed or reallowed or paid to dealers; and |
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any
commissions paid to agents. |
We
may engage in “at the market” offerings in an existing trading market in accordance with Rule 415(a)(4). Any “at the
market” offering will be through an underwriter or underwriters acting as principal or agent for us.
Under
Rule 15c6-1 of the Exchange Act, trades in the secondary market generally are required to settle in two business days, unless the parties
to any such trade expressly agree otherwise. The applicable prospectus supplement may provide that the original issue date for your securities
may be more than two scheduled business days after the trade date for your securities. Accordingly, in such a case, if you wish to trade
securities on any date prior to the second business day before the original issue date for your securities, you will be required, by
virtue of the fact that your securities initially are expected to settle in more than two scheduled business days after the trade date
for your securities, to make alternative settlement arrangements to prevent a failed settlement.
We
may issue to the holders of our common stock, on a pro rata basis for no consideration, subscription rights to purchase shares of our
common stock or preferred stock. These subscription rights may or may not be transferable by stockholders. The applicable prospectus
supplement will describe the specific terms of any offering of our common or preferred stock through the issuance of subscription rights,
including the terms of the subscription rights offering, the terms, procedures and limitations relating to the exchange and exercise
of the subscription rights and, if applicable, the material terms of any standby underwriting or purchase arrangement entered into by
us in connection with the offering of common or preferred stock through the issuance of subscription rights.
Sale
through Underwriters or Dealers
If
underwriters are used in the sale, the underwriters will acquire the securities for their own account, including through underwriting,
purchase, security lending or repurchase agreements with us. The underwriters may resell the securities from time to time in one or more
transactions, including negotiated transactions.
Underwriters
may sell the securities in order to facilitate transactions in any of our other securities (described in this prospectus or otherwise),
including other public or private transactions and short sales. Underwriters may offer securities to the public either through underwriting
syndicates represented by one or more managing underwriters or directly by one or more firms acting as underwriters. Unless otherwise
indicated in the prospectus supplement, the obligations of the underwriters to purchase the securities will be subject to certain conditions,
and the underwriters will be obligated to purchase all the offered securities if they purchase any of them. The underwriters may change
from time to time any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers. The prospectus
supplement will include the names of the principal underwriters, the respective amount of securities underwritten, the nature of the
obligation of the underwriters to take the securities and the nature of any material relationship between an underwriter and us.
Some
or all of the securities that we offer through this prospectus may be new issues of securities with no established trading market. Any
underwriters to whom we sell securities for public offering and sale may make a market in those securities, but they will not be obligated
to do so and they may discontinue any market making at any time without notice. Accordingly, we cannot assure you of the liquidity of,
or continued trading markets for, any securities offered pursuant to this prospectus.
If
dealers are used in the sale of securities offered through this prospectus, we will sell the securities to them as principals. They may
then resell those securities to the public at varying prices determined by the dealers at the time of resale. The prospectus supplement
will include the names of the dealers and the terms of the transaction.
Direct
Sales and Sales through Agents
We
may sell the securities offered through this prospectus directly. In this case, no underwriters or agents would be involved.
Securities
may also be sold through agents designated from time to time. Any required prospectus supplement will name any agent involved in the
offer or sale of the offered securities and will describe any commissions payable to the agent by us. Unless otherwise indicated in such
prospectus supplement, any agent will agree to use its reasonable best efforts to solicit purchases for the period of its appointment.
We
may sell the securities directly to institutional investors or others who may be deemed to be underwriters within the meaning of the
Securities Act with respect to any sale of those securities. The terms of any such sales will be described in any required prospectus
supplement.
Delayed
Delivery Contracts
If
the applicable prospectus supplement indicates, we may authorize agents, underwriters or dealers to solicit offers from certain types
of institutions to purchase securities at the public offering price under delayed delivery contracts. These contracts would provide for
payment and delivery on a specified date in the future. The contracts would be subject only to those conditions described in the prospectus
supplement. The applicable prospectus supplement will describe the commission payable for solicitation of those contracts.
Market
Making, Stabilization and Other Transactions
Unless
the applicable prospectus supplement states otherwise, each series of offered securities by us will be a new issue and will have no established
trading market. We may elect to list any series of offered securities on an exchange. Any underwriters that we use in the sale of such
offered securities may make a market in such securities, but may discontinue such market making at any time without notice. Accordingly,
we cannot assure you that the securities will have a liquid trading market.
Any
underwriter may engage in overallotment, stabilizing transactions, short covering transactions and penalty bids in accordance with Rule
103 of Regulation M under the Exchange Act. Overallotment involves sales in excess of the offering size, which creates a short position.
Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum.
Short covering transactions involve purchases of the securities in the open market after the distribution is completed to cover short
positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities originally sold by
the dealer are purchased in a stabilizing or covering transaction to cover short positions. Those activities may cause the price of the
securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of the activities at any time.
These transactions may be effected on any exchange or over-the-counter market or otherwise.
Any
agents and underwriters who are qualified market makers on the Nasdaq Stock Market LLC may engage in passive market making transactions
in the securities on the Nasdaq Stock Market LLC in accordance with Rule 103 of Regulation M, during the business day prior to the pricing
of the offering, before the commencement of offers or sales of the securities. Passive market makers must comply with applicable volume
and price limitations and must be identified as passive market makers. In general, a passive market maker must display its bid at a price
not in excess of the highest independent bid for such security; if all independent bids are lowered below the passive market maker’s
bid, however, the passive market maker’s bid must then be lowered when certain purchase limits are exceeded. Passive market making
may stabilize the market price of the securities at a level above that which might otherwise prevail in the open market and, if commenced,
may be discontinued at any time.
Derivative
Transactions and Hedging
We,
the underwriters or other agents may engage in derivative transactions involving the securities. These derivatives may consist of short
sale transactions and other hedging activities. The underwriters or agents may acquire a long or short position in the securities, hold
or resell securities acquired and purchase options or futures on the securities and other derivative instruments with returns linked
to or related to changes in the price of the securities. In order to facilitate these derivative transactions, we may enter into security
lending or repurchase agreements with the underwriters or agents. The underwriters or agents may effect the derivative transactions through
sales of the securities to the public, including short sales, or by lending the securities in order to facilitate short sale transactions
by others. The underwriters or agents may also use the securities purchased or borrowed from us or others (or, in the case of derivatives,
securities received from us in settlement of those derivatives) to directly or indirectly settle sales of the securities or close out
any related open borrowings of the securities.
Electronic
Auctions
We
may also make sales through the Internet or through other electronic means. Since we may from time to time elect to offer securities
directly to the public, with or without the involvement of agents, underwriters or dealers, utilizing the Internet or other forms of
electronic bidding or ordering systems for the pricing and allocation of such securities, you should pay particular attention to the
description of that system we will provide in a prospectus supplement.
Such
electronic system may allow bidders to directly participate, through electronic access to an auction site, by submitting conditional
offers to buy that are subject to acceptance by us, and which may directly affect the price or other terms and conditions at which such
securities are sold. These bidding or ordering systems may present to each bidder, on a so-called “real-time” basis, relevant
information to assist in making a bid, such as the clearing spread at which the offering would be sold, based on the bids submitted,
and whether a bidder’s individual bids would be accepted, prorated or rejected. For example, in the case of a debt security, the
clearing spread could be indicated as a number of “basis points” above an index treasury note. Of course, many pricing methods
can and may also be used.
Upon
completion of such an electronic auction process, securities will be allocated based on prices bid, terms of bid or other factors. The
final offering price at which securities would be sold and the allocation of securities among bidders would be based in whole or in part
on the results of the Internet or other electronic bidding process or auction.
General
Information
Agents,
underwriters and dealers may be entitled, under agreements entered into with us, to indemnification by us against certain liabilities,
including liabilities under the Securities Act. Agents, underwriters and dealers may engage in transactions with or perform services
for us in the ordinary course of their businesses.
LEGAL
MATTERS
The
validity of the issuance of the securities offered hereby will be passed upon for us by Dorsey & Whitney LLP, Salt Lake City, Utah.
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
consolidated financial statements of Lipocine Inc. as of December 31, 2022 and 2021, and for each of the years in the two-year period
ended December 31, 2022, have been incorporated by reference herein in reliance on the reports of Tanner LLC, independent registered
public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We
are subject to the information requirements of the Exchange Act and, in accordance therewith, file annual, quarterly and special reports,
proxy statements and other information with the SEC. These documents may be accessed through the SEC’s electronic data gathering,
analysis and retrieval system, or EDGAR, via electronic means, including the SEC’s home page on the Internet (www.sec.gov). Copies
of certain information filed by us with the SEC are also available on our website at ir.lipocine.com. The information contained on our
website is not incorporated by reference into this prospectus and, therefore, is not part of this prospectus or any accompanying prospectus
supplement.
This
prospectus is part of a registration statement that we have filed with the SEC. Certain information in the registration statement has
been omitted from this prospectus in accordance with SEC rules and regulations. For more detail about us and any securities that may
be offered by this prospectus, you may examine the registration statement on Form S-3 and the exhibits filed with it at the locations
listed in the previous paragraph. Please be aware that statements in this prospectus referring to a contract or other document are summaries
and you should refer to the exhibits that are part of the registration statement for a copy of the contract or document.
INCORPORATION
BY REFERENCE
The
SEC allows us to “incorporate by reference” information that we file with it into this prospectus, which means that we can
disclose important information to you by referring you to those documents. The information incorporated by reference is an important
part of this prospectus. The information incorporated by reference is considered to be a part of this prospectus, and information that
we file later with the Commission will automatically update and supersede information contained in this prospectus and any accompanying
prospectus supplement. We incorporate by reference the documents listed below that we have previously filed with the Commission:
|
● |
Our
Annual Report on Form 10-K for the year ended December 31, 2022; |
|
|
|
|
● |
Our
Definitive Proxy Statement filed on Schedule 14A on March 27, 2023; |
|
|
|
|
● |
Our
Quarterly Reports on Form 10-Q for the quarters ended March 31, 2023, June 30, 2023, and September 30, 2023; |
|
|
|
|
● |
Our
Current Reports on Form 8-K filed on January 5, 2023, January 5, 2023, January 11, 2023, March 10, 2023, March 10, 2023, April 3, 2023, May 5, 2023, May 11, 2023, May 11, 2023, May 16, 2023, May 31, 2023, June 7, 2023, June 14, 2023, June 23, 2023, June 26, 2023,
June 26, 2023, July 27, 2023, August 10, 2023, September 19, 2023, October 6, 2023, October 24, 2023, October 26, 2023, November 1, 2023, November 8, 2023, and November 13, 2023; and |
|
|
|
|
● |
the
description of our common stock contained on our Registration Statement on Form 8-A filed with the SEC on March 18, 2014, as updated
by the description of our common stock contained in Exhibit 4.6 to our Annual Report on Form 10-K for the fiscal year ended December
31, 2022, filed with the SEC on March 10, 2023. |
We
also incorporate by reference any future filings (other than Current Reports furnished under Items 2.02 or 7.01 of Form 8-K and exhibits
filed on such form that are related to such items unless such Form 8-K expressly provides to the contrary) made with the SEC pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (i) after the date of the initial filing of the registration statement of which
this prospectus is a part and prior to effectiveness of the registration statement, and (ii) after the effectiveness of the registration
statement but prior to the termination of the offering of the securities covered by this prospectus, excluding, in each case, information
deemed furnished and not filed.
Any
statement contained in this prospectus, or in a document incorporated or deemed to be incorporated by reference herein, shall be deemed
to be modified or superseded to the extent that a statement contained herein, or in any subsequently filed document that also is incorporated
or deemed to be incorporated by reference herein, modifies or supersedes such statement. Any statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
We
will provide to each person, including any beneficial owner, to whom this prospectus is delivered, upon written or oral request, at no
cost to the requester, a copy of any and all of the information that is incorporated by reference in this prospectus. Requests should
be directed to: Lipocine Inc., Attention: Investor Relations, 675 Arapeen Drive, Suite 202, Salt Lake City, Utah 84108 and our telephone
number is (801) 994-7383. You may also access the documents incorporated by reference in this prospectus through our website at www.lipocine.com.
Except for the specific incorporated documents listed above, no information available on or through our website shall be deemed to be
incorporated in this prospectus or the registration statement of which it forms a part.
$150,000,000
Lipocine
Inc.
Common
Stock, Preferred Stock,
Debt Securities,
Warrants and Units
PART
II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution
The
following table sets forth the estimated costs and expenses, other than underwriting discounts and commissions, payable by the registrant
in connection with the offering of the securities being registered. All the amounts shown are estimates, except for the SEC registration
fee and the FINRA filing fee.
SEC registration fee | |
$ | 5,616.18 | |
FINRA Filing Fee | |
| 23,000.00 | |
Accounting fees and expenses | |
| * | |
Legal fees and expenses | |
| * | |
Transfer Agent and Registrar Fees and Expenses | |
| * | |
Miscellaneous expenses | |
| * | |
Total | |
| * | |
*These
fees are calculated based on the number of issuances and amount of securities offered and accordingly cannot be estimated at this time.
An estimate of the aggregate amount of these expenses will be reflected in the applicable prospectus supplement.
Item
15. Indemnification of Officers and Directors
Our
certificate of incorporation provides that none of our directors will be personally liable to us, or our stockholders, for monetary damages
for breach of fiduciary duty as a director, except for liability:
|
● |
for
any breach of the director’s duty of loyalty to us or our stockholders; |
|
|
|
|
● |
for
acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of the law; |
|
|
|
|
● |
under
Section 174 of the Delaware General Corporation Law for the unlawful payment of dividends; or |
|
|
|
|
● |
for
any transaction from which the director derives an improper personal benefit. |
These
provisions eliminate our rights and those of our stockholders to recover monetary damages from a director for breach of his fiduciary
duty of care as a director except in the situations described above. The limitations summarized above, however, do not affect our ability
or that of our stockholders to seek non-monetary remedies, such as an injunction or rescission, against a director for breach of his
fiduciary duty.
Section
145 of the Delaware General Corporation Law provides a corporation with the power to indemnify any officer or director acting in his
capacity as our representative who is, or threatened to be, made a party to any lawsuit or other proceeding for expenses, judgment and
amounts paid in settlement in connection with such lawsuit or proceeding. The indemnity provisions apply whether the action was instituted
by a third party or was filed by one of our stockholders. The Delaware General Corporation Law provides that Section 145 is not exclusive
of other rights to which those seeking indemnification may be entitled under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise. We have provided for this indemnification in our certificate of incorporation because we believe that it is important
to attract qualified directors and officers. We have further provided in our certificate of incorporation that no indemnification shall
be available, whether pursuant to our certificate of incorporation or otherwise, arising from any lawsuit or proceeding in which we assert
a direct claim, as opposed to a stockholders’ derivative action, against any directors and officers (or a director or officer sues
us). This limitation is designed to ensure that if we are involved in litigation adverse to a director or officer, we do not have to
pay for their legal fees.
We
have entered into indemnification agreements with each of our executive officers and directors that require us to indemnify such persons
against any and all expenses, including judgments, fines or penalties, attorney’s fees, witness fees or other professional fees
and related disbursements and other out-of-pocket costs incurred, in connection with any action, suit, arbitration, alternative dispute
resolution mechanism, investigation, inquiry or administrative hearing, whether threatened, pending or completed, to which any such person
may be made a party by reason of the fact that such person is or was a director, officer, employee or agent of our company, provided
that such director or officer acted in good faith and in a manner that the director or officer reasonably believed to be in, or not opposed
to, our best interests. The indemnification agreements also set forth procedures that will apply in the event of a claim for indemnification
thereunder. We believe that these provisions and agreements are necessary to attract and retain qualified persons as directors and officers.
Insofar
as indemnification by us for liabilities arising under the Securities Act may be permitted to our directors, officers or persons controlling
us pursuant to provisions of our certificate of incorporation and bylaws, or otherwise, we have 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 by such director, officer or controlling person of us 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 offered, we will, unless in the opinion
of our counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by us is against public policy as expressed in the Securities Act and will be governed by the final adjudication
of such issue.
At
the present time, there is no pending litigation or proceeding involving a director, officer, employee or other agent of ours in which
indemnification would be required or permitted. We are not aware of any threatened litigation or proceeding, which may result in a claim
for such indemnification.
Item
16. Exhibits
Exhibit |
|
|
|
Incorporated
by Reference |
Number |
|
Description |
|
Form |
|
File
Date |
|
File
Number |
|
Exhibit |
|
|
|
|
|
|
|
|
|
|
|
1.1* |
|
Form
of Underwriting Agreement |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1.2 |
|
Controlled
Equity OfferingSM Sales Agreement between Lipocine Inc. and Cantor Fitzgerald & Co. |
|
10-K |
|
March
6, 2017 |
|
001-36357 |
|
10.22 |
|
|
|
|
|
|
|
|
|
|
|
2.1 |
|
Agreement and Plan of Merger and Reorganization, dated July 24, 2013, by and among Marathon Bar Corp., Lipocine Operating Inc., and MBAR Acquisition Corp. |
|
8-K |
|
July
25, 2013 |
|
333-178230 |
|
2.1 |
|
|
|
|
|
|
|
|
|
|
|
3.1 |
|
Amended and Restated Certificate of Incorporation |
|
8-K |
|
July
25, 2013 |
|
333-178230 |
|
3.2 |
|
|
|
|
|
|
|
|
|
|
|
3.2 |
|
Certificate of Amendment to the Amended and Restated Certificate of Incorporation |
|
8-K |
|
June
28, 2022 |
|
001-36357 |
|
3.4 |
|
|
|
|
|
|
|
|
|
|
|
3.3 |
|
Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Lipocine Inc. |
|
8-K |
|
May 11, 2023 |
|
001-36357 |
|
3.2 |
|
|
|
|
|
|
|
|
|
|
|
3.4 |
|
Amended and Restated Bylaws |
|
8-K |
|
July
25, 2013 |
|
333-178230 |
|
3.3 |
|
|
|
|
|
|
|
|
|
|
|
3.5 |
|
Certificate of Designation of Series A Junior Participating Preferred Stock. |
|
8-K |
|
December
1, 2015 |
|
001-36357 |
|
3.1 |
|
|
|
|
|
|
|
|
|
|
|
3.6 |
|
Certificate of Increase of Series A Junior Participating Preferred Stock |
|
8-K |
|
November
1, 2021 |
|
001-36357 |
|
3.1 |
|
|
|
|
|
|
|
|
|
|
|
4.1 |
|
Specimen Common Stock certificate |
|
8-K |
|
July
25, 2013 |
|
333-178230 |
|
4.1 |
4.2 |
|
Second Amended and Restated Stockholder Rights Agreement dated as of November 1, 2021 by and between the Company and American Stock Transfer & Trust Company, LLC |
|
8-K |
|
November
1, 2021 |
|
001-36357 |
|
4.1 |
|
|
|
|
|
|
|
|
|
|
|
4.3 |
|
Form of Pre-Funded Warrant |
|
8-K |
|
November
14, 2019 |
|
001-36357 |
|
4.1 |
|
|
|
|
|
|
|
|
|
|
|
4.4 |
|
Form of Common Warrant |
|
8-K |
|
November
14, 2019 |
|
001-36357 |
|
4.2 |
|
|
|
|
|
|
|
|
|
|
|
4.5 |
|
Form of Common Warrant |
|
8-K |
|
February
26, 2020 |
|
001-36357 |
|
4.1 |
|
|
|
|
|
|
|
|
|
|
|
4.6 |
|
Form of Senior Indenture |
|
|
|
|
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|
|
|
|
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|
4.7 |
|
Form of Subordinated Indenture |
|
|
|
|
|
|
|
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|
|
|
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|
4.8* |
|
Form
of Debt Security |
|
|
|
|
|
|
|
|
|
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|
|
|
|
|
|
|
|
|
4.9* |
|
Form
of Subordinated Debt Security |
|
|
|
|
|
|
|
|
|
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|
|
|
|
|
|
|
|
4.10* |
|
Form
of Certificate of Designation |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.11* |
|
Form
of Preferred Stock Certificate |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.12* |
|
Form
of Warrant Agreement |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.13* |
|
Form
of Warrant Certificate |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.14* |
|
Form
of Unit Agreement |
|
|
|
|
|
|
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|
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|
|
|
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|
4.15* |
|
Form
of Unit Certificate |
|
|
|
|
|
|
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|
|
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|
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|
|
|
|
|
|
5.1 |
|
Opinion of Dorsey & Whitney LLP relating to the base prospectus |
|
|
|
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|
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|
|
|
|
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|
23.1 |
|
Consent of Tanner LLC, independent registered public accounting firm |
|
|
|
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|
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|
|
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|
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|
23.2 |
|
Consent of Dorsey & Whitney LLP (included in Exhibit 5.1) |
|
|
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|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
24.1 |
|
Power of Attorney (included on signature page to the registration statement) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
25.1** |
|
Form
T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Trustee under the Senior Indenture |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
25.2** |
|
Form
T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Trustee under the Subordinated Indenture |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
107 |
|
Filing Fee Table |
|
|
|
|
|
|
|
|
* |
To
be filed by amendment or as an exhibit to a report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended, and incorporated herein by reference. |
** |
To
be filed separately under the electronic form type 305B2, if applicable. |
Item
17. Undertakings
The
undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement;
(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 the undertakings set forth in paragraphs (1)(i), (1)(ii) and (1)(iii) above do not apply if the registration statement
is on Form S-3 or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained
in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statements or is contained in a form of prospectus filed pursuant
to Rule 424(b) that is part of the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and
(ii)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required
by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier
of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date
an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the
registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of
the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement
or made in any such document immediately prior to such effective date.
(5)
That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution
of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant
to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such securities to such purchaser:
(i)
any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424;
(ii)
any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by
the undersigned registrant;
(iii)
the portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(iv)
any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6)
That, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(7)
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed
by the final adjudication of such issue.
(9)
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 Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the city of Salt Lake City, State of Utah, on November 22, 2023.
|
LIPOCINE
INC. |
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BY: |
/s/
Mahesh V. Patel |
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Mahesh
V. Patel |
|
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President
and Chief Executive Officer |
POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Mahesh V. Patel and Krista
Fogarty, as his or her true and lawful attorney-in-fact and agent, with full power to act alone, with full powers of substitution
and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments
to this registration statement on Form S-3, any related registration statement filed pursuant to Rule 462(b) under the Securities Act
of 1933, and to file the same, with all exhibits thereto and all documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent, with full power to act alone, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute, may lawfully
do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933 this report has been signed below by the following persons on behalf of the Registrant
and in the capacities and on the dates indicated.
Signature |
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Title |
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Date |
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/s/
Mahesh V. Patel |
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Chief
Executive Officer (principal executive officer), |
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November
22, 2023 |
Mahesh
V. Patel |
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President
and Director |
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/s/
Krista Fogarty |
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Principal
Accounting Officer and Corporate Controller |
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November
22, 2023 |
Krista Fogarty |
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(principal accounting officer) |
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/s/
Jill M. Jene |
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Director |
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November
22, 2023 |
Jill M. Jene |
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/s/
John W. Higuchi |
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Director |
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November
22, 2023 |
John
W. Higuchi |
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/s/
R. Dana Ono |
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Director |
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November
22, 2023 |
R.
Dana Ono |
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/s/
Jeffrey A. Fink |
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Director |
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November
22, 2023 |
Jeffrey
A. Fink |
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/s/
Spyros Papapetropoulos |
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Director |
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November
22, 2023 |
Spyros
Papapetropoulos |
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Exhibit
4.6
LIPOCINE
INC.
Issuer
AND
[TRUSTEE],
Trustee
INDENTURE
Dated
as of _______, 20__
Senior
Debt Securities
Table
of Contents
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Page |
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article
1 |
DEFINITIONS |
1 |
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|
|
Section
1.01 |
Definitions
of Terms |
1 |
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|
|
article
2 |
ISSUE,
DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES |
4 |
|
|
|
Section
2.01 |
Designation
and Terms of Securities |
4 |
|
|
|
Section
2.02 |
Form
of Securities and Trustee’s Certificate |
6 |
|
|
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Section
2.03 |
Denominations:
Provisions for Payment |
6 |
|
|
|
Section
2.04 |
Execution
and Authentications |
7 |
|
|
|
Section
2.05 |
Registration
of Transfer and Exchange |
8 |
|
|
|
Section
2.06 |
Temporary
Securities |
9 |
|
|
|
Section
2.07 |
Mutilated,
Destroyed, Lost or Stolen Securities |
9 |
|
|
|
Section
2.08 |
Cancellation |
10 |
|
|
|
Section
2.09 |
Benefits
of Indenture |
10 |
|
|
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Section
2.10 |
Authenticating
Agent |
10 |
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|
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Section
2.11 |
Global
Securities |
11 |
|
|
|
Section
2.12 |
CUSIP
Numbers |
11 |
|
|
|
article
3 |
REDEMPTION
OF SECURITIES AND SINKING FUND PROVISIONS |
11 |
|
|
|
Section
3.01 |
Redemption |
11 |
|
|
|
Section
3.02 |
Notice
of Redemption |
12 |
|
|
|
Section
3.03 |
Payment
Upon Redemption |
12 |
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|
|
Section
3.04 |
Sinking
Fund |
13 |
|
|
|
Section
3.05 |
Satisfaction
of Sinking Fund Payments with Securities |
13 |
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|
|
Section
3.06 |
Redemption
of Securities for Sinking Fund |
13 |
|
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|
article
4 |
COVENANTS |
13 |
|
|
|
Section
4.01 |
Payment
of Principal, Premium and Interest |
13 |
|
|
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Section
4.02 |
Maintenance
of Office or Agency |
14 |
Section
4.03 |
Paying
Agents |
14 |
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|
|
Section
4.04 |
Appointment
to Fill Vacancy in Office of Trustee |
15 |
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|
article
5 |
SECURITYHOLDERS’
LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
15 |
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Section
5.01 |
Company
to Furnish Trustee Names and Addresses of Securityholders |
15 |
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Section
5.02 |
Preservation
of Information; Communications With Securityholders |
15 |
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Section
5.03 |
Reports
by the Company |
15 |
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Section
5.04 |
Reports
by the Trustee |
16 |
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|
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article
6 |
REMEDIES
OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
16 |
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|
|
Section
6.01 |
Events
of Default |
16 |
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|
Section
6.02 |
Collection
of Indebtedness and Suits for Enforcement by Trustee |
17 |
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Section
6.03 |
Application
of Moneys Collected |
18 |
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Section
6.04 |
Limitation
on Suits |
19 |
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Section
6.05 |
Rights
and Remedies Cumulative; Delay or Omission Not Waiver |
19 |
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Section
6.06 |
Control
by Securityholders |
20 |
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|
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Section
6.07 |
Undertaking
to Pay Costs |
20 |
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|
|
article
7 |
CONCERNING
THE TRUSTEE |
20 |
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Section
7.01 |
Certain
Duties and Responsibilities of Trustee |
20 |
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Section
7.02 |
Certain
Rights of Trustee |
21 |
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Section
7.03 |
Trustee
Not Responsible for Recitals or Issuance or Securities |
23 |
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Section
7.04 |
May
Hold Securities |
23 |
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Section
7.05 |
Moneys
Held in Trust |
23 |
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Section
7.06 |
Compensation
and Reimbursement |
23 |
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Section
7.07 |
Reliance
on Officer’s Certificate |
24 |
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Section
7.08 |
Disqualification;
Conflicting Interests |
24 |
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Section
7.09 |
Corporate
Trustee Required; Eligibility |
24 |
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Section
7.10 |
Resignation
and Removal; Appointment of Successor |
24 |
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Section
7.11 |
Acceptance
of Appointment By Successor |
25 |
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Section
7.12 |
Merger,
Conversion, Consolidation or Succession to Business |
26 |
Section
7.13 |
Preferential
Collection of Claims Against the Company |
26 |
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Section
7.14 |
Notice
of Default. |
27 |
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article
8 |
CONCERNING
THE SECURITYHOLDERS |
27 |
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Section
8.01 |
Evidence
of Action by securityholders |
27 |
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Section
8.02 |
Proof
of Execution by Securityholders |
27 |
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Section
8.03 |
Who
May be Deemed Owners |
27 |
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Section
8.04 |
Certain
Securities Owned by Company Disregarded |
28 |
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Section
8.05 |
Actions
Binding on Future Securityholders |
28 |
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article
9 |
SUPPLEMENTAL
INDENTURES |
28 |
|
|
|
Section
9.01 |
Supplemental
Indentures Without the Consent of Securityholders |
28 |
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|
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Section
9.02 |
Supplemental
Indentures With Consent of Securityholders |
29 |
|
|
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Section
9.03 |
Effect
of Supplemental Indentures |
29 |
|
|
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Section
9.04 |
Securities
Affected by Supplemental Indentures |
30 |
|
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Section
9.05 |
Execution
of Supplemental Indentures |
30 |
|
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|
article
10 |
SUCCESSOR
ENTITY |
30 |
|
|
|
Section
10.01 |
Company
May Consolidate, Etc. |
30 |
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|
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Section
10.02 |
Successor
Entity Substituted |
31 |
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article
11 |
SATISFACTION
AND DISCHARGE |
31 |
|
|
|
Section
11.01 |
Satisfaction
and Discharge of Indenture |
31 |
|
|
|
Section
11.02 |
Discharge
of Obligations |
31 |
|
|
|
Section
11.03 |
Deposited
Moneys to be Held in Trust |
32 |
|
|
|
Section
11.04 |
Payment
of Moneys Held by Paying Agents |
32 |
|
|
|
Section
11.05 |
Repayment
to Company |
32 |
|
|
|
article
12 |
IMMUNITY
OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
32 |
|
|
|
Section
12.01 |
No
Recourse |
32 |
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|
article
13 |
MISCELLANEOUS
PROVISIONS |
33 |
|
|
|
Section
13.01 |
Effect
on Successors and Assigns |
33 |
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Section
13.02 |
Actions
by Successor |
33 |
Section
13.03 |
Surrender
of Company Powers |
33 |
|
|
|
Section
13.04 |
Notices |
33 |
|
|
|
Section
13.05 |
Governing
Law; Jury Trial Waiver |
33 |
|
|
|
Section
13.06 |
Treatment
of Securities as Debt |
33 |
|
|
|
Section
13.07 |
Certificates
and Opinions as to Conditions Precedent |
33 |
|
|
|
Section
13.08 |
Payments
on Business Days |
34 |
|
|
|
Section
13.09 |
Conflict
with Trust Indenture Act |
34 |
|
|
|
Section
13.10 |
Counterparts |
34 |
|
|
|
Section
13.11 |
Separability |
34 |
|
|
|
Section
13.12 |
Compliance
Certificates |
34 |
|
|
|
Section
13.13 |
U.S.A
Patriot Act |
35 |
|
|
|
Section
13.14 |
Force
Majeure |
35 |
|
|
|
Section
13.15 |
Table
of Contents; Headings |
35 |
INDENTURE
Indenture,
dated as of _______, 20__, among Lipocine Inc., a Delaware corporation (the “Company”), and [Trustee],
as trustee (the “Trustee”):
Whereas,
for its lawful corporate purposes, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance
of debt securities (hereinafter referred to as the “Securities”), in an unlimited aggregate principal amount to be issued
from time to time in one or more series as in this Indenture provided, as registered Securities without coupons, to be authenticated
by the certificate of the Trustee;
Whereas,
to provide the terms and conditions upon which the Securities are to be authenticated, issued and delivered, the Company has duly authorized
the execution of this Indenture; and
Whereas,
all things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
Now,
Therefore, in consideration of the premises and
the purchase of the Securities by the holders thereof, it is mutually covenanted and agreed as follows for the equal and ratable benefit
of the holders of Securities:
article
1
DEFINITIONS
Section
1.01 Definitions of Terms.
The
terms defined in this Section (except as in this Indenture or any indenture supplemental hereto otherwise expressly provided or unless
the context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective
meanings specified in this Section and shall include the plural as well as the singular. All other terms used in this Indenture that
are defined in the Trust Indenture Act of 1939, as amended, or that are by reference in such Act defined in the Securities Act of 1933,
as amended (except as herein or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires),
shall have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of the
execution of this instrument.
“Authenticating
Agent” means the Trustee or an authenticating agent with respect to all or any of the series of Securities appointed by
the Trustee pursuant to Section 2.10.
“Bankruptcy
Law” means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.
“Board
of Directors” means the Board of Directors (or the functional equivalent thereof) of the Company or any duly authorized
committee of such Board.
“Board
Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors (or duly authorized committee thereof) and to be in full force and effect on the date of such
certification.
“Business
Day” means, with respect to any series of Securities, any day other than a day on which federal or state banking institutions
in the Borough of Manhattan, the City of New York, or in the city of the Corporate Trust Office of the Trustee, are authorized or obligated
by law, executive order or regulation to close.
“Commission”
means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
“Company”
means Lipocine Inc., a corporation duly organized and existing under the laws of the State of Delaware, and, subject to the provisions
of Article 10, shall also include its successors and assigns.
“Corporate
Trust Office” means the office of the Trustee at which, at any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at _____________________________.
“Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
“Defaulted
Interest” has the meaning set forth in Section 2.03.
“Depositary”
means, with respect to Securities of any series for which the Company shall determine that such Securities will be issued as a Global
Security, The Depository Trust Company, another clearing agency, or any successor registered as a clearing agency under the Exchange
Act, or other applicable statute or regulation, which, in each case, shall be designated by the Company pursuant to either Section 2.01
or 2.11.
“Event
of Default” means, with respect to Securities of a particular series, any event specified in Section 6.01, continued for
the period of time, if any, therein designated.
“Exchange
Act” means the United States Securities and Exchange Act of 1934, as amended, and the rules and regulations promulgated
by the Commission thereunder.
“Global
Security” means a Security issued to evidence all or a part of any series of Securities which is executed by the Company
and authenticated and delivered by the Trustee to the Depositary or pursuant to the Depositary’s instruction, all in accordance
with the Indenture, which shall be registered in the name of the Depositary or its nominee.
“Governmental
Obligations” means securities that are (a) direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United
States of America that, in either case, are not callable or redeemable at the option of the issuer thereof at any time prior to the stated
maturity of the Securities, and shall also include a depositary receipt issued by a bank or trust company as custodian with respect to
any such Governmental Obligation or a specific payment of principal of or interest on any such Governmental Obligation held by such custodian
for the account of the holder of such depositary receipt; provided, however, that (except as required by law) such custodian is not authorized
to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect
of the Governmental Obligation or the specific payment of principal of or interest on the Governmental Obligation evidenced by such depositary
receipt.
“herein”,
“hereof” and “hereunder”, and other words of similar import, refer to this Indenture
as a whole and not to any particular Article, Section or other subdivision.
“Indenture”
means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental
hereto entered into in accordance with the terms hereof and shall include the terms of particular series of Securities established as
contemplated by Section 2.01.
“Interest
Payment Date”, when used with respect to any installment of interest on a Security of a particular series, means the date
specified in such Security or in a Board Resolution or in an indenture supplemental hereto with respect to such series as the fixed date
on which an installment of interest with respect to Securities of that series is due and payable.
“Officer”
means, with respect to the Company, the chairman of the Board of Directors, a chief executive officer, a president, a chief financial
officer, a chief operating officer, any executive vice president, any senior vice president, any vice president, the treasurer or any
assistant treasurer, the controller or any assistant controller or the secretary or any assistant secretary.
“Officer’s
Certificate” means a certificate signed by any Officer. Each such certificate shall include the statements provided for
in Section 13.07, if and to the extent required by the provisions thereof.
“Opinion
of Counsel” means an opinion in writing subject to customary exceptions of legal counsel, who may be an employee of or
counsel for the Company, that is delivered to the Trustee in accordance with the terms hereof. Each such opinion shall include the statements
provided for in Section 13.07, if and to the extent required by the provisions thereof.
“Outstanding”,
when used with reference to Securities of any series, means, subject to the provisions of Section 8.04, as of any particular time, all
Securities of that series theretofore authenticated and delivered by the Trustee under this Indenture, except (a) Securities theretofore
canceled by the Trustee or any paying agent, or delivered to the Trustee or any paying agent for cancellation or that have previously
been canceled; (b) Securities or portions thereof for the payment or redemption of which moneys or Governmental Obligations in the necessary
amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been set aside
and segregated in trust by the Company (if the Company shall act as its own paying agent); provided, however, that if such Securities
or portions of such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as provided
in Article 3, or provision satisfactory to the Trustee shall have been made for giving such notice; and (c) Securities in lieu of or
in substitution for which other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.07.
“Person”
means any individual, corporation, partnership, joint venture, joint-stock company, limited liability company, association, trust, unincorporated
organization, any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“Predecessor
Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section
2.07 in lieu of a lost, destroyed or stolen Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Security.
“Responsible
Officer” when used with respect to the Trustee means any officer within the Corporate Trust Office of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed by any
of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his or her knowledge of and familiarity with the particular subject and in each case who shall have direct
responsibility for the administration of this Indenture.
“Securities”
has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
“Securities
Act” means the Securities Act of 1933, as amended.
“Securityholder”,
“holder of Securities”, “registered holder”, or other similar term, means the Person
or Persons in whose name or names a particular Security is registered on the Security Register kept for that purpose in accordance with
the terms of this Indenture.
“Security
Register” and “Security Registrar” shall have the meanings as set forth in Section 2.05.
“Subsidiary”
means, with respect to any Person, any corporation, association, partnership or other business entity of which more than 50% of the total
voting power of shares of capital stock or other interests (including partnership interests) entitled (without regard to the occurrence
of any contingency) to vote in the election of directors, managers, general partners or trustees thereof is at the time owned or controlled,
directly or indirectly, by (i) such Person; (ii) such Person and one or more Subsidiaries of such Person; or (iii) one or more Subsidiaries
of such Person.
“Trustee”
means _________________________, and, subject to the provisions of Article 7, shall also include its successors and assigns, and, if
at any time there is more than one Person acting in such capacity hereunder, “Trustee” shall mean each such Person. The term
“Trustee” as used with respect to a particular series of the Securities shall mean the trustee with respect to that series.
“Trust
Indenture Act” means the Trust Indenture Act of 1939, as amended.
“U.S.A.
Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001, Pub. L. 107-56, as amended and signed into law October 26, 2001.
article
2
ISSUE,
DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
Section
2.01 Designation and Terms of Securities.
(a)
The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities
may be issued in one or more series up to the aggregate principal amount of Securities of that series from time to time authorized by
or pursuant to a Board Resolution or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of Securities
of any series, there shall be established in or pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established
in one or more indentures supplemental hereto:
(1)
the title of the Securities of the series (which shall distinguish the Securities of that series from all other Securities);
(2)
any limit upon the aggregate principal amount of the Securities of that series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other
Securities of that series);
(3)
the maturity date or dates on which the principal of the Securities of the series is payable;
(4)
the form of the Securities of the series including the form of the certificate of authentication for such series;
(5)
the applicability of any guarantees;
(6)
whether or not the Securities will be secured or unsecured, and the terms of any secured debt;
(7)
whether the Securities rank as senior debt, senior subordinated debt, or subordinated debt;
(8)
if the price (expressed as a percentage of the aggregate principal amount thereof) at which such Securities will be issued is a price
other than the principal amount thereof, the portion of the principal amount thereof payable upon declaration of acceleration of the
maturity thereof, or if applicable, the portion of the principal amount of such Securities that is convertible into another security
or the method by which any such portion shall be determined;
(9)
the interest rate or rates, which may be fixed or variable, or the method for determining the rate and the date interest will begin
to accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining such
dates;
(10)
the Company’s right, if any, to defer the payment of interest and the maximum length of any such deferral period;
(11)
if applicable, the date or dates after which, or the period or periods during which, and the price or prices at which, the Company
may at its option, redeem the series of Securities pursuant to any optional or provisional redemption provisions and the terms of those
redemption provisions;
(12)
the date or dates, if any, on which, and the price or prices at which the Company is obligated, pursuant to any mandatory sinking
fund, mandatory redemption or analogous provisions or otherwise, to repurchase, at the Securityholder’s option, the series of Securities;
(13)
the denominations in which the Securities of the series shall be issuable, if other than denominations of one thousand U.S. dollars
($1,000) or any integral multiple thereof;
(14)
any and all terms, if applicable, relating to any auction or remarketing of the Securities of that series and any security for the
obligations of the Company with respect to such Securities and any other terms which may be advisable in connection with the marketing
of Securities of that series;
(15)
whether the Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities; the terms
and conditions, if any, upon which such Global Security or Securities may be exchanged in whole or in part for other individual Securities;
and the Depositary for such Global Security or Securities;
(16)
if applicable, the provisions relating to conversion or exchange of any Securities of the series and the terms and conditions upon
which such Securities will be so convertible or exchangeable, including the conversion or exchange price, as applicable, or how it will
be calculated and may be adjusted, any mandatory or optional (at the Company’s option or the holders’ option) conversion
or exchange features, the applicable conversion or exchange period and the manner of settlement for any conversion or exchange, which
may, without limitation, include the payment of cash as well as the delivery of securities;
(17)
if other than the full principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant to Section 6.01;
(18)
additions to or changes in the covenants applicable to the series of Securities being issued, including, among others, the consolidation,
merger or sale covenant;
(19)
additions to or changes in the Events of Default with respect to the Securities and any change in the right of the Trustee or the
Securityholders to declare the principal, premium, if any, and interest, if any, with respect to such Securities to be due and payable;
(20)
additions to or changes in or deletions of the provisions relating to covenant defeasance and legal defeasance;
(21)
additions to or changes in the provisions relating to satisfaction and discharge of this Indenture;
(22)
additions to or changes in the provisions relating to the modification of this Indenture both with and without the consent of Securityholders
of Securities issued under this Indenture;
(23)
the currency or currencies, including composite currencies, in which payment of Securities if other than U.S. dollars and the manner
of determining the equivalent amount in U.S. dollars;
(24)
whether interest will be payable in cash or additional Securities at the Company’s or the Securityholders’ option and
the terms and conditions upon which the election may be made;
(25)
the terms and conditions, if any, upon which the Company shall pay amounts in addition to the stated interest, premium, if any, and
principal amounts of the Securities of the series to any Securityholder that is not a “United States person” for federal
tax purposes;
(26)
any restrictions on transfer, sale or assignment of the Securities of the series; and
(27)
any other specific terms, preferences, rights or limitations of, or restrictions on, the Securities, any other additions or changes
in the provisions of this Indenture, and any terms that may be required by us or advisable under applicable laws or regulations.
All
Securities of any one series shall be substantially identical except as may otherwise be provided in or pursuant to any such Board Resolution
or in any indentures supplemental hereto.
If
any of the terms of the series are established by action taken pursuant to a Board Resolution of the Company, a copy of an appropriate
record of such action shall be certified by the secretary or an assistant secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Officer’s Certificate of the Company setting forth the terms of the series.
Securities
of any particular series may be issued at various times, with different dates on which the principal or any installment of principal
is payable, with different rates of interest, if any, or different methods by which rates of interest may be determined, with different
dates on which such interest may be payable and with different redemption dates.
Section
2.02 Form of Securities and Trustee’s Certificate.
The
Securities of any series and the Trustee’s certificate of authentication to be borne by such Securities shall be substantially
of the tenor and purport as set forth in one or more indentures supplemental hereto or as provided in a Board Resolution, and set forth
in an Officer’s Certificate, and they may have such letters, numbers or other marks of identification or designation and such legends
or endorsements printed, lithographed or engraved thereon as the Company may deem appropriate and as are not inconsistent with the provisions
of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule
or regulation of any securities exchange on which Securities of that series may be listed, or to conform to usage.
Section
2.03 Denominations: Provisions for Payment.
The
Securities shall be issuable as registered Securities and in the denominations of one thousand U.S. dollars ($1,000) or any integral
multiple thereof, subject to Section 2.01(a)(13). The Securities of a particular series shall bear interest payable on the dates and
at the rate specified with respect to that series. Subject to Section 2.01(a)(23), the principal of and the interest on the Securities
of any series, as well as any premium thereon in case of redemption or repurchase thereof prior to maturity, and any cash amount due
upon conversion or exchange thereof, shall be payable in the coin or currency of the United States of America that at the time is legal
tender for public and private debt, at the office or agency of the Company maintained for that purpose. Each Security shall be dated
the date of its authentication. Interest on the Securities shall be computed on the basis of a 360-day year composed of twelve 30-day
months.
The
interest installment on any Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date for Securities
of that series shall be paid to the Person in whose name said Security (or one or more Predecessor Securities) is registered at the close
of business on the regular record date for such interest installment. In the event that any Security of a particular series or portion
thereof is called for redemption and the redemption date is subsequent to a regular record date with respect to any Interest Payment
Date and prior to such Interest Payment Date, interest on such Security will be paid upon presentation and surrender of such Security
as provided in Section 3.03.
Any
interest on any Security that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date for Securities
of the same series (herein called “Defaulted Interest”) shall forthwith cease to be payable to the registered holder on the
relevant regular record date by virtue of having been such holder; and such Defaulted Interest shall be paid by the Company, at its election,
as provided in clause (1) or clause (2) below:
(1)
The Company may make payment of any Defaulted Interest on Securities to the Persons in whose names such Securities (or their respective
Predecessor Securities) are registered at the close of business on a special record date for the payment of such Defaulted Interest,
which shall be fixed in the following manner: the Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each such Security and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee
an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a special
record date for the payment of such Defaulted Interest which shall not be more than 15 nor less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such special record date and, in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the special record date therefor to be mailed, first class postage prepaid, to each Securityholder
at his or her address as it appears in the Security Register (as hereinafter defined), not less than 10 days prior to such special record
date. Notice of the proposed payment of such Defaulted Interest and the special record date therefor having been mailed as aforesaid,
such Defaulted Interest shall be paid to the Persons in whose names such Securities (or their respective Predecessor Securities) are
registered on such special record date.
(2)
The Company may make payment of any Defaulted Interest on any Securities in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable
by the Trustee.
Unless
otherwise set forth in a Board Resolution or one or more indentures supplemental hereto establishing the terms of any series of Securities
pursuant to Section 2.01 hereof, the term “regular record date” as used in this Section with respect to a series of Securities
and any Interest Payment Date for such series shall mean either the fifteenth day of the month immediately preceding the month in which
an Interest Payment Date established for such series pursuant to Section 2.01 hereof shall occur, if such Interest Payment Date is the
first day of a month, or the first day of the month in which an Interest Payment Date established for such series pursuant to Section
2.01 hereof shall occur, if such Interest Payment Date is the fifteenth day of a month, whether or not such date is a Business Day.
Subject
to the foregoing provisions of this Section, each Security of a series delivered under this Indenture upon transfer of or in exchange
for or in lieu of any other Security of such series shall carry the rights to interest accrued and unpaid, and to accrue, that were carried
by such other Security.
Section
2.04 Execution and Authentications.
The
Securities shall be signed on behalf of the Company by one of its Officers. Signatures may be in the form of a manual or facsimile signature.
The
Company may use the facsimile signature of any Person who shall have been an Officer (at the time of execution), notwithstanding the
fact that at the time the Securities shall be authenticated and delivered or disposed of such Person shall have ceased to be such an
officer of the Company. The Securities may contain such notations, legends or endorsements required by law, stock exchange rule or usage.
Each Security shall be dated the date of its authentication by the Trustee.
A
Security shall not be valid until authenticated manually by an authorized signatory of the Trustee, or by an Authenticating Agent. Such
signature shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that
the holder is entitled to the benefits of this Indenture. At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication, together with
a written order of the Company for the authentication and delivery of such Securities, signed by an Officer, and the Trustee in accordance
with such written order shall authenticate and deliver such Securities.
In
authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, if requested, and (subject to Section 7.01) shall be fully protected in relying upon, an Opinion
of Counsel stating that the form and terms thereof have been established in conformity with the provisions of this Indenture.
The
Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect
the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner that is not reasonably
acceptable to the Trustee.
Section
2.05 Registration of Transfer and Exchange.
(a)
Securities of any series may be exchanged upon presentation thereof at the office or agency of the Company designated for such purpose,
for other Securities of such series of authorized denominations, and for a like aggregate principal amount, upon payment of a sum sufficient
to cover any tax or other governmental charge in relation thereto, all as provided in this Section. In respect of any Securities so surrendered
for exchange, the Company shall execute, the Trustee shall authenticate and such office or agency shall deliver in exchange therefor
the Security or Securities of the same series that the Securityholder making the exchange shall be entitled to receive, bearing numbers
not contemporaneously outstanding.
(b)
The Company shall keep, or cause to be kept, at its office or agency designated for such purpose a register or registers (herein
referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company
shall register the Securities and the transfers of Securities as in this Article provided and which at all reasonable times shall be
open for inspection by the Trustee. The registrar for the purpose of registering Securities and transfer of Securities as herein provided
shall be appointed as authorized by Board Resolution or Supplemental Indenture (the “Security Registrar”).
Upon
surrender for transfer of any Security at the office or agency of the Company designated for such purpose, the Company shall execute,
the Trustee shall authenticate and such office or agency shall deliver in the name of the transferee or transferees a new Security or
Securities of the same series as the Security presented for a like aggregate principal amount.
All
Securities presented or surrendered for exchange or registration of transfer, as provided in this Section, shall be accompanied (if so
required by the Company or the Security Registrar) by a written instrument or instruments of transfer, in form satisfactory to the Company
or the Security Registrar, duly executed by the registered holder or by such holder’s duly authorized attorney in writing.
The
Company initially appoints the Trustee as initial Security Registrar for each series of Securities.
(c)
Except as provided pursuant to Section 2.01 pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established
in one or more indentures supplemental to this Indenture, no service charge shall be made for any exchange or registration of transfer
of Securities, or issue of new Securities in case of partial redemption of any series or repurchase, conversion or exchange of less than
the entire principal amount of a Security, but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge in relation thereto, other than exchanges pursuant to Section 2.06, Section 3.03(b) and Section 9.04 not involving any transfer.
(d)
The Company and the Security Registrar shall not be required (i) to issue, exchange or register the transfer of any Securities during
a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of less than all the Outstanding
Securities of the same series and ending at the close of business on the day of such mailing, nor (ii) to register the transfer of or
exchange any Securities of any series or portions thereof called for redemption or surrendered for repurchase, but not validly withdrawn,
other than the unredeemed portion of any such Securities being redeemed in part or not surrendered for repurchase, as the case may be.
The provisions of this Section 2.05 are, with respect to any Global Security, subject to Section 2.11 hereof.
The
Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers between
or among depositary participants or beneficial owners of interests in any Global Security) other than to require delivery of such certificates
and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture,
and to examine the same to determine substantial compliance as to form with the express requirements hereof.
Section
2.06 Temporary Securities.
Pending
the preparation of definitive Securities of any series, the Company may execute, and the Trustee shall authenticate and deliver, temporary
Securities (printed, lithographed or typewritten) of any authorized denomination. Such temporary Securities shall be substantially in
the form of the definitive Securities in lieu of which they are issued, but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Company. Every temporary Security of any series shall be executed
by the Company and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect,
as the definitive Securities of such series. Without unnecessary delay the Company will execute and will furnish definitive Securities
of such series and thereupon any or all temporary Securities of such series may be surrendered in exchange therefor (without charge to
the holders), at the office or agency of the Company designated for the purpose, and the Trustee shall authenticate and such office or
agency shall deliver in exchange for such temporary Securities an equal aggregate principal amount of definitive Securities of such series,
unless the Company advises the Trustee to the effect that definitive Securities need not be executed and furnished until further notice
from the Company. Until so exchanged, the temporary Securities of such series shall be entitled to the same benefits under this Indenture
as definitive Securities of such series authenticated and delivered hereunder.
Section
2.07 Mutilated, Destroyed, Lost or Stolen Securities.
In
case any temporary or definitive Security shall become mutilated or be destroyed, lost or stolen, the Company (subject to the next succeeding
sentence) shall execute, and upon the Company’s request the Trustee (subject as aforesaid) shall authenticate and deliver, a new
Security of the same series, bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Security,
or in lieu of and in substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substituted Security
shall furnish to the Company and the Trustee such security or indemnity as may be required by them to save each of them harmless, and,
in every case of destruction, loss or theft, the applicant shall also furnish to the Company and the Trustee evidence to their satisfaction
of the destruction, loss or theft of the applicant’s Security and of the ownership thereof. The Trustee may authenticate any such
substituted Security and deliver the same upon the written request or authorization of any officer of the Company. Upon the issuance
of any substituted Security, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
In
case any Security that has matured or is about to mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead
of issuing a substitute Security, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated
Security) if the applicant for such payment shall furnish to the Company and the Trustee such security or indemnity as they may require
to save them harmless, and, in case of destruction, loss or theft, evidence to the satisfaction of the Company and the Trustee of the
destruction, loss or theft of such Security and of the ownership thereof.
Every
replacement Security issued pursuant to the provisions of this Section shall constitute an additional contractual obligation of the Company
whether or not the mutilated, destroyed, lost or stolen Security shall be found at any time, or be enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of the same series duly
issued hereunder. All Securities shall be held and owned upon the express condition that the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities, and shall preclude (to the extent lawful) any
and all other rights or remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without their surrender.
Section
2.08 Cancellation.
All
Securities surrendered for the purpose of payment, redemption, repurchase, exchange, registration of transfer or conversion shall, if
surrendered to the Company or any paying agent (or any other applicable agent), be delivered to the Trustee for cancellation, or, if
surrendered to the Trustee, shall be cancelled by it, and no Securities shall be issued in lieu thereof except as expressly required
or permitted by any of the provisions of this Indenture. On request of the Company at the time of such surrender, the Trustee shall deliver
to the Company canceled Securities held by the Trustee. In the absence of such request the Trustee may dispose of canceled Securities
in accordance with its standard procedures and deliver a certificate of disposition to the Company. If the Company shall otherwise acquire
any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by
such Securities unless and until the same are delivered to the Trustee for cancellation.
Section
2.09 Benefits of Indenture.
Nothing
in this Indenture or in the Securities, express or implied, shall give or be construed to give to any Person, other than the parties
hereto and the holders of the Securities any legal or equitable right, remedy or claim under or in respect of this Indenture, or under
any covenant, condition or provision herein contained; all such covenants, conditions and provisions being for the sole benefit of the
parties hereto and of the holders of the Securities.
Section
2.10 Authenticating Agent.
So
long as any of the Securities of any series remain Outstanding there may be an Authenticating Agent for any or all such series of Securities
which the Trustee shall have the right to appoint. Said Authenticating Agent shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon exchange, transfer or partial redemption, repurchase or conversion thereof, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. All references in this Indenture to the authentication of Securities by the Trustee shall be deemed to include authentication
by an Authenticating Agent for such series. Each Authenticating Agent shall be acceptable to the Company and shall be a corporation that
has a combined capital and surplus, as most recently reported or determined by it, sufficient under the laws of any jurisdiction under
which it is organized or in which it is doing business to conduct a trust business, and that is otherwise authorized under such laws
to conduct such business and is subject to supervision or examination by federal or state authorities. If at any time any Authenticating
Agent shall cease to be eligible in accordance with these provisions, it shall resign immediately.
Any
Authenticating Agent may at any time resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may
at any time (and upon request by the Company shall) terminate the agency of any Authenticating Agent by giving written notice of termination
to such Authenticating Agent and to the Company. Upon resignation, termination or cessation of eligibility of any Authenticating Agent,
the Trustee may appoint an eligible successor Authenticating Agent acceptable to the Company. Any successor Authenticating Agent, upon
acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder as if
originally named as an Authenticating Agent pursuant hereto.
Section
2.11 Global Securities.
(a)
If the Company shall establish pursuant to Section 2.01 that the Securities of a particular series are to be issued as a Global Security,
then the Company shall execute and the Trustee shall, in accordance with Section 2.04, authenticate and deliver, a Global Security that
(i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, all of the Outstanding Securities
of such series, (ii) shall be registered in the name of the Depositary or its nominee, (iii) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary’s instruction (or if the Depositary names the Trustee as its custodian, retained by the
Trustee), and (iv) shall bear a legend substantially to the following effect: “Except as otherwise provided in Section 2.11 of
the Indenture, this Security may be transferred, in whole but not in part, only to another nominee of the Depositary or to a successor
Depositary or to a nominee of such successor Depositary.”
(b)
Notwithstanding the provisions of Section 2.05, the Global Security of a series may be transferred, in whole but not in part and
in the manner provided in Section 2.05, only to another nominee of the Depositary for such series, or to a successor Depositary for such
series selected or approved by the Company or to a nominee of such successor Depositary.
(c)
If at any time the Depositary for a series of the Securities notifies the Company that it is unwilling or unable to continue as Depositary
for such series or if at any time the Depositary for such series shall no longer be registered or in good standing under the Exchange
Act, or other applicable statute or regulation, and a successor Depositary for such series is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such condition, as the case may be, or if an Event of Default has occurred
and is continuing and the Company has received a request from the Depositary or from the Trustee, this Section 2.11 shall no longer be
applicable to the Securities of such series and the Company will execute, and subject to Section 2.04, the Trustee will authenticate
and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Security of such series in exchange for such Global Security. In addition,
the Company may at any time determine that the Securities of any series shall no longer be represented by a Global Security and that
the provisions of this Section 2.11 shall no longer apply to the Securities of such series. In such event the Company will execute and,
subject to Section 2.04, the Trustee, upon receipt of an Officer’s Certificate evidencing such determination by the Company, will
authenticate and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations, and
in an aggregate principal amount equal to the principal amount of the Global Security of such series in exchange for such Global Security.
Upon the exchange of the Global Security for such Securities in definitive registered form without coupons, in authorized denominations,
the Global Security shall be canceled by the Trustee. Such Securities in definitive registered form issued in exchange for the Global
Security pursuant to this Section 2.11(c) shall be registered in such names and in such authorized denominations as the Depositary, pursuant
to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities
to the Depositary for delivery to the Persons in whose names such Securities are so registered.
Section
2.12 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 will promptly notify the Trustee of any change in the “CUSIP” numbers.
article
3
REDEMPTION
OF SECURITIES AND SINKING FUND PROVISIONS
Section
3.01 Redemption.
The
Company may redeem the Securities of any series issued hereunder on and after the dates and in accordance with the terms established
for such series pursuant to Section 2.01 hereof.
Section
3.02 Notice of Redemption.
(a)
In case the Company shall desire to exercise such right to redeem all or, as the case may be, a portion of the Securities of any
series in accordance with any right the Company reserved for itself to do so pursuant to Section 2.01 hereof, the Company shall, or shall
cause the Trustee to, give notice of such redemption to holders of the Securities of such series to be redeemed by mailing, first class
postage prepaid (or with regard to any Global Security held in book entry form, by electronic mail in accordance with the applicable
procedures of the Depository), a notice of such redemption not less than 30 days and not more than 90 days before the date fixed for
redemption of that series to such holders at their last addresses as they shall appear upon the Security Register, unless a shorter period
is specified in the Securities to be redeemed. Any notice that is mailed in the manner herein provided shall be conclusively presumed
to have been duly given, whether or not the registered holder receives the notice. In any case, failure duly to give such notice to the
holder of any Security of any series designated for redemption in whole or in part, or any defect in the notice, shall not affect the
validity of the proceedings for the redemption of any other Securities of such series or any other series. In the case of any redemption
of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in
this Indenture, the Company shall furnish the Trustee with an Officer’s Certificate evidencing compliance with any such restriction.
Each
such notice of redemption shall identify the Securities to be redeemed (including CUSIP numbers, if any), specify the date fixed for
redemption and the redemption price at which Securities of that series are to be redeemed, and shall state that payment of the redemption
price of such Securities to be redeemed will be made at the office or agency of the Company, upon presentation and surrender of such
Securities, that interest accrued to the date fixed for redemption will be paid as specified in said notice, that from and after said
date interest will cease to accrue and that the redemption is from a sinking fund, if such is the case. If less than all the Securities
of a series are to be redeemed, the notice to the holders of Securities of that series to be redeemed in part shall specify the particular
Securities to be so redeemed.
In
case any Security is to be redeemed in part only, the notice that relates to such Security shall state the portion of the principal amount
thereof to be redeemed, and shall state that on and after the redemption date, upon surrender of such Security, a new Security or Securities
of such series in principal amount equal to the unredeemed portion thereof will be issued.
(b)
If less than all the Securities of a series are to be redeemed, the Company shall give the Trustee at least 45 days’ notice
(unless a shorter notice shall be satisfactory to the Trustee) in advance of the date fixed for redemption as to the aggregate principal
amount of Securities of the series to be redeemed, and thereupon the Trustee shall select, by lot or in such other manner as it shall
deem appropriate and fair in its discretion and that may provide for the selection of a portion or portions (equal to one thousand U.S.
dollars ($1,000) or any integral multiple thereof) of the principal amount of such Securities of a denomination larger than $1,000, the
Securities to be redeemed and shall thereafter promptly notify the Company in writing of the numbers of the Securities to be redeemed,
in whole or in part. The Company may, if and whenever it shall so elect, by delivery of instructions signed on its behalf by an Officer,
instruct the Trustee or any paying agent to call all or any part of the Securities of a particular series for redemption and to give
notice of redemption in the manner set forth in this Section, such notice to be in the name of the Company or its own name as the Trustee
or such paying agent may deem advisable. In any case in which notice of redemption is to be given by the Trustee or any such paying agent,
the Company shall deliver or cause to be delivered to, or permit to remain with, the Trustee or such paying agent, as the case may be,
such Security Register, transfer books or other records, or suitable copies or extracts therefrom, sufficient to enable the Trustee or
such paying agent to give any notice by mail that may be required under the provisions of this Section.
Section
3.03 Payment Upon Redemption.
(a)
If the giving of notice of redemption shall have been completed as above provided, the Securities or portions of Securities of the
series to be redeemed specified in such notice shall become due and payable on the date and at the place stated in such notice at the
applicable redemption price, together with interest accrued to, but excluding, the date fixed for redemption and interest on such Securities
or portions of Securities shall cease to accrue on and after the date fixed for redemption, unless the Company shall default in the payment
of such redemption price and accrued interest with respect to any such Security or portion thereof. On presentation and surrender of
such Securities on or after the date fixed for redemption at the place of payment specified in the notice, said Securities shall be paid
and redeemed at the applicable redemption price for such series, together with interest accrued thereon to, but excluding, the date fixed
for redemption (but if the date fixed for redemption is an Interest Payment Date, the interest installment payable on such date shall
be payable to the registered holder at the close of business on the applicable record date pursuant to Section 2.03).
(b)
Upon presentation of any Security of such series that is to be redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Security is presented shall deliver to the holder thereof, at the expense of the Company,
a new Security of the same series of authorized denominations in principal amount equal to the unredeemed portion of the Security so
presented.
Section
3.04 Sinking Fund.
The
provisions of Sections 3.04, 3.05 and 3.06 shall be applicable to any sinking fund for the retirement of Securities of a series, except
as otherwise specified as contemplated by Section 2.01 for Securities of such series.
The
minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory
sinking fund payment,” and any payment in excess of such minimum amount provided for by the terms of Securities of any series is
herein referred to as an “optional sinking fund payment”. If provided for by the terms of Securities of any series, the cash
amount of any sinking fund payment may be subject to reduction as provided in Section 3.05. Each sinking fund payment shall be applied
to the redemption of Securities of any series as provided for by the terms of Securities of such series.
Section
3.05 Satisfaction of Sinking Fund Payments with Securities.
The
Company (i) may deliver Outstanding Securities of a series and (ii) may apply as a credit Securities of a series that have been redeemed
either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with
respect to the Securities of such series required to be made pursuant to the terms of such Securities as provided for by the terms of
such series, provided that such Securities have not been previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the redemption price specified in such Securities for redemption through operation of the sinking fund and
the amount of such sinking fund payment shall be reduced accordingly.
Section
3.06 Redemption of Securities for Sinking Fund.
Not
less than 45 days prior to each sinking fund payment date for any series of Securities (unless a shorter period shall be satisfactory
to the Trustee), the Company will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking
fund payment for that series pursuant to the terms of the series, the portion thereof, if any, that is to be satisfied by delivering
and crediting Securities of that series pursuant to Section 3.05 and the basis for such credit and will, together with such Officer’s
Certificate, deliver to the Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date
the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 3.02 and
cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section
3.02. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in
Section 3.03.
article
4
COVENANTS
Section
4.01 Payment of Principal, Premium and Interest.
The
Company will duly and punctually pay or cause to be paid the principal of (and premium, if any) and interest on the Securities of that
series at the time and place and in the manner provided herein and established with respect to such Securities. Payments of principal
on the Securities may be made at the time provided herein and established with respect to such Securities by U.S. dollar check drawn
on and mailed to the address of the Securityholder entitled thereto as such address shall appear in the Security Register, or U.S. dollar
wire transfer to, a U.S. dollar account if such Securityholder shall have furnished wire instructions to the Trustee no later than 15
days prior to the relevant payment date. Payments of interest on the Securities may be made at the time provided herein and established
with respect to such Securities by U.S. dollar check mailed to the address of the Securityholder entitled thereto as such address shall
appear in the Security Register, or U.S. dollar wire transfer to, a U.S. dollar account if such Securityholder shall have furnished wire
instructions in writing to the Security Registrar and the Trustee no later than 15 days prior to the relevant payment date.
Section
4.02 Maintenance of Office or Agency.
So
long as any series of the Securities remain Outstanding, the Company agrees to maintain an office or agency with respect to each such
series and at such other location or locations as may be designated as provided in this Section 4.02, where (i) Securities of that series
may be presented for payment, (ii) Securities of that series may be presented as herein above authorized for registration of transfer
and exchange, and (iii) notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may
be given or served, such designation to continue with respect to such office or agency until the Company shall, by written notice signed
by any officer authorized to sign an Officer’s Certificate and delivered to the Trustee, designate some other office or agency
for such purposes or any of them. If at any time the Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, notices and demands.
The Company initially appoints the Corporate Trust Office of the Trustee as its paying agent with respect to the Securities.
Section
4.03 Paying Agents.
(a)
If the Company shall appoint one or more paying agents for all or any series of the Securities, other than the Trustee, the Company
will cause each such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section:
(1)
that it will hold all sums held by it as such agent for the payment of the principal of (and premium, if any) or interest on the
Securities of that series (whether such sums have been paid to it by the Company or by any other obligor of such Securities) in trust
for the benefit of the Persons entitled thereto;
(2)
that it will give the Trustee notice of any failure by the Company (or by any other obligor of such Securities) to make any payment
of the principal of (and premium, if any) or interest on the Securities of that series when the same shall be due and payable;
(3)
that it will, at any time during the continuance of any failure referred to in the preceding paragraph (a)(2) above, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such paying agent; and
(4)
that it will perform all other duties of paying agent as set forth in this Indenture.
(b)
If the Company shall act as its own paying agent with respect to any series of the Securities, it will on or before each due date
of the principal of (and premium, if any) or interest on Securities of that series, set aside, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay such principal (and premium, if any) or interest so becoming due on Securities
of that series until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the
Trustee of such action, or any failure (by it or any other obligor on such Securities) to take such action. Whenever the Company shall
have one or more paying agents for any series of Securities, it will, prior to each due date of the principal of (and premium, if any)
or interest on any Securities of that series, deposit with the paying agent a sum sufficient to pay the principal (and premium, if any)
or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest,
and (unless such paying agent is the Trustee) the Company will promptly notify the Trustee of this action or failure so to act.
(c)
Notwithstanding anything in this Section to the contrary, (i) the agreement to hold sums in trust as provided in this Section is
subject to the provisions of Section 11.05, and (ii) the Company may at any time, for the purpose of obtaining the satisfaction and discharge
of this Indenture or for any other purpose, pay, or direct any paying agent to pay, to the Trustee all sums held in trust by the Company
or such paying agent, such sums to be held by the Trustee upon the same terms and conditions as those upon which such sums were held
by the Company or such paying agent; and, upon such payment by the Company or any paying agent to the Trustee, the Company or such paying
agent shall be released from all further liability with respect to such money.
Section
4.04 Appointment to Fill Vacancy in Office of Trustee.
The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.10,
a Trustee, so that there shall at all times be a Trustee hereunder.
article
5
SECURITYHOLDERS’
LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section
5.01 Company to Furnish Trustee Names and Addresses of Securityholders.
The
Company will furnish or cause to be furnished to the Trustee (a) within 15 days after each regular record date (as defined in Section
2.03) a list, in such form as the Trustee may reasonably require, of the names and addresses of the holders of each series of Securities
as of such regular record date, provided that the Company shall not be obligated to furnish or cause to furnish such list at any time
that the list shall not differ in any respect from the most recent list furnished to the Trustee by the Company and (b) at such other
times as the Trustee may request in writing within 30 days after the receipt by the Company of any such request, a list of similar form
and content as of a date not more than 15 days prior to the time such list is furnished; provided, however, that, in either case, no
such list need be furnished for any series for which the Trustee shall be the Security Registrar.
Section
5.02 Preservation of Information; Communications With Securityholders.
(a)
The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the
holders of Securities contained in the most recent list furnished to it as provided in Section 5.01 and as to the names and addresses
of holders of Securities received by the Trustee in its capacity as Security Registrar (if acting in such capacity).
(b)
The Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.
(c)
Securityholders may communicate as provided in Section 312(b) of the Trust Indenture Act with other Securityholders with respect
to their rights under this Indenture or under the Securities, and, in connection with any such communications, the Trustee shall satisfy
its obligations under Section 312(b) of the Trust Indenture Act in accordance with the provisions of Section 312(b) of the Trust Indenture
Act.
Section
5.03 Reports by the Company.
(a)
The Company will at all times comply with Section 314(a) of the Trust Indenture Act. The Company covenants and agrees to provide
(which delivery may be via electronic mail) to the Trustee within 30 days, after the Company files the same with the Commission, copies
of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) that the Company is required to file with the Commission pursuant
to Section 13 or Section 15(d) of the Exchange Act; provided, however, the Company shall not be required to deliver to the Trustee any
correspondence filed with the Commission or any materials for which the Company has sought and received confidential treatment by the
Commission; and provided further, that so long as such filings by the Company are available on the Commission’s Electronic Data
Gathering, Analysis and Retrieval System (EDGAR), or any successor system, such filings shall be deemed to have been filed with the Trustee
for purposes hereof without any further action required by the Company. For the avoidance of doubt, a failure by the Company to file
annual reports, information and other reports with the Commission within the time period prescribed thereof by the Commission shall not
be deemed a breach of this Section 5.03.
(b)
Delivery of reports, information and documents to the Trustee under Section 5.03 is for informational purposes only and the information
and the Trustee’s receipt of the foregoing shall not constitute constructive notice of any information contained therein, or determinable
from information contained therein including the Company’s compliance with any of their covenants thereunder (as to which the Trustee
is entitled to rely exclusively on an Officer’s Certificate). The Trustee is under no duty to examine any such reports, information
or documents delivered to the Trustee or filed with the Commission via EDGAR to ensure compliance with the provision of this Indenture
or to ascertain the correctness or otherwise of the information or the statements contained therein. The Trustee shall have no responsibility
or duty whatsoever to ascertain or determine whether the above referenced filings with the Commission on EDGAR (or any successor system)
has occurred.
Section
5.04 Reports by the Trustee.
(a)
If required by Section 313(a) of the Trust Indenture Act, the Trustee, within sixty (60) days after each May 1, shall transmit by
mail, first class postage prepaid, to the Securityholders, as their names and addresses appear upon the Security Register, a brief report
dated as of such May 1, which complies with Section 313(a) of the Trust Indenture Act.
(b)
The Trustee shall comply with Section 313(b) and 313(c) of the Trust Indenture Act.
(c)
A copy of each such report shall, at the time of such transmission to Securityholders, be filed by the Trustee with the Company,
with each securities exchange upon which any Securities are listed (if so listed) and also with the Commission. The Company agrees to
notify the Trustee when any Securities become listed on any securities exchange.
article
6
REMEDIES
OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section
6.01 Events of Default.
(a)
Whenever used herein with respect to Securities of a particular series, “Event of Default” means any one or more of the
following events that has occurred and is continuing:
(1)
the Company defaults in the payment of any installment of interest upon any of the Securities of that series, as and when the same
shall become due and payable, and such default continues for a period of 90 days; provided, however, that a valid extension of an interest
payment period by the Company in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the
payment of interest for this purpose;
(2)
the Company defaults in the payment of the principal of (or premium, if any, on) any of the Securities of that series as and when
the same shall become due and payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment required by
any sinking or analogous fund established with respect to that series; provided, however, that a valid extension of the maturity of such
Securities in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment of principal
or premium, if any;
(3)
the Company fails to observe or perform any other of its covenants or agreements with respect to that series contained in this Indenture
or otherwise established with respect to that series of Securities pursuant to Section 2.01 hereof (other than a covenant or agreement
that has been expressly included in this Indenture solely for the benefit of one or more series of Securities other than such series)
for a period of 90 days after the date on which written notice of such failure, requiring the same to be remedied and stating that such
notice is a “Notice of Default” hereunder, shall have been given to the Company by the Trustee, by registered or certified
mail, or to the Company and the Trustee by the holders of at least 25% in principal amount of the Securities of that series at the time
Outstanding;
(4)
the Company pursuant to or within the meaning of any Bankruptcy Law (i) commences a voluntary case, (ii) consents to the entry of
an order for relief against it in an involuntary case, (iii) consents to the appointment of a Custodian of it or for all or substantially
all of its property or (iv) makes a general assignment for the benefit of its creditors; or
(5)
a court of competent jurisdiction enters an order under any Bankruptcy Law that (i) is for relief against the Company in an involuntary
case, (ii) appoints a Custodian of the Company for all or substantially all of its property or (iii) orders the liquidation of the Company,
and the order or decree remains unstayed and in effect for 90 days.
(b)
In each and every such case (other than an Event of Default specified in clause (4) or clause (5) above), unless the principal of
all the Securities of that series shall have already become due and payable, either the Trustee or the holders of not less than 25% in
aggregate principal amount of the Securities of that series then Outstanding hereunder, by notice in writing to the Company (and to the
Trustee if given by such Securityholders), may declare the principal of (and premium, if any, on) and accrued and unpaid interest on
all the Securities of that series to be due and payable immediately, and upon any such declaration the same shall become and shall be
immediately due and payable. If an Event of Default specified in clause (4) or clause (5) above occurs, the principal of and accrued
and unpaid interest on all the Securities of that series shall automatically be immediately due and payable without any declaration or
other act on the part of the Trustee or the holders of the Securities.
(c)
At any time after the principal of (and premium, if any, on) and accrued and unpaid interest on the Securities of that series shall
have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or
entered as hereinafter provided, the holders of a majority in aggregate principal amount of the Securities of that series then Outstanding
hereunder, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if: (i) the
Company has paid or deposited with the Trustee a sum sufficient to pay all matured installments of interest upon all the Securities of
that series and the principal of (and premium, if any, on) any and all Securities of that series that shall have become due otherwise
than by acceleration (with interest upon such principal and premium, if any, and, to the extent that such payment is enforceable under
applicable law, upon overdue installments of interest, at the rate per annum expressed in the Securities of that series to the date of
such payment or deposit) and the amount payable to the Trustee under Section 7.06, and (ii) any and all Events of Default under the Indenture
with respect to such series, other than the nonpayment of principal on (and premium, if any, on) and accrued and unpaid interest on Securities
of that series that shall not have become due by their terms, shall have been remedied or waived as provided in Section 6.06.
No
such rescission and annulment shall extend to or shall affect any subsequent default or impair any right consequent thereon.
(d)
In case the Trustee shall have proceeded to enforce any right with respect to Securities of that series under this Indenture and
such proceedings shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case, subject to any determination in such proceedings, the Company
and the Trustee shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of
the Company and the Trustee shall continue as though no such proceedings had been taken.
Section
6.02 Collection of Indebtedness and Suits for Enforcement by Trustee.
(a)
The Company covenants that (i) in case it shall default in the payment of any installment of interest on any of the Securities of
a series, or in any payment required by any sinking or analogous fund established with respect to that series as and when the same shall
have become due and payable, and such default shall have continued for a period of 90 days, or (ii) in case it shall default in the payment
of the principal of (or premium, if any, on) any of the Securities of a series when the same shall have become due and payable, whether
upon maturity of the Securities of a series or upon redemption or upon declaration or otherwise then, upon demand of the Trustee, the
Company will pay to the Trustee, for the benefit of the holders of the Securities of that series, the whole amount that then shall have
been become due and payable on all such Securities for principal (and premium, if any) or interest, or both, as the case may be, with
interest upon the overdue principal (and premium, if any) and (to the extent that payment of such interest is enforceable under applicable
law) upon overdue installments of interest at the rate per annum expressed in the Securities of that series; and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of collection, and the amount payable to the Trustee under
Section 7.06.
(b)
If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due
and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree
against the Company or other obligor upon the Securities of that series and collect the moneys adjudged or decreed to be payable in the
manner provided by law or equity out of the property of the Company or other obligor upon the Securities of that series, wherever situated.
(c)
In case of any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or judicial
proceedings affecting the Company, or its creditors or property, the Trustee shall have power to intervene in such proceedings and take
any action therein that may be permitted by the court and shall (except as may be otherwise provided by law) be entitled to file such
proofs of claim and other papers and documents as may be necessary or advisable in order to have the claims of the Trustee and of the
holders of Securities of such series allowed for the entire amount due and payable by the Company under the Indenture at the date of
institution of such proceedings and for any additional amount that may become due and payable by the Company after such date, and to
collect and receive any moneys or other property payable or deliverable on any such claim, and to distribute the same after the deduction
of the amount payable to the Trustee under Section 7.06; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the holders of Securities of such series to make such payments to the Trustee, and, in the event that the Trustee
shall consent to the making of such payments directly to such Securityholders, to pay to the Trustee any amount due it under Section
7.06.
(d)
All rights of action and of asserting claims under this Indenture, or under any of the terms established with respect to Securities
of that series, may be enforced by the Trustee without the possession of any of such Securities, or the production thereof at any trial
or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment shall, after provision for payment to the Trustee of any amounts due under Section
7.06, be for the ratable benefit of the holders of the Securities of such series.
In
case of an Event of Default hereunder, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights,
either at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained
in the Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested
in the Trustee by this Indenture or by law.
Nothing
contained herein shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder
any plan of reorganization, arrangement, adjustment or composition affecting the Securities of that series or the rights of any holder
thereof or to authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding.
Section
6.03 Application of Moneys Collected.
Any
moneys collected by the Trustee pursuant to this Article with respect to a particular series of Securities shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal (or premium,
if any) or interest, upon presentation of the Securities of that series, and notation thereon of the payment, if only partially paid,
and upon surrender thereof if fully paid:
FIRST:
To the payment of costs and expenses of collection and of all amounts payable to the Trustee under Section 7.06;
SECOND:
To the payment of the amounts then due and unpaid upon Securities of such series for principal (and premium, if any) and interest, in
respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities for principal (and premium, if any) and interest, respectively; and
THIRD:
To the payment of the remainder, if any, to the Company or any other Person lawfully entitled thereto.
Section
6.04 Limitation on Suits.
No
holder of any Security of any series shall have any right by virtue or by availing of any provision of this Indenture or any Security
to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Indenture or any Security or for
the appointment of a receiver or trustee, or for any other remedy hereunder, unless (i) such holder previously shall have given to the
Trustee written notice of an Event of Default and of the continuance thereof with respect to the Securities of such series specifying
such Event of Default, as hereinbefore provided; (ii) the holders of not less than 25% in aggregate principal amount of the Securities
of such series then Outstanding shall have made written request upon the Trustee to institute such action, suit or proceeding in its
own name as Trustee hereunder; (iii) such holder or holders shall have offered to the Trustee indemnity satisfactory to it against the
costs, expenses and liabilities to be incurred in compliance with such request; (iv) the Trustee for 90 days after its receipt of such
notice, request and offer of indemnity, shall have failed to institute any such action, suit or proceeding and (v) during such 90 day
period, the holders of a majority in principal amount of the Securities of that series do not give the Trustee a direction inconsistent
with the request.
Notwithstanding
anything contained herein to the contrary or any other provisions of this Indenture, the right of any holder of any Security to receive
payment of the principal of (and premium, if any) and interest on such Security, as therein provided, on or after the respective due
dates expressed in such Security (or in the case of redemption, on the redemption date), or to institute suit for the enforcement of
any such payment on or after such respective dates or redemption date, shall not be impaired or affected without the consent of such
holder and by accepting a Security hereunder it is expressly understood, intended and covenanted by the taker and holder of every Security
of such series with every other such taker and holder and the Trustee, that no one or more holders of Securities of such series shall
have any right in any manner whatsoever by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the
rights of the holders of any other of such Securities, or to obtain or seek to obtain priority over or preference to any other such holder,
or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all
holders of Securities of such series. For the protection and enforcement of the provisions of this Section, each and every Securityholder
and the Trustee shall be entitled to such relief as can be given either at law or in equity.
Section
6.05 Rights and Remedies Cumulative; Delay or Omission Not Waiver.
(a)
Except as otherwise provided in Section 2.07, all powers and remedies given by this Article to the Trustee or to the Securityholders
shall, to the extent permitted by law, be deemed cumulative and not exclusive of any other powers and remedies available to the Trustee
or the holders of the Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture or otherwise established with respect to such Securities.
(b)
No delay or omission of the Trustee or of any holder of any of the Securities to exercise any right or power accruing upon any Event
of Default occurring and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver of any such
default or an acquiescence therein; and, subject to the provisions of Section 6.04, every power and remedy given by this Article or by
law to the Trustee or the Securityholders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee
or by the Securityholders.
Section
6.06 Control by Securityholders.
The
holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding, determined in accordance
with Section 8.04, shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee with respect to such series; provided, however, that such direction
shall not be in conflict with any rule of law or with this Indenture or subject the Trustee in its sole discretion to personal liability.
Subject to the provisions of Section 7.01, the Trustee shall have the right to decline to follow any such direction if the Trustee in
good faith shall, by a Responsible Officer or officers of the Trustee, determine that the proceeding so directed, subject to the Trustee’s
duties under the Trust Indenture Act, would involve the Trustee in personal liability or might be unduly prejudicial to the Securityholders
not involved in the proceeding. The holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding
affected thereby, determined in accordance with Section 8.04, may on behalf of the holders of all of the Securities of such series waive
any past default in the performance of any of the covenants contained herein or established pursuant to Section 2.01 with respect to
such series and its consequences, except a default in the payment of the principal of, or premium, if any, or interest on, any of the
Securities of that series as and when the same shall become due by the terms of such Securities otherwise than by acceleration (unless
such default has been cured and a sum sufficient to pay all matured installments of interest and principal and any premium has been deposited
with the Trustee (in accordance with Section 6.01(c)). Upon any such waiver, the default covered thereby shall be deemed to be cured
for all purposes of this Indenture and the Company, the Trustee and the holders of the Securities of such series shall be restored to
their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default or impair
any right consequent thereon.
Section
6.07 Undertaking to Pay Costs.
All
parties to this Indenture agree, and each holder of any Securities by such holder’s acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’
fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted
by any Securityholder, or group of Securityholders, holding more than 10% in aggregate principal amount of the Outstanding Securities
of any series, or to any suit instituted by any Securityholder for the enforcement of the payment of the principal of (or premium, if
any) or interest on any Security of such series, on or after the respective due dates expressed in such Security or established pursuant
to this Indenture.
article
7
CONCERNING
THE TRUSTEE
Section
7.01 Certain Duties and Responsibilities of Trustee.
(a)
The Trustee, prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing of all
Events of Default with respect to the Securities of that series that may have occurred, shall undertake to perform with respect to the
Securities of such series such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants
shall be read into this Indenture against the Trustee. In case an Event of Default with respect to the Securities of a series has occurred
(that has not been cured or waived), the Trustee shall exercise with respect to Securities of that series such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his or her own affairs.
(b)
No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i)
prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing or waiving of all
such Events of Default with respect to that series that may have occurred:
(A)
the duties and obligations of the Trustee shall with respect to the Securities of such series be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable with respect to the Securities of such series except for the performance
of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(B)
in the absence of bad faith on the part of the Trustee, the Trustee may with respect to the Securities of such series conclusively
rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture;
(ii)
the Trustee shall not be liable to any Securityholder or to any other Person for any error of judgment made in good faith by a Responsible
Officer or Responsible Officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent
facts;
(iii)
the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the
direction of the holders of not less than a majority in principal amount of the Securities of any series at the time Outstanding relating
to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee under this Indenture with respect to the Securities of that series;
(iv)
none of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise of any of its rights or powers if there is reasonable
ground for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Indenture
or adequate indemnity against such risk is not reasonably assured to it;
(v)
The Trustee shall not be required to give any bond or surety in respect of the performance of its powers or duties hereunder;
(vi)
The permissive right of the Trustee to do things enumerated in this Indenture shall not be construed as a duty of the Trustee; and
(vii)
No Trustee shall have any duty or responsibility for any act or omission of any other Trustee appointed with respect to a series
of Securities hereunder.
Section
7.02 Certain Rights of Trustee.
Except
as otherwise provided in Section 7.01:
(a)
The Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond, security or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(b)
Any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Board Resolution or
an instrument signed in the name of the Company by any authorized officer of the Company (unless other evidence in respect thereof is
specifically prescribed herein);
(c)
The Trustee may consult with counsel and the opinion or written advice of such counsel or, if requested, any Opinion of Counsel shall
be full and complete authorization and protection in respect of any action taken or suffered or omitted hereunder in good faith and in
reliance thereon;
(d)
The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order
or direction of any of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have offered
to the Trustee security or indemnity reasonably acceptable to the Trustee against the costs, expenses and liabilities that may be incurred
therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of
Default with respect to a series of the Securities (that has not been cured or waived), to exercise with respect to Securities of that
series such of the rights and powers vested in it by this Indenture, and to use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct of his or her own affairs;
(e)
The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this Indenture;
(f)
The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond, security, or other papers or documents or inquire as to
the performance by the Company of one of its covenants under this Indenture, unless requested in writing so to do by the holders of not
less than a majority in principal amount of the Outstanding Securities of the particular series affected thereby (determined as provided
in Section 8.04); provided, however, that if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee
by the security afforded to it by the terms of this Indenture, the Trustee may require security or indemnity reasonably acceptable to
the Trustee against such costs, expenses or liabilities as a condition to so proceeding. The reasonable expense of every such examination
shall be paid by the Company or, if paid by the Trustee, shall be repaid by the Company upon demand;
(g)
The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder;
(h)
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 efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable
under the circumstances;
(i)
In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind
whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of
such loss or damage and regardless of the form of action; and
(j)
The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile
transmission or other similar unsecured electronic methods; provided, however, that (a) the party providing such written instructions,
subsequent to such transmission of written instructions, shall provide the originally executed instructions or directions to the Trustee
in a timely manner, and (b) such originally executed instructions or directions shall be signed by an authorized representative of the
party providing such instructions or directions. If the party elects to give the Trustee e-mail or facsimile instructions (or instructions
by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding
of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly
or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict
or are inconsistent with a subsequent written instruction. The party providing electronic instructions agrees to assume all risks arising
out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk
of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties. The Trustee may request
that the Company deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at
such time to furnish the Trustee with Officer’s Certificates, Company Orders and any other matters or directions pursuant to this
Indenture.
(k)
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.
(l)
The Trustee shall not be deemed to have knowledge of any Default or Event of Default (other than an Event of Default relating to
the failure to pay the interest on, or the principal of, the Securities) until the Trustee shall have received written notification in
the manner set forth in this Indenture or a Responsible Officer of the Trustee shall have obtained actual knowledge.
Section
7.03 Trustee Not Responsible for Recitals or Issuance or Securities.
(a)
The recitals contained herein and in the Securities shall be taken as the statements of the Company, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee shall not be responsible for any statement in any registration statement, prospectus, or
any other document in connection with the sale of Securities. The Trustee shall not be responsible for any rating on the Securities or
any action or omission of any rating agency.
(b)
The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities.
(c)
The Trustee shall not be accountable for the use or application by the Company of any of the Securities or of the proceeds of such
Securities, or for the use or application of any moneys paid over by the Trustee in accordance with any provision of this Indenture or
established pursuant to Section 2.01, or for the use or application of any moneys received by any paying agent other than the Trustee.
Section
7.04 May Hold Securities.
The
Trustee or any paying agent or Security Registrar, in its individual or any other capacity, may become the owner or pledgee of Securities
with the same rights it would have if it were not Trustee, paying agent or Security Registrar.
Section
7.05 Moneys Held in Trust.
Subject
to the provisions of Section 11.05, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust
for the purposes for which they were received, but need not be segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any moneys received by it hereunder except such as it may agree with the Company
to pay thereon.
Section
7.06 Compensation and Reimbursement.
(a)
The Company shall pay to the Trustee for each of its capacities hereunder 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.
(b)
The Company shall indemnify each of the Trustee in each of its capacities hereunder against any loss, liability or expense (including
the cost of defending itself and including the reasonable compensation and expenses of the Trustee’s agents and counsel) incurred
by it except as set forth in Section 7.06(c) in the exercise or performance of its powers, rights or duties under this Indenture as Trustee
or Agent. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. The Company shall defend the claim
and the Trustee shall cooperate in the defense. The Trustee may have one separate counsel and the Company shall pay the reasonable fees
and expenses of such counsel. The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably
withheld. This indemnification shall apply to officers, directors, employees, shareholders and agents of the Trustee.
(c)
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 negligence or bad faith.
(d)
To ensure the Company’s payment obligations in this Section, the Trustee shall have a lien prior to the Securities on all funds
or property held or collected by the Trustee, except that held in trust to pay principal of or interest on particular Securities. When
the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 6.01(4) or (5), the expenses
(including the reasonable fees and expenses of its counsel) and the compensation for services in connection therewith are to constitute
expenses of administration under any bankruptcy law. The provisions of this Section 7.06 shall survive the termination of this Indenture
and the resignation or removal of the Trustee.
Section
7.07 Reliance on Officer’s Certificate.
Except
as otherwise provided in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it reasonably
necessary or desirable that a matter be proved or established prior to taking or suffering or omitting to take any action hereunder,
such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate delivered to the Trustee
and such certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for
any action taken, suffered or omitted to be taken by it under the provisions of this Indenture upon the faith thereof.
Section
7.08 Disqualification; Conflicting Interests.
If
the Trustee has or shall acquire any “conflicting interest” within the meaning of Section 310(b) of the Trust Indenture Act,
the Trustee and the Company shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act.
Section
7.09 Corporate Trustee Required; Eligibility.
There
shall at all times be a Trustee with respect to the Securities issued hereunder which shall at all times be a corporation organized and
doing business under the laws of the United States of America or any state or territory thereof or of the District of Columbia, or a
corporation or other Person permitted to act as trustee by the Commission, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least fifty million U.S. dollars ($50,000,000), and subject to supervision or examination
by federal, state, territorial, or District of Columbia authority.
If
such corporation or other Person publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation or other
Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. The Company
may not, nor may any Person directly or indirectly controlling, controlled by, or under common control with the Company, serve as Trustee.
In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 7.10.
Section
7.10 Resignation and Removal; Appointment of Successor.
(a)
The Trustee or any successor hereafter appointed may at any time resign with respect to the Securities of one or more series by giving
written notice thereof to the Company and by transmitting notice of resignation by mail, first class postage prepaid, to the Securityholders
of such series, as their names and addresses appear upon the Security Register. Upon receiving such notice of resignation, the Company
shall promptly appoint a successor trustee with respect to Securities of such series by written instrument, in duplicate, executed by
order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor
trustee. If no successor trustee shall have been so appointed and have accepted appointment within 30 days after the mailing of such
notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor trustee
with respect to Securities of such series, or any Securityholder of that series who has been a bona fide holder of a Security or Securities
for at least six months may on behalf of himself and all others similarly situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.
(b)
In case at any time any one of the following shall occur:
(i)
the Trustee shall fail to comply with the provisions of Section 7.08 after written request therefor by the Company or by any Securityholder
who has been a bona fide holder of a Security or Securities for at least six months; or
(ii)
the Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 and shall fail to resign after written request
therefor by the Company or by any such Securityholder; or
(iii)
the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding,
or a receiver of the Trustee or of its property shall be appointed or consented to, or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;
then,
in any such case, the Company may remove the Trustee with respect to all Securities and appoint a successor trustee by written instrument,
in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed
and one copy to the successor trustee, or any Securityholder who has been a bona fide holder of a Security or Securities for at least
six months may, on behalf of that holder and all others similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper
and prescribe, remove the Trustee and appoint a successor trustee.
(c)
The holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding may at any time remove
the Trustee with respect to such series by so notifying the Trustee and the Company and may appoint a successor Trustee for such series
with the consent of the Company.
(d)
Any resignation or removal of the Trustee and appointment of a successor trustee with respect to the Securities of a series pursuant
to any of the provisions of this Section shall become effective upon acceptance of appointment by the successor trustee as provided in
Section 7.11.
(e)
Any successor trustee appointed pursuant to this Section may be appointed with respect to the Securities of one or more series or
all of such series, and at any time there shall be only one Trustee with respect to the Securities of any particular series.
Section
7.11 Acceptance of Appointment by Successor.
(a)
In case of the appointment hereunder of a successor trustee with respect to all Securities, every such successor trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company
or the successor trustee, such retiring Trustee shall, upon payment of any amounts due to it pursuant to the provisions of Section 7.06,
execute and deliver an instrument transferring to such successor trustee all the rights, powers, and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor trustee all property and money held by such retiring Trustee hereunder.
(b)
In case of the appointment hereunder of a successor trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor trustee with respect to the Securities of one or more series shall execute and deliver
an indenture supplemental hereto wherein each successor trustee shall accept such appointment and which (i) shall contain such provisions
as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor trustee all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor
trustee relates, (ii) shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee, and (iii) shall add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such
Trustee and that no Trustee shall be responsible for any act or failure to act on the part of any other Trustee hereunder; and upon the
execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the
extent provided therein, such retiring Trustee shall with respect to the Securities of that or those series to which the appointment
of such successor trustee relates have no further responsibility for the exercise of rights and powers or for the performance of the
duties and obligations vested in the Trustee under this Indenture, and each such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such successor trustee relates; but, on request of the Company or any successor trustee,
such retiring Trustee shall duly assign, transfer and deliver to such successor trustee, to the extent contemplated by such supplemental
indenture, the property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which
the appointment of such successor trustee relates.
(c)
Upon request of any such successor trustee, the Company shall execute any and all instruments for more fully and certainly vesting
in and confirming to such successor trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as
the case may be.
(d)
No successor trustee shall accept its appointment unless at the time of such acceptance such successor trustee shall be qualified
and eligible under this Article.
(e)
Upon acceptance of appointment by a successor trustee as provided in this Section, the Company shall transmit notice of the succession
of such trustee hereunder by mail, first class postage prepaid, to the Securityholders, as their names and addresses appear upon the
Security Register. If the Company fails to transmit such notice within ten days after acceptance of appointment by the successor trustee,
the successor trustee shall cause such notice to be transmitted at the expense of the Company.
Section
7.12 Merger, Conversion, Consolidation or Succession to Business.
Any
corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from
any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially
all the corporate trust business of the Trustee, including the administration of the trust created by this Indenture, shall be the successor
of the Trustee hereunder, provided that such corporation shall be qualified under the provisions of Section 7.08 and eligible under the
provisions of Section 7.09, without the execution or filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding. In case any Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
Section
7.13 Preferential Collection of Claims Against the Company.
The
Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship described in Section 311(b)
of the Trust Indenture Act. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act
to the extent included therein.
Section
7.14 Notice of Default.
If
any Event of Default occurs and is continuing and if such Event of Default is known to a Responsible Officer of the Trustee, the Trustee
shall mail to each Securityholder in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act notice of the
Event of Default within the earlier of 90 days after it occurs and 30 days after it is known to a Responsible Officer of the Trustee
or written notice of it is received by the Trustee, unless such Event of Default has been cured; provided, however, that, except
in the case of a default in the payment of the principal of (or premium, if any) or interest on any Security, the Trustee shall be protected
in withholding such notice if and so long as the Responsible Officers of the Trustee in good faith determine that the withholding of
such notice is in the interest of the Securityholders.
article
8
CONCERNING
THE SECURITYHOLDERS
Section
8.01 Evidence of Action by Securityholders.
Whenever
in this Indenture it is provided that the holders of a majority or specified percentage in aggregate principal amount of the Securities
of a particular series may take any action (including the making of any demand or request, the giving of any notice, consent or waiver
or the taking of any other action), the fact that at the time of taking any such action the holders of such majority or specified percentage
of that series have joined therein may be evidenced by any instrument or any number of instruments of similar tenor executed by such
holders of Securities of that series in person or by agent or proxy appointed in writing.
If
the Company shall solicit from the Securityholders of any series any request, demand, authorization, direction, notice, consent, waiver
or other action, the Company may, at its option, as evidenced by an Officer’s Certificate, fix in advance a record date for such
series for the determination of Securityholders entitled to give such request, demand, authorization, direction, notice, consent, waiver
or other action, but the Company shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other action may be given before or after the record date, but only the Securityholders of record
at the close of business on the record date shall be deemed to be Securityholders for the purposes of determining whether Securityholders
of the requisite proportion of Outstanding Securities of that series have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action, and for that purpose the Outstanding Securities of that series shall
be computed as of the record date; provided, however, that no such authorization, agreement or consent by such Securityholders on the
record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six
months after the record date.
Section
8.02 Proof of Execution by Securityholders.
Subject
to the provisions of Section 7.01, proof of the execution of any instrument by a Securityholder (such proof will not require notarization)
or his or her agent or proxy and proof of the holding by any Person of any of the Securities shall be sufficient if made in the following
manner:
(a)
The fact and date of the execution by any such Person of any instrument may be proved in any reasonable manner acceptable to the
Trustee.
(b)
The ownership of Securities shall be proved by the Security Register of such Securities or by a certificate of the Security Registrar
thereof.
The
Trustee may require such additional proof of any matter referred to in this Section as it shall deem necessary.
Section
8.03 Who May be Deemed Owners.
Prior
to the due presentment for registration of transfer of any Security, the Company, the Trustee, any paying agent and any Security Registrar
may deem and treat the Person in whose name such Security shall be registered upon the books of the Security Registrar as the absolute
owner of such Security (whether or not such Security shall be overdue and notwithstanding any notice of ownership or writing thereon
made by anyone other than the Security Registrar) for the purpose of receiving payment of or on account of the principal of, premium,
if any, and (subject to Section 2.03) interest on such Security and for all other purposes; and neither the Company nor the Trustee nor
any paying agent nor any Security Registrar shall be affected by any notice to the contrary.
Section
8.04 Certain Securities Owned by Company Disregarded.
In
determining whether the holders of the requisite aggregate principal amount of Securities of a particular series have concurred in any
direction, consent or waiver under this Indenture, the Securities of that series that are owned by the Company or any other obligor on
the Securities of that series or by any Person directly or indirectly controlling or controlled by or under common control with the Company
or any other obligor on the Securities of that series shall be disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction, consent
or waiver, only Securities of such series that the Trustee actually knows are so owned shall be so disregarded. The Securities so owned
that have been pledged in good faith may be regarded as Outstanding for the purposes of this Section, if the pledgee shall establish
to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not a
Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any such other
obligor. In case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection
to the Trustee.
Section
8.05 Actions Binding on Future Securityholders.
At
any time prior to (but not after) the evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the holders
of the majority or percentage in aggregate principal amount of the Securities of a particular series specified in this Indenture in connection
with such action, any holder of a Security of that series that is shown by the evidence to be included in the Securities the holders
of which have consented to such action may, by filing written notice with the Trustee, and upon proof of holding as provided in Section
8.02, revoke such action so far as concerns such Security. Except as aforesaid any such action taken by the holder of any Security shall
be conclusive and binding upon such holder and upon all future holders and owners of such Security, and of any Security issued in exchange
therefor, on registration of transfer thereof or in place thereof, irrespective of whether or not any notation in regard thereto is made
upon such Security. Any action taken by the holders of the majority or percentage in aggregate principal amount of the Securities of
a particular series specified in this Indenture in connection with such action shall be conclusively binding upon the Company, the Trustee
and the holders of all the Securities of that series.
article
9
SUPPLEMENTAL
INDENTURES
Section
9.01 Supplemental Indentures Without the Consent of Securityholders.
In
addition to any supplemental indenture otherwise authorized by this Indenture, the Company and the Trustee may from time to time and
at any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act
as then in effect), without the consent of the Securityholders, for one or more of the following purposes:
(a)
to cure any ambiguity, defect, or inconsistency herein or in the Securities of any series;
(b)
to comply with Article 10;
(c)
to provide for uncertificated Securities in addition to or in place of certificated Securities;
(d)
to add to the covenants, restrictions, conditions or provisions relating to the Company for the benefit of the holders of all or
any series of Securities (and if such covenants, restrictions, conditions or provisions are to be for the benefit of less than all series
of Securities, stating that such covenants, restrictions, conditions or provisions are expressly being included solely for the benefit
of such series), to make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants, restrictions,
conditions or provisions an Event of Default, or to surrender any right or power herein conferred upon the Company;
(e)
to add to, delete from, or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue,
authentication, and delivery of Securities, as herein set forth;
(f)
to make any change that does not adversely affect the rights of any Securityholder in any material respect;
(g)
to provide for the issuance of and establish the form and terms and conditions of the Securities of any series as provided in Section
2.01, to establish the form of any certifications required to be furnished pursuant to the terms of this Indenture or any series of Securities,
or to add to the rights of the holders of any series of Securities;
(h)
to evidence and provide for the acceptance of appointment hereunder by a successor trustee; or
(i)
to comply with any requirements of the Commission or any successor in connection with the qualification of this Indenture under the
Trust Indenture Act.
The
Trustee is hereby authorized to join with the Company in the execution of any such supplemental indenture, and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into any such supplemental
indenture that affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Any
supplemental indenture authorized by the provisions of this Section may be executed by the Company and the Trustee without the consent
of the holders of any of the Securities at the time Outstanding, notwithstanding any of the provisions of Section 9.02.
Section
9.02 Supplemental Indentures With Consent of Securityholders.
Other
than as provided in Section 9.01, with the consent (evidenced as provided in Section 8.01) of the holders of not less than a majority
in aggregate principal amount of the Securities of each series affected by such supplemental indenture or indentures at the time Outstanding,
the Company, when authorized by a Board Resolution, and the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as then in effect) for the purpose of
adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture
or of modifying the rights of the holders of the Securities of such series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the holders of each Security then Outstanding and affected thereby, (a) extend the fixed maturity
of any Securities of any series, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest
thereon, or reduce any premium payable upon the redemption thereof or (b) reduce the aforesaid percentage of Securities, the holders
of which are required to consent to any such supplemental indenture.
It
shall not be necessary for the consent of the Securityholders of any series affected thereby under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Section
9.03 Effect of Supplemental Indentures.
Upon
the execution of any supplemental indenture pursuant to the provisions of this Article or of Section 10.01, this Indenture shall, with
respect to such series, be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture of the Trustee, the Company and the holders of Securities of the series
affected thereby shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
Section
9.04 Securities Affected by Supplemental Indentures.
Securities
of any series affected by a supplemental indenture, authenticated and delivered after the execution of such supplemental indenture pursuant
to the provisions of this Article or of Section 10.01, may bear a notation in form approved by the Company, provided such form meets
the requirements of any securities exchange upon which such series may be listed, as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of that series so modified as to conform, in the opinion of the Board of
Directors, to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Company, authenticated
by the Trustee and delivered in exchange for the Securities of that series then Outstanding.
Section
9.05 Execution of Supplemental Indentures.
Upon
the request of the Company, accompanied by its Board Resolutions authorizing the execution of any such supplemental indenture, and upon
the filing with the Trustee of evidence of the consent of Securityholders required to consent thereto as aforesaid, the Trustee shall
join with the Company in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion but shall not be
obligated to enter into such supplemental indenture. The Trustee, subject to the provisions of Section 7.01, shall receive an Officer’s
Certificate or an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant to this Article is authorized
or permitted by the terms of this Article and that all conditions precedent to the execution of the supplemental indenture have been
complied with; provided, however, that such Officer’s Certificate or Opinion of Counsel need not be provided in connection with
the execution of a supplemental indenture that establishes the terms of a series of Securities pursuant to Section 2.01 hereof.
Promptly
after the execution by the Company and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Company
shall (or shall direct the Trustee to) transmit by mail, first class postage prepaid, a notice, setting forth in general terms the substance
of such supplemental indenture, to the Securityholders of all series affected thereby .as their names and addresses appear upon the Security
Register. Any failure of the Company to mail, or cause the mailing of, such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
article
10
SUCCESSOR
ENTITY
Section
10.01 Company May Consolidate, Etc.
Nothing
contained in this Indenture shall prevent any consolidation or merger of the Company with or into any other Person (whether or not affiliated
with the Company) or successive consolidations or mergers in which the Company or its successor or successors shall be a party or parties,
or shall prevent any sale, conveyance, transfer or other disposition of the property of the Company or its successor or successors as
an entirety, or substantially as an entirety, to any other Person (whether or not affiliated with the Company or its successor or successors);
provided, however, the Company hereby covenants and agrees that, upon any such consolidation or merger (in each case, if the Company
is not the survivor of such transaction) or any such sale, conveyance, transfer or other disposition (other than a sale, conveyance,
transfer or other disposition to a Subsidiary of the Company), the due and punctual payment of the principal of (premium, if any) and
interest on all of the Securities of all series in accordance with the terms of each series, according to their tenor, and the due and
punctual performance and observance of all the covenants and conditions of this Indenture with respect to each series or established
with respect to such series pursuant to Section 2.01 to be kept or performed by the Company shall be expressly assumed, by supplemental
indenture (which shall conform to the provisions of the Trust Indenture Act, as then in effect) reasonably satisfactory in form to the
Trustee executed and delivered to the Trustee by the entity formed by such consolidation, or into which the Company shall have been merged,
or by the entity which shall have acquired such property.
Section
10.02 Successor Entity Substituted.
(a)
In case of any such consolidation, merger, sale, conveyance, transfer or other disposition and upon the assumption by the successor
entity by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the obligations set
forth under Section 10.01 on all of the Securities of all series Outstanding, such successor entity shall succeed to and be substituted
for the Company with the same effect as if it had been named as the Company herein, and thereupon the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture and the Securities.
(b)
In case of any such consolidation, merger, sale, conveyance, transfer or other disposition, such changes in phraseology and form
(but not in substance) may be made in the Securities thereafter to be issued as may be appropriate.
(c)
Nothing contained in this Article shall require any action by the Company in the case of a consolidation or merger of any Person
into the Company where the Company is the survivor of such transaction, or the acquisition by the Company, by purchase or otherwise,
of all or any part of the property of any other Person (whether or not affiliated with the Company).
article
11
SATISFACTION
AND DISCHARGE
Section
11.01 Satisfaction and Discharge of Indenture.
If
at any time: (a) the Company shall have delivered to the Trustee for cancellation all Securities of a series theretofore authenticated
and not delivered to the Trustee for cancellation (other than any Securities that shall have been destroyed, lost or stolen and that
shall have been replaced or paid as provided in Section 2.07 and Securities for whose payment money or Governmental Obligations have
theretofore been deposited in trust or segregated and held in trust by the Company and thereupon repaid to the Company or discharged
from such trust, as provided in Section 11.05); or (b) all such Securities of a particular series not theretofore delivered to the Trustee
for cancellation shall have become due and payable, or are by their terms to become due and payable within one year or are to be called
for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and the Company
shall deposit or cause to be deposited with the Trustee as trust funds the entire amount in moneys or Governmental Obligations or a combination
thereof, sufficient in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay at maturity or upon redemption all Securities of that series not theretofore delivered to the
Trustee for cancellation, including principal (and premium, if any) and interest due or to become due to such date of maturity or date
fixed for redemption, as the case may be, and if the Company shall also pay or cause to be paid all other sums payable hereunder with
respect to such series by the Company then this Indenture shall thereupon cease to be of further effect with respect to such series except
for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03, 7.10, 11.05 and 13.04 that shall survive until the date of maturity
or redemption date, as the case may be, and Sections 7.06 and 11.05, that shall survive to such date and thereafter, and the Trustee,
on demand of the Company and at the cost and expense of the Company shall execute proper instruments acknowledging satisfaction of and
discharging this Indenture with respect to such series.
Section
11.02 Discharge of Obligations.
If
at any time all such Securities of a particular series not heretofore delivered to the Trustee for cancellation or that have not become
due and payable as described in Section 11.01 shall have been paid by the Company by depositing irrevocably with the Trustee as trust
funds moneys or an amount of Governmental Obligations sufficient to pay at maturity or upon redemption all such Securities of that series
not theretofore delivered to the Trustee for cancellation, including principal (and premium, if any) and interest due or to become due
to such date of maturity or date fixed for redemption, as the case may be, and if the Company shall also pay or cause to be paid all
other sums payable hereunder by the Company with respect to such series, then after the date such moneys or Governmental Obligations,
as the case may be, are deposited with the Trustee the obligations of the Company under this Indenture with respect to such series shall
cease to be of further effect except for the provisions of Sections 2.03, 2.05, 2.07, 4,01, 4.02, 4,03, 7.06, 7.10, 11.05 and 13.04 hereof
that shall survive until such Securities shall mature and be paid.
Thereafter,
Sections 7.06 and 11.05 shall survive.
Section
11.03 Deposited Moneys to be Held in Trust.
All
moneys or Governmental Obligations deposited with the Trustee pursuant to Sections 11.01 or 11.02 shall be held in trust and shall be
available for payment as due, either directly or through any paying agent (including the Company acting as its own paying agent), to
the holders of the particular series of Securities for the payment or redemption of which such moneys or Governmental Obligations have
been deposited with the Trustee.
Section
11.04 Payment of Moneys Held by Paying Agents.
In
connection with the satisfaction and discharge of this Indenture all moneys or Governmental Obligations then held by any paying agent
under the provisions of this Indenture shall, upon demand of the Company, be paid to the Trustee and thereupon such paying agent shall
be released from all further liability with respect to such moneys or Governmental Obligations.
Section
11.05 Repayment to Company.
Any
moneys or Governmental Obligations deposited with any paying agent or the Trustee, or then held by the Company, in trust for payment
of principal of or premium, if any, or interest on the Securities of a particular series that are not applied but remain unclaimed by
the holders of such Securities for at least two years after the date upon which the principal of (and premium, if any) or interest on
such Securities shall have respectively become due and payable, or such other shorter period set forth in applicable escheat or abandoned
or unclaimed property law, shall be repaid to the Company on May 31 of each year or upon the Company’s request or (if then held
by the Company) shall be discharged from such trust; and thereupon the paying agent and the Trustee shall be released from all further
liability with respect to such moneys or Governmental Obligations, and the holder of any of the Securities entitled to receive such payment
shall thereafter, as a general creditor, look only to the Company for the payment thereof.
article
12
IMMUNITY
OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section
12.01 No Recourse.
No
recourse under or upon any obligation, covenant or agreement of this Indenture, or of any Security, or for any claim based thereon or
otherwise in respect thereof, shall be had against any incorporator, stockholder, officer or director, past, present or future as such,
of the Company or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly understood that this Indenture and the obligations issued hereunder are solely corporate obligations, and that no
such personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, stockholders, officers or directors
as such, of the Company or of any predecessor or successor corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom; and that any and all such personal liability of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against, every such incorporator, stockholder, officer or director
as such, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied therefrom, are hereby expressly waived and released as a condition
of, and as a consideration for, the execution of this Indenture and the issuance of such Securities.
article
13
MISCELLANEOUS
PROVISIONS
Section
13.01 Effect on Successors and Assigns.
All
the covenants, stipulations, promises and agreements in this Indenture made by or on behalf of the Company shall bind its successors
and assigns, whether so expressed or not.
Section
13.02 Actions by Successor.
Any
act or proceeding by any provision of this Indenture authorized or required to be done or performed by any board, committee or officer
of the Company shall and may be done and performed with like force and effect by the corresponding board, committee or officer of any
corporation that shall at the time be the lawful successor of the Company.
Section
13.03 Surrender of Company Powers.
The
Company by instrument in writing executed by authority of its Board of Directors and delivered to the Trustee may surrender any of the
powers reserved to the Company, and thereupon such power so surrendered shall terminate both as to the Company and as to any successor
corporation.
Section
13.04 Notices.
Except
as otherwise expressly provided herein, any notice, request or demand that by any provision of this Indenture is required or permitted
to be given, made or served by the Trustee, the Security Registrar, any paying or other agent under this Indenture or by the holders
of Securities or by any other Person pursuant to this Indenture to or on the Company may be given or served by being deposited in first
class mail, postage prepaid, addressed (until another address is filed in writing by the Company with the Trustee), as follows: 675 Arapeen
Drive, Suite 202, Salt Lake City, Utah 84108. Any notice, election, request or demand by the Company or any Securityholder or by any
other Person pursuant to this Indenture to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes,
if given or made in writing at the Corporate Trust Office of the Trustee.
Section
13.05 Governing Law; Jury Trial Waiver.
This
Indenture and each Security, and any claim, controversy or dispute under or related to this Indenture or any Security, shall be governed
by and construed in accordance with the laws of the State of New York, except to the extent that the Trust Indenture Act is applicable.
EACH
PARTY HERETO, AND EACH HOLDER OF A SECURITY BY ACCEPTANCE THEREOF, HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS INDENTURE.
Section
13.06 Treatment of Securities as Debt.
It
is intended that the Securities will be treated as indebtedness and not as equity for federal income tax purposes. The provisions of
this Indenture shall be interpreted to further this intention.
Section
13.07 Certificates and Opinions as to Conditions Precedent.
(a)
Upon any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent provided for in this Indenture
(other than the certificate to be delivered pursuant to Section 13.12) relating to the proposed action have been complied with and, if
requested, an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with, except
that in the case of any such application or demand as to which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished.
(b)
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition
or covenant in this Indenture (other than the certificate to be delivered pursuant to Section 13.12 of this Indenture or Section 314(a)(1)
of the Trust Indenture Act) shall include (i) a statement that the Person making such certificate or opinion has read such covenant or
condition; (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (iii) a statement that, in the opinion of such Person, he has made such examination
or investigation as is reasonably necessary to enable him to express an informed opinion as to whether or not such covenant or condition
has been complied with; and (iv) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been
complied with.
Section
13.08 Payments on Business Days.
Except
as provided pursuant to Section 2.01 pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established
in one or more indentures supplemental to this Indenture, in any case where the date of maturity of interest or principal of any Security
or the date of redemption of any Security shall not be a Business Day, then payment of interest or principal (and premium, if any) may
be made on the next succeeding Business Day with the same force and effect as if made on the nominal date of maturity or redemption,
and no interest shall accrue for the period after such nominal date.
Section
13.09 Conflict with Trust Indenture Act.
If
and to the extent that any provision of this Indenture limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
Section
13.10 Counterparts.
This
Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute
but one and the same instrument. 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.
Section
13.11 Separability.
In
case any one or more of the provisions contained in this Indenture or in the Securities of any series shall for any reason be held to
be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions
of this Indenture or of such Securities, but this Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
Section
13.12 Compliance Certificates.
The
Company shall deliver to the Trustee, within 120 days after the end of each fiscal year during which any Securities of any series were
outstanding, an officer’s certificate stating whether or not the signers know of any Event of Default that occurred during such
fiscal year. Such certificate shall contain a certification from the principal executive officer, principal financial officer or principal
accounting officer of the Company that a review has been conducted of the activities of the Company and the Company’s performance
under this Indenture and that the Company has complied with all conditions and covenants under this Indenture. For purposes of this Section
13.12, such compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture.
If the officer of the Company signing such certificate has knowledge of such an Event of Default, the certificate shall describe any
such Event of Default and its status.
Section
13.13 U.S.A Patriot Act.
The
parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions
and in order to help fight the funding of terrorism and money laundering, 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.
Section
13.14 Force Majeure.
In
no event shall the Trustee, the Security Registrar, any paying agent or any other agent under this Indenture 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 or utilities, communications or computer (software
and hardware) services; it being understood that the Trustee, the Security Registrar, any paying agent or any other agent under this
Indenture shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as
soon as practicable under the circumstances.
Section
13.15 Table of Contents; Headings.
The
table of contents and headings of the articles and sections of this Indenture have been inserted for convenience of reference only, are
not intended to be considered a part hereof, and will not modify or restrict any of the terms or provisions hereof.
In
Witness Whereof, the parties hereto have caused
this Indenture to be duly executed all as of the day and year first above written.
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Lipocine
Inc. |
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By: |
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Name:
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Title: |
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[Trustee],
as Trustee |
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By: |
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Name: |
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Title: |
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CROSS-REFERENCE
TABLE (1)
Section
of Trust Indenture Act of 1939, as Amended |
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Section
of Indenture |
310(a) |
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7.09 |
310(b) |
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7.08 |
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7.10 |
311(a) |
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7.13 |
311(b) |
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7.13 |
312(a) |
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5.01 |
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5.02(a) |
312(b) |
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5.02(c) |
312(c) |
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5.02(c) |
313(a) |
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5.04(a) |
313(b) |
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5.04(b) |
313(c) |
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5.04(a) |
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5.04(b) |
313(d) |
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5.04(c) |
314(a) |
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5.03 |
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13.12 |
314(b) |
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Inapplicable |
314(c) |
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13.07(a) |
314(d) |
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Inapplicable |
314(e) |
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13.07(b) |
314(f) |
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Inapplicable |
315(a) |
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7.01(a) |
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7.01(b) |
315(b) |
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7.14 |
315(c) |
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7.01 |
315(d) |
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7.01(b) |
315(e) |
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6.07 |
316(a) |
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6.06 |
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8.04 |
316(b) |
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6.04 |
316(c) |
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8.01 |
317(a) |
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6.02 |
317(b) |
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4.03 |
318(a) |
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13.09 |
(1) |
This
Cross-Reference Table does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its
terms or provisions. |
Exhibit
4.7
LIPOCINE
INC.
Issuer
AND
[TRUSTEE],
Trustee
INDENTURE
Dated
as of _______, 20__
Subordinated Debt Securities
Table
of Contents
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Page |
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article
1 |
DEFINITIONS |
1 |
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Section
1.01 |
Definitions
of Terms |
1 |
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article
2 |
ISSUE,
DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES |
4 |
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Section
2.01 |
Designation
and Terms of Securities |
4 |
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Section
2.02 |
Form
of Securities and Trustee’s Certificate |
6 |
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Section
2.03 |
Denominations:
Provisions for Payment |
6 |
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Section
2.04 |
Execution
and Authentications |
7 |
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Section
2.05 |
Registration
of Transfer and Exchange |
8 |
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Section
2.06 |
Temporary
Securities |
9 |
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Section
2.07 |
Mutilated,
Destroyed, Lost or Stolen Securities |
9 |
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Section
2.08 |
Cancellation |
10 |
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Section
2.09 |
Benefits
of Indenture |
10 |
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Section
2.10 |
Authenticating
Agent |
10 |
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Section
2.11 |
Global
Securities |
11 |
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Section
2.12 |
CUSIP
Numbers |
11 |
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article
3 |
REDEMPTION
OF SECURITIES AND SINKING FUND PROVISIONS |
11 |
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Section
3.01 |
Redemption |
11 |
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Section
3.02 |
Notice
of Redemption |
12 |
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Section
3.03 |
Payment
Upon Redemption |
12 |
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Section
3.04 |
Sinking
Fund |
13 |
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Section
3.05 |
Satisfaction
of Sinking Fund Payments with Securities |
13 |
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Section
3.06 |
Redemption
of Securities for Sinking Fund |
13 |
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article
4 |
COVENANTS |
13 |
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Section
4.01 |
Payment
of Principal, Premium and Interest |
13 |
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Section
4.02 |
Maintenance
of Office or Agency |
14 |
Section
4.03 |
Paying
Agents |
14 |
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Section
4.04 |
Appointment
to Fill Vacancy in Office of Trustee |
15 |
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article
5 |
SECURITYHOLDERS’
LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
15 |
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Section
5.01 |
Company
to Furnish Trustee Names and Addresses of Securityholders |
15 |
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Section
5.02 |
Preservation
of Information; Communications With Securityholders |
15 |
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Section
5.03 |
Reports
by the Company |
15 |
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Section
5.04 |
Reports
by the Trustee |
16 |
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article
6 |
REMEDIES
OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
16 |
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Section
6.01 |
Events
of Default |
16 |
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Section
6.02 |
Collection
of Indebtedness and Suits for Enforcement by Trustee |
17 |
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Section
6.03 |
Application
of Moneys Collected |
18 |
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Section
6.04 |
Limitation
on Suits |
19 |
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Section
6.05 |
Rights
and Remedies Cumulative; Delay or Omission Not Waiver |
19 |
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Section
6.06 |
Control
by Securityholders |
20 |
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Section
6.07 |
Undertaking
to Pay Costs |
20 |
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article
7 |
CONCERNING
THE TRUSTEE |
20 |
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Section
7.01 |
Certain
Duties and Responsibilities of Trustee |
20 |
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Section
7.02 |
Certain
Rights of Trustee |
21 |
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Section
7.03 |
Trustee
Not Responsible for Recitals or Issuance or Securities |
23 |
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Section
7.04 |
May
Hold Securities |
23 |
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Section
7.05 |
Moneys
Held in Trust |
23 |
|
|
|
Section
7.06 |
Compensation
and Reimbursement |
23 |
|
|
|
Section
7.07 |
Reliance
on Officer’s Certificate |
24 |
|
|
|
Section
7.08 |
Disqualification;
Conflicting Interests |
24 |
|
|
|
Section
7.09 |
Corporate
Trustee Required; Eligibility |
24 |
|
|
|
Section
7.10 |
Resignation
and Removal; Appointment of Successor |
24 |
|
|
|
Section
7.11 |
Acceptance
of Appointment By Successor |
25 |
|
|
|
Section
7.12 |
Merger,
Conversion, Consolidation or Succession to Business |
26 |
Section
7.13 |
Preferential
Collection of Claims Against the Company |
26 |
|
|
|
Section
7.14 |
Notice
of Default. |
27 |
|
|
|
article
8 |
CONCERNING
THE SECURITYHOLDERS |
27 |
|
|
|
Section
8.01 |
Evidence
of Action by securityholders |
27 |
|
|
|
Section
8.02 |
Proof
of Execution by Securityholders |
27 |
|
|
|
Section
8.03 |
Who
May be Deemed Owners |
27 |
|
|
|
Section
8.04 |
Certain
Securities Owned by Company Disregarded |
28 |
|
|
|
Section
8.05 |
Actions
Binding on Future Securityholders |
28 |
|
|
|
article
9 |
SUPPLEMENTAL
INDENTURES |
28 |
|
|
|
Section
9.01 |
Supplemental
Indentures Without the Consent of Securityholders |
28 |
|
|
|
Section
9.02 |
Supplemental
Indentures With Consent of Securityholders |
29 |
|
|
|
Section
9.03 |
Effect
of Supplemental Indentures |
29 |
|
|
|
Section
9.04 |
Securities
Affected by Supplemental Indentures |
30 |
|
|
|
Section
9.05 |
Execution
of Supplemental Indentures |
30 |
|
|
|
article
10 |
SUCCESSOR
ENTITY |
30 |
|
|
|
Section
10.01 |
Company
May Consolidate, Etc. |
30 |
|
|
|
Section
10.02 |
Successor
Entity Substituted |
31 |
|
|
|
article
11 |
SATISFACTION
AND DISCHARGE |
31 |
|
|
|
Section
11.01 |
Satisfaction
and Discharge of Indenture |
31 |
|
|
|
Section
11.02 |
Discharge
of Obligations |
31 |
|
|
|
Section
11.03 |
Deposited
Moneys to be Held in Trust |
32 |
|
|
|
Section
11.04 |
Payment
of Moneys Held by Paying Agents |
32 |
|
|
|
Section
11.05 |
Repayment
to Company |
32 |
|
|
|
article
12 |
IMMUNITY
OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
32 |
|
|
|
Section
12.01 |
No
Recourse |
32 |
|
|
|
article
13 |
MISCELLANEOUS
PROVISIONS |
33 |
|
|
|
Section
13.01 |
Effect
on Successors and Assigns |
33 |
|
|
|
Section
13.02 |
Actions
by Successor |
33 |
Section
13.03 |
Surrender
of Company Powers |
33 |
|
|
|
Section
13.04 |
Notices |
33 |
|
|
|
Section
13.05 |
Governing
Law; Jury Trial Waiver |
33 |
|
|
|
Section
13.06 |
Treatment
of Securities as Debt |
33 |
|
|
|
Section
13.07 |
Certificates
and Opinions as to Conditions Precedent |
33 |
|
|
|
Section
13.08 |
Payments
on Business Days |
34 |
|
|
|
Section
13.09 |
Conflict
with Trust Indenture Act |
34 |
|
|
|
Section
13.10 |
Counterparts |
34 |
|
|
|
Section
13.11 |
Separability |
34 |
|
|
|
Section
13.12 |
Compliance
Certificates |
34 |
|
|
|
Section
13.13 |
U.S.A
Patriot Act |
35 |
|
|
|
Section
13.14 |
Force
Majeure |
35 |
|
|
|
Section
13.15 |
Table
of Contents; Headings |
35 |
|
|
|
ARTICLE 14 |
Subordination of securities |
35 |
INDENTURE
Indenture,
dated as of _______, 20__, among Lipocine Inc., a Delaware corporation (the “Company”), and [Trustee],
as trustee (the “Trustee”):
Whereas,
for its lawful corporate purposes, the Company has duly authorized the execution and delivery of this Indenture to provide for the
issuance of subordinated debt securities (hereinafter referred to as the “Securities”), in an unlimited aggregate
principal amount to be issued from time to time in one or more series as in this Indenture provided, as registered Securities
without coupons, to be authenticated by the certificate of the Trustee;
Whereas,
to provide the terms and conditions upon which the Securities are to be authenticated, issued and delivered, the Company has duly authorized
the execution of this Indenture; and
Whereas,
all things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
Now,
Therefore, in consideration of the premises and
the purchase of the Securities by the holders thereof, it is mutually covenanted and agreed as follows for the equal and ratable benefit
of the holders of Securities:
article
1
DEFINITIONS
Section
1.01 Definitions of Terms.
The
terms defined in this Section (except as in this Indenture or any indenture supplemental hereto otherwise expressly provided or unless
the context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective
meanings specified in this Section and shall include the plural as well as the singular. All other terms used in this Indenture that
are defined in the Trust Indenture Act of 1939, as amended, or that are by reference in such Act defined in the Securities Act of 1933,
as amended (except as herein or any indenture supplemental hereto otherwise expressly provided or unless the context otherwise requires),
shall have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of the
execution of this instrument.
“Authenticating
Agent” means the Trustee or an authenticating agent with respect to all or any of the series of Securities appointed by
the Trustee pursuant to Section 2.10.
“Bankruptcy
Law” means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.
“Board
of Directors” means the Board of Directors (or the functional equivalent thereof) of the Company or any duly authorized
committee of such Board.
“Board
Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors (or duly authorized committee thereof) and to be in full force and effect on the date of such
certification.
“Business
Day” means, with respect to any series of Securities, any day other than a day on which federal or state banking institutions
in the Borough of Manhattan, the City of New York, or in the city of the Corporate Trust Office of the Trustee, are authorized or obligated
by law, executive order or regulation to close.
“Commission”
means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
“Company”
means Lipocine Inc., a corporation duly organized and existing under the laws of the State of Delaware, and, subject to the provisions
of Article 10, shall also include its successors and assigns.
“Corporate
Trust Office” means the office of the Trustee at which, at any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at _____________________________.
“Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
“Defaulted
Interest” has the meaning set forth in Section 2.03.
“Depositary”
means, with respect to Securities of any series for which the Company shall determine that such Securities will be issued as a Global
Security, The Depository Trust Company, another clearing agency, or any successor registered as a clearing agency under the Exchange
Act, or other applicable statute or regulation, which, in each case, shall be designated by the Company pursuant to either Section 2.01
or 2.11.
“Event
of Default” means, with respect to Securities of a particular series, any event specified in Section 6.01, continued for
the period of time, if any, therein designated.
“Exchange
Act” means the United States Securities and Exchange Act of 1934, as amended, and the rules and regulations promulgated
by the Commission thereunder.
“Global
Security” means a Security issued to evidence all or a part of any series of Securities which is executed by the Company
and authenticated and delivered by the Trustee to the Depositary or pursuant to the Depositary’s instruction, all in accordance
with the Indenture, which shall be registered in the name of the Depositary or its nominee.
“Governmental
Obligations” means securities that are (a) direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United
States of America that, in either case, are not callable or redeemable at the option of the issuer thereof at any time prior to the stated
maturity of the Securities, and shall also include a depositary receipt issued by a bank or trust company as custodian with respect to
any such Governmental Obligation or a specific payment of principal of or interest on any such Governmental Obligation held by such custodian
for the account of the holder of such depositary receipt; provided, however, that (except as required by law) such custodian is not authorized
to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect
of the Governmental Obligation or the specific payment of principal of or interest on the Governmental Obligation evidenced by such depositary
receipt.
“herein”,
“hereof” and “hereunder”, and other words of similar import, refer to this Indenture
as a whole and not to any particular Article, Section or other subdivision.
“Indenture”
means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental
hereto entered into in accordance with the terms hereof and shall include the terms of particular series of Securities established as
contemplated by Section 2.01.
“Interest
Payment Date”, when used with respect to any installment of interest on a Security of a particular series, means the date
specified in such Security or in a Board Resolution or in an indenture supplemental hereto with respect to such series as the fixed date
on which an installment of interest with respect to Securities of that series is due and payable.
“Officer”
means, with respect to the Company, the chairman of the Board of Directors, a chief executive officer, a president, a chief financial
officer, a chief operating officer, any executive vice president, any senior vice president, any vice president, the treasurer or any
assistant treasurer, the controller or any assistant controller or the secretary or any assistant secretary.
“Officer’s
Certificate” means a certificate signed by any Officer. Each such certificate shall include the statements provided for
in Section 13.07, if and to the extent required by the provisions thereof.
“Opinion
of Counsel” means an opinion in writing subject to customary exceptions of legal counsel, who may be an employee of or
counsel for the Company, that is delivered to the Trustee in accordance with the terms hereof. Each such opinion shall include the statements
provided for in Section 13.07, if and to the extent required by the provisions thereof.
“Outstanding”,
when used with reference to Securities of any series, means, subject to the provisions of Section 8.04, as of any particular time, all
Securities of that series theretofore authenticated and delivered by the Trustee under this Indenture, except (a) Securities theretofore
canceled by the Trustee or any paying agent, or delivered to the Trustee or any paying agent for cancellation or that have previously
been canceled; (b) Securities or portions thereof for the payment or redemption of which moneys or Governmental Obligations in the necessary
amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been set aside
and segregated in trust by the Company (if the Company shall act as its own paying agent); provided, however, that if such Securities
or portions of such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as provided
in Article 3, or provision satisfactory to the Trustee shall have been made for giving such notice; and (c) Securities in lieu of or
in substitution for which other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.07.
“Person”
means any individual, corporation, partnership, joint venture, joint-stock company, limited liability company, association, trust, unincorporated
organization, any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“Predecessor
Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section
2.07 in lieu of a lost, destroyed or stolen Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Security.
“Responsible
Officer” when used with respect to the Trustee means any officer within the Corporate Trust Office of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed by any
of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his or her knowledge of and familiarity with the particular subject and in each case who shall have direct
responsibility for the administration of this Indenture.
“Securities”
has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
“Securities
Act” means the Securities Act of 1933, as amended.
“Securityholder”,
“holder of Securities”, “registered holder”, or other similar term, means the Person
or Persons in whose name or names a particular Security is registered on the Security Register kept for that purpose in accordance with
the terms of this Indenture.
“Security
Register” and “Security Registrar” shall have the meanings as set forth in Section 2.05.
“Subsidiary”
means, with respect to any Person, any corporation, association, partnership or other business entity of which more than 50% of the total
voting power of shares of capital stock or other interests (including partnership interests) entitled (without regard to the occurrence
of any contingency) to vote in the election of directors, managers, general partners or trustees thereof is at the time owned or controlled,
directly or indirectly, by (i) such Person; (ii) such Person and one or more Subsidiaries of such Person; or (iii) one or more Subsidiaries
of such Person.
“Trustee”
means _________________________, and, subject to the provisions of Article 7, shall also include its successors and assigns, and, if
at any time there is more than one Person acting in such capacity hereunder, “Trustee” shall mean each such Person. The term
“Trustee” as used with respect to a particular series of the Securities shall mean the trustee with respect to that series.
“Trust
Indenture Act” means the Trust Indenture Act of 1939, as amended.
“U.S.A.
Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001, Pub. L. 107-56, as amended and signed into law October 26, 2001.
article
2
ISSUE,
DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
Section
2.01 Designation and Terms of Securities.
(a)
The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities
may be issued in one or more series up to the aggregate principal amount of Securities of that series from time to time authorized by
or pursuant to a Board Resolution or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of Securities
of any series, there shall be established in or pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established
in one or more indentures supplemental hereto:
(1)
the title of the Securities of the series (which shall distinguish the Securities of that series from all other Securities);
(2)
any limit upon the aggregate principal amount of the Securities of that series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other
Securities of that series);
(3)
the maturity date or dates on which the principal of the Securities of the series is payable;
(4)
the form of the Securities of the series including the form of the certificate of authentication for such series;
(5)
the applicability of any guarantees;
(6)
whether or not the Securities will be secured or unsecured, and the terms of any secured debt;
(7)
whether the Securities rank as senior debt, senior subordinated debt, or subordinated debt;
(8)
if the price (expressed as a percentage of the aggregate principal amount thereof) at which such Securities will be issued is a price
other than the principal amount thereof, the portion of the principal amount thereof payable upon declaration of acceleration of the
maturity thereof, or if applicable, the portion of the principal amount of such Securities that is convertible into another security
or the method by which any such portion shall be determined;
(9)
the interest rate or rates, which may be fixed or variable, or the method for determining the rate and the date interest will begin
to accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining such
dates;
(10)
the Company’s right, if any, to defer the payment of interest and the maximum length of any such deferral period;
(11)
if applicable, the date or dates after which, or the period or periods during which, and the price or prices at which, the Company
may at its option, redeem the series of Securities pursuant to any optional or provisional redemption provisions and the terms of those
redemption provisions;
(12)
the date or dates, if any, on which, and the price or prices at which the Company is obligated, pursuant to any mandatory sinking
fund, mandatory redemption or analogous provisions or otherwise, to repurchase, at the Securityholder’s option, the series of Securities;
(13)
the denominations in which the Securities of the series shall be issuable, if other than denominations of one thousand U.S. dollars
($1,000) or any integral multiple thereof;
(14)
any and all terms, if applicable, relating to any auction or remarketing of the Securities of that series and any security for the
obligations of the Company with respect to such Securities and any other terms which may be advisable in connection with the marketing
of Securities of that series;
(15)
whether the Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities; the terms
and conditions, if any, upon which such Global Security or Securities may be exchanged in whole or in part for other individual Securities;
and the Depositary for such Global Security or Securities;
(16)
if applicable, the provisions relating to conversion or exchange of any Securities of the series and the terms and conditions upon
which such Securities will be so convertible or exchangeable, including the conversion or exchange price, as applicable, or how it will
be calculated and may be adjusted, any mandatory or optional (at the Company’s option or the holders’ option) conversion
or exchange features, the applicable conversion or exchange period and the manner of settlement for any conversion or exchange, which
may, without limitation, include the payment of cash as well as the delivery of securities;
(17)
if other than the full principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant to Section 6.01;
(18)
additions to or changes in the covenants applicable to the series of Securities being issued, including, among others, the consolidation,
merger or sale covenant;
(19)
additions to or changes in the Events of Default with respect to the Securities and any change in the right of the Trustee or the
Securityholders to declare the principal, premium, if any, and interest, if any, with respect to such Securities to be due and payable;
(20)
additions to or changes in or deletions of the provisions relating to covenant defeasance and legal defeasance;
(21)
additions to or changes in the provisions relating to satisfaction and discharge of this Indenture;
(22)
additions to or changes in the provisions relating to the modification of this Indenture both with and without the consent of Securityholders
of Securities issued under this Indenture;
(23)
the currency or currencies, including composite currencies, in which payment of Securities if other than U.S. dollars and the manner
of determining the equivalent amount in U.S. dollars;
(24)
whether interest will be payable in cash or additional Securities at the Company’s or the Securityholders’ option and
the terms and conditions upon which the election may be made;
(25)
the terms and conditions, if any, upon which the Company shall pay amounts in addition to the stated interest, premium, if any, and
principal amounts of the Securities of the series to any Securityholder that is not a “United States person” for federal
tax purposes;
(26)
any restrictions on transfer, sale or assignment of the Securities of the series;
(27)
any other specific terms, preferences, rights or limitations of, or restrictions on, the Securities, any other additions or changes
in the provisions of this Indenture, and any terms that may be required by us or advisable under applicable laws or regulations; and
(28) the subordination terms of the Securities
of the series.
All
Securities of any one series shall be substantially identical except as may otherwise be provided in or pursuant to any such Board Resolution
or in any indentures supplemental hereto.
If
any of the terms of the series are established by action taken pursuant to a Board Resolution of the Company, a copy of an appropriate
record of such action shall be certified by the secretary or an assistant secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Officer’s Certificate of the Company setting forth the terms of the series.
Securities
of any particular series may be issued at various times, with different dates on which the principal or any installment of principal
is payable, with different rates of interest, if any, or different methods by which rates of interest may be determined, with different
dates on which such interest may be payable and with different redemption dates.
Section
2.02 Form of Securities and Trustee’s Certificate.
The
Securities of any series and the Trustee’s certificate of authentication to be borne by such Securities shall be substantially
of the tenor and purport as set forth in one or more indentures supplemental hereto or as provided in a Board Resolution, and set forth
in an Officer’s Certificate, and they may have such letters, numbers or other marks of identification or designation and such legends
or endorsements printed, lithographed or engraved thereon as the Company may deem appropriate and as are not inconsistent with the provisions
of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule
or regulation of any securities exchange on which Securities of that series may be listed, or to conform to usage.
Section
2.03 Denominations: Provisions for Payment.
The
Securities shall be issuable as registered Securities and in the denominations of one thousand U.S. dollars ($1,000) or any integral
multiple thereof, subject to Section 2.01(a)(13). The Securities of a particular series shall bear interest payable on the dates and
at the rate specified with respect to that series. Subject to Section 2.01(a)(23), the principal of and the interest on the Securities
of any series, as well as any premium thereon in case of redemption or repurchase thereof prior to maturity, and any cash amount due
upon conversion or exchange thereof, shall be payable in the coin or currency of the United States of America that at the time is legal
tender for public and private debt, at the office or agency of the Company maintained for that purpose. Each Security shall be dated
the date of its authentication. Interest on the Securities shall be computed on the basis of a 360-day year composed of twelve 30-day
months.
The
interest installment on any Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date for Securities
of that series shall be paid to the Person in whose name said Security (or one or more Predecessor Securities) is registered at the close
of business on the regular record date for such interest installment. In the event that any Security of a particular series or portion
thereof is called for redemption and the redemption date is subsequent to a regular record date with respect to any Interest Payment
Date and prior to such Interest Payment Date, interest on such Security will be paid upon presentation and surrender of such Security
as provided in Section 3.03.
Any
interest on any Security that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date for Securities
of the same series (herein called “Defaulted Interest”) shall forthwith cease to be payable to the registered holder on the
relevant regular record date by virtue of having been such holder; and such Defaulted Interest shall be paid by the Company, at its election,
as provided in clause (1) or clause (2) below:
(1)
The Company may make payment of any Defaulted Interest on Securities to the Persons in whose names such Securities (or their respective
Predecessor Securities) are registered at the close of business on a special record date for the payment of such Defaulted Interest,
which shall be fixed in the following manner: the Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each such Security and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee
an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a special
record date for the payment of such Defaulted Interest which shall not be more than 15 nor less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such special record date and, in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the special record date therefor to be mailed, first class postage prepaid, to each Securityholder
at his or her address as it appears in the Security Register (as hereinafter defined), not less than 10 days prior to such special record
date. Notice of the proposed payment of such Defaulted Interest and the special record date therefor having been mailed as aforesaid,
such Defaulted Interest shall be paid to the Persons in whose names such Securities (or their respective Predecessor Securities) are
registered on such special record date.
(2)
The Company may make payment of any Defaulted Interest on any Securities in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable
by the Trustee.
Unless
otherwise set forth in a Board Resolution or one or more indentures supplemental hereto establishing the terms of any series of Securities
pursuant to Section 2.01 hereof, the term “regular record date” as used in this Section with respect to a series of Securities
and any Interest Payment Date for such series shall mean either the fifteenth day of the month immediately preceding the month in which
an Interest Payment Date established for such series pursuant to Section 2.01 hereof shall occur, if such Interest Payment Date is the
first day of a month, or the first day of the month in which an Interest Payment Date established for such series pursuant to Section
2.01 hereof shall occur, if such Interest Payment Date is the fifteenth day of a month, whether or not such date is a Business Day.
Subject
to the foregoing provisions of this Section, each Security of a series delivered under this Indenture upon transfer of or in exchange
for or in lieu of any other Security of such series shall carry the rights to interest accrued and unpaid, and to accrue, that were carried
by such other Security.
Section
2.04 Execution and Authentications.
The
Securities shall be signed on behalf of the Company by one of its Officers. Signatures may be in the form of a manual or facsimile signature.
The
Company may use the facsimile signature of any Person who shall have been an Officer (at the time of execution), notwithstanding the
fact that at the time the Securities shall be authenticated and delivered or disposed of such Person shall have ceased to be such an
officer of the Company. The Securities may contain such notations, legends or endorsements required by law, stock exchange rule or usage.
Each Security shall be dated the date of its authentication by the Trustee.
A
Security shall not be valid until authenticated manually by an authorized signatory of the Trustee, or by an Authenticating Agent. Such
signature shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that
the holder is entitled to the benefits of this Indenture. At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication, together with
a written order of the Company for the authentication and delivery of such Securities, signed by an Officer, and the Trustee in accordance
with such written order shall authenticate and deliver such Securities.
In
authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, if requested, and (subject to Section 7.01) shall be fully protected in relying upon, an Opinion
of Counsel stating that the form and terms thereof have been established in conformity with the provisions of this Indenture.
The
Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect
the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner that is not reasonably
acceptable to the Trustee.
Section
2.05 Registration of Transfer and Exchange.
(a)
Securities of any series may be exchanged upon presentation thereof at the office or agency of the Company designated for such purpose,
for other Securities of such series of authorized denominations, and for a like aggregate principal amount, upon payment of a sum sufficient
to cover any tax or other governmental charge in relation thereto, all as provided in this Section. In respect of any Securities so surrendered
for exchange, the Company shall execute, the Trustee shall authenticate and such office or agency shall deliver in exchange therefor
the Security or Securities of the same series that the Securityholder making the exchange shall be entitled to receive, bearing numbers
not contemporaneously outstanding.
(b)
The Company shall keep, or cause to be kept, at its office or agency designated for such purpose a register or registers (herein
referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company
shall register the Securities and the transfers of Securities as in this Article provided and which at all reasonable times shall be
open for inspection by the Trustee. The registrar for the purpose of registering Securities and transfer of Securities as herein provided
shall be appointed as authorized by Board Resolution or Supplemental Indenture (the “Security Registrar”).
Upon
surrender for transfer of any Security at the office or agency of the Company designated for such purpose, the Company shall execute,
the Trustee shall authenticate and such office or agency shall deliver in the name of the transferee or transferees a new Security or
Securities of the same series as the Security presented for a like aggregate principal amount.
All
Securities presented or surrendered for exchange or registration of transfer, as provided in this Section, shall be accompanied (if so
required by the Company or the Security Registrar) by a written instrument or instruments of transfer, in form satisfactory to the Company
or the Security Registrar, duly executed by the registered holder or by such holder’s duly authorized attorney in writing.
The
Company initially appoints the Trustee as initial Security Registrar for each series of Securities.
(c)
Except as provided pursuant to Section 2.01 pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established
in one or more indentures supplemental to this Indenture, no service charge shall be made for any exchange or registration of transfer
of Securities, or issue of new Securities in case of partial redemption of any series or repurchase, conversion or exchange of less than
the entire principal amount of a Security, but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge in relation thereto, other than exchanges pursuant to Section 2.06, Section 3.03(b) and Section 9.04 not involving any transfer.
(d)
The Company and the Security Registrar shall not be required (i) to issue, exchange or register the transfer of any Securities during
a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of less than all the Outstanding
Securities of the same series and ending at the close of business on the day of such mailing, nor (ii) to register the transfer of or
exchange any Securities of any series or portions thereof called for redemption or surrendered for repurchase, but not validly withdrawn,
other than the unredeemed portion of any such Securities being redeemed in part or not surrendered for repurchase, as the case may be.
The provisions of this Section 2.05 are, with respect to any Global Security, subject to Section 2.11 hereof.
The
Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers between
or among depositary participants or beneficial owners of interests in any Global Security) other than to require delivery of such certificates
and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture,
and to examine the same to determine substantial compliance as to form with the express requirements hereof.
Section
2.06 Temporary Securities.
Pending
the preparation of definitive Securities of any series, the Company may execute, and the Trustee shall authenticate and deliver, temporary
Securities (printed, lithographed or typewritten) of any authorized denomination. Such temporary Securities shall be substantially in
the form of the definitive Securities in lieu of which they are issued, but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Company. Every temporary Security of any series shall be executed
by the Company and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect,
as the definitive Securities of such series. Without unnecessary delay the Company will execute and will furnish definitive Securities
of such series and thereupon any or all temporary Securities of such series may be surrendered in exchange therefor (without charge to
the holders), at the office or agency of the Company designated for the purpose, and the Trustee shall authenticate and such office or
agency shall deliver in exchange for such temporary Securities an equal aggregate principal amount of definitive Securities of such series,
unless the Company advises the Trustee to the effect that definitive Securities need not be executed and furnished until further notice
from the Company. Until so exchanged, the temporary Securities of such series shall be entitled to the same benefits under this Indenture
as definitive Securities of such series authenticated and delivered hereunder.
Section
2.07 Mutilated, Destroyed, Lost or Stolen Securities.
In
case any temporary or definitive Security shall become mutilated or be destroyed, lost or stolen, the Company (subject to the next succeeding
sentence) shall execute, and upon the Company’s request the Trustee (subject as aforesaid) shall authenticate and deliver, a new
Security of the same series, bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Security,
or in lieu of and in substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substituted Security
shall furnish to the Company and the Trustee such security or indemnity as may be required by them to save each of them harmless, and,
in every case of destruction, loss or theft, the applicant shall also furnish to the Company and the Trustee evidence to their satisfaction
of the destruction, loss or theft of the applicant’s Security and of the ownership thereof. The Trustee may authenticate any such
substituted Security and deliver the same upon the written request or authorization of any officer of the Company. Upon the issuance
of any substituted Security, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
In
case any Security that has matured or is about to mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead
of issuing a substitute Security, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated
Security) if the applicant for such payment shall furnish to the Company and the Trustee such security or indemnity as they may require
to save them harmless, and, in case of destruction, loss or theft, evidence to the satisfaction of the Company and the Trustee of the
destruction, loss or theft of such Security and of the ownership thereof.
Every
replacement Security issued pursuant to the provisions of this Section shall constitute an additional contractual obligation of the Company
whether or not the mutilated, destroyed, lost or stolen Security shall be found at any time, or be enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of the same series duly
issued hereunder. All Securities shall be held and owned upon the express condition that the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities, and shall preclude (to the extent lawful) any
and all other rights or remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without their surrender.
Section
2.08 Cancellation.
All
Securities surrendered for the purpose of payment, redemption, repurchase, exchange, registration of transfer or conversion shall, if
surrendered to the Company or any paying agent (or any other applicable agent), be delivered to the Trustee for cancellation, or, if
surrendered to the Trustee, shall be cancelled by it, and no Securities shall be issued in lieu thereof except as expressly required
or permitted by any of the provisions of this Indenture. On request of the Company at the time of such surrender, the Trustee shall deliver
to the Company canceled Securities held by the Trustee. In the absence of such request the Trustee may dispose of canceled Securities
in accordance with its standard procedures and deliver a certificate of disposition to the Company. If the Company shall otherwise acquire
any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by
such Securities unless and until the same are delivered to the Trustee for cancellation.
Section
2.09 Benefits of Indenture.
Nothing
in this Indenture or in the Securities, express or implied, shall give or be construed to give to any Person, other than the parties
hereto and the holders of the Securities (and, with respect to the provisions of Article 14, the holders of any indebtedness of the
Company to which the Securities of any series are subordinated) any legal or equitable right, remedy or claim under or in respect of
this Indenture, or under any covenant, condition or provision herein contained; all such covenants, conditions and provisions being
for the sole benefit of the parties hereto and of the holders of the Securities (and, with respect to the provisions of Article 14, the holders of any indebtedness of the Company to which the
Securities of any series are subordinated).
Section
2.10 Authenticating Agent.
So
long as any of the Securities of any series remain Outstanding there may be an Authenticating Agent for any or all such series of Securities
which the Trustee shall have the right to appoint. Said Authenticating Agent shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon exchange, transfer or partial redemption, repurchase or conversion thereof, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. All references in this Indenture to the authentication of Securities by the Trustee shall be deemed to include authentication
by an Authenticating Agent for such series. Each Authenticating Agent shall be acceptable to the Company and shall be a corporation that
has a combined capital and surplus, as most recently reported or determined by it, sufficient under the laws of any jurisdiction under
which it is organized or in which it is doing business to conduct a trust business, and that is otherwise authorized under such laws
to conduct such business and is subject to supervision or examination by federal or state authorities. If at any time any Authenticating
Agent shall cease to be eligible in accordance with these provisions, it shall resign immediately.
Any
Authenticating Agent may at any time resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may
at any time (and upon request by the Company shall) terminate the agency of any Authenticating Agent by giving written notice of termination
to such Authenticating Agent and to the Company. Upon resignation, termination or cessation of eligibility of any Authenticating Agent,
the Trustee may appoint an eligible successor Authenticating Agent acceptable to the Company. Any successor Authenticating Agent, upon
acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder as if
originally named as an Authenticating Agent pursuant hereto.
Section
2.11 Global Securities.
(a)
If the Company shall establish pursuant to Section 2.01 that the Securities of a particular series are to be issued as a Global Security,
then the Company shall execute and the Trustee shall, in accordance with Section 2.04, authenticate and deliver, a Global Security that
(i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, all of the Outstanding Securities
of such series, (ii) shall be registered in the name of the Depositary or its nominee, (iii) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary’s instruction (or if the Depositary names the Trustee as its custodian, retained by the
Trustee), and (iv) shall bear a legend substantially to the following effect: “Except as otherwise provided in Section 2.11 of
the Indenture, this Security may be transferred, in whole but not in part, only to another nominee of the Depositary or to a successor
Depositary or to a nominee of such successor Depositary.”
(b)
Notwithstanding the provisions of Section 2.05, the Global Security of a series may be transferred, in whole but not in part and
in the manner provided in Section 2.05, only to another nominee of the Depositary for such series, or to a successor Depositary for such
series selected or approved by the Company or to a nominee of such successor Depositary.
(c)
If at any time the Depositary for a series of the Securities notifies the Company that it is unwilling or unable to continue as Depositary
for such series or if at any time the Depositary for such series shall no longer be registered or in good standing under the Exchange
Act, or other applicable statute or regulation, and a successor Depositary for such series is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such condition, as the case may be, or if an Event of Default has occurred
and is continuing and the Company has received a request from the Depositary or from the Trustee, this Section 2.11 shall no longer be
applicable to the Securities of such series and the Company will execute, and subject to Section 2.04, the Trustee will authenticate
and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Security of such series in exchange for such Global Security. In addition,
the Company may at any time determine that the Securities of any series shall no longer be represented by a Global Security and that
the provisions of this Section 2.11 shall no longer apply to the Securities of such series. In such event the Company will execute and,
subject to Section 2.04, the Trustee, upon receipt of an Officer’s Certificate evidencing such determination by the Company, will
authenticate and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations, and
in an aggregate principal amount equal to the principal amount of the Global Security of such series in exchange for such Global Security.
Upon the exchange of the Global Security for such Securities in definitive registered form without coupons, in authorized denominations,
the Global Security shall be canceled by the Trustee. Such Securities in definitive registered form issued in exchange for the Global
Security pursuant to this Section 2.11(c) shall be registered in such names and in such authorized denominations as the Depositary, pursuant
to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities
to the Depositary for delivery to the Persons in whose names such Securities are so registered.
Section
2.12 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 will promptly notify the Trustee of any change in the “CUSIP” numbers.
article
3
REDEMPTION
OF SECURITIES AND SINKING FUND PROVISIONS
Section
3.01 Redemption.
The
Company may redeem the Securities of any series issued hereunder on and after the dates and in accordance with the terms established
for such series pursuant to Section 2.01 hereof.
Section
3.02 Notice of Redemption.
(a)
In case the Company shall desire to exercise such right to redeem all or, as the case may be, a portion of the Securities of any
series in accordance with any right the Company reserved for itself to do so pursuant to Section 2.01 hereof, the Company shall, or shall
cause the Trustee to, give notice of such redemption to holders of the Securities of such series to be redeemed by mailing, first class
postage prepaid (or with regard to any Global Security held in book entry form, by electronic mail in accordance with the applicable
procedures of the Depository), a notice of such redemption not less than 30 days and not more than 90 days before the date fixed for
redemption of that series to such holders at their last addresses as they shall appear upon the Security Register, unless a shorter period
is specified in the Securities to be redeemed. Any notice that is mailed in the manner herein provided shall be conclusively presumed
to have been duly given, whether or not the registered holder receives the notice. In any case, failure duly to give such notice to the
holder of any Security of any series designated for redemption in whole or in part, or any defect in the notice, shall not affect the
validity of the proceedings for the redemption of any other Securities of such series or any other series. In the case of any redemption
of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in
this Indenture, the Company shall furnish the Trustee with an Officer’s Certificate evidencing compliance with any such restriction.
Each
such notice of redemption shall identify the Securities to be redeemed (including CUSIP numbers, if any), specify the date fixed for
redemption and the redemption price at which Securities of that series are to be redeemed, and shall state that payment of the redemption
price of such Securities to be redeemed will be made at the office or agency of the Company, upon presentation and surrender of such
Securities, that interest accrued to the date fixed for redemption will be paid as specified in said notice, that from and after said
date interest will cease to accrue and that the redemption is from a sinking fund, if such is the case. If less than all the Securities
of a series are to be redeemed, the notice to the holders of Securities of that series to be redeemed in part shall specify the particular
Securities to be so redeemed.
In
case any Security is to be redeemed in part only, the notice that relates to such Security shall state the portion of the principal amount
thereof to be redeemed, and shall state that on and after the redemption date, upon surrender of such Security, a new Security or Securities
of such series in principal amount equal to the unredeemed portion thereof will be issued.
(b)
If less than all the Securities of a series are to be redeemed, the Company shall give the Trustee at least 45 days’ notice
(unless a shorter notice shall be satisfactory to the Trustee) in advance of the date fixed for redemption as to the aggregate principal
amount of Securities of the series to be redeemed, and thereupon the Trustee shall select, by lot or in such other manner as it shall
deem appropriate and fair in its discretion and that may provide for the selection of a portion or portions (equal to one thousand U.S.
dollars ($1,000) or any integral multiple thereof) of the principal amount of such Securities of a denomination larger than $1,000, the
Securities to be redeemed and shall thereafter promptly notify the Company in writing of the numbers of the Securities to be redeemed,
in whole or in part. The Company may, if and whenever it shall so elect, by delivery of instructions signed on its behalf by an Officer,
instruct the Trustee or any paying agent to call all or any part of the Securities of a particular series for redemption and to give
notice of redemption in the manner set forth in this Section, such notice to be in the name of the Company or its own name as the Trustee
or such paying agent may deem advisable. In any case in which notice of redemption is to be given by the Trustee or any such paying agent,
the Company shall deliver or cause to be delivered to, or permit to remain with, the Trustee or such paying agent, as the case may be,
such Security Register, transfer books or other records, or suitable copies or extracts therefrom, sufficient to enable the Trustee or
such paying agent to give any notice by mail that may be required under the provisions of this Section.
Section
3.03 Payment Upon Redemption.
(a)
If the giving of notice of redemption shall have been completed as above provided, the Securities or portions of Securities of the
series to be redeemed specified in such notice shall become due and payable on the date and at the place stated in such notice at the
applicable redemption price, together with interest accrued to, but excluding, the date fixed for redemption and interest on such Securities
or portions of Securities shall cease to accrue on and after the date fixed for redemption, unless the Company shall default in the payment
of such redemption price and accrued interest with respect to any such Security or portion thereof. On presentation and surrender of
such Securities on or after the date fixed for redemption at the place of payment specified in the notice, said Securities shall be paid
and redeemed at the applicable redemption price for such series, together with interest accrued thereon to, but excluding, the date fixed
for redemption (but if the date fixed for redemption is an Interest Payment Date, the interest installment payable on such date shall
be payable to the registered holder at the close of business on the applicable record date pursuant to Section 2.03).
(b)
Upon presentation of any Security of such series that is to be redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Security is presented shall deliver to the holder thereof, at the expense of the Company,
a new Security of the same series of authorized denominations in principal amount equal to the unredeemed portion of the Security so
presented.
Section
3.04 Sinking Fund.
The
provisions of Sections 3.04, 3.05 and 3.06 shall be applicable to any sinking fund for the retirement of Securities of a series, except
as otherwise specified as contemplated by Section 2.01 for Securities of such series.
The
minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory
sinking fund payment,” and any payment in excess of such minimum amount provided for by the terms of Securities of any series is
herein referred to as an “optional sinking fund payment”. If provided for by the terms of Securities of any series, the cash
amount of any sinking fund payment may be subject to reduction as provided in Section 3.05. Each sinking fund payment shall be applied
to the redemption of Securities of any series as provided for by the terms of Securities of such series.
Section
3.05 Satisfaction of Sinking Fund Payments with Securities.
The
Company (i) may deliver Outstanding Securities of a series and (ii) may apply as a credit Securities of a series that have been redeemed
either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with
respect to the Securities of such series required to be made pursuant to the terms of such Securities as provided for by the terms of
such series, provided that such Securities have not been previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the redemption price specified in such Securities for redemption through operation of the sinking fund and
the amount of such sinking fund payment shall be reduced accordingly.
Section
3.06 Redemption of Securities for Sinking Fund.
Not
less than 45 days prior to each sinking fund payment date for any series of Securities (unless a shorter period shall be satisfactory
to the Trustee), the Company will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking
fund payment for that series pursuant to the terms of the series, the portion thereof, if any, that is to be satisfied by delivering
and crediting Securities of that series pursuant to Section 3.05 and the basis for such credit and will, together with such Officer’s
Certificate, deliver to the Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date
the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 3.02 and
cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section
3.02. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in
Section 3.03.
article
4
COVENANTS
Section
4.01 Payment of Principal, Premium and Interest.
The
Company will duly and punctually pay or cause to be paid the principal of (and premium, if any) and interest on the Securities of that
series at the time and place and in the manner provided herein and established with respect to such Securities. Payments of principal
on the Securities may be made at the time provided herein and established with respect to such Securities by U.S. dollar check drawn
on and mailed to the address of the Securityholder entitled thereto as such address shall appear in the Security Register, or U.S. dollar
wire transfer to, a U.S. dollar account if such Securityholder shall have furnished wire instructions to the Trustee no later than 15
days prior to the relevant payment date. Payments of interest on the Securities may be made at the time provided herein and established
with respect to such Securities by U.S. dollar check mailed to the address of the Securityholder entitled thereto as such address shall
appear in the Security Register, or U.S. dollar wire transfer to, a U.S. dollar account if such Securityholder shall have furnished wire
instructions in writing to the Security Registrar and the Trustee no later than 15 days prior to the relevant payment date.
Section
4.02 Maintenance of Office or Agency.
So
long as any series of the Securities remain Outstanding, the Company agrees to maintain an office or agency with respect to each such
series and at such other location or locations as may be designated as provided in this Section 4.02, where (i) Securities of that series
may be presented for payment, (ii) Securities of that series may be presented as herein above authorized for registration of transfer
and exchange, and (iii) notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may
be given or served, such designation to continue with respect to such office or agency until the Company shall, by written notice signed
by any officer authorized to sign an Officer’s Certificate and delivered to the Trustee, designate some other office or agency
for such purposes or any of them. If at any time the Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, notices and demands.
The Company initially appoints the Corporate Trust Office of the Trustee as its paying agent with respect to the Securities.
Section
4.03 Paying Agents.
(a)
If the Company shall appoint one or more paying agents for all or any series of the Securities, other than the Trustee, the Company
will cause each such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section:
(1)
that it will hold all sums held by it as such agent for the payment of the principal of (and premium, if any) or interest on the
Securities of that series (whether such sums have been paid to it by the Company or by any other obligor of such Securities) in trust
for the benefit of the Persons entitled thereto;
(2)
that it will give the Trustee notice of any failure by the Company (or by any other obligor of such Securities) to make any payment
of the principal of (and premium, if any) or interest on the Securities of that series when the same shall be due and payable;
(3)
that it will, at any time during the continuance of any failure referred to in the preceding paragraph (a)(2) above, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such paying agent; and
(4)
that it will perform all other duties of paying agent as set forth in this Indenture.
(b)
If the Company shall act as its own paying agent with respect to any series of the Securities, it will on or before each due date
of the principal of (and premium, if any) or interest on Securities of that series, set aside, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay such principal (and premium, if any) or interest so becoming due on Securities
of that series until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the
Trustee of such action, or any failure (by it or any other obligor on such Securities) to take such action. Whenever the Company shall
have one or more paying agents for any series of Securities, it will, prior to each due date of the principal of (and premium, if any)
or interest on any Securities of that series, deposit with the paying agent a sum sufficient to pay the principal (and premium, if any)
or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest,
and (unless such paying agent is the Trustee) the Company will promptly notify the Trustee of this action or failure so to act.
(c)
Notwithstanding anything in this Section to the contrary, (i) the agreement to hold sums in trust as provided in this Section is
subject to the provisions of Section 11.05, and (ii) the Company may at any time, for the purpose of obtaining the satisfaction and discharge
of this Indenture or for any other purpose, pay, or direct any paying agent to pay, to the Trustee all sums held in trust by the Company
or such paying agent, such sums to be held by the Trustee upon the same terms and conditions as those upon which such sums were held
by the Company or such paying agent; and, upon such payment by the Company or any paying agent to the Trustee, the Company or such paying
agent shall be released from all further liability with respect to such money.
Section
4.04 Appointment to Fill Vacancy in Office of Trustee.
The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.10,
a Trustee, so that there shall at all times be a Trustee hereunder.
article
5
SECURITYHOLDERS’
LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section
5.01 Company to Furnish Trustee Names and Addresses of Securityholders.
The
Company will furnish or cause to be furnished to the Trustee (a) within 15 days after each regular record date (as defined in Section
2.03) a list, in such form as the Trustee may reasonably require, of the names and addresses of the holders of each series of Securities
as of such regular record date, provided that the Company shall not be obligated to furnish or cause to furnish such list at any time
that the list shall not differ in any respect from the most recent list furnished to the Trustee by the Company and (b) at such other
times as the Trustee may request in writing within 30 days after the receipt by the Company of any such request, a list of similar form
and content as of a date not more than 15 days prior to the time such list is furnished; provided, however, that, in either case, no
such list need be furnished for any series for which the Trustee shall be the Security Registrar.
Section
5.02 Preservation of Information; Communications With Securityholders.
(a)
The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the
holders of Securities contained in the most recent list furnished to it as provided in Section 5.01 and as to the names and addresses
of holders of Securities received by the Trustee in its capacity as Security Registrar (if acting in such capacity).
(b)
The Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.
(c)
Securityholders may communicate as provided in Section 312(b) of the Trust Indenture Act with other Securityholders with respect
to their rights under this Indenture or under the Securities, and, in connection with any such communications, the Trustee shall satisfy
its obligations under Section 312(b) of the Trust Indenture Act in accordance with the provisions of Section 312(b) of the Trust Indenture
Act.
Section
5.03 Reports by the Company.
(a)
The Company will at all times comply with Section 314(a) of the Trust Indenture Act. The Company covenants and agrees to provide
(which delivery may be via electronic mail) to the Trustee within 30 days, after the Company files the same with the Commission, copies
of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) that the Company is required to file with the Commission pursuant
to Section 13 or Section 15(d) of the Exchange Act; provided, however, the Company shall not be required to deliver to the Trustee any
correspondence filed with the Commission or any materials for which the Company has sought and received confidential treatment by the
Commission; and provided further, that so long as such filings by the Company are available on the Commission’s Electronic Data
Gathering, Analysis and Retrieval System (EDGAR), or any successor system, such filings shall be deemed to have been filed with the Trustee
for purposes hereof without any further action required by the Company. For the avoidance of doubt, a failure by the Company to file
annual reports, information and other reports with the Commission within the time period prescribed thereof by the Commission shall not
be deemed a breach of this Section 5.03.
(b)
Delivery of reports, information and documents to the Trustee under Section 5.03 is for informational purposes only and the information
and the Trustee’s receipt of the foregoing shall not constitute constructive notice of any information contained therein, or determinable
from information contained therein including the Company’s compliance with any of their covenants thereunder (as to which the Trustee
is entitled to rely exclusively on an Officer’s Certificate). The Trustee is under no duty to examine any such reports, information
or documents delivered to the Trustee or filed with the Commission via EDGAR to ensure compliance with the provision of this Indenture
or to ascertain the correctness or otherwise of the information or the statements contained therein. The Trustee shall have no responsibility
or duty whatsoever to ascertain or determine whether the above referenced filings with the Commission on EDGAR (or any successor system)
has occurred.
Section
5.04 Reports by the Trustee.
(a)
If required by Section 313(a) of the Trust Indenture Act, the Trustee, within sixty (60) days after each May 1, shall transmit by
mail, first class postage prepaid, to the Securityholders, as their names and addresses appear upon the Security Register, a brief report
dated as of such May 1, which complies with Section 313(a) of the Trust Indenture Act.
(b)
The Trustee shall comply with Section 313(b) and 313(c) of the Trust Indenture Act.
(c)
A copy of each such report shall, at the time of such transmission to Securityholders, be filed by the Trustee with the Company,
with each securities exchange upon which any Securities are listed (if so listed) and also with the Commission. The Company agrees to
notify the Trustee when any Securities become listed on any securities exchange.
article
6
REMEDIES
OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section
6.01 Events of Default.
(a)
Whenever used herein with respect to Securities of a particular series, “Event of Default” means any one or more of the
following events that has occurred and is continuing:
(1)
the Company defaults in the payment of any installment of interest upon any of the Securities of that series, as and when the same
shall become due and payable, and such default continues for a period of 90 days; provided, however, that a valid extension of an interest
payment period by the Company in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the
payment of interest for this purpose;
(2)
the Company defaults in the payment of the principal of (or premium, if any, on) any of the Securities of that series as and when
the same shall become due and payable whether at maturity, upon redemption, by declaration or otherwise, or in any payment required by
any sinking or analogous fund established with respect to that series; provided, however, that a valid extension of the maturity of such
Securities in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment of principal
or premium, if any;
(3)
the Company fails to observe or perform any other of its covenants or agreements with respect to that series contained in this Indenture
or otherwise established with respect to that series of Securities pursuant to Section 2.01 hereof (other than a covenant or agreement
that has been expressly included in this Indenture solely for the benefit of one or more series of Securities other than such series)
for a period of 90 days after the date on which written notice of such failure, requiring the same to be remedied and stating that such
notice is a “Notice of Default” hereunder, shall have been given to the Company by the Trustee, by registered or certified
mail, or to the Company and the Trustee by the holders of at least 25% in principal amount of the Securities of that series at the time
Outstanding;
(4)
the Company pursuant to or within the meaning of any Bankruptcy Law (i) commences a voluntary case, (ii) consents to the entry of
an order for relief against it in an involuntary case, (iii) consents to the appointment of a Custodian of it or for all or substantially
all of its property or (iv) makes a general assignment for the benefit of its creditors; or
(5)
a court of competent jurisdiction enters an order under any Bankruptcy Law that (i) is for relief against the Company in an involuntary
case, (ii) appoints a Custodian of the Company for all or substantially all of its property or (iii) orders the liquidation of the Company,
and the order or decree remains unstayed and in effect for 90 days.
(b)
In each and every such case (other than an Event of Default specified in clause (4) or clause (5) above), unless the principal of
all the Securities of that series shall have already become due and payable, either the Trustee or the holders of not less than 25% in
aggregate principal amount of the Securities of that series then Outstanding hereunder, by notice in writing to the Company (and to the
Trustee if given by such Securityholders), may declare the principal of (and premium, if any, on) and accrued and unpaid interest on
all the Securities of that series to be due and payable immediately, and upon any such declaration the same shall become and shall be
immediately due and payable. If an Event of Default specified in clause (4) or clause (5) above occurs, the principal of and accrued
and unpaid interest on all the Securities of that series shall automatically be immediately due and payable without any declaration or
other act on the part of the Trustee or the holders of the Securities.
(c)
At any time after the principal of (and premium, if any, on) and accrued and unpaid interest on the Securities of that series shall
have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or
entered as hereinafter provided, the holders of a majority in aggregate principal amount of the Securities of that series then Outstanding
hereunder, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if: (i) the
Company has paid or deposited with the Trustee a sum sufficient to pay all matured installments of interest upon all the Securities of
that series and the principal of (and premium, if any, on) any and all Securities of that series that shall have become due otherwise
than by acceleration (with interest upon such principal and premium, if any, and, to the extent that such payment is enforceable under
applicable law, upon overdue installments of interest, at the rate per annum expressed in the Securities of that series to the date of
such payment or deposit) and the amount payable to the Trustee under Section 7.06, and (ii) any and all Events of Default under the Indenture
with respect to such series, other than the nonpayment of principal on (and premium, if any, on) and accrued and unpaid interest on Securities
of that series that shall not have become due by their terms, shall have been remedied or waived as provided in Section 6.06.
No
such rescission and annulment shall extend to or shall affect any subsequent default or impair any right consequent thereon.
(d)
In case the Trustee shall have proceeded to enforce any right with respect to Securities of that series under this Indenture and
such proceedings shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case, subject to any determination in such proceedings, the Company
and the Trustee shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of
the Company and the Trustee shall continue as though no such proceedings had been taken.
Section
6.02 Collection of Indebtedness and Suits for Enforcement by Trustee.
(a)
The Company covenants that (i) in case it shall default in the payment of any installment of interest on any of the Securities of
a series, or in any payment required by any sinking or analogous fund established with respect to that series as and when the same shall
have become due and payable, and such default shall have continued for a period of 90 days, or (ii) in case it shall default in the payment
of the principal of (or premium, if any, on) any of the Securities of a series when the same shall have become due and payable, whether
upon maturity of the Securities of a series or upon redemption or upon declaration or otherwise then, upon demand of the Trustee, the
Company will pay to the Trustee, for the benefit of the holders of the Securities of that series, the whole amount that then shall have
been become due and payable on all such Securities for principal (and premium, if any) or interest, or both, as the case may be, with
interest upon the overdue principal (and premium, if any) and (to the extent that payment of such interest is enforceable under applicable
law) upon overdue installments of interest at the rate per annum expressed in the Securities of that series; and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of collection, and the amount payable to the Trustee under
Section 7.06.
(b)
If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due
and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree
against the Company or other obligor upon the Securities of that series and collect the moneys adjudged or decreed to be payable in the
manner provided by law or equity out of the property of the Company or other obligor upon the Securities of that series, wherever situated.
(c)
In case of any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or judicial
proceedings affecting the Company, or its creditors or property, the Trustee shall have power to intervene in such proceedings and take
any action therein that may be permitted by the court and shall (except as may be otherwise provided by law) be entitled to file such
proofs of claim and other papers and documents as may be necessary or advisable in order to have the claims of the Trustee and of the
holders of Securities of such series allowed for the entire amount due and payable by the Company under the Indenture at the date of
institution of such proceedings and for any additional amount that may become due and payable by the Company after such date, and to
collect and receive any moneys or other property payable or deliverable on any such claim, and to distribute the same after the deduction
of the amount payable to the Trustee under Section 7.06; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the holders of Securities of such series to make such payments to the Trustee, and, in the event that the Trustee
shall consent to the making of such payments directly to such Securityholders, to pay to the Trustee any amount due it under Section
7.06.
(d)
All rights of action and of asserting claims under this Indenture, or under any of the terms established with respect to Securities
of that series, may be enforced by the Trustee without the possession of any of such Securities, or the production thereof at any trial
or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment shall, after provision for payment to the Trustee of any amounts due under Section
7.06, be for the ratable benefit of the holders of the Securities of such series.
In
case of an Event of Default hereunder, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights,
either at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained
in the Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested
in the Trustee by this Indenture or by law.
Nothing
contained herein shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder
any plan of reorganization, arrangement, adjustment or composition affecting the Securities of that series or the rights of any holder
thereof or to authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding.
Section
6.03 Application of Moneys Collected.
Any
moneys collected by the Trustee pursuant to this Article with respect to a particular series of Securities shall, subject to the subordination provisions hereof and with respect to the Securities, be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal (or premium,
if any) or interest, upon presentation of the Securities of that series, and notation thereon of the payment, if only partially paid,
and upon surrender thereof if fully paid:
FIRST:
To the payment of costs and expenses of collection and of all amounts payable to the Trustee under Section 7.06;
SECOND:
To the payment of the amounts then due and unpaid upon Securities of such series for principal (and premium, if any) and interest, in
respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities for principal (and premium, if any) and interest, respectively; and
THIRD:
To the payment of the remainder, if any, to the Company or any other Person lawfully entitled thereto.
Section
6.04 Limitation on Suits.
No
holder of any Security of any series shall have any right by virtue or by availing of any provision of this Indenture or any Security
to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Indenture or any Security or for
the appointment of a receiver or trustee, or for any other remedy hereunder, unless (i) such holder previously shall have given to the
Trustee written notice of an Event of Default and of the continuance thereof with respect to the Securities of such series specifying
such Event of Default, as hereinbefore provided; (ii) the holders of not less than 25% in aggregate principal amount of the Securities
of such series then Outstanding shall have made written request upon the Trustee to institute such action, suit or proceeding in its
own name as Trustee hereunder; (iii) such holder or holders shall have offered to the Trustee indemnity satisfactory to it against the
costs, expenses and liabilities to be incurred in compliance with such request; (iv) the Trustee for 90 days after its receipt of such
notice, request and offer of indemnity, shall have failed to institute any such action, suit or proceeding and (v) during such 90 day
period, the holders of a majority in principal amount of the Securities of that series do not give the Trustee a direction inconsistent
with the request.
Notwithstanding
anything contained herein to the contrary or any other provisions of this Indenture, the right of any holder of any Security to receive
payment of the principal of (and premium, if any) and interest on such Security, as therein provided, on or after the respective due
dates expressed in such Security (or in the case of redemption, on the redemption date), or to institute suit for the enforcement of
any such payment on or after such respective dates or redemption date, shall not be impaired or affected without the consent of such
holder and by accepting a Security hereunder it is expressly understood, intended and covenanted by the taker and holder of every Security
of such series with every other such taker and holder and the Trustee, that no one or more holders of Securities of such series shall
have any right in any manner whatsoever by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the
rights of the holders of any other of such Securities, or to obtain or seek to obtain priority over or preference to any other such holder,
or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all
holders of Securities of such series. For the protection and enforcement of the provisions of this Section, each and every Securityholder
and the Trustee shall be entitled to such relief as can be given either at law or in equity.
Section
6.05 Rights and Remedies Cumulative; Delay or Omission Not Waiver.
(a)
Except as otherwise provided in Section 2.07, all powers and remedies given by this Article to the Trustee or to the Securityholders
shall, to the extent permitted by law, be deemed cumulative and not exclusive of any other powers and remedies available to the Trustee
or the holders of the Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture or otherwise established with respect to such Securities.
(b)
No delay or omission of the Trustee or of any holder of any of the Securities to exercise any right or power accruing upon any Event
of Default occurring and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver of any such
default or an acquiescence therein; and, subject to the provisions of Section 6.04, every power and remedy given by this Article or by
law to the Trustee or the Securityholders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee
or by the Securityholders.
Section
6.06 Control by Securityholders.
The
holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding, determined in accordance
with Section 8.04, shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee with respect to such series; provided, however, that such direction
shall not be in conflict with any rule of law or with this Indenture or subject the Trustee in its sole discretion to personal liability.
Subject to the provisions of Section 7.01, the Trustee shall have the right to decline to follow any such direction if the Trustee in
good faith shall, by a Responsible Officer or officers of the Trustee, determine that the proceeding so directed, subject to the Trustee’s
duties under the Trust Indenture Act, would involve the Trustee in personal liability or might be unduly prejudicial to the Securityholders
not involved in the proceeding. The holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding
affected thereby, determined in accordance with Section 8.04, may on behalf of the holders of all of the Securities of such series waive
any past default in the performance of any of the covenants contained herein or established pursuant to Section 2.01 with respect to
such series and its consequences, except a default in the payment of the principal of, or premium, if any, or interest on, any of the
Securities of that series as and when the same shall become due by the terms of such Securities otherwise than by acceleration (unless
such default has been cured and a sum sufficient to pay all matured installments of interest and principal and any premium has been deposited
with the Trustee (in accordance with Section 6.01(c)). Upon any such waiver, the default covered thereby shall be deemed to be cured
for all purposes of this Indenture and the Company, the Trustee and the holders of the Securities of such series shall be restored to
their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default or impair
any right consequent thereon.
Section
6.07 Undertaking to Pay Costs.
All
parties to this Indenture agree, and each holder of any Securities by such holder’s acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’
fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted
by any Securityholder, or group of Securityholders, holding more than 10% in aggregate principal amount of the Outstanding Securities
of any series, or to any suit instituted by any Securityholder for the enforcement of the payment of the principal of (or premium, if
any) or interest on any Security of such series, on or after the respective due dates expressed in such Security or established pursuant
to this Indenture.
article
7
CONCERNING
THE TRUSTEE
Section
7.01 Certain Duties and Responsibilities of Trustee.
(a)
The Trustee, prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing of all
Events of Default with respect to the Securities of that series that may have occurred, shall undertake to perform with respect to the
Securities of such series such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants
shall be read into this Indenture against the Trustee. In case an Event of Default with respect to the Securities of a series has occurred
(that has not been cured or waived), the Trustee shall exercise with respect to Securities of that series such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his or her own affairs.
(b)
No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i)
prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing or waiving of all
such Events of Default with respect to that series that may have occurred:
(A)
the duties and obligations of the Trustee shall with respect to the Securities of such series be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable with respect to the Securities of such series except for the performance
of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(B)
in the absence of bad faith on the part of the Trustee, the Trustee may with respect to the Securities of such series conclusively
rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture;
(ii)
the Trustee shall not be liable to any Securityholder or to any other Person for any error of judgment made in good faith by a Responsible
Officer or Responsible Officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent
facts;
(iii)
the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the
direction of the holders of not less than a majority in principal amount of the Securities of any series at the time Outstanding relating
to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee under this Indenture with respect to the Securities of that series;
(iv)
none of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise of any of its rights or powers if there is reasonable
ground for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Indenture
or adequate indemnity against such risk is not reasonably assured to it;
(v)
The Trustee shall not be required to give any bond or surety in respect of the performance of its powers or duties hereunder;
(vi)
The permissive right of the Trustee to do things enumerated in this Indenture shall not be construed as a duty of the Trustee; and
(vii)
No Trustee shall have any duty or responsibility for any act or omission of any other Trustee appointed with respect to a series
of Securities hereunder.
Section
7.02 Certain Rights of Trustee.
Except
as otherwise provided in Section 7.01:
(a)
The Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond, security or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(b)
Any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Board Resolution or
an instrument signed in the name of the Company by any authorized officer of the Company (unless other evidence in respect thereof is
specifically prescribed herein);
(c)
The Trustee may consult with counsel and the opinion or written advice of such counsel or, if requested, any Opinion of Counsel shall
be full and complete authorization and protection in respect of any action taken or suffered or omitted hereunder in good faith and in
reliance thereon;
(d)
The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order
or direction of any of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have offered
to the Trustee security or indemnity reasonably acceptable to the Trustee against the costs, expenses and liabilities that may be incurred
therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligation, upon the occurrence of an Event of
Default with respect to a series of the Securities (that has not been cured or waived), to exercise with respect to Securities of that
series such of the rights and powers vested in it by this Indenture, and to use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct of his or her own affairs;
(e)
The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this Indenture;
(f)
The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond, security, or other papers or documents or inquire as to
the performance by the Company of one of its covenants under this Indenture, unless requested in writing so to do by the holders of not
less than a majority in principal amount of the Outstanding Securities of the particular series affected thereby (determined as provided
in Section 8.04); provided, however, that if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee
by the security afforded to it by the terms of this Indenture, the Trustee may require security or indemnity reasonably acceptable to
the Trustee against such costs, expenses or liabilities as a condition to so proceeding. The reasonable expense of every such examination
shall be paid by the Company or, if paid by the Trustee, shall be repaid by the Company upon demand;
(g)
The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder;
(h)
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 efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable
under the circumstances;
(i)
In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind
whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of
such loss or damage and regardless of the form of action; and
(j)
The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile
transmission or other similar unsecured electronic methods; provided, however, that (a) the party providing such written instructions,
subsequent to such transmission of written instructions, shall provide the originally executed instructions or directions to the Trustee
in a timely manner, and (b) such originally executed instructions or directions shall be signed by an authorized representative of the
party providing such instructions or directions. If the party elects to give the Trustee e-mail or facsimile instructions (or instructions
by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding
of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly
or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict
or are inconsistent with a subsequent written instruction. The party providing electronic instructions agrees to assume all risks arising
out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk
of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties. The Trustee may request
that the Company deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at
such time to furnish the Trustee with Officer’s Certificates, Company Orders and any other matters or directions pursuant to this
Indenture.
(k)
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.
(l)
The Trustee shall not be deemed to have knowledge of any Default or Event of Default (other than an Event of Default relating to
the failure to pay the interest on, or the principal of, the Securities) until the Trustee shall have received written notification in
the manner set forth in this Indenture or a Responsible Officer of the Trustee shall have obtained actual knowledge.
Section
7.03 Trustee Not Responsible for Recitals or Issuance or Securities.
(a)
The recitals contained herein and in the Securities shall be taken as the statements of the Company, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee shall not be responsible for any statement in any registration statement, prospectus, or
any other document in connection with the sale of Securities. The Trustee shall not be responsible for any rating on the Securities or
any action or omission of any rating agency.
(b)
The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities.
(c)
The Trustee shall not be accountable for the use or application by the Company of any of the Securities or of the proceeds of such
Securities, or for the use or application of any moneys paid over by the Trustee in accordance with any provision of this Indenture or
established pursuant to Section 2.01, or for the use or application of any moneys received by any paying agent other than the Trustee.
Section
7.04 May Hold Securities.
The
Trustee or any paying agent or Security Registrar, in its individual or any other capacity, may become the owner or pledgee of Securities
with the same rights it would have if it were not Trustee, paying agent or Security Registrar.
Section
7.05 Moneys Held in Trust.
Subject
to the provisions of Section 11.05, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust
for the purposes for which they were received, but need not be segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any moneys received by it hereunder except such as it may agree with the Company
to pay thereon.
Section
7.06 Compensation and Reimbursement.
(a)
The Company shall pay to the Trustee for each of its capacities hereunder 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.
(b)
The Company shall indemnify each of the Trustee in each of its capacities hereunder against any loss, liability or expense (including
the cost of defending itself and including the reasonable compensation and expenses of the Trustee’s agents and counsel) incurred
by it except as set forth in Section 7.06(c) in the exercise or performance of its powers, rights or duties under this Indenture as Trustee
or Agent. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. The Company shall defend the claim
and the Trustee shall cooperate in the defense. The Trustee may have one separate counsel and the Company shall pay the reasonable fees
and expenses of such counsel. The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably
withheld. This indemnification shall apply to officers, directors, employees, shareholders and agents of the Trustee.
(c)
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 negligence or bad faith.
(d)
To ensure the Company’s payment obligations in this Section, the Trustee shall have a lien prior to the Securities on all funds
or property held or collected by the Trustee, except that held in trust to pay principal of or interest on particular Securities. When
the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 6.01(4) or (5), the expenses
(including the reasonable fees and expenses of its counsel) and the compensation for services in connection therewith are to constitute
expenses of administration under any bankruptcy law. The provisions of this Section 7.06 shall survive the termination of this Indenture
and the resignation or removal of the Trustee.
Section
7.07 Reliance on Officer’s Certificate.
Except
as otherwise provided in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it reasonably
necessary or desirable that a matter be proved or established prior to taking or suffering or omitting to take any action hereunder,
such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate delivered to the Trustee
and such certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for
any action taken, suffered or omitted to be taken by it under the provisions of this Indenture upon the faith thereof.
Section
7.08 Disqualification; Conflicting Interests.
If
the Trustee has or shall acquire any “conflicting interest” within the meaning of Section 310(b) of the Trust Indenture Act,
the Trustee and the Company shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act.
Section
7.09 Corporate Trustee Required; Eligibility.
There
shall at all times be a Trustee with respect to the Securities issued hereunder which shall at all times be a corporation organized and
doing business under the laws of the United States of America or any state or territory thereof or of the District of Columbia, or a
corporation or other Person permitted to act as trustee by the Commission, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least fifty million U.S. dollars ($50,000,000), and subject to supervision or examination
by federal, state, territorial, or District of Columbia authority.
If
such corporation or other Person publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation or other
Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. The Company
may not, nor may any Person directly or indirectly controlling, controlled by, or under common control with the Company, serve as Trustee.
In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 7.10.
Section
7.10 Resignation and Removal; Appointment of Successor.
(a)
The Trustee or any successor hereafter appointed may at any time resign with respect to the Securities of one or more series by giving
written notice thereof to the Company and by transmitting notice of resignation by mail, first class postage prepaid, to the Securityholders
of such series, as their names and addresses appear upon the Security Register. Upon receiving such notice of resignation, the Company
shall promptly appoint a successor trustee with respect to Securities of such series by written instrument, in duplicate, executed by
order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor
trustee. If no successor trustee shall have been so appointed and have accepted appointment within 30 days after the mailing of such
notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor trustee
with respect to Securities of such series, or any Securityholder of that series who has been a bona fide holder of a Security or Securities
for at least six months may on behalf of himself and all others similarly situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.
(b)
In case at any time any one of the following shall occur:
(i)
the Trustee shall fail to comply with the provisions of Section 7.08 after written request therefor by the Company or by any Securityholder
who has been a bona fide holder of a Security or Securities for at least six months; or
(ii)
the Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 and shall fail to resign after written request
therefor by the Company or by any such Securityholder; or
(iii)
the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding,
or a receiver of the Trustee or of its property shall be appointed or consented to, or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;
then,
in any such case, the Company may remove the Trustee with respect to all Securities and appoint a successor trustee by written instrument,
in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed
and one copy to the successor trustee, or any Securityholder who has been a bona fide holder of a Security or Securities for at least
six months may, on behalf of that holder and all others similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper
and prescribe, remove the Trustee and appoint a successor trustee.
(c)
The holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding may at any time remove
the Trustee with respect to such series by so notifying the Trustee and the Company and may appoint a successor Trustee for such series
with the consent of the Company.
(d)
Any resignation or removal of the Trustee and appointment of a successor trustee with respect to the Securities of a series pursuant
to any of the provisions of this Section shall become effective upon acceptance of appointment by the successor trustee as provided in
Section 7.11.
(e)
Any successor trustee appointed pursuant to this Section may be appointed with respect to the Securities of one or more series or
all of such series, and at any time there shall be only one Trustee with respect to the Securities of any particular series.
Section
7.11 Acceptance of Appointment by Successor.
(a)
In case of the appointment hereunder of a successor trustee with respect to all Securities, every such successor trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company
or the successor trustee, such retiring Trustee shall, upon payment of any amounts due to it pursuant to the provisions of Section 7.06,
execute and deliver an instrument transferring to such successor trustee all the rights, powers, and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor trustee all property and money held by such retiring Trustee hereunder.
(b)
In case of the appointment hereunder of a successor trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor trustee with respect to the Securities of one or more series shall execute and deliver
an indenture supplemental hereto wherein each successor trustee shall accept such appointment and which (i) shall contain such provisions
as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor trustee all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor
trustee relates, (ii) shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee, and (iii) shall add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such
Trustee and that no Trustee shall be responsible for any act or failure to act on the part of any other Trustee hereunder; and upon the
execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the
extent provided therein, such retiring Trustee shall with respect to the Securities of that or those series to which the appointment
of such successor trustee relates have no further responsibility for the exercise of rights and powers or for the performance of the
duties and obligations vested in the Trustee under this Indenture, and each such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such successor trustee relates; but, on request of the Company or any successor trustee,
such retiring Trustee shall duly assign, transfer and deliver to such successor trustee, to the extent contemplated by such supplemental
indenture, the property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which
the appointment of such successor trustee relates.
(c)
Upon request of any such successor trustee, the Company shall execute any and all instruments for more fully and certainly vesting
in and confirming to such successor trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as
the case may be.
(d)
No successor trustee shall accept its appointment unless at the time of such acceptance such successor trustee shall be qualified
and eligible under this Article.
(e)
Upon acceptance of appointment by a successor trustee as provided in this Section, the Company shall transmit notice of the succession
of such trustee hereunder by mail, first class postage prepaid, to the Securityholders, as their names and addresses appear upon the
Security Register. If the Company fails to transmit such notice within ten days after acceptance of appointment by the successor trustee,
the successor trustee shall cause such notice to be transmitted at the expense of the Company.
Section
7.12 Merger, Conversion, Consolidation or Succession to Business.
Any
corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from
any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially
all the corporate trust business of the Trustee, including the administration of the trust created by this Indenture, shall be the successor
of the Trustee hereunder, provided that such corporation shall be qualified under the provisions of Section 7.08 and eligible under the
provisions of Section 7.09, without the execution or filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding. In case any Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
Section
7.13 Preferential Collection of Claims Against the Company.
The
Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship described in Section 311(b)
of the Trust Indenture Act. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act
to the extent included therein.
Section
7.14 Notice of Default.
If
any Event of Default occurs and is continuing and if such Event of Default is known to a Responsible Officer of the Trustee, the Trustee
shall mail to each Securityholder in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act notice of the
Event of Default within the earlier of 90 days after it occurs and 30 days after it is known to a Responsible Officer of the Trustee
or written notice of it is received by the Trustee, unless such Event of Default has been cured; provided, however, that, except
in the case of a default in the payment of the principal of (or premium, if any) or interest on any Security, the Trustee shall be protected
in withholding such notice if and so long as the Responsible Officers of the Trustee in good faith determine that the withholding of
such notice is in the interest of the Securityholders.
article
8
CONCERNING
THE SECURITYHOLDERS
Section
8.01 Evidence of Action by Securityholders.
Whenever
in this Indenture it is provided that the holders of a majority or specified percentage in aggregate principal amount of the Securities
of a particular series may take any action (including the making of any demand or request, the giving of any notice, consent or waiver
or the taking of any other action), the fact that at the time of taking any such action the holders of such majority or specified percentage
of that series have joined therein may be evidenced by any instrument or any number of instruments of similar tenor executed by such
holders of Securities of that series in person or by agent or proxy appointed in writing.
If
the Company shall solicit from the Securityholders of any series any request, demand, authorization, direction, notice, consent, waiver
or other action, the Company may, at its option, as evidenced by an Officer’s Certificate, fix in advance a record date for such
series for the determination of Securityholders entitled to give such request, demand, authorization, direction, notice, consent, waiver
or other action, but the Company shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other action may be given before or after the record date, but only the Securityholders of record
at the close of business on the record date shall be deemed to be Securityholders for the purposes of determining whether Securityholders
of the requisite proportion of Outstanding Securities of that series have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action, and for that purpose the Outstanding Securities of that series shall
be computed as of the record date; provided, however, that no such authorization, agreement or consent by such Securityholders on the
record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six
months after the record date.
Section
8.02 Proof of Execution by Securityholders.
Subject
to the provisions of Section 7.01, proof of the execution of any instrument by a Securityholder (such proof will not require notarization)
or his or her agent or proxy and proof of the holding by any Person of any of the Securities shall be sufficient if made in the following
manner:
(a)
The fact and date of the execution by any such Person of any instrument may be proved in any reasonable manner acceptable to the
Trustee.
(b)
The ownership of Securities shall be proved by the Security Register of such Securities or by a certificate of the Security Registrar
thereof.
The
Trustee may require such additional proof of any matter referred to in this Section as it shall deem necessary.
Section
8.03 Who May be Deemed Owners.
Prior
to the due presentment for registration of transfer of any Security, the Company, the Trustee, any paying agent and any Security Registrar
may deem and treat the Person in whose name such Security shall be registered upon the books of the Security Registrar as the absolute
owner of such Security (whether or not such Security shall be overdue and notwithstanding any notice of ownership or writing thereon
made by anyone other than the Security Registrar) for the purpose of receiving payment of or on account of the principal of, premium,
if any, and (subject to Section 2.03) interest on such Security and for all other purposes; and neither the Company nor the Trustee nor
any paying agent nor any Security Registrar shall be affected by any notice to the contrary.
Section
8.04 Certain Securities Owned by Company Disregarded.
In
determining whether the holders of the requisite aggregate principal amount of Securities of a particular series have concurred in any
direction, consent or waiver under this Indenture, the Securities of that series that are owned by the Company or any other obligor on
the Securities of that series or by any Person directly or indirectly controlling or controlled by or under common control with the Company
or any other obligor on the Securities of that series shall be disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction, consent
or waiver, only Securities of such series that the Trustee actually knows are so owned shall be so disregarded. The Securities so owned
that have been pledged in good faith may be regarded as Outstanding for the purposes of this Section, if the pledgee shall establish
to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not a
Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any such other
obligor. In case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection
to the Trustee.
Section
8.05 Actions Binding on Future Securityholders.
At
any time prior to (but not after) the evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the holders
of the majority or percentage in aggregate principal amount of the Securities of a particular series specified in this Indenture in connection
with such action, any holder of a Security of that series that is shown by the evidence to be included in the Securities the holders
of which have consented to such action may, by filing written notice with the Trustee, and upon proof of holding as provided in Section
8.02, revoke such action so far as concerns such Security. Except as aforesaid any such action taken by the holder of any Security shall
be conclusive and binding upon such holder and upon all future holders and owners of such Security, and of any Security issued in exchange
therefor, on registration of transfer thereof or in place thereof, irrespective of whether or not any notation in regard thereto is made
upon such Security. Any action taken by the holders of the majority or percentage in aggregate principal amount of the Securities of
a particular series specified in this Indenture in connection with such action shall be conclusively binding upon the Company, the Trustee
and the holders of all the Securities of that series.
article
9
SUPPLEMENTAL
INDENTURES
Section
9.01 Supplemental Indentures Without the Consent of Securityholders.
In
addition to any supplemental indenture otherwise authorized by this Indenture, the Company and the Trustee may from time to time and
at any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act
as then in effect), without the consent of the Securityholders, for one or more of the following purposes:
(a)
to cure any ambiguity, defect, or inconsistency herein or in the Securities of any series;
(b)
to comply with Article 10;
(c)
to provide for uncertificated Securities in addition to or in place of certificated Securities;
(d)
to add to the covenants, restrictions, conditions or provisions relating to the Company for the benefit of the holders of all or
any series of Securities (and if such covenants, restrictions, conditions or provisions are to be for the benefit of less than all series
of Securities, stating that such covenants, restrictions, conditions or provisions are expressly being included solely for the benefit
of such series), to make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants, restrictions,
conditions or provisions an Event of Default, or to surrender any right or power herein conferred upon the Company;
(e)
to add to, delete from, or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue,
authentication, and delivery of Securities, as herein set forth;
(f)
to make any change that does not adversely affect the rights of any Securityholder in any material respect;
(g)
to provide for the issuance of and establish the form and terms and conditions of the Securities of any series as provided in Section
2.01, to establish the form of any certifications required to be furnished pursuant to the terms of this Indenture or any series of Securities,
or to add to the rights of the holders of any series of Securities;
(h)
to evidence and provide for the acceptance of appointment hereunder by a successor trustee; or
(i)
to comply with any requirements of the Commission or any successor in connection with the qualification of this Indenture under the
Trust Indenture Act.
The
Trustee is hereby authorized to join with the Company in the execution of any such supplemental indenture, and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into any such supplemental
indenture that affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Any
supplemental indenture authorized by the provisions of this Section may be executed by the Company and the Trustee without the consent
of the holders of any of the Securities at the time Outstanding, notwithstanding any of the provisions of Section 9.02.
Section
9.02 Supplemental Indentures With Consent of Securityholders.
Other
than as provided in Section 9.01, with the consent (evidenced as provided in Section 8.01) of the holders of not less than a majority
in aggregate principal amount of the Securities of each series affected by such supplemental indenture or indentures at the time Outstanding,
the Company, when authorized by a Board Resolution, and the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as then in effect) for the purpose of
adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture
or of modifying the rights of the holders of the Securities of such series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the holders of each Security then Outstanding and affected thereby, (a) extend the fixed maturity
of any Securities of any series, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest
thereon, or reduce any premium payable upon the redemption thereof or (b) reduce the aforesaid percentage of Securities, the holders
of which are required to consent to any such supplemental indenture.
It
shall not be necessary for the consent of the Securityholders of any series affected thereby under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Section
9.03 Effect of Supplemental Indentures.
Upon
the execution of any supplemental indenture pursuant to the provisions of this Article or of Section 10.01, this Indenture shall, with
respect to such series, be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture of the Trustee, the Company and the holders of Securities of the series
affected thereby shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
Section
9.04 Securities Affected by Supplemental Indentures.
Securities
of any series affected by a supplemental indenture, authenticated and delivered after the execution of such supplemental indenture pursuant
to the provisions of this Article or of Section 10.01, may bear a notation in form approved by the Company, provided such form meets
the requirements of any securities exchange upon which such series may be listed, as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of that series so modified as to conform, in the opinion of the Board of
Directors, to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Company, authenticated
by the Trustee and delivered in exchange for the Securities of that series then Outstanding.
Section
9.05 Execution of Supplemental Indentures.
Upon
the request of the Company, accompanied by its Board Resolutions authorizing the execution of any such supplemental indenture, and upon
the filing with the Trustee of evidence of the consent of Securityholders required to consent thereto as aforesaid, the Trustee shall
join with the Company in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion but shall not be
obligated to enter into such supplemental indenture. The Trustee, subject to the provisions of Section 7.01, shall receive an Officer’s
Certificate or an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant to this Article is authorized
or permitted by the terms of this Article and that all conditions precedent to the execution of the supplemental indenture have been
complied with; provided, however, that such Officer’s Certificate or Opinion of Counsel need not be provided in connection with
the execution of a supplemental indenture that establishes the terms of a series of Securities pursuant to Section 2.01 hereof.
Promptly
after the execution by the Company and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Company
shall (or shall direct the Trustee to) transmit by mail, first class postage prepaid, a notice, setting forth in general terms the substance
of such supplemental indenture, to the Securityholders of all series affected thereby .as their names and addresses appear upon the Security
Register. Any failure of the Company to mail, or cause the mailing of, such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
article
10
SUCCESSOR
ENTITY
Section
10.01 Company May Consolidate, Etc.
Nothing
contained in this Indenture shall prevent any consolidation or merger of the Company with or into any other Person (whether or not affiliated
with the Company) or successive consolidations or mergers in which the Company or its successor or successors shall be a party or parties,
or shall prevent any sale, conveyance, transfer or other disposition of the property of the Company or its successor or successors as
an entirety, or substantially as an entirety, to any other Person (whether or not affiliated with the Company or its successor or successors);
provided, however, the Company hereby covenants and agrees that, upon any such consolidation or merger (in each case, if the Company
is not the survivor of such transaction) or any such sale, conveyance, transfer or other disposition (other than a sale, conveyance,
transfer or other disposition to a Subsidiary of the Company), the due and punctual payment of the principal of (premium, if any) and
interest on all of the Securities of all series in accordance with the terms of each series, according to their tenor, and the due and
punctual performance and observance of all the covenants and conditions of this Indenture with respect to each series or established
with respect to such series pursuant to Section 2.01 to be kept or performed by the Company shall be expressly assumed, by supplemental
indenture (which shall conform to the provisions of the Trust Indenture Act, as then in effect) reasonably satisfactory in form to the
Trustee executed and delivered to the Trustee by the entity formed by such consolidation, or into which the Company shall have been merged,
or by the entity which shall have acquired such property.
Section
10.02 Successor Entity Substituted.
(a)
In case of any such consolidation, merger, sale, conveyance, transfer or other disposition and upon the assumption by the successor
entity by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the obligations set
forth under Section 10.01 on all of the Securities of all series Outstanding, such successor entity shall succeed to and be substituted
for the Company with the same effect as if it had been named as the Company herein, and thereupon the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture and the Securities.
(b)
In case of any such consolidation, merger, sale, conveyance, transfer or other disposition, such changes in phraseology and form
(but not in substance) may be made in the Securities thereafter to be issued as may be appropriate.
(c)
Nothing contained in this Article shall require any action by the Company in the case of a consolidation or merger of any Person
into the Company where the Company is the survivor of such transaction, or the acquisition by the Company, by purchase or otherwise,
of all or any part of the property of any other Person (whether or not affiliated with the Company).
article
11
SATISFACTION
AND DISCHARGE
Section
11.01 Satisfaction and Discharge of Indenture.
If
at any time: (a) the Company shall have delivered to the Trustee for cancellation all Securities of a series theretofore authenticated
and not delivered to the Trustee for cancellation (other than any Securities that shall have been destroyed, lost or stolen and that
shall have been replaced or paid as provided in Section 2.07 and Securities for whose payment money or Governmental Obligations have
theretofore been deposited in trust or segregated and held in trust by the Company and thereupon repaid to the Company or discharged
from such trust, as provided in Section 11.05); or (b) all such Securities of a particular series not theretofore delivered to the Trustee
for cancellation shall have become due and payable, or are by their terms to become due and payable within one year or are to be called
for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and the Company
shall deposit or cause to be deposited with the Trustee as trust funds the entire amount in moneys or Governmental Obligations or a combination
thereof, sufficient in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay at maturity or upon redemption all Securities of that series not theretofore delivered to the
Trustee for cancellation, including principal (and premium, if any) and interest due or to become due to such date of maturity or date
fixed for redemption, as the case may be, and if the Company shall also pay or cause to be paid all other sums payable hereunder with
respect to such series by the Company then this Indenture shall thereupon cease to be of further effect with respect to such series except
for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03, 7.10, 11.05 and 13.04 that shall survive until the date of maturity
or redemption date, as the case may be, and Sections 7.06 and 11.05, that shall survive to such date and thereafter, and the Trustee,
on demand of the Company and at the cost and expense of the Company shall execute proper instruments acknowledging satisfaction of and
discharging this Indenture with respect to such series.
Section
11.02 Discharge of Obligations.
If
at any time all such Securities of a particular series not heretofore delivered to the Trustee for cancellation or that have not become
due and payable as described in Section 11.01 shall have been paid by the Company by depositing irrevocably with the Trustee as trust
funds moneys or an amount of Governmental Obligations sufficient to pay at maturity or upon redemption all such Securities of that series
not theretofore delivered to the Trustee for cancellation, including principal (and premium, if any) and interest due or to become due
to such date of maturity or date fixed for redemption, as the case may be, and if the Company shall also pay or cause to be paid all
other sums payable hereunder by the Company with respect to such series, then after the date such moneys or Governmental Obligations,
as the case may be, are deposited with the Trustee the obligations of the Company under this Indenture with respect to such series shall
cease to be of further effect except for the provisions of Sections 2.03, 2.05, 2.07, 4,01, 4.02, 4,03, 7.06, 7.10, 11.05 and 13.04 hereof
that shall survive until such Securities shall mature and be paid.
Thereafter,
Sections 7.06 and 11.05 shall survive.
Section
11.03 Deposited Moneys to be Held in Trust.
All
moneys or Governmental Obligations deposited with the Trustee pursuant to Sections 11.01 or 11.02 shall be held in trust and shall be
available for payment as due, either directly or through any paying agent (including the Company acting as its own paying agent), to
the holders of the particular series of Securities for the payment or redemption of which such moneys or Governmental Obligations have
been deposited with the Trustee.
Section
11.04 Payment of Moneys Held by Paying Agents.
In
connection with the satisfaction and discharge of this Indenture all moneys or Governmental Obligations then held by any paying agent
under the provisions of this Indenture shall, upon demand of the Company, be paid to the Trustee and thereupon such paying agent shall
be released from all further liability with respect to such moneys or Governmental Obligations.
Section
11.05 Repayment to Company.
Any
moneys or Governmental Obligations deposited with any paying agent or the Trustee, or then held by the Company, in trust for payment
of principal of or premium, if any, or interest on the Securities of a particular series that are not applied but remain unclaimed by
the holders of such Securities for at least two years after the date upon which the principal of (and premium, if any) or interest on
such Securities shall have respectively become due and payable, or such other shorter period set forth in applicable escheat or abandoned
or unclaimed property law, shall be repaid to the Company on May 31 of each year or upon the Company’s request or (if then held
by the Company) shall be discharged from such trust; and thereupon the paying agent and the Trustee shall be released from all further
liability with respect to such moneys or Governmental Obligations, and the holder of any of the Securities entitled to receive such payment
shall thereafter, as a general creditor, look only to the Company for the payment thereof.
article
12
IMMUNITY
OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section
12.01 No Recourse.
No
recourse under or upon any obligation, covenant or agreement of this Indenture, or of any Security, or for any claim based thereon or
otherwise in respect thereof, shall be had against any incorporator, stockholder, officer or director, past, present or future as such,
of the Company or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly understood that this Indenture and the obligations issued hereunder are solely corporate obligations, and that no
such personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, stockholders, officers or directors
as such, of the Company or of any predecessor or successor corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom; and that any and all such personal liability of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against, every such incorporator, stockholder, officer or director
as such, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied therefrom, are hereby expressly waived and released as a condition
of, and as a consideration for, the execution of this Indenture and the issuance of such Securities.
article
13
MISCELLANEOUS
PROVISIONS
Section
13.01 Effect on Successors and Assigns.
All
the covenants, stipulations, promises and agreements in this Indenture made by or on behalf of the Company shall bind its successors
and assigns, whether so expressed or not.
Section
13.02 Actions by Successor.
Any
act or proceeding by any provision of this Indenture authorized or required to be done or performed by any board, committee or officer
of the Company shall and may be done and performed with like force and effect by the corresponding board, committee or officer of any
corporation that shall at the time be the lawful successor of the Company.
Section
13.03 Surrender of Company Powers.
The
Company by instrument in writing executed by authority of its Board of Directors and delivered to the Trustee may surrender any of the
powers reserved to the Company, and thereupon such power so surrendered shall terminate both as to the Company and as to any successor
corporation.
Section
13.04 Notices.
Except
as otherwise expressly provided herein, any notice, request or demand that by any provision of this Indenture is required or permitted
to be given, made or served by the Trustee, the Security Registrar, any paying or other agent under this Indenture or by the holders
of Securities or by any other Person pursuant to this Indenture to or on the Company may be given or served by being deposited in first
class mail, postage prepaid, addressed (until another address is filed in writing by the Company with the Trustee), as follows: 675 Arapeen
Drive, Suite 202, Salt Lake City, Utah 84108. Any notice, election, request or demand by the Company or any Securityholder or by any
other Person pursuant to this Indenture to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes,
if given or made in writing at the Corporate Trust Office of the Trustee.
Section
13.05 Governing Law; Jury Trial Waiver.
This
Indenture and each Security, and any claim, controversy or dispute under or related to this Indenture or any Security, shall be governed
by and construed in accordance with the laws of the State of New York, except to the extent that the Trust Indenture Act is applicable.
EACH
PARTY HERETO, AND EACH HOLDER OF A SECURITY BY ACCEPTANCE THEREOF, HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS INDENTURE.
Section
13.06 Treatment of Securities as Debt.
It
is intended that the Securities will be treated as indebtedness and not as equity for federal income tax purposes. The provisions of
this Indenture shall be interpreted to further this intention.
Section
13.07 Certificates and Opinions as to Conditions Precedent.
(a)
Upon any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent provided for in this Indenture
(other than the certificate to be delivered pursuant to Section 13.12) relating to the proposed action have been complied with and, if
requested, an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with, except
that in the case of any such application or demand as to which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished.
(b)
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition
or covenant in this Indenture (other than the certificate to be delivered pursuant to Section 13.12 of this Indenture or Section 314(a)(1)
of the Trust Indenture Act) shall include (i) a statement that the Person making such certificate or opinion has read such covenant or
condition; (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (iii) a statement that, in the opinion of such Person, he has made such examination
or investigation as is reasonably necessary to enable him to express an informed opinion as to whether or not such covenant or condition
has been complied with; and (iv) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been
complied with.
Section
13.08 Payments on Business Days.
Except
as provided pursuant to Section 2.01 pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established
in one or more indentures supplemental to this Indenture, in any case where the date of maturity of interest or principal of any Security
or the date of redemption of any Security shall not be a Business Day, then payment of interest or principal (and premium, if any) may
be made on the next succeeding Business Day with the same force and effect as if made on the nominal date of maturity or redemption,
and no interest shall accrue for the period after such nominal date.
Section
13.09 Conflict with Trust Indenture Act.
If
and to the extent that any provision of this Indenture limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
Section
13.10 Counterparts.
This
Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute
but one and the same instrument. 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.
Section
13.11 Separability.
In
case any one or more of the provisions contained in this Indenture or in the Securities of any series shall for any reason be held to
be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions
of this Indenture or of such Securities, but this Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
Section
13.12 Compliance Certificates.
The
Company shall deliver to the Trustee, within 120 days after the end of each fiscal year during which any Securities of any series were
outstanding, an officer’s certificate stating whether or not the signers know of any Event of Default that occurred during such
fiscal year. Such certificate shall contain a certification from the principal executive officer, principal financial officer or principal
accounting officer of the Company that a review has been conducted of the activities of the Company and the Company’s performance
under this Indenture and that the Company has complied with all conditions and covenants under this Indenture. For purposes of this Section
13.12, such compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture.
If the officer of the Company signing such certificate has knowledge of such an Event of Default, the certificate shall describe any
such Event of Default and its status.
Section
13.13 U.S.A Patriot Act.
The
parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions
and in order to help fight the funding of terrorism and money laundering, 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.
Section
13.14 Force Majeure.
In
no event shall the Trustee, the Security Registrar, any paying agent or any other agent under this Indenture 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 or utilities, communications or computer (software
and hardware) services; it being understood that the Trustee, the Security Registrar, any paying agent or any other agent under this
Indenture shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as
soon as practicable under the circumstances.
Section
13.15 Table of Contents; Headings.
The
table of contents and headings of the articles and sections of this Indenture have been inserted for convenience of reference only, are
not intended to be considered a part hereof, and will not modify or restrict any of the terms or provisions hereof.
ARTICLE 14
SUBORDINATION OF SECURITIES
Section 14.01 Subordination
Terms.
The payment by the Company
of the principal of, premium, if any, and interest on any series of Securities issued hereunder shall be subordinated to the extent set
forth in a Board Resolution or pursuant to an indenture supplemental hereto relating to such series.
In
Witness Whereof, the parties hereto have caused
this Indenture to be duly executed all as of the day and year first above written.
|
Lipocine
Inc. |
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By: |
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Name:
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Title: |
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[Trustee],
as Trustee |
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By: |
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Name: |
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Title: |
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CROSS-REFERENCE
TABLE (1)
Section
of Trust Indenture Act of 1939, as Amended |
|
Section
of Indenture |
310(a) |
|
7.09 |
310(b) |
|
7.08 |
|
|
7.10 |
311(a) |
|
7.13 |
311(b) |
|
7.13 |
312(a) |
|
5.01 |
|
|
5.02(a) |
312(b) |
|
5.02(c) |
312(c) |
|
5.02(c) |
313(a) |
|
5.04(a) |
313(b) |
|
5.04(b) |
313(c) |
|
5.04(a) |
|
|
5.04(b) |
313(d) |
|
5.04(c) |
314(a) |
|
5.03 |
|
|
13.12 |
314(b) |
|
Inapplicable |
314(c) |
|
13.07(a) |
314(d) |
|
Inapplicable |
314(e) |
|
13.07(b) |
314(f) |
|
Inapplicable |
315(a) |
|
7.01(a) |
|
|
7.01(b) |
315(b) |
|
7.14 |
315(c) |
|
7.01 |
315(d) |
|
7.01(b) |
315(e) |
|
6.07 |
316(a) |
|
6.06 |
|
|
8.04 |
316(b) |
|
6.04 |
316(c) |
|
8.01 |
317(a) |
|
6.02 |
317(b) |
|
4.03 |
318(a) |
|
13.09 |
(1) |
This
Cross-Reference Table does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its
terms or provisions. |
Exhibit
5.1
November
22, 2023
Lipocine
Inc.
675
Arapeen Drive, Suite 202
Salt
Lake City, Utah 84108
Re:
Registration Statement on Form S-3
Ladies
and Gentlemen:
We
have acted as counsel to Lipocine Inc., a Delaware corporation (the “Company”), in connection with a Registration Statement
on Form S-3 (the “Registration Statement”) filed by the Company with the Securities and Exchange Commission (the “Commission”)
under the Securities Act of 1933, as amended (the “Securities Act”), relating to the offer and sale by the Company from time
to time of up to $150,000,000 (or its foreign currency equivalent) aggregate offering price of (i) shares of its common stock, par value
$0.0001 per share (the “Common Stock”), (ii) shares of its preferred stock, par value $0.0001 per share (the “Preferred
Stock”), (iii) its debt securities (the “Debt Securities”), which may be senior debt securities (the “Senior
Debt Securities”) or subordinated debt securities (the “Subordinated Debt Securities”), (iv) warrants to purchase Common
Stock, Preferred Stock or Debt Securities (the “Warrants”), and (v) units consisting of any combination of Common Stock,
Preferred Stock, Debt Securities and Warrants, (the “Units” and, together with the Common Stock, Preferred Stock, Debt Securities
and Warrants, the “Securities”), including any Securities issuable upon conversion, exchange or exercise of the Securities.
The Senior Debt Securities will be issued under an indenture (as it may be supplemented or amended from time to time, the “Indenture”)
to be entered into between the Company and the trustee to be named therein, as trustee, the form of which is attached to the Registration
Statement as Exhibit 4.6, and the Subordinated Debt Securities will be issued under an indenture (as it may be supplemented or amended
from time to time, the “Subordinated Indenture” and, each of the Senior Indenture and Subordinated Indenture, an “Indenture”),
to be entered into between the Company and the trustee to be named therein (each such trustee, a “Trustee”), the form of
which is attached to the Registration Statement as Exhibit 4.7.
We
have examined such documents, and have reviewed such questions of law as we have considered necessary or appropriate for the purposes
of our opinions set forth below. In rendering our opinions set forth below, we have assumed the authenticity of all documents submitted
to us as originals, the genuineness of all signatures and the conformity to authentic originals of all documents submitted to us as copies.
We have also assumed the legal capacity for all purposes relevant hereto of all natural persons and, with respect to all parties to agreements
or instruments relevant hereto other than the Company, that such parties had the requisite power and authority (corporate or otherwise)
to execute, deliver and perform such agreements and instruments, that such agreements and instruments have been duly authorized by all
requisite action (corporate or otherwise), executed and delivered by such parties and that such agreements and instruments are the valid,
binding and enforceable obligations of such parties. As to questions of fact material to our opinions, we have relied upon certificates
or comparable documents of officers and other representatives of the Company and of public officials.
Based
on the foregoing, and assuming that (i) the Registration Statement and all amendments thereto (including post-effective amendments) will
have become effective under the Securities Act and will continue to be so effective, (ii) a prospectus supplement to the prospectus contained
in the Registration Statement, describing the Securities offered thereby, will have been prepared and filed with the Commission under
the Securities Act, (iii) all Securities will be issued and sold in compliance with applicable federal and state securities laws and
in the manner stated in the Registration Statement and the applicable prospectus supplement, (iv) with respect to any newly-issued shares
of Common Stock or Preferred Stock to be offered by the Company pursuant to the Registration Statement, there will be sufficient shares
of Common Stock or Preferred Stock, as applicable, authorized under the organizational documents of the Company and not otherwise reserved
for issuance, (v) the organizational documents of the Company, each as amended as of the date hereof, will not have been amended from
the date hereof in a manner that would affect the validity of our opinions set forth below, (vi) none of the terms of any Security to
be established subsequent to the date hereof, nor the issuance, sale or delivery of such Security, nor the compliance by the Company
with the terms of such Security, (a) will violate (1) any applicable law or (2) the organizational documents of the Company or (b) will
result in a violation or breach of (1) any provision of any instrument or agreement then binding upon the Company or any of its assets
or (2) any restriction imposed by any court or governmental body having jurisdiction over the Company or any of its assets, (vii) any
applicable purchase, underwriting or similar agreement, and any other applicable agreement with respect to any Securities offered or
sold, will have been duly authorized and validly executed and delivered by the Company and (viii) any Securities issuable upon conversion,
exchange, exercise or settlement of any Security being offered or sold will be duly authorized, created and, if appropriate, reserved
for issuance upon such conversion, exchange, exercise or settlement, we are of the opinion that:
1.
With respect to any shares of Common Stock to be offered by the Company pursuant to the Registration Statement (the “Offered Common
Shares”), when (a) the board of directors of the Company, a duly constituted and acting committee thereof or any officers of the
Company delegated such authority (such board of directors, committee or officers being referred to herein as the “Board”)
have taken all necessary corporate action to authorize and approve the terms of the issuance and sale of the Offered Common Shares in
conformity with the organizational documents of the Company and (b) certificates in the form required by the Delaware General Corporation
Law representing the Offered Common Shares have been duly executed, countersigned, registered and delivered either (i) in accordance
with the applicable purchase, underwriting or similar agreement approved by the Board upon payment of the consideration therefor (which
consideration is not less than the par value of the Common Stock) provided for therein or (ii) upon conversion, exchange, exercise or
settlement of any other Security, in accordance with the terms of such Security or the instrument governing such Security providing for
such conversion, exchange, exercise or settlement as approved by the Board, for the consideration approved by the Board (which consideration
is not less than the par value of the Common Stock), then the Offered Common Shares will be validly issued, fully paid and non-assessable.
2.
With respect to any shares of any class or series of Preferred Stock to be offered by the Company pursuant to the Registration Statement
(the “Offered Preferred Shares”), when (a) the Board has taken all necessary corporate action to establish the applicable
class or series of Preferred Stock in accordance with the Delaware General Corporation Law (including, without limitation, by the Company
properly filing a certificate of designations with respect to such class or series of Preferred Stock with the Secretary of State of
the State of Delaware), (b) the Board has taken all necessary corporate action to authorize and approve the terms of the Offered Preferred
Stock and their issuance and sale in conformity with the terms of the applicable class or series of Preferred Stock as established by
the Board and (c) certificates in the form required by the Delaware General Corporation Law representing the Offered Preferred Shares
have been duly executed, countersigned, registered and delivered either (i) in accordance with the applicable purchase, underwriting
or similar agreement approved by the Board upon payment of the consideration therefor (which consideration is not less than the par value
of the Preferred Stock) provided for therein or (ii) upon conversion, exchange, exercise or settlement of any other Security, in accordance
with the terms of such Security or the instrument governing such Security providing for such conversion, exchange, exercise or settlement
as approved by the Board, for the consideration approved by the Board (which consideration is not less than the par value of the Preferred
Stock), then the Offered Preferred Shares will be validly issued, fully paid and non-assessable.
3.
With respect to any Debt Securities to be offered by the Company pursuant to the Registration Statement (the “Offered Debt Securities”),
when (a) the applicable Trustee has been qualified to act as trustee under the Indenture relating to the Offered Debt Securities (the
“Applicable Indenture”), (b) the Applicable Indenture has been duly authorized, executed and delivered by the Company, (c)
the Applicable Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended, (d) the Board has taken all necessary
corporate action to authorize and approve the terms of the Offered Debt Securities and their issuance and sale in conformity with the
Applicable Indenture and (e) the Offered Debt Securities have been issued, executed and authenticated by the applicable Trustee in accordance
with the terms of the Applicable Indenture and delivered either (i) in accordance with the applicable purchase, underwriting or similar
agreement approved by the Board upon payment of the consideration therefor provided for therein or (ii) upon conversion, exchange, exercise
or settlement of any other Security, in accordance with the terms of such Security or the instrument governing such Security providing
for such conversion, exchange, exercise or settlement as approved by the Board, for the consideration approved by the Board, then the
Offered Debt Securities will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with
their terms.
4.
With respect to any Warrants to be offered by the Company pursuant to the Registration Statement (the “Offered Warrants”),
when (a) a warrant agreement relating to the Offered Warrants (the “Warrant Agreement”), to be entered into between the Company
and the warrant agent named therein (the “Warrant Agent”), has been duly authorized, executed and delivered by the Company,
(b) the Board has taken all necessary corporate action to authorize and approve the terms of the Offered Warrants and their issuance
and sale in conformity with the Warrant Agreement and (c) the Offered Warrants have been issued, executed and countersigned by the Warrant
Agent in accordance with the terms of the Warrant Agreement and delivered either (i) in accordance with the applicable purchase, underwriting
or similar agreement approved by the Board upon payment of the consideration therefor provided for therein or (ii) upon conversion or
exchange of any other Security, in accordance with the terms of such Security or the instrument governing such Security providing for
such conversion or exchange as approved by the Board, for the consideration approved by the Board, then the Offered Warrants will constitute
valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
5.
With respect to any Units to be offered by the Company pursuant to the Registration Statement (the “Offered Units”), when
(a) a unit agreement relating to the Offered Units (the “Unit Agreement”), to be entered into between the Company and the
unit agent named therein (the “Unit Agent”), has been duly authorized, executed and delivered by the Company, (b) the Board
has taken all necessary corporate action to authorize and approve the terms of the Offered Units and their issuance and sale in conformity
with the Unit Agreement and (c) the Offered Units have been issued, executed and countersigned by the Unit Agent in accordance with the
terms of the Unit Agreement and delivered either (i) in accordance with the applicable purchase, underwriting or similar agreement approved
by the Board upon payment of the consideration therefor provided for therein or (ii) upon conversion or exchange of any other Security,
in accordance with the terms of such Security or the instrument governing such Security providing for such conversion or exchange as
approved by the Board, for the consideration approved by the Board, then the Offered Units will constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with their terms.
Our
opinions set forth above are subject to the following qualifications and exceptions:
(a)
Our opinions set forth above are subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar
law relating to or affecting creditors’ rights generally (including, without limitation, fraudulent conveyance laws).
(b)
Our opinions set forth above are subject to the effect of general principles of equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless
of whether considered in a proceeding in equity or at law.
(c)
Our opinions set forth above are subject to limitations regarding the availability of indemnification and contribution where such indemnification
or contribution may be limited by applicable law or the application of principles of public policy.
(d)
We express no opinion as to the enforceability of (i) provisions that relate to choice of law, forum selection or submission to jurisdiction
(including, without limitation, any express or implied waiver of any objection to venue in any court or of any objection that a court
is an inconvenient forum), (ii) waivers by the Company of any statutory or constitutional rights or remedies, (iii) terms which excuse
any person or entity from liability for, or require the Company to indemnify such person or entity against, such person’s or entity’s
negligence or willful misconduct or (iv) obligations to pay any prepayment premium, default interest rate, early termination fee or other
form of liquidated damages, if the payment of such premium, interest rate, fee or damages may be construed as unreasonable in relation
to actual damages or disproportionate to actual damages suffered as a result of such prepayment, default or termination.
(e)
We draw your attention to the fact that, under certain circumstances, the enforceability of terms to the effect that provisions may not
be waived or modified except in writing may be limited.
(f)
We note that, as of the date of this opinion, a judgment for money in an action based on a Security denominated in a foreign currency
or currency unit in a federal or state court in the United States ordinarily would be enforced in the United States only in United States
dollars. The date used to determine the rate of conversion of the foreign currency or currency unit in which a particular Security is
denominated into United States dollars will depend upon various factors, including which court renders the judgment. Under Section 27
of the New York Judiciary Law, a state court in the State of New York rendering a judgment on a Security would be required to render
that judgment in the foreign currency or currency unit in which the Security is denominated, and the judgment would be converted into
United States dollars at the exchange rate prevailing on the date of entry of the judgment.
We
express no opinion as to the enforceability of provisions to the extent they require that a claim with respect to a Security (or judgment
in respect of such claim) be converted into United States dollars at a particular rate of exchange and/or on a particular date, to the
extent applicable law provides otherwise.
Our
opinions expressed above are limited to the laws of the State of New York, the Delaware General Corporation Law and the federal laws
of the United States of America.
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 constituting part of the Registration Statement. In giving this consent, we do
not admit that we are within 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, |
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/s/
Dorsey & Whitney LLP |
Exhibit 23.1
Consent of Independent Registered Public Accounting
Firm
The Board of Directors
Lipocine Inc.
We hereby consent to the incorporation by reference
in this Registration Statement on Form S-3 of our report dated March 10, 2023, with respect to the consolidated balance sheets of Lipocine
Inc. and subsidiaries as of December 31, 2022 and 2021, and the related consolidated statements of operations and comprehensive loss,
changes in stockholders’ equity, and cash flows for each of the years then ended, and to the reference to our firm under the heading
“Experts” in the accompanying prospectus.
/s/ TANNER LLC
Salt Lake City, Utah
November 22, 2023
Exhibit
107
Calculation
of Filing Fee Tables
Form
S-3
(Form
Type)
Lipocine,
Inc.
(Exact
Name of Registrant as Specified in its Charter)
Table
1: Newly Registered and Carry Forward Securities
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Security
Type |
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Security
Class
Title |
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Fee
Calculation
or Carry
Forward
Rule |
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Amount
Registered |
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Proposed
Maximum
Offering
Price Per
Unit |
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Maximum
Aggregate
Offering
Price (3) |
|
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Fee
Rate |
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|
Amount of
Registration
Fee |
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Carry
Forward
Form
Type |
|
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Carry
Forward
File
Number |
|
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Carry
Forward
Initial
Effective
Date |
|
|
Filing Fee
Previously
Paid In
Connection
with
Unsold
Securities
to
be Carried
Forward |
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Newly Registered Securities |
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Fees to Be Paid |
|
Equity |
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Common Stock, $0.0001 par value per share |
|
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— |
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(1) |
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(1) |
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— |
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— |
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— |
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— |
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— |
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— |
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— |
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Fees to Be Paid |
|
Equity |
|
Preferred Stock, par value $0.0001 per share |
|
|
— |
|
|
|
|
|
(1) |
|
|
|
(1) |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
— |
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|
|
|
|
|
|
|
Fees to Be Paid |
|
Debt |
|
Debt Securities |
|
|
— |
|
|
|
|
|
(1) |
|
|
|
(1) |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
— |
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|
|
|
|
Fees to Be Paid |
|
Other |
|
Warrants |
|
|
— |
|
|
|
|
|
(1) |
|
|
|
(1) |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fees to Be Paid |
|
Other |
|
Units (2) |
|
|
— |
|
|
|
|
|
(1) |
|
|
|
(1) |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fees to Be Paid |
|
Unallocated
(Universal)
Shelf |
|
Unallocated
(Universal)
Shelf |
|
|
457 |
|
|
(o) |
|
|
(1) |
|
|
|
(1) |
|
|
$ |
38,050,000 |
|
|
$ |
0.00014760 |
|
|
$ |
5,616.18 |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fees Previously Paid |
|
— |
|
— |
|
|
— |
|
|
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
— |
|
|
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|
|
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|
|
|
|
|
|
|
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|
|
|
|
|
|
|
|
|
|
|
Carry Forward Securities |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Carry Forward Securities |
|
Equity |
|
Common Stock, $0.0001 par value per share |
|
|
415 |
|
|
(a)(6) |
|
|
(1) |
|
|
|
(1) |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
S-3 |
|
|
|
333-250072 |
|
|
|
November 23, 2020 |
|
|
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Carry Forward Securities |
|
Equity |
|
Preferred Stock, par value $0.0001 per share |
|
|
415 |
|
|
(a)(6) |
|
|
(1) |
|
|
|
(1) |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
S-3 |
|
|
|
333-250072 |
|
|
|
November 23, 2020 |
|
|
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Carry Forward Securities |
|
Debt |
|
Debt Securities |
|
|
415 |
|
|
(a)(6) |
|
|
(1) |
|
|
|
(1) |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
S-3 |
|
|
|
333-250072 |
|
|
|
November 23, 2020 |
|
|
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Carry Forward Securities |
|
Other |
|
Warrants |
|
|
415 |
|
|
(a)(6) |
|
|
(1) |
|
|
|
(1) |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
S-3 |
|
|
|
333-250072 |
|
|
|
November 23, 2020 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fees to Be Paid |
|
Other |
|
Units (2) |
|
|
415 |
|
|
(a)(6) |
|
|
(1) |
|
|
|
(1) |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
S-3 |
|
|
|
333-250072 |
|
|
|
November 23, 2020 |
|
|
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Carry Forward Securities |
|
Unallocated (Universal Shelf) |
|
Unallocated (Universal Shelf) |
|
|
415 |
|
|
(a)(6) |
|
|
(1)(4) |
|
|
|
(1)(4) |
|
|
$ |
111,950,000 |
|
|
$ |
0.0001091 |
|
|
|
— |
|
|
|
S-3 |
|
|
|
333-250072 |
|
|
|
November 23, 2020 |
|
|
$12,213.75(4) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Offering Amounts |
|
|
|
|
|
$ |
150,000,000 |
(1)(4) |
|
|
|
|
$ |
|
5,616.18 |
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Fees Previously Paid |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Fee Offsets |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Fee Due |
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
5,616.18 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
The
securities registered hereunder consists of up to $150,000,000 of an indeterminate amount of (a) shares of common stock, (b) shares
of preferred stock, (c) warrants to purchase shares of common stock, shares of preferred stock, or debt securities of the Registrant,
(d) debt securities, and (f) units, consisting of some or all of these securities, as may be sold from time to time by the Registrant.
Any securities registered hereunder may be sold separately or as units with other securities registered hereunder. There are also
being registered hereunder an indeterminate number of shares of common stock, shares of preferred stock, and debt securities as shall
be issuable upon conversion, exchange or exercise of any securities that provide for such issuance. In no event will the aggregate
offering price of all types of securities issued by the Registrant pursuant to this registration statement exceed $150,000,000. Pursuant
to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement also covers
such indeterminate number of securities as may be issuable with respect to the securities being registered hereunder as a result
of stock splits, stock dividends or similar transactions. |
(2) |
Units
may be issued under a unit agreement and will represent an interest in one or more securities registered under this registration
statement including shares of common stock or preferred stock, debt securities or warrants, in any combination, which may or may
not be separable from one another. |
(3) |
Estimated
solely for purposes of computing the registration fee. |
(4) |
Pursuant
to Rule 415(a)(6) under the Securities Act, the securities registered pursuant to this registration statement include $111,950,000
of unsold securities (the “Unsold Securities”) previously registered pursuant to the Registration Statement on Form S-3
(File No. 333-250072), which was declared effective on November 23, 2020 (the “Prior Registration Statement”). The registrant
paid a filing fee of $12,213.75 associated with the offering of the Unsold Securities (based on the filing fee rate in effect at
the time of the filing of the Prior Registration Statement). Pursuant to Rule 415(a)(6), the filing fee associated with the offering
of the Unsold Securities is hereby carried forward to be applied to the Unsold Securities, and no additional filing fee is due with
respect to the Unsold Securities in connection with the filing of this Registration Statement. To the extent that, after the filing
date hereof and prior to the effectiveness of this registration statement, the registrant sells any Unsold Securities pursuant to
the Prior Registration Statement, the registrant will identify in a pre-effective amendment to this registration statement the updated
number of Unsold Securities from the Prior Registration Statement to be included in this registration statement pursuant to Rule
415(a)(6) and the updated amount of new securities to be registered on this registration statement. Pursuant to Rule 415(a)(6), the
offering of securities under the Prior Registration Statement will be deemed terminated as of the date of effectiveness of this registration
statement. |
Lipocine (NASDAQ:LPCN)
過去 株価チャート
から 5 2024 まで 6 2024
Lipocine (NASDAQ:LPCN)
過去 株価チャート
から 6 2023 まで 6 2024