As filed with the Securities and Exchange
Commission on October 31, 2014
Registration Statement No. 333-________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NANOVIRICIDES, INC.
(Exact name of registrant as specified
in its charter)
| Nevada |
|
76-0674577 |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. Employer
Identification No.) |
| |
|
|
135 Wood Street
Suite 205
West Haven, Connecticut 06516
(203) 937-6137 |
|
Dr. Eugene Seymour
135 Wood Street
Suite 205
West Haven, Connecticut
(203) 937-6137 |
| |
|
|
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices) |
|
(Name, address, including zip code, and telephone
number, including area code, of agent for service) |
Copies to:
Peter Campitiello, Esq.
Kane Kessler, P.C.
1350 Avenue of the Americas
New York, New York 10019
Telephone (212) 519-5109
Facsimile (212) 245-3009
Approximate date
of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement,
as determined by market conditions and other factors.
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 (the “Securities Act”), other than securities offered only in connection with dividend or interest reinvestment
plans, check the following box. x
If this Form is filed
to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
¨
If this Form is a
post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, 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, or a smaller reporting
company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting
company” in rule 12b-2 of the Exchange Act
| Large accelerated filer ¨ |
|
Accelerated filer ¨ |
|
Non-accelerated filer x |
|
Smaller reporting company ¨ |
CALCULATION OF REGISTRATION FEE
Title of Each Class
of Securities to
be Registered (1)(2) | |
Amount to be
Registered | | |
Proposed
Maximum
Offering
Price per Share | | |
Proposed
Maximum
Aggregate
Offering Price
(3) | | |
Amount of
Registration
Fee | |
| Common Stock | |
| | | |
| | | |
| | | |
| | |
| Preferred Stock | |
| | | |
| | | |
| | | |
| | |
| Debt Securities (which may be senior or subordinated, convertible or non-convertible, secured or unsecured) | |
| | | |
| | | |
| | | |
| | |
| Warrants | |
| | | |
| | | |
| | | |
| | |
| Total for sale by Registrant | |
$ | 50,000,000 | | |
| 100 | % | |
$ | 50,000,000 | | |
| $5,810 (3) | |
| (1) | Securities registered hereunder may be sold separately, together or as units with other securities
registered hereunder. |
| (2) | Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”),
the Registrant is registering an indeterminate aggregate principal amount and number of securities of each identified class of
securities up to a proposed aggregate offering price of $50,000,000, which may be offered from time to time in unspecified numbers
and at indeterminate prices, and as may be issuable upon conversion, redemption, repurchase, exchange or exercise of any securities
registered hereunder, including under any applicable anti-dilution provisions. |
| (3) | Calculated pursuant to Rule 457(o) of the rules and regulations under the Securities Act. |
The Registrant
hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933, or until the Registration Statement shall become effective on such
date as the Commission, acting pursuant to said Section 8(a), may determine.
The information in this
prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and we are not soliciting
offers to buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED
OCTOBER 31, 2014
PROSPECTUS
NANOVIRICIDES, INC.
$50,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
This prospectus relates
to common stock, preferred stock, debt securities, warrants and units comprised of the foregoing that we may sell from time to
time in one or more offerings up to a total public offering price of $50,000,000 on terms to be determined at the time of sale.
We will provide specific terms of these securities in supplements to this prospectus. You should read this prospectus and any supplement
carefully before you invest. This prospectus may not be used to offer and sell securities unless accompanied by a prospectus supplement
for those securities.
Our common stock trades
on the NYSE MKT under the symbol “NNVC.”
These securities may
be sold directly by us, through dealers or agents designated from time to time, to or through underwriters or through a combination
of these methods. See “Plan of Distribution” in this prospectus. We may also describe the plan of distribution for
any particular offering of these securities in any applicable prospectus supplement. If any agents, underwriters or dealers are
involved in the sale of any securities in respect of which this prospectus is being delivered, we will disclose their names and
the nature of our arrangements with them in a prospectus supplement. The net proceeds we expect to receive from any such sale will
also be included in a prospectus supplement.
See “RISK FACTORS” on page
3 for information you should consider before buying these securities.
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.
This prospectus
may not be used to sell securities unless accompanied by a prospectus supplement.
This prospectus is not an offer to sell
any securities in any state where the offer is not permitted.
The date of this prospectus is October 31,
2014.
Prospective investors may rely only
on the information contained in this prospectus. We have not authorized anyone to provide prospective investors with different
or additional information. This prospectus is not an offer to sell nor is it seeking an offer to buy these securities in any jurisdiction
where the offer or sale is not permitted. The information contained in this prospectus is correct only as of the date of this prospectus,
regardless of the time of the delivery of this prospectus or any sale of these securities.
TABLE OF CONTENTS
IMPORTANT INFORMATION ABOUT THIS PROSPECTUS
This prospectus is
part of a “shelf” registration statement that we filed with the United States Securities and Exchange Commission, or
the “SEC”. By using a shelf registration statement, we may sell any combination of the securities described in this
prospectus from time to time in one or more offerings. We may use this prospectus to offer and sell up to a total of $50,000,000
of our securities. This prospectus provides you only with a general description of the securities we may offer. Each time we sell
securities, we will provide a supplement to this prospectus that contains specific information about the terms of the securities
offered. The supplement may also add, update or change information contained in this prospectus. Before purchasing any securities,
you should carefully read both this prospectus and any supplement, together with the additional information described under the
heading “Incorporation of Certain Documents by Reference” found on page 14.
You should rely only
on the information contained herein or incorporated by reference in this prospectus and the supplement. We have not authorized
any other person to provide you with different information. If anyone provides you with different or inconsistent information,
you should not rely on it. We will not make an offer to sell these securities in any jurisdiction where the offer or sale is not
permitted. You should assume that the information appearing in this prospectus, as well as information we previously filed with
the SEC and incorporated herein by reference, is accurate as of the date on the front cover of this prospectus only. Our business,
financial condition, results of operations and prospects may have changed since that date.
We will not use this
prospectus to offer and sell securities unless it is accompanied by a supplement that more fully describes the securities being
offered and the terms of the offering.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING
INFORMATION
We are making this
statement pursuant to the safe harbor provisions for forward-looking statements described in the Private Securities Litigation
Reform Act of 1995. These forward-looking statements are not historical facts but are the intent, belief, or current expectations
of our business and industry. We make statements in this prospectus, including statements that are incorporated by reference, that
are forward-looking. When used in this prospectus or in any other presentation, statements which are not historical in nature,
including the words “anticipate,” “estimate,” “could,” “should,” “may,”
“plan,” “seek,” “expect,” “believe,” “intend,” “target,”
“project” and similar expressions are intended to identify forward-looking statements. They also include statements
regarding:
| • | our future growth and profitability; |
| • | our competitive strengths; and |
| • | our business strategy and the trends we anticipate in the industries and economies in which we operate. |
These forward-looking
statements are based on our current expectations and are subject to a number of risks, uncertainties and assumptions. These statements
are not guarantees of future performance and are subject to risks, uncertainties, and other factors, some of which are beyond our
control, are difficult to predict, and could cause actual results to differ materially from those expressed or forecasted in the
forward-looking statements. Important factors that could cause actual results to differ materially from those in forward-looking
statements include:
| • | economic downturns, reduced capital expenditures, consolidation and technological and regulatory changes in our industry; |
| • | the highly competitive nature of our industry; |
| • | our ability to attract and retain qualified managers and skilled employees; |
| • | the outcome of our plans for future operations and growth; and |
| • | the other factors referenced in this prospectus, including, without limitation, under “Risk Factors.” |
We believe these forward-looking
statements are reasonable; however, you should not place undue reliance on any forward-looking statements, which are based on current
expectations. Furthermore, forward-looking statements speak only as of the date they are made. If any of these risks or uncertainties
materialize, or if any of our underlying assumptions are incorrect, our actual results may differ significantly from the results
that we express in or imply by any of our forward-looking statements. These and other risks are detailed in this prospectus, in
any supplements to this prospectus, in the documents that we incorporate by reference into this prospectus and in other documents
that we file with the SEC. We do not undertake any obligation to publicly update or revise these forward-looking statements after
the date of this prospectus to reflect future events or circumstances. We qualify any and all of our forward-looking statements
by these cautionary factors.
ABOUT NANOVIRICIDES, INC.
This summary highlights
selected information and does not contain all the information that is important to you. You should carefully read this prospectus,
any applicable prospectus supplement and the documents we have referred you to in “Incorporation of Certain Documents by
Reference” on page 14 of this prospectus for information about us and our financial statements as well as “where you
can find more information” on page 14.
Except where the
context otherwise requires, the terms “we,” “us,” “our” or “Nanoviricides” refer
to NanoViricides, Inc.
Our Business
We are an early developmental
stage nano-biopharmaceutical company engaged in the discovery, development and commercialization of anti-viral therapeutics. We
have no customers, products or revenues to date, and may never achieve revenues or profitable operations. Our drugs are based on
several patents, patent applications, provisional patent applications, and other proprietary intellectual property held by TheraCour
Pharma, Inc., one of our principal shareholders, to which we have the licenses in perpetuity for the treatment of the following
human viral diseases:
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• |
Influenza, Asian Bird Flu, and H1N1 “Swine Flu” Viruses; |
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• |
Herpes Simplex Virus (HSV); |
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• |
Human Immunodeficiency Virus (HIV/AIDS); |
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• |
Adenoviral Conjunctivitis and Keratitis, and Ocular Indications of Herpes Simplex Types 1 & 2. |
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• |
Dengue Fever types I, II, III, & IV; |
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• |
Hepatitis B Virus (HBV); |
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• |
Hepatitis C Virus (HCV); |
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• |
Rabies; |
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• |
Ebola and Marburg Viruses; |
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• |
Japanese Encephalitis; and |
| |
• |
West Nile Virus. |
We focus our laboratory
research and pre-clinical programs on specific anti-viral solutions. We are seeking to add to our pipeline of drug candidates through
our internal discovery pre-clinical development programs and through an in-licensing strategy.
Company Information
Our principal executive
offices are located at 135 Wood Street, Suite 205, West Haven, Connecticut 06516. Our telephone number is 203-937-6137. You may
also contact us or obtain additional information through our internet website address at www.nanoviricides.com. Information contained
on our website is not incorporated into this prospectus and is not a part of this prospectus.
RISK FACTORS
You should carefully
consider the Risk Factors contained in our most recent annual report on Form 10-K, as updated or supplemented by subsequent quarterly
reports on Form 10-Q and current reports on Form 8-K to the extent filed, each of which are incorporated herein by reference and
in the supplement to this prospectus before buying any offered securities, as the same may be updated from time to time by our
future filings under the Exchange Act.
USE OF PROCEEDS
Unless the applicable
prospectus supplement states otherwise, we expect to use the net proceeds of the sale of these securities for general corporate
purposes, which may include research and development of pharmaceutical candidates, collaborative arrangements with other companies,
repayment of existing indebtedness, working capital, capital expenditures, acquisitions, joint ventures and stock repurchase programs.
As of the date of this prospectus, we have not identified as probable any specific material proposed uses of these proceeds. If,
as of the date of any prospectus supplement, we have identified any such uses, then we will describe them in the prospectus supplement.
The amount of securities offered from time to time pursuant to this prospectus and any prospectus supplement, and the precise amounts
and timing of the application of net proceeds from the sale of those securities, will depend upon our funding requirements. If
we elect at the time of an issuance of securities to make different or more specific use of proceeds than described in this prospectus,
such use will be described in the prospectus supplement relating to those securities.
PLAN OF DISTRIBUTION
We may sell securities
to one or more underwriters or dealers for public offering and sale by them, or we may sell the securities to investors directly
or through one or more agents or broker dealers, including those engaged solely as agents to facilitate the direct sale of securities
to particular investors. The applicable prospectus supplement will set forth the terms of the offering and the method of distribution
and will identify any firms acting as underwriters, dealers or agents in connection with the offering, including:
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• |
the name or names of any underwriters; |
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• |
the purchase price of the securities; |
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• |
any underwriting discounts and other items constituting underwriters’ compensation; |
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• |
any public offering price and the net proceeds we will receive from such sale; |
| |
• |
any discounts or concessions allowed or reallowed or paid to dealers; and |
| |
• |
any securities exchange or market on which the securities offered in the prospectus supplement may be listed. |
We may distribute
our securities from time to time in one or more transactions at a fixed price or prices, which may be changed, or at prices determined
as the prospectus supplement specifies, including at negotiated prices and in “at-the-market” offerings. We may sell
our securities through a rights offering, forward contracts or similar arrangements.
Any underwriting discounts
or other compensation which we pay to underwriters or agents in connection with the offering of our securities, and any discounts,
concessions or commissions which underwriters allow to dealers, will be set forth in the prospectus supplement. Underwriters may
sell our securities to or through dealers, and such dealers may receive compensation in the form of discounts, concessions or commissions
from the underwriters and commissions from the purchasers for whom they may act as agents. Underwriters, dealers and agents that
participate in the distribution of our securities may be deemed to be underwriters under the Securities Act and any discounts or
commissions they receive from us and any profit on the resale of our securities they realize may be deemed to be underwriting discounts
and commissions under the Securities Act. Any such underwriter or agent will be identified, and any such compensation received
from us, will be described in the applicable supplement to this prospectus. Unless otherwise set forth in the supplement to this
prospectus relating thereto, the obligations of the underwriters or agents to purchase our securities will be subject to conditions
precedent and the underwriters will be obligated to purchase all our offered securities if any are purchased. The public offering
price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.
Any common stock sold
pursuant to this prospectus and applicable prospectus supplement, will be eligible for trading on the NYSE MKT or such other stock
exchange that our securities are trading upon.
Underwriters and their
controlling persons, dealers and agents may be entitled, under agreements entered into with us to indemnification against and contribution
toward specific civil liabilities, including liabilities under the Securities Act.
The securities being
offered under this prospectus, other than our common stock, will be new issues of securities with no established trading market
and unless otherwise specified in the applicable prospectus supplement. It has not presently been established whether the underwriters,
if any, as identified in a prospectus supplement, will make a market in the securities. If the underwriters make a market in the
securities, the market making may be discontinued at any time without notice. We cannot provide any assurance as to the liquidity
of the trading market for the securities.
Unless the applicable
prospectus supplement states otherwise, the obligations of the underwriters to purchase the offered securities will be subject
to certain conditions contained in an underwriting agreement that we will enter into with the underwriters at the time of the sale
to them. The underwriters will be obligated to purchase all of the securities of the series offered if any of the securities are
purchased, unless the applicable prospectus supplement says otherwise. Any initial public offering price and any discounts or concessions
allowed, reallowed or paid to dealers may be changed from time to time.
In connection with
any offering, the underwriters may purchase and sell securities in the open market. Any underwriter may engage in short sales,
over-allotment, stabilizing transactions, short-covering transactions and penalty bids in accordance with Regulation M under the
Exchange Act. Stabilizing transactions permit bidders 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 covering transaction to cover short positions. Those activities
may cause the price of the securities to be higher than it would otherwise be. The underwriters may engage in these activities
on any exchange or other market in which the securities may be traded. If commenced, the underwriters may discontinue these activities
at any time.
We
may also sell securities pursuant to an “equity line of credit”. In such event, we will enter into a common stock purchase
agreement with the purchaser to be named therein, which will be described in a Current Report on Form 8-K that we will file with
the SEC. In that Form 8-K, we will describe the total amount of securities that we may require the purchaser to purchase under
the purchase agreement and the other terms of purchase, and any rights that the purchaser is granted to
purchase securities from us. In addition to our issuance of shares of common stock to the equity line purchaser pursuant to the
purchase agreement, this prospectus (and the applicable prospectus supplement or post-effective amendment) also covers the resale
of those shares from time to time by the equity line purchaser to the public. The equity line purchaser will be considered an “underwriter”
within the meaning of Section 2(a)(11) of the Securities Act. Its resales may be effected through a number of methods, including
without limitation, ordinary brokerage transactions and transactions in which the broker solicits purchasers and block trades in
which the broker or dealer so engaged will attempt to sell the shares as agent, but may position and resell a portion of the block
as principal to facilitate the transaction. The equity line purchaser will be bound by various anti-manipulation rules
of the SEC and may not, for example, engage in any stabilization activity in connection with its resales of our securities and
may not bid for or purchase any of our securities or attempt to induce any person to purchase any of our securities other than
as permitted under the Securities Exchange Act of 1934, as amended, or the Exchange Act.
Fees and Commissions
In compliance with
the guidelines of the Financial Industry Regulatory Authority, or “FINRA,” the aggregate maximum discount, commission
or agency fees or other items constituting underwriting compensation to be received by any FINRA member or independent broker-dealer
will not exceed 8% of any offering pursuant to this prospectus and any applicable prospectus supplement or other offering materials,
as the case may be; however, it is anticipated that the maximum commission or discount to be received in any particular offering
of securities will be significantly less than this amount.
If 5% or more of the
net proceeds of any offering of securities made under this prospectus will be received by a FINRA member participating in the offering
or affiliates or associated persons of such FINRA member, the offering will be conducted in accordance with NASD Conduct Rule 2720.
THE SECURITIES
WE MAY OFFER
We
may sell from time to time, in one or more offerings: common stock; preferred stock, debt securities; and/or warrants or units
comprised of any combination of the foregoing. The descriptions of the securities contained in this prospectus summarize the material
general terms and provisions of the various types of securities that we may offer. We will describe in the applicable prospectus
supplement relating to any securities the particular terms of the securities offered by that prospectus supplement. If we indicate
in the applicable prospectus supplement, the terms of the securities may differ from the terms we have summarized below. We will
also include in the prospectus supplement information, where applicable, about material United States federal income tax considerations
relating to the securities, and the securities exchange or market, if any, on which the securities will be listed.
The
following summary describes the material terms of our capital stock and is subject to, and qualified in its entirety by, our articles
of incorporation and bylaws that are included as exhibits to certain of the documents incorporated by reference below and by the
provisions of applicable Nevada law. We refer you to the foregoing documents and to Nevada law for a detailed description of the
provisions summarized below.
DESCRIPTION
OF COMMON STOCK
General
We
are authorized to issue 85,714,286 shares of common stock, $.001 par value. As of October 31, 2014, there were approximately 56,535,135
shares of common stock issued and outstanding held by approximately 188 holders of record.
If we offer shares
of our common stock for sale under this prospectus, we will provide a prospectus supplement that describes the terms of the offering,
including the number of shares offered and the offering price.
Voting Rights
Each
holder of common stock is entitled to one vote for each share held on all matters submitted to a vote of the stockholders.
Dividends
Subject
to the rights of the holders of any preferred stock, the holders of common stock are entitled to receive ratably such dividends
as may be declared by our board of directors out of funds legally available for dividends. We have not historically declared or
paid cash dividends on our common stock.
Other Rights
In
the event of a liquidation, dissolution or winding up of us, holders of our common stock are entitled to share ratably in all assets
remaining after payment of liabilities and the liquidation preference, if any, of any then outstanding preferred stock. Holders
of our common stock are not entitled to preemptive rights and have no subscription, redemption or conversion privileges. All outstanding
shares of common stock are, and all shares of common stock issued by us in an offering under this prospectus and the applicable
prospectus supplement will be, fully paid and nonassessable. The rights, preferences and privileges of holders of common stock
are subject to, and may be adversely affected by, the rights of the holders of shares of any series of preferred stock which our
board of directors may designate and that we may issue in one or more offerings under this prospectus or at other times in the
future.
Transfer Agent and Registrar
The
transfer agent and registrar for our common stock is Corporate Stock Transfer, Inc., 3200 Cherry Creek Drive South, Suite 430,
Denver, Colorado 80209, (303) 282-4800.
Listing
Our
common stock is listed on the NYSE MKT under the symbol “NNVC.” Any common stock we sell under this prospectus, as
it may be supplemented, will be listed on the NYSE MKT.
DESCRIPTION
OF PREFERRED STOCK
General
We
are authorized to issue up to 5,714,286 shares of preferred stock in one or more series, with such designations, preferences and
relative, participating, option and other special rights, qualifications, limitations or restrictions as determined by our board
of directors, without any further vote or action by our stockholders, including dividend rights, conversion rights, voting rights,
redemption rights and terms of redemption and liquidation preferences. On February 15, 2010, our board had designated an aggregate
of 2,857,143 split-adjusted shares of preferred stock as Series A Convertible Preferred Stock (the “Series A Preferred Stock”).
On April 28, 2014, our board amended the designation to 4,000,000 shares of Series A Preferred Stock and as of October 31, 2014,
3,387,735 shares of Series A Preferred Stock are issued or outstanding and no other shares of preferred stock are issued and outstanding.
On April 1, 2011, our board had designated an aggregate of 2,000,000 shares of preferred stock as Series B Convertible Preferred
Stock (the “Series B”) and no shares of Series B Preferred Stock are issued or outstanding, and no shares are available
for issuance. On June 27, 2012, our board had designated an aggregate of 5,000 shares of preferred stock as Series C Convertible
Preferred Stock (the “Series C”) and no shares of Series C Preferred Stock are issued or outstanding. No other shares
of preferred stock are issued and outstanding.
Our
board may fix the number of shares constituting any series and the designations of these series by adopting a certificate of designation
relating to each series. The prospectus supplement relating to each series will specify the terms of the preferred stock, including:
| • | the number of shares we are offering; |
| • | the offering price for those shares; |
| • | the maximum number of shares in the series and the distinctive designation thereof; |
| • | the terms on which dividends will be paid, if any; |
| • | the terms on which the shares will be redeemed, if at all; |
| • | the liquidation preference, if any; |
| • | the terms of any retirement or sinking fund for the purchase or redemption of the shares of the series; |
| • | the terms and conditions, if any, on which the shares of the series will be convertible into, or exchangeable for, shares of
any other class or classes of capital stock; |
| • | the voting rights, if any, on the shares of the series; |
| • | any securities exchange or market on which the shares will be listed; and |
| • | any other preferences and relative, participating, operation or other special rights or qualifications, limitations or restrictions
of the shares |
You
should also refer to the applicable certificate of designation for complete information about the terms, preferences and rights
related to a particular series of our preferred stock, which we will incorporate as an exhibit to the registration statement of
which this prospectus is a part. The prospectus supplement will contain a description of United States federal income tax consequences
relating to the preferred stock, to the extent applicable.
Our
issuance of preferred stock may have the effect of delaying or preventing a change in control. Our issuance of preferred stock
could decrease the amount of earnings and assets available for distribution to the holders of common stock or could adversely affect
the rights and powers, including voting rights, of the holders of common stock. The issuance of preferred stock could have the
effect of decreasing the market price of our common stock.
Series A Convertible Preferred Stock
The
Series A Preferred Stock is convertible into shares of the our Common Stock at the rate of three and one-half shares of Common
Stock per share of Series A converted, solely upon a “change of control”. A change of control is defined as (a) an
acquisition after the date hereof by an individual or legal entity or “group” (as described in Rule 13d-5(b)(1) promulgated
under the Exchange Act) of effective control (whether through legal or beneficial ownership of capital stock of the Company, by
contract or otherwise) of in excess of 40% of the voting securities of the Company (other than by means of conversion or exercise
of the Series A Preferred Stock and the Securities issued together with the Series A Preferred Stock), (b) the Company merges into
or consolidates with any other Person, or any Person merges into or consolidates with the Company and, after giving effect to such
transaction, the stockholders of the Company immediately prior to such transaction own less than 60% of the aggregate voting power
of the Company or the successor entity of such transaction, (c) the Company sells or transfers all or substantially all of its
Intellectual Property to another Person and the stockholders of the Company prior to such transaction own less than 60% of the
aggregate voting power of the acquiring entity immediately after the transaction, or (d) the execution by the Company of an agreement
to which the Company is a party or by which it is bound, providing for any of the events set forth in clauses (a) through (c) above.
The Series A Preferred Stock votes at the rate of nine votes per share, together with the Common Stock, on all matters to which
shareholders of the Company are entitled to vote. Holders of the Series A Preferred Stock are not entitled to receive dividends
or any liquidation preference upon the liquidation, dissolution, or winding up of the Company.
DESCRIPTION
OF DEBT SECURITIES
General
The
debt securities that we may offer by this prospectus consist of notes, debentures, or other evidences of indebtedness. The
debt securities may constitute either senior or subordinated debt securities, and in either case may be either secured or unsecured. Any
debt securities that we offer and sell will be our direct obligations. Debt securities may be issued in one or more series. All
debt securities of any one series need not be issued at the same time, and unless otherwise provided, a series of debt securities
may be reopened, with the required consent of the holders of outstanding debt securities, for issuance of additional debt securities
of that series or to establish additional terms of that series of debt securities (with such additional terms applicable only to
unissued or additional debt securities of that series). The form of indenture has been filed as an exhibit to the registration
statement of which this prospectus is a part and is subject to any amendments or supplements that we may enter into with the trustee(s),
however, we may issue debt securities not subject to the indenture provided such terms of debt securities are not otherwise required
to be set forth in the indenture. The material terms of the indenture are summarized below and we refer you to the indenture for
a detailed description of these material terms. Additional or different provisions that are applicable to a particular series of
debt securities will, if material, be described in a prospectus supplement relating to the offering of debt securities of that
series. These provisions may include, among other things and to the extent applicable, the following:
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the title of the debt securities, including, as applicable, whether the debt securities will be issued as senior debt securities, senior subordinated debt securities or subordinated debt securities, any subordination provisions particular to the series of debt securities; |
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any limit on the aggregate principal amount of the debt securities; |
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whether the debt securities are senior debt securities or subordinated debt securities and applicable subordination provisions, if any; |
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whether the debt securities will be secured or unsecured; |
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if other than 100% of the aggregate principal amount, the percentage of the aggregate principal amount at which we will sell the debt securities, such as an original issuance discount; |
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the date or dates, whether fixed or extendable, on which the principal of the debt securities will be payable; |
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the rate or rates, which may be fixed or variable, at which the debt securities will bear interest, if any, the date or dates from which any such interest will accrue, the interest payment dates on which we will pay any such interest, the basis upon which interest will be calculated if other than that of a 360-day year consisting of twelve 30-day months, and, in the case of registered securities, the record dates for the determination of holders to whom interest is payable; |
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the place or places where the principal of and any premium or interest on the debt securities will be payable and where the debt securities may be surrendered for conversion or exchange; |
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whether we may, at our option, redeem the debt securities, and if so, the price or prices at which, the period or periods within which, and the terms and conditions upon which, we may redeem the debt securities, in whole or in part, pursuant to any sinking fund or otherwise; |
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if other than 100% of the aggregate principal amount thereof, the portion of the principal amount of the debt securities which will be payable upon declaration of acceleration of the maturity date thereof or provable in bankruptcy, or, if applicable, which is convertible or exchangeable; |
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any obligation we may have to redeem, purchase or repay the debt securities pursuant to any sinking fund or analogous provisions or at the option of a holder of debt securities, and the price or prices at which, the currency in which and the period or periods within which, and the terms and conditions upon which, the debt securities will be redeemed, purchased or repaid, in whole or in part, pursuant to any such obligation, and any provision for the remarketing of the debt securities; |
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the issuance of debt securities as registered securities or unregistered securities or both, and the rights of the holders of the debt securities to exchange unregistered securities for registered securities, or vice versa, and the circumstances under which any such exchanges, if permitted, may be made; |
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the denominations, which may be in United States Dollars or in any foreign currency, in which the debt securities will be issued, if other than denominations of $1,000 and any integral multiple thereof; |
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whether the debt securities will be issued in the form of certificated debt securities, and if so, the form of the debt securities (or forms thereof if unregistered and registered securities are issuable in that series), including the legends required by law or as we deem necessary or appropriate, the form of any coupons or temporary global security which may be issued and the forms of any other certificates which may be required under the indenture or which we may require in connection with the offering, sale, delivery or exchange of the debt securities; |
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if other than United States Dollars, the currency or currencies in which payments of principal, interest and other amounts payable with respect to the debt securities will be denominated, payable, redeemable or repurchasable, as the case may be; |
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whether the debt securities may be issuable in tranches; |
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the obligations, if any, we may have to permit the conversion or exchange of the debt securities into common stock, preferred stock or other capital stock or property, or a combination thereof, and the terms and conditions upon which such conversion or exchange will be effected (including conversion price or exchange ratio), and any limitations on the ownership or transferability of the securities or property into which the debt securities may be converted or exchanged; |
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if other than the trustee under the indenture, any trustees, authenticating or paying agents, transfer agents or registrars or any other agents with respect to the debt securities; |
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any deletions from, modifications of or additions to the events of default with respect to the debt securities or the right of the Trustee or the holders of the debt securities in connection with events of default; |
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any deletions from, modifications of or additions to the covenants with respect to the debt securities; |
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if the amount of payments of principal of, and make-whole amount, if any, and interest on the debt securities may be determined with reference to an index, the manner in which such amount will be determined; |
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whether the debt securities will be issued in whole or in part in the global form of one or more debt securities and, if so, the depositary for such debt securities, the circumstances under which any such debt security may be exchanged for debt securities registered in the name of, and under which any transfer of debt securities may be registered in the name of, any person other than such depositary or its nominee, and any other provisions regarding such debt securities; |
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whether, under what circumstances and the currency in which, we will pay additional amounts on the debt securities to any holder of the debt securities who is not a United States person in respect of any tax, assessment or governmental charge and, if so, whether we will have the option to redeem such debt securities rather than pay such additional amounts, and the terms of any such option; |
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whether the debt securities will be secured by any collateral and, if so, a general description of the collateral and the terms of any related security, pledge or other agreements; |
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the persons to whom any interest on the debt securities will be payable, if other than the registered holders thereof on the regular record date therefor; and |
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any other material terms or conditions upon which the debt securities will be issued. |
Unless
otherwise indicated in the applicable prospectus supplement, we will issue debt securities in fully registered form without coupons
and in denominations of $1,000 and in integral multiples of $1,000, and interest will be computed on the basis of a 360-day year
of twelve 30 day months. If any interest payment date or the maturity date falls on a day that is not a business day, then
the payment will be made on the next business day without additional interest and with the same effect as if it were made on the
originally scheduled date. “Business day” means any calendar day that is not a Saturday, Sunday or legal holiday in
New York, New York, and on which the trustee and commercial banks are open for business in New York, New York.
Unless we inform you
otherwise in a prospectus supplement, each series of our senior debt securities will rank equally in right of payment with all
of our other unsubordinated debt. The subordinated debt securities will rank junior in right of payment and be subordinate to all
of our unsubordinated debt.
Unless
otherwise indicated in the applicable prospectus supplement, the trustee will act as paying agent and registrar for the debt securities
under the indenture. We may act as paying agent under the indenture.
The
prospectus supplement will contain a description of United States federal income tax consequences relating to the debt securities,
to the extent applicable.
Covenants
The
applicable prospectus supplement will describe any covenants, such as restrictive covenants restricting us or our subsidiaries,
if any, from incurring, issuing, assuming or guarantying any indebtedness or restricting us or our subsidiaries, if any, from paying
dividends or acquiring any of our or its capital stock.
Consolidation,
Merger and Transfer of Assets
The
indenture permits a consolidation or merger between us and another entity and/or the sale, conveyance or lease by us of all or
substantially all of our property and assets, provided that:
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the resulting or acquiring entity, if other than us, is organized and existing under the laws of a United States jurisdiction and assumes all of our responsibilities and liabilities under the indenture, including the payment of all amounts due on the debt securities and performance of the covenants in the indenture; |
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immediately after the transaction, and giving effect to the transaction, no event of default under the indenture exists; and |
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we have delivered to the trustee an officers’ certificate stating that the transaction and, if a supplemental indenture is required in connection with the transaction, the supplemental indenture comply with the indenture and that all conditions precedent to the transaction contained in the indenture have been satisfied. |
If
we consolidate or merge with or into any other entity, or sell or lease all or substantially all of our assets in compliance with
the terms and conditions of the indenture, the resulting or acquiring entity will be substituted for us in the indenture and the
debt securities with the same effect as if it had been an original party to the indenture and the debt securities. As a result,
such successor entity may exercise our rights and powers under the indenture and the debt securities, in our name and, except in
the case of a lease, we will be released from all our liabilities and obligations under the indenture and under the debt securities.
Notwithstanding
the foregoing, we may transfer all of our property and assets to another entity if, immediately after giving effect to the transfer,
such entity is our wholly owned subsidiary. The term “wholly owned subsidiary” means any subsidiary in which we and/or
our other wholly owned subsidiaries, if any, own all of the outstanding capital stock.
Modification and Waiver
Under
the indenture, some of our rights and obligations and some of the rights of the holders of the debt securities may be modified
or amended with the consent of the holders of not less than a majority in aggregate principal amount of the outstanding debt securities
affected by the modification or amendment. However, the following modifications and amendments will not be effective against any
holder without its consent:
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a change in the stated maturity date of any payment of principal or interest; |
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a reduction in the principal amount of or interest on any debt securities; |
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an alteration or impairment of any right to convert at the rate or upon the terms provided in the indenture; |
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a change in the currency in which any payment on the debt securities is payable; |
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an impairment of a holder’s right to sue us for the enforcement of payments due on the debt securities; or |
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a reduction in the percentage of outstanding debt securities required to consent to a modification or amendment of the indenture or required to consent to a waiver of compliance with certain provisions of the indenture or certain defaults under the indenture. |
Under
the indenture, the holders of not less than a majority in aggregate principal amount of the outstanding debt securities may, on
behalf of all holders of the debt securities:
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waive compliance by us with certain restrictive provisions of the indenture; and |
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waive any past default under the indenture in accordance with the applicable provisions of the indenture, except a default in the payment of the principal of or interest on any series of debt securities. |
Events of Default
Unless
we indicate otherwise in the applicable prospectus supplement, “event of default” under the indenture will mean, with
respect to any series of debt securities, any of the following:
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failure to pay interest on any debt security for 30 days after the payment is due; |
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failure to pay the principal of any debt security when due, either at maturity, upon redemption, by declaration or otherwise; |
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failure on our part to observe or perform any other covenant or agreement in the indenture that applies to the debt securities for 90 days after we have received written notice of the failure to perform in the manner specified in the indenture; and |
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certain events of bankruptcy, insolvency or reorganization. |
Remedies Upon
an Event of Default
If
an event of default occurs and continues, the trustee or the holders of not less than 25% in aggregate principal amount of the
outstanding debt securities of such series may declare the entire principal of all the debt securities to be due and payable immediately,
except that, if the event of default is caused by certain events in bankruptcy, insolvency or reorganization, the entire principal
of all of the debt securities of such series will become due and payable immediately without any act on the part of the trustee
or holders of the debt securities. If such a declaration occurs, the holders of a majority of the aggregate principal amount of
the outstanding debt securities of such series can, subject to conditions, rescind the declaration.
The
indenture requires us to furnish to the trustee not less often than annually, a certificate from our principal executive officer,
principal financial officer or principal accounting officer, as the case may be, as to such officer’s knowledge of our compliance
with all conditions and covenants under the indenture. The trustee may withhold notice to the holders of debt securities of any
default, except defaults in the payment of principal of or interest on any debt securities if the trustee in good faith determines
that the withholding of notice is in the best interests of the holders. For purposes of this paragraph, “default” means
any event which is, or after notice or lapse of time or both would become, an event of default under the indenture.
The
trustee is not obligated to exercise any of its rights or powers under the indenture at the request, order or direction of any
holders of debt securities, unless the holders offer the trustee satisfactory security or indemnity. If satisfactory security or
indemnity is provided, then, subject to other rights of the trustee, the holders of a majority in aggregate principal amount of
the outstanding debt securities may direct the time, method and place of:
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conducting any proceeding for any remedy available to the trustee; or |
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exercising any trust or power conferred upon the trustee. |
The
holder of a debt security will have the right to begin any proceeding with respect to the indenture or for any remedy only if:
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the holder has previously given the trustee written notice of a continuing event of default; |
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the holders of not less than a majority in aggregate principal amount of the outstanding debt securities have made a written request of, and offered reasonable indemnity to, the trustee to begin such proceeding; |
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the trustee has not started such proceeding within 60 days after receiving the request; and |
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no direction inconsistent with such written request has been given to the trustee under the indenture. |
However,
the holder of any debt security will have an absolute right to receive payment of principal of and interest on the debt security
when due and to institute suit to enforce this payment.
Satisfaction and Discharge; Defeasance
Satisfaction
and Discharge of Indenture. Unless otherwise indicated in the applicable prospectus supplement, if at any time,
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we have paid the principal of and interest on all the debt securities of any series, except for debt securities which have been destroyed, lost or stolen and which have been replaced or paid in accordance with the indenture, as and when the same shall have become due and payable, or |
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we have delivered to the trustee for cancellation all debt securities of any series theretofore authenticated, except for debt securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in the indenture, or |
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all the debt securities of such series not theretofore delivered to the trustee for cancellation have become due and payable, or are by their terms are to become due and payable within one year or are to be called for redemption within one year, and we have deposited with the trustee, in trust, sufficient money or government obligations, or a combination thereof, to pay the principal, any interest and any other sums due on the debt securities, on the dates the payments are due or become due under the indenture and the terms of the debt securities, |
then
the indenture shall cease to be of further effect with respect to the debt securities of such series, except for:
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rights of registration of transfer and exchange, and our right of optional redemption; |
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substitution of mutilated, defaced, destroyed, lost or stolen debt securities; |
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rights of holders to receive payments of principal thereof and interest thereon upon the original stated due dates therefor (but not upon acceleration) and remaining rights of the holders to receive mandatory sinking fund payments, if any; |
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the rights, obligations and immunities of the trustee under the indenture; and |
| • | the rights of the holders of such series of debt securities
as beneficiaries thereof with respect to the property so deposited with the trustee payable to all or any of them. |
Defeasance
and Covenant Defeasance. Unless otherwise indicated in the applicable prospectus supplement, we may elect with respect
to any debt securities of any series either:
| • | to defease and be discharged from all of our obligations
with respect to such debt securities (“defeasance”), with certain exceptions described below; or |
| • | to be released from our obligations with respect to such
debt securities under such covenants as may be specified in the applicable prospectus supplement, and any omission to comply with
those obligations will not constitute a default or an event of default with respect to such debt securities (“covenant defeasance”). |
We
must comply with the following conditions before the defeasance or covenant defeasance can be effected:
| • | we must irrevocably deposit with the indenture trustee
or other qualifying trustee, under the terms of an irrevocable trust agreement in form and substance satisfactory to the trustee,
trust funds in trust solely for the benefit of the holders of such debt securities, sufficient money or government obligations,
or a combination thereof, to pay the principal, any interest and any other sums on the due dates for those payments; and |
| • | we must deliver to the trustee an opinion of counsel
to the effect that the holders of such debt securities will not recognize income, gain or loss for federal income tax purposes
as a result of defeasance or covenant defeasance, as the case may be, to be effected with respect to such debt securities and
will be subject to federal income tax on the same amount, in the same manner and at the same times as would be the case if such
defeasance or covenant defeasance, as the case may be, had not occurred. |
In
connection with defeasance, any irrevocable trust agreement contemplated by the indenture must include, among other things, provision
for:
| • | payment of the principal of and interest on such debt
securities, if any, appertaining thereto when due (by redemption, sinking fund payments or otherwise), |
| • | the payment of the expenses of the trustee incurred or
to be incurred in connection with carrying out such trust provisions, |
| • | rights of registration, transfer, substitution and exchange
of such debt securities in accordance with the terms stated in the indenture, and |
| • | continuation of the rights, obligations and immunities
of the trustee as against the holders of such debt securities as stated in the indenture. |
The
accompanying prospectus supplement may further describe any provisions permitting or restricting defeasance or covenant defeasance
with respect to the debt securities of a particular series.
Global Securities
Unless
otherwise indicated in the applicable prospectus supplement, each debt security offered by this prospectus will be issued in the
form of one or more global debt securities representing all or part of that series of debt securities. This means that we will
not issue certificates for that series of debt securities to the holders. Instead, a global debt security representing that series
will be deposited with, or on behalf of, a securities depositary and registered in the name of the depositary or a nominee of the
depositary. Any such depositary must be a clearing agency registered under the Exchange Act. We will describe the specific terms
of the depositary arrangement with respect to a series of debt securities to be represented by a global security in the applicable
prospectus supplement.
Notices
We
will give notices to holders of the debt securities by mail at the addresses listed in the security register. In the case of notice
in respect of unregistered securities or coupon securities, we may give notice by publication in a newspaper of general circulation
in New York, New York.
Governing Law
The
particular terms of a series of debt securities will be described in a prospectus supplement relating to such series of debt securities.
Any indentures will be subject to and governed by the Trust Indenture Act of 1939, as amended, and may be supplemented or amended
from time to time following their execution. Unless otherwise stated in the applicable prospectus supplement, we will not be limited
in the amount of debt securities that we may issue, and neither the senior debt securities nor the subordinated debt securities
will be secured by any of our property or assets. Thus, by owning debt securities, you are one of our unsecured creditors.
Regarding the
Trustee
From
time to time, we may maintain deposit accounts and conduct other banking transactions with the trustee to be appointed under the
indenture or its affiliates in the ordinary course of business.
DESCRIPTION
OF WARRANTS
We
may offer to sell warrants from time to time. If we do so, we will describe the specific terms of the warrants in a prospectus
supplement. In particular, we may issue warrants for the purchase of common stock, preferred stock and/or debt securities in one
or more series. We may also issue warrants independently or together with other securities and the warrants may be attached to
or separate from those securities.
We
will evidence each series of warrants by warrant certificates that we will issue under a separate agreement. We will enter into
the warrant agreement with a warrant agent. We will indicate the name and address of the warrant agent in the applicable prospectus
supplement relating to a particular series of warrants.
We
will describe in the applicable prospectus supplement the terms of the series of warrants, including:
| • | the offering price and aggregate number of warrants offered; |
| • | the currency for which the warrants may be purchased; |
| • | if applicable, the designation and terms of the securities
with which the warrants are issued and the number of warrants issued with each such security or each principal amount of such
security; |
| • | if applicable, the date on and after which the warrants
and the related securities will be separately transferable; |
| • | in the case of warrants to purchase 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; |
| • | 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; |
| • | the effect of any merger, consolidation, sale or other
disposition of our business on the warrant agreement and the warrants; |
| • | the terms of any rights to redeem or call the warrants; |
| • | any provisions for changes to or adjustments in the exercise
price or number of securities issuable upon exercise of the warrants; |
| • | the dates on which the right to exercise the warrants
will commence and expire; |
| • | the manner in which the warrant agreement and warrants
may be modified; |
| • | certain United States federal income tax consequences
of holding or exercising the warrants; |
| • | the terms of the securities issuable upon exercise of
the warrants; and |
| • | any other specific material terms, preferences, rights
or limitations of or restrictions on the warrants. |
You
may exercise the warrants by delivering the warrant certificate representing the warrants to be exercised together with other requested
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 applicable prospectus supplement the information that the holder of the warrant
will be required to deliver to the warrant agent.
Upon
receipt of the required payment and the warrant certificate properly completed and duly executed at the 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 you exercise fewer than all of the warrants represented by the warrant certificate, then we will issue you a
new warrant certificate for the remaining amount of warrants.
You
will not have any of the rights of the holders of the securities purchasable upon the exercise of warrants until you exercise them.
Accordingly, you will not be entitled to, among other things, vote or receive dividend payments or similar distributions on the
securities you can purchase upon exercise of the warrants.
The
information provided above is only a summary of the terms under which we may offer warrants for sale. Accordingly, please carefully
review the applicable warrant agreement for more information about the specific terms and conditions of these warrants before investing
in us. In addition, please carefully review the information provided in the applicable prospectus supplement, which contains additional
information that is important for you to consider in evaluating an investment in our securities.
LEGAL MATTERS
Certain legal matters
with respect to the validity of the securities offered under this prospectus and any supplement hereto will be passed upon for
us by Kane Kessler, P.C., New York, New York. Counsel for any underwriter or agents will be noted in the applicable prospectus
supplement.
EXPERTS
The financial statements
and the related financial statement schedule, incorporated in this Prospectus by reference from our Annual Report on Form 10-K
for the year ended June 30, 2014 have been audited by Li & Company, PC, an independent registered public accounting firm, as
stated in their report dated September 29, 2014, which is incorporated herein by reference, and have been so incorporated in reliance
upon the report of such firm given upon their authority as experts in accounting and auditing.
WHERE YOU CAN FIND
MORE INFORMATION
We file annual, quarterly
and special reports, proxy statements and other information with the SEC. You may read and copy any documents that we have filed
with the SEC at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330
for further information on the public reference room. Our Securities and Exchange Commission filings are also available to the
public at the Securities and Exchange Commission’s website at http://www.sec.gov.
This prospectus is
part of a registration statement that we filed with the SEC. This prospectus and any subsequent prospectus supplements do not contain
all of the information in the registration statement as permitted by the rules and regulations of the SEC. You can obtain a copy
of the registration statement from the SEC at the address listed above or from the SEC’s web site listed above.
INCORPORATION OF
CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us
to “incorporate by reference” some of the documents we file with it into this prospectus, which means:
| • | we can disclose important information to you by referring you to those documents; |
| • | the information incorporated by reference is considered to be part of this prospectus; and |
| • | later information that we file with the SEC will automatically update and supersede this incorporated
information. |
We incorporate by
reference the documents listed below, which were filed with the SEC under the Exchange Act:
| • | our Annual Report on Form 10-K for the fiscal year ended June 30, 2014, filed with the SEC
on September 29, 2014, and as amended on September 30, 2014; |
| • | our Form 8-K (Item 8.01) filed September 5, 2014; |
| • | our Form 8-K (Items 1.01, 2.03, 3.02 and 9.01) filed July 9, 2014; |
| • | our Form 8-K (Item 3.03) filed June 25, 2014; |
| • | our Form 8-K (Item 7.01 and 9.01) filed on June 2, 2014; |
| • | our Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2014, filed with the SEC
on May 15, 2014; |
| • | our Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2013, filed with the
SEC on November 14, 2013, and as amended on November 18, 2013; |
| • | our Form 8-K (Item 3.03) filed on February 26, 2014 and as amended on February 28, 2014; and |
| • | our Quarterly Report on Form 10-Q for the fiscal quarter ended December 31, 2013, filed with the
SEC on February 14, 2014. |
All documents filed
under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (not including any information furnished under Item 2.02 or Item 7.01
of Form 8-K, which information is not incorporated by reference herein), after the date of this prospectus and prior to the termination
of this offering shall be deemed to be incorporated by reference in this prospectus and to be part of this prospectus from the
date they are filed. In addition, all documents filed pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after
the date of the initial registration statement and prior to the effectiveness of the registration statement of which this prospectus
forms a part shall be deemed to be incorporated by reference in this prospectus and to be part of this prospectus from the date
they are filed.
You should assume
that the information appearing in this prospectus is accurate as of the date of this prospectus only. Our business, financial position
and results of operations may have changed since that date.
We will provide without
charge to each person, including any beneficial owner, to whom a prospectus is delivered, upon written or oral request of that
person, a copy of any and all of the information that has been incorporated by reference in this prospectus (excluding exhibits
unless specifically incorporated by reference into those documents). Please direct requests to us at the following address:
NANOVIRICIDES, INC.
135 Wood Street
Suite 205
West Haven, Connecticut 06516
(203) 937-6137
NANOVIRICIDES, INC.
$50,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
We have not authorized any dealer, salesperson
or other person to give you written information other than this prospectus or to make representations as to matters not stated
in this prospectus. You must not rely on unauthorized information. This prospectus is not an offer to sell these securities or
our solicitation of your offer to buy the securities in any jurisdiction where that would not be permitted or legal. Neither the
delivery of this prospectus nor any of the sales made hereunder after the date of this prospectus shall create an implication that
the information contained herein or our affairs have not changed since the date hereof.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 14. |
Other Expenses of Issuance and Distribution. |
The following is a
statement of the estimated costs and expenses (other than underwriting compensation) incurred or expected to be incurred by us
in connection with the issuance and distribution of an assumed amount of $50,000,000 of securities being registered pursuant to
this Registration Statement, other than underwriting discounts and commissions, estimated to be at eight percent (8%) of the proceeds
raised. The assumed amount has been used to demonstrate the costs and expenses of an offering and does not represent an estimate
of the amount of securities that may be registered or distributed because such amount is unknown at this time:
| Securities and Exchange Commission Registration Fee | |
$ | 5,810 | |
| Legal Fees and Expenses | |
$ | 40,000 | |
| Accounting Fees and Expenses | |
$ | 5,000 | |
| Printing and Engraving Expenses | |
$ | 5,000 | |
| Miscellaneous (including any applicable listing fees, trustee and transfer agent fees and expenses) | |
$ | 20,000 | |
| TOTAL | |
$ | 75,810 | |
*These fees are not presently known and cannot be estimated
at this time as they are based upon the amount and type of security being offered as well as the number of offerings.
| Item 15. |
Indemnification of Directors and Officers. |
Neither our Articles
of Incorporation nor Bylaws prevent us from indemnifying our officers, directors and agents to the extent permitted under the Nevada
Revised Statute ("NRS"). NRS Section 78.7502, provides that a corporation shall indemnify any director, officer, employee
or agent of a corporation against expenses, including attorneys’ fees, actually and reasonably incurred by him in connection
with any the defense to the extent that a director, officer, employee or agent of a corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to Section 78.7502(1) or 78.7502(2), or in defense of any claim,
issue or matter therein. NRS 78.7502(1) provides that a corporation may indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative, except an action by or in the right of the corporation, by reason of the fact that he is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses, including attorneys’
fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with the action, suit
or proceeding if he: (a) is not liable pursuant to NRS 78.138; or (b) acted in good faith and in a manner which he reasonably believed
to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
NRS Section 78.7502(2)
provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact
that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against
expenses, including amounts paid in settlement and attorneys’ fees actually and reasonably incurred by him in connection
with the defense or settlement of the action or suit if he: (a) is not liable pursuant to NRS 78.138; or (b) acted in good faith
and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation.
Insofar as indemnification
for liabilities arising under the Securities Act of 1933, as amended, may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, we have 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 of indemnification against such liabilities (other than the payment by us of expenses incurred or paid
by a director, officer or controlling person of ours in the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the securities being registered, we will, unless in the opinion
of our counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by us is against public policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The exhibits required to be filed as a
part of this Registration Statement are listed in the Exhibit Index attached hereto and incorporated herein by reference.
(a) The undersigned
registrant hereby undertakes:
(1) to file,
during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act of 1933.
(ii) To reflect
in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To
include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
provided, however ,
that paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained
in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(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 purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that
is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof.
(6) That,
for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchase 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 the purchaser:
(i)
any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to
Rule 424;
(ii)
any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred
to by the undersigned registrant;
(iii)
the portion of any other free writing prospectus relating to the offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv)
any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) 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 SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liability (other than a 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 proceedings)
is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will
be governed by the final adjudication of such issue.
(c)
The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee
to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by
the SEC under Section 305(b)(2) of such Act.
SIGNATURES
Pursuant to the requirements
of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be singed on its behalf by the undersigned, thereunto
duly authorized, in the City of West Haven, State of Connecticut, on October 31, 2014.
| |
NANOVIRICIDES, INC. |
| |
|
|
| |
By: |
/s/ Eugene Seymour |
| |
Name: |
Eugene Seymour, MD MPH |
| |
Title: |
Chief Executive Officer, Director |
Pursuant to the requirements
of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the
dates indicated.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/ Anil Diwan |
|
President and Chairman |
|
October 31, 2014 |
| Anil Diwan |
|
|
|
|
| |
|
|
|
|
| /s/ Eugene Seymour |
|
Chief Executive Officer (Principal executive |
|
October 31, 2014 |
| Eugene Seymour |
|
officer) |
|
|
| |
|
|
|
|
| /s/ Meeta Vyas |
|
Chief Financial Officer (Principal financial and |
|
October 31, 2014 |
| Meeta Vyas |
|
accounting officer) |
|
|
| |
|
|
|
|
| /s/ Milton Boniuk |
|
Director |
|
October 31, 2014 |
| Milton Boniuk |
|
|
|
|
| |
|
|
|
|
| /s/ Stanley Glick |
|
Director |
|
October 31, 2014 |
| Stanley Glick |
|
|
|
|
| |
|
|
|
|
| /s/ Mukund Kulkarni |
|
Director |
|
October 31, 2014 |
| Mukund Kulkarni |
|
|
|
|
POWER OF ATTORNEY
Know all persons by
these presents that each individual whose signature appears below constitutes and appoints Eugene Seymour, our Chief Executive
Officer, Principal Executive Officer and a director, as a true and lawful attorney-in-fact and agent, with full power of substitution
and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this registration statement, and to sign any registration statement for the same offering covered
by this registration statement that is to be effective upon filing under Rule 462 promulgated under the Securities Act of 1933,
and all pre-and post-effective amendments thereto, and to file the same, with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises,
as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or any one of them, or his or their substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements
of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the
dates indicated.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/ Anil Diwan |
|
President and Chairman |
|
October 31, 2014 |
| Anil Diwan |
|
|
|
|
| |
|
|
|
|
| /s/ Eugene Seymour |
|
Chief Executive Officer (Principal executive |
|
October 31, 2014 |
| Eugene Seymour |
|
officer) |
|
|
| |
|
|
|
|
| /s/ Meeta Vyas |
|
Chief Financial Officer (Principal financial and |
|
October 31, 2014 |
| Meeta Vyas |
|
accounting officer) |
|
|
| |
|
|
|
|
| /s/ Milton Boniuk |
|
Director |
|
October 31, 2014 |
| Milton Boniuk |
|
|
|
|
| |
|
|
|
|
| /s/ Stanley Glick |
|
Director |
|
October 31, 2014 |
| Stanley Glick |
|
|
|
|
| |
|
|
|
|
| /s/ Mukund Kulkarni |
|
Director |
|
October 31, 2014 |
| Mukund Kulkarni |
|
|
|
|
EXHIBIT INDEX
| Exhibit |
|
Description |
| |
|
|
| 1.1 |
|
Form of Underwriting Agreement* |
| |
|
|
| 4.1 |
|
Specimen stock certificate for common stock (incorporated by reference to Form 10-SB, filed November 11, 2006) |
| |
|
|
| 4.2 |
|
Form of certificate of designation for preferred stock* |
| |
|
|
| 4.3 |
|
Form of Indenture relating to the issuance from time to time in
one or more series of debentures, notes, bonds or other evidences of indebtedness(1) |
| 4.4 |
|
Form of senior debt security* |
| |
|
|
| 4.5 |
|
Form of subordinated debt security* |
| |
|
|
| 4.6 |
|
Form of warrant agreement* |
| |
|
|
| 5.1 |
|
Opinion of Counsel as to legality of securities being registered(1) |
| |
|
|
| 23.1 |
|
Consent of Counsel (contained in Exhibit 5) |
| |
|
|
| 23.2 |
|
Consent of Li & Company, PC, Independent Registered Public Accounting Firm(1) |
| |
|
|
| 24 |
|
Power of Attorney (included on signature page) |
| |
|
|
| 25 |
|
Form T-1 Statement of Eligibility of Trustee under the Trust Indenture Act of 1939, as amended** |
| * | To be filed, if necessary, with a Current Report on Form 8-K or a Post-Effective Amendment to the registration statement. |
| ** | To be filed pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939. |
Exhibit 4.3
NANOVIRICIDES, INC.
AND
_______________________,
TRUSTEE
____________________
INDENTURE
DATED AS OF
_______, 2014
DEBT SECURITIES
NANOVIRICIDES, INC.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF _______ ___, 2014
| Section of Trust Indenture Act of 1939 |
|
Section(s) of Indenture |
| |
|
|
| § 310 |
(a)(1) |
|
609 |
| |
(a)(2) |
|
609 |
| |
(a)(3) |
|
Not Applicable |
| |
(a)(4) |
|
Not Applicable |
| |
(a)(5) |
|
609 |
| |
(b) |
|
608, 610 |
| § 311 |
(a) |
|
613 |
| |
(b) |
|
613 |
| |
(c) |
|
Not Applicable |
| § 312 |
(a) |
|
701, 702 (a) |
| |
(b) |
|
702 (b) |
| |
(c) |
|
702 (b) |
| § 313 |
(a) |
|
703 (a) |
| |
(b) |
|
703 (a) |
| |
(c) |
|
703 (a) |
| |
(d) |
|
703 (b) |
| § 314 |
(a) |
|
704, 1005 |
| |
(b) |
|
Not Applicable |
| |
(c)(1) |
|
103 |
| |
(c)(2) |
|
103 |
| |
(c)(3) |
|
Not Applicable |
| |
(d) |
|
Not Applicable |
| |
(e) |
|
103 |
| § 315 |
(a) |
|
601 (a) |
| |
(b) |
|
602 |
| |
(c) |
|
601 (b) |
| |
(d) |
|
601 (c) |
| |
(d)(1) |
|
601 (c) (1) |
| |
(d)(2) |
|
601 (c) (2) |
| |
(d)(3) |
|
601 (c) (3) |
| |
(e) |
|
511 |
| § 316 |
(a)(1)(A) |
|
505 |
| |
(a)(1)(B) |
|
504 |
| |
(a)(2) |
|
Not Applicable |
| |
(a)(last sentence) |
|
101 |
| |
(b) |
|
507 |
| § 317 |
(a)(1) |
|
503 |
| |
(a)(2) |
|
509 |
| |
(b) |
|
1003 |
| |
§ 318(a) |
|
108 |
| |
(b) |
|
Not Applicable |
| |
(c) |
|
108 |
| Note: | This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture. |
TABLE OF CONTENTS
| |
|
Page |
| |
|
|
| ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
1 |
| |
|
|
| SECTION 101. |
DEFINITIONS. |
1 |
| SECTION 102. |
INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. |
8 |
| SECTION 103. |
COMPLIANCE CERTIFICATES AND OPINIONS |
9 |
| SECTION 104. |
FORM OF DOCUMENTS DELIVERED TO TRUSTEE |
9 |
| SECTION 105. |
ACTS OF HOLDERS; RECORD DATES |
10 |
| SECTION 106. |
NOTICES, ETC., TO TRUSTEE AND COMPANY |
11 |
| SECTION 107. |
NOTICE TO HOLDERS; WAIVER |
11 |
| SECTION 108. |
CONFLICT WITH TRUST INDENTURE ACT |
12 |
| SECTION 109. |
EFFECT OF HEADINGS AND TABLE OF CONTENTS |
12 |
| SECTION 110. |
SUCCESSORS AND ASSIGNS |
12 |
| SECTION 111. |
SEPARABILITY CLAUSE |
12 |
| SECTION 112. |
BENEFITS OF INDENTURE |
12 |
| SECTION 113. |
GOVERNING LAW |
13 |
| SECTION 114. |
LEGAL HOLIDAYS |
13 |
| SECTION 115. |
CORPORATE OBLIGATION |
13 |
| SECTION 116. |
WAIVER OF TRIAL JURY |
13 |
| SECTION 117. |
FORCE MAJEURE |
13 |
| |
|
|
| ARTICLE II SECURITY FORMS |
13 |
| |
|
|
| SECTION 201. |
FORMS GENERALLY |
13 |
| SECTION 202. |
FORM OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION |
14 |
| SECTION 203. |
SECURITIES IN GLOBAL FORM |
14 |
| SECTION 204. |
BOOK-ENTRY SECURITIES |
15 |
| |
|
|
| ARTICLE III THE SECURITIES |
16 |
| |
|
|
| SECTION 301. |
AMOUNT UNLIMITED; ISSUABLE IN SERIES |
16 |
| SECTION 302. |
DENOMINATIONS |
19 |
| SECTION 303. |
EXECUTION, AUTHENTICATION, DELIVERY AND DATING |
19 |
| SECTION 304. |
TEMPORARY SECURITIES |
20 |
| SECTION 305. |
REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE |
21 |
| SECTION 306. |
MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES |
22 |
| SECTION 307. |
PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED |
23 |
| SECTION 308. |
PERSONS DEEMED OWNERS |
24 |
| SECTION 309. |
CANCELLATION |
24 |
| SECTION 310. |
COMPUTATION OF INTEREST |
24 |
| SECTION 311. |
CUSIP NUMBERS |
25 |
| |
|
|
| ARTICLE IV SATISFACTION AND DISCHARGE; LEGAL DEFEASANCE AND COVENANT DEFEASANCE |
25 |
| |
|
|
| SECTION 401. |
SATISFACTION AND DISCHARGE OF INDENTURE |
25 |
| SECTION 402. |
OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE |
26 |
| SECTION 403. |
LEGAL DEFEASANCE AND DISCHARGE |
26 |
| SECTION 404. |
COVENANT DEFEASANCE |
26 |
| SECTION 405. |
CONDITIONS TO LEGAL OR COVENANT DEFEASANCE |
27 |
| SECTION 406. |
DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS |
28 |
| SECTION 407. |
REPAYMENT TO COMPANY |
29 |
| SECTION 408. |
REINSTATEMENT |
29 |
| |
|
|
| ARTICLE V REMEDIES |
29 |
| |
|
|
| SECTION 501. |
EVENTS OF DEFAULT |
29 |
| SECTION 502. |
ACCELERATION |
31 |
| SECTION 503. |
OTHER REMEDIES |
31 |
| SECTION 504. |
WAIVER OF PAST DEFAULTS |
31 |
| SECTION 505. |
CONTROL BY MAJORITY |
32 |
| SECTION 506. |
LIMITATION ON SUITS |
32 |
| SECTION 507. |
RIGHTS OF HOLDERS OF SECURITIES TO RECEIVE PAYMENT |
32 |
| SECTION 508. |
COLLECTION SUIT BY TRUSTEE |
32 |
| SECTION 509. |
TRUSTEE MAY FILE PROOFS OF CLAIM |
33 |
| SECTION 510. |
PRIORITIES |
33 |
| SECTION 511. |
UNDERTAKING FOR COSTS |
33 |
| |
|
|
| ARTICLE VI THE TRUSTEE |
34 |
| |
|
|
| SECTION 601. |
CERTAIN DUTIES AND RESPONSIBILITIES |
34 |
| SECTION 602. |
NOTICE OF DEFAULTS |
35 |
| SECTION 603. |
CERTAIN RIGHTS OF TRUSTEE |
35 |
| SECTION 604. |
NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES |
36 |
| SECTION 605. |
MAY HOLD SECURITIES |
37 |
| SECTION 606. |
MONEY HELD IN TRUST |
37 |
| SECTION 607. |
COMPENSATION AND REIMBURSEMENT |
37 |
| SECTION 608. |
DISQUALIFICATION; CONFLICTING INTERESTS |
38 |
| SECTION 609. |
CORPORATE TRUSTEE REQUIRED; ELIGIBILITY |
38 |
| SECTION 610. |
RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR |
38 |
| SECTION 611. |
ACCEPTANCE OF APPOINTMENT BY SUCCESSOR |
40 |
| SECTION 612. |
MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS |
40 |
| SECTION 613. |
PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY |
41 |
| SECTION 614. |
APPOINTMENT OF AUTHENTICATING AGENT |
41 |
| |
|
|
| ARTICLE VII HOLDER’S LISTS AND REPORTS BY TRUSTEE AND COMPANY |
42 |
| |
|
|
| SECTION 701. |
COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS |
42 |
| SECTION 702. |
PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS |
43 |
| SECTION 703. |
REPORTS BY TRUSTEE |
43 |
| SECTION 704. |
REPORTS BY COMPANY |
43 |
| ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE |
44 |
| |
|
|
| SECTION 801. |
COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS |
44 |
| SECTION 802. |
SUCCESSOR PERSON SUBSTITUTED |
44 |
| |
|
|
| ARTICLE IX SUPPLEMENTAL INDENTURES |
45 |
| |
|
|
| SECTION 901. |
WITHOUT CONSENT OF HOLDERS |
45 |
| SECTION 902. |
WITH CONSENT OF HOLDERS |
46 |
| SECTION 903. |
COMPLIANCE WITH TRUST INDENTURE ACT. |
47 |
| SECTION 904. |
REVOCATION AND EFFECT OF CONSENTS |
47 |
| SECTION 905. |
NOTATION ON OR EXCHANGE OF SECURITIES |
47 |
| SECTION 906. |
TRUSTEE TO SIGN AMENDMENTS, ETC. |
47 |
| |
|
|
| ARTICLE X COVENANTS |
48 |
| |
|
|
| SECTION 1001. |
PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST |
48 |
| SECTION 1002. |
MAINTENANCE OF OFFICE OR AGENCY |
48 |
| SECTION 1003. |
MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST |
48 |
| SECTION 1004. |
EXISTENCE |
49 |
| SECTION 1005. |
STATEMENT BY OFFICERS AS TO DEFAULT |
49 |
| SECTION 1006. |
WAIVER OF CERTAIN COVENANTS |
50 |
| SECTION 1007. |
ADDITIONAL AMOUNTS |
50 |
| |
|
|
| ARTICLE XI REDEMPTION OF SECURITIES |
51 |
| |
|
|
| SECTION 1101. |
APPLICABILITY OF ARTICLE. |
51 |
| SECTION 1102. |
ELECTION TO REDEEM; NOTICE TO TRUSTEE. |
51 |
| SECTION 1103. |
SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED |
51 |
| SECTION 1104. |
NOTICE OF REDEMPTION |
52 |
| SECTION 1105. |
DEPOSIT OF REDEMPTION PRICE. |
52 |
| SECTION 1106. |
SECURITIES PAYABLE ON REDEMPTION DATE. |
52 |
| SECTION 1107. |
SECURITIES REDEEMED IN PART |
53 |
| SECTION 1108. |
PURCHASE OF SECURITIES |
53 |
| |
|
|
| ARTICLE XII SINKING FUNDS |
53 |
| |
|
|
| SECTION 1201. |
APPLICABILITY OF ARTICLE |
53 |
| SECTION 1202. |
SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES |
53 |
| SECTION 1203. |
REDEMPTION OF SECURITIES FOR SINKING FUND |
54 |
| |
|
|
| ARTICLE XIII MEETINGS OF HOLDERS OF SECURITIES |
54 |
| |
|
|
| SECTION 1301. |
PURPOSES FOR WHICH MEETINGS MAY BE CALLED |
54 |
| SECTION 1302. |
CALL, NOTICE AND PLACE OF MEETINGS. |
54 |
| SECTION 1303. |
PERSONS ENTITLED TO VOTE AT MEETINGS. |
55 |
| SECTION 1304. |
QUORUM; ACTION |
55 |
| SECTION 1305. |
DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS |
55 |
| SECTION 1306. |
COUNTING VOTES AND RECORDING ACTION OF MEETINGS |
56 |
INDENTURE
THIS Indenture, dated
as of ________ ___, 2014, between NanoViricides, Inc., a corporation duly organized and existing under the laws of the State of
Nevada (herein called the “Company”), having its principal office at 135 Wood Street, Suite 205, West Haven, CT 06516,
and ________________, a ________ banking corporation, as Trustee (herein called the “Trustee”) the office of the Trustee
at which at the date hereof its corporate trust business is principally administered being ______________________.
RECITALS OF THE COMPANY
The Company has duly
authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured debentures,
notes or other evidences of indebtedness (herein called the “Securities”), to be issued in one or more series as in
this Indenture provided.
The Securities of each
series will be in such form as may be established by or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions, and other variations as are required or permitted
by this Indenture, and may have such letters, numbers, or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined
by the officers executing such Securities, as evidenced by their execution of the Securities.
This Indenture is subject
to the provisions of the Trust Indenture Act and the rules and regulations of the SEC promulgated thereunder that are required
to be part of this Indenture and, to the extent applicable, shall be governed by such provisions.
All things necessary
to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration
of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal
and proportionate benefit of all Holders of the Securities or of series thereof, as follows:
ARTICLE
I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this
Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the
terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(2) all
accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting
principles in the United States, and, except as otherwise herein expressly provided, the term “generally accepted accounting
principles” with respect to any computation required or permitted hereunder shall mean such accounting principles as are
generally accepted in the United States at the date of such computation; and
(3) the
words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture
as a whole and not to any particular Article, Section or other subdivision.
Certain terms, used principally
in Article V, are defined in Section 102.
“Act” when
used with respect to any Holder, has the meaning specified in Section 105.
“Additional Amounts”
means any additional amounts that are required by the express terms of a Security or by or pursuant to a Board Resolution, under
circumstances specified therein or pursuant thereto, to be paid by the Company with respect to certain taxes, assessments or other
governmental charges imposed on certain Holders and that are owing to such Holders.
“Affiliate”
of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition, “control” when used with respect to
any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled”
have meanings correlative to the foregoing.
“Authenticating
Agent” means any Person authorized by the Trustee to act on behalf of the Trustee pursuant to Section 614 to authenticate
Securities of one or more series.
“Authorized Newspaper”
means a newspaper, in the English language or in an official language of the country of publication, customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation in the place in connection
with which the term is used or in the financial community of such place. Where successive publications are required to be made
in Authorized Newspapers, the successive publications may be made in the same or in different newspapers in the same city meeting
the foregoing requirements and in each case on any Business Day.
“Board of Directors”
means
(1) with
respect to a corporation, the board of directors of the corporation;
(2) with
respect to a partnership, the board of directors of the general partner of the partnership; and
(3) with
respect to any other Person, the board or committee of such Person serving a similar function.
“Board Resolution”
means, with respect to any Person, a resolution of such Person duly adopted by the Board of Directors of such Person and in full
force and effect.
“Book-Entry Security”
has the meaning specified in Section 204.
“Business Day,”
when used with respect to any Place of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on
which banking institutions in that Place of Payment or the city in which the Corporate Trust Office is located are authorized or
obligated by law or executive order to close.
“Capital Lease
Obligation” means, at the time any determination thereof is to be made, the amount of the liability in respect of a capital
lease that would at that time be required to be capitalized on a balance sheet in accordance with GAAP.
“Capital Stock”
means:
(i) in
the case of a corporation, corporate stock;
(ii) in
the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however
designated) of corporate stock;
(iii) in
the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and
(iv) any
other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions
of assets of, the issuing Person.
“Company”
means the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor
Person.
“Company Request”
and “Company Order” mean, respectively, a written request or order signed in the name of the Company by its Chairman
of the Board, its President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Controller, an Assistant Controller,
its Secretary or an Assistant Secretary, and delivered to the Trustee.
“Corporate Trust
Office” means the office of the Trustee at which at any particular time its corporate trust business shall be principally
administered, which office at the date hereof is that indicated in the introductory paragraph of this Indenture or such other address
as the Trustee may designate from time to time by notice to the Holders and the Company.
“Currency Agreement”
means, with respect to any specified Person, any foreign exchange contract, currency swap agreement or other similar agreement
or arrangement designed to protect such specified Person against fluctuations in currency values.
“Default”
means an event or condition the occurrence of which is, or with the lapse of time or the giving of notice or both would be, an
Event of Default.
“Defaulted Interest”
has the meaning specified in Section 307.
“Depositary”
means, with respect to the Securities of any series issuable or issued in the form of a global Security, the Person designated
as Depositary by the Company pursuant to Section 301 until a successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter “Depositary” shall mean or include each Person who is then a Depositary
hereunder, and if at any time there is more than one such person, “Depositary” as used with respect to the Securities
of any series shall mean the Depositary with respect to the Securities of that series.
“Dollar”
or “$” means a dollar or other equivalent unit in such coin or currency of the United States as at the time shall be
legal tender for the payment of public and private debts.
“Event of Default”
has the meaning specified in Section 501.
“GAAP” means
generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board
or in such other statements by such other entity as may be approved by a significant segment of the accounting profession of the
United States of America, as in effect as of the date of issuance of Securities.
“Guarantee”
means a guarantee (other than by endorsement of negotiable instruments for collection in the ordinary course of business), direct
or indirect, in any manner (including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement
agreements), of all or any part of Indebtedness.
“Guarantor”
means any Subsidiary that incurs a Guarantee.
“Hedging Agreement”
means, with respect to any Person, any agreement with respect to the hedging of price risk associated with the purchase of commodities
used in the business of such Person, so long as any such agreement has been entered into in the ordinary course of business and
not for purposes of speculation.
“Holder”
when used with respect to any Security, means the Person in whose name the Security is registered in the Security Register.
“Indebtedness”
means, with respect to any specified Person, any indebtedness of such Person, whether or not contingent, in respect of:
(1) borrowed
money;
(2) evidenced
by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof) (other
than obligations with respect to letters of credit securing obligations (other than obligations described in clause (1), (2) and
(4) of this definition) entered into in the ordinary course of business of such Person to the extent that such letters of credit
are not drawn upon);
(3) banker’s
acceptances;
(4) any
Capital Lease Obligations;
(5) the
balance deferred and unpaid of the purchase price of any property, except any such balance that constitutes an accrued expense
or trade payable incurred in the ordinary course of business; or
(6) any
Hedging Agreements,
if and to the extent any of the preceding
items (other than letters of credit and Hedging Agreements) would appear as a liability upon a balance sheet of the specified Person
prepared in accordance with GAAP. In addition, the term “Indebtedness” includes all Indebtedness of others secured
by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person) and, to the
extent not otherwise included, the guarantee by the specified Person of any indebtedness of any other Person.
The amount of any Indebtedness
outstanding as of any date shall be:
(1) the
accreted value thereof, in the case of any Indebtedness issued with original issue discount; and
(2) the
principal amount thereof, together with any interest thereon that is more than 30 days past due, in the case of any other Indebtedness.
“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 pursuant to the applicable provisions hereof and shall include the terms of particular series
of Securities established as contemplated by Section 301 and the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument.
“Interest Payment
Date,” means the Stated Maturity of an installment of interest on such Security.
“Interest Swap
Obligations,” means the obligations of any Person pursuant to any arrangement with any other Person, whereby directly or
indirectly, such Person is entitled to receive from time to time periodic payments calculated by applying either a floating or
a fixed rate of interest on a stated notional amount in exchange for periodic payments made by such other Person calculated by
applying a fixed or a floating rate of interest on the same notional amount and shall include, without limitation, interest rate
swaps, options, caps, floors, collars and similar agreements.
“Lien” means
any lien, mortgage, deed of trust, pledge, security interest, charge or encumbrance of any kind (including any conditional sale
or other title retention agreement, any lease in the nature thereof and any agreement to give any security interest).
“Maturity,”
when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes
due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption
or otherwise.
“Officers’
Certificate” means a certificate signed by the Chairman of the Board, the President or a Vice President, and by the Treasurer,
the Controller, the Secretary or an Assistant Treasurer, Assistant Controller or Assistant Secretary, of the Company, and delivered
to the Trustee, which certificate shall be in compliance with Section 103 hereof.
“Opinion of Counsel”
means a written opinion of counsel, who may be counsel for or an employee of the Company, rendered, if applicable, in accordance
with Section 314(c) of the Trust Indenture Act, which opinion shall be in compliance with Section 103 hereof.
“Original Issue
Discount Security” means any Security that provides for an amount less than the principal amount thereof to be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to Section 502.
“Outstanding”
when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities
theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(ii) Securities
for whose payment or redemption money in the necessary amount has been theretofore irrevocably deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as
its own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;
and
(iii) Securities
that have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining
whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, or whether a quorum is present at a meeting of Holders of Securities, (a) the principal
amount of an Original Issue Discount Security that shall be deemed to be Outstanding for such purposes shall be the principal amount
thereof that would be due and payable as of the date of such determination upon acceleration of the Maturity thereof pursuant to
Section 502, (b) the principal amount of a Security denominated in a foreign currency shall be the U.S. Dollar equivalent, determined
by the Company on the date of original issuance of such Security, of the principal amount (or, in the case of an Original Issue
Discount Security, the U.S. Dollar equivalent, determined on the date of original issuance of such Security, of the amount determined
as provided in (a) above), of such Security and (c) Securities owned by the Company or any other obligor upon the Securities or
any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver
or upon any such determination as to the presence of a quorum, only Securities which the Trustee knows to be so owned shall be
so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is
not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.
“Paying Agent”
means any Person, which may include the Company, authorized by the Company to pay the principal of (and premium, if any) or interest
on any one or more series of Securities on behalf of the Company.
“Person”
means an individual, partnership, corporation, limited liability company, unincorporated organization, trust or joint venture,
or a governmental agency or political subdivision thereof.
“Place of Payment”
when used with respect to the Securities of any series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified in accordance with Section 301 subject to the provisions
of Section 1002.
“Post-Petition
Interest” means any interest that accrues after the commencement of any case, proceeding or other action relating to the
bankruptcy, insolvency or reorganization of the Company (or would accrue but for the operation of applicable bankruptcy or insolvency
laws), whether or not such interest is allowed or allowable as a claim in any such proceeding.
“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 306 in exchange
for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed,
lost or stolen Security.
“Redemption Date”
when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price”
when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
“Registered Security”
means any Security in the form established pursuant to Section 201 which is registered in the Security Register.
“Regular Record
Date” for the interest payable on any Interest Payment Date on the Registered Securities of any series means the date specified
for that purpose as contemplated by Section 301, or, if not so specified, the last day of the calendar month preceding such Interest
Payment Date if such Interest Payment Date is the fifteenth day of the calendar month or the fifteenth day of the calendar month
preceding such Interest Payment Date if such Interest Payment Date is the first day of a calendar month, whether or not such day
shall be a Business Day.
“Responsible Officer”
when used with respect to the Trustee, means any officer within the corporate trust department of the Trustee including any vice-president,
assistant vice-president, assistant treasurer, trust officer or any other officer who customarily performs functions similar to
those performed by the Persons who at the time shall be such officers who have direct responsibility for the administration of
the Indenture and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
“Securities”
has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
“Security Register”
and “Security Registrar” have the respective meanings specified in Section 305.
“Special Record
Date” for the payment of any Defaulted Interest on the Registered Securities of any series means a date fixed by the Trustee
pursuant to Section 307.
“Stated Maturity”
when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in
such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and
payable.
“Subsidiary”
means, with respect to any specified Person:
(i) any
corporation of which the outstanding Capital Stock having at least a majority of the votes entitled to be cast in the election
of directors under ordinary circumstances shall at the time be owned, directly or indirectly by such Person; or
(ii) any
other Person of which at least a majority of the voting interest under ordinary circumstances is at the time, directly or indirectly,
owned by such Person.
“Trustee”
means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include
each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used
with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.
“Trust Indenture
Act” means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed, except as provided
in Section 903.
“United States”
means the United States of America (including the States and the District of Columbia) and its “possessions,” which
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
“United States
Alien” means any Person who, for United States federal income tax purposes, is a foreign corporation, a nonresident alien
individual, a nonresident alien or foreign fiduciary of an estate or trust, or a foreign partnership.
“U.S. Government
Obligations” means direct noncallable obligations of, or noncallable obligations the payment of principal of and interest
on which is guaranteed by, the United States of America, or to the payment of which obligations or guarantees the full faith and
credit of the United States of America is pledged, or beneficial interests in a trust the corpus of which consists exclusively
of money or such obligations or a combination thereof.
“Vice President”
when used with respect to the Company or the Trustee, means any vice president, whether or not designated by a number or a word
or words added before or after the title “vice president”.
“Wholly Owned Subsidiary”
of any Person means any Subsidiary of such Person of which all the outstanding voting securities (other than in the case of a Restricted
Subsidiary that is incorporated in a jurisdiction other than a State in the United States of America or the District of Columbia,
directors’ qualifying shares or an immaterial amount of shares required to be owned by other Persons pursuant to applicable
law) are owned by such Person or any Wholly Owned Subsidiary of such Person.
“Yield to Maturity”
when used with respect to any Original Issue Discount Security, means the yield to maturity, if any, set forth on the face thereof.
SECTION 102. INCORPORATION
BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture
refers to a provision of the Trust Indenture Act, the provision is incorporated by reference in and made a part of this Indenture.
The following Trust Indenture Act terms used in this Indenture have the following meanings:
“Bankruptcy Act”
means the Bankruptcy Act or Title 11 of the United States Code, as amended.
“indenture securities”
means the Securities.
“indenture securityholder”
means a Holder.
“indenture to be
qualified” means this Indenture.
“indenture trustee”
or “institutional trustee” means the Trustee.
“obligor”
on the indenture securities means the Company or any other obligor on the Securities.
All terms used in this
Indenture that are defined by the Trust Indenture Act, defined by Trust Indenture Act reference to another statute or defined by
SEC rule under the Trust Indenture Act and not otherwise defined herein have the meanings assigned to them therein.
SECTION 103. COMPLIANCE
CERTIFICATES AND OPINIONS.
Except as otherwise expressly
provided by this Indenture, upon any application or request by the Company to the Trustee to take any action under any provision
of this Indenture, the Company shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent,
if any (including any covenants the compliance with which constitutes a condition precedent), provided for in this Indenture relating
to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any (including any covenants the compliance with which constitutes a condition precedent), have been complied with,
except that in the case of any such application or request as to which the furnishing of such documents is specifically required
by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need
be furnished.
Every certificate or
opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include
(1) a
statement that each Person signing such certificate or opinion has read such covenant or condition and the definitions herein relating
thereto;
(2) 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;
(3) a
statement that, in the opinion of each such Person, such Person has made such examination or investigation as is necessary to enable
such Person to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a
statement as to whether or not, in the opinion of each such Person, such condition or covenant has been complied with.
SECTION 104. FORM
OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several
matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion
of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such factual matters is in the possession of the Company,
unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required
to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be consolidated and form one instrument.
SECTION 105. ACTS
OF HOLDERS; RECORD DATES.
(1) Any
request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing. Except as herein otherwise expressly provided, such action shall become effective
when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required,
to the Company. Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments and so voting at any
such meeting. Proof of execution of any such instrument or of a writing appointing any such agent, or the holding of any Person
of a Security, shall be sufficient for any purpose of this Indenture and (subject to Section 601) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section. The record of any meeting of Holders of Securities shall be proved
in the manner provided in Section 1306.
The Company may set in
advance a record date for purposes of determining the identity of Holders of Registered Securities entitled to vote or consent
to any action by vote or consent authorized or permitted under this Indenture. If not set by the Company prior to the first solicitation
of a Holder of Registered Securities of such series made by any Person in respect of any such action, or in the case of any such
vote, prior to such vote, the record date for any such action or vote shall be the later of 30 days prior to such first solicitation
of such consent or the date of the most recent list of Holders furnished to the Trustee prior to such solicitation. If a record
date is fixed, those Persons who were Holders of Outstanding Registered Securities at such record date (or their duly designated
proxies), and only those Persons, shall be entitled with respect to such Securities to take such action by vote or consent or to
revoke any vote or consent previously given, whether or not such Persons continue to be Holders after such record date. Promptly
after any record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice thereof to be given
to the Trustee in writing in the manner provided in Section 106 and to the relevant Holders as set forth in Section 107.
(2) The
fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a
signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient
proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing
the same, may also be proved in any other manner which the Trustee deems sufficient.
(3) The
principal amount and serial numbers of Registered Securities held by any Person, and the date of holding the same, shall be proved
by the Security Register.
(4) Any
request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Security. Any Holder or subsequent Holder may revoke the request,
demand, authorization, direction, notice, consent or other Act as to his Security or portion of his Security; provided,
however, that such revocation shall be effective only if the Trustee receives the notice of revocation before the date the
Act becomes effective.
SECTION 106. NOTICES,
ETC., TO TRUSTEE AND COMPANY.
Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the
Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate Trust Administration, or
(2) the
Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to the Company addressed to it at the address of its principal office specified
in the first paragraph of this Indenture or at any other address previously furnished in writing to the Trustee by the Company,
Attention: Corporate Secretary.
The Company or the Trustee,
by notice to the other, may designate additional or different addresses for subsequent notices or communications.
All notices and communications
(other than those sent to the Trustee) shall be deemed to have been duly given: at the time delivered by hand, if personally delivered;
five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if telecopied; and
the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next-day delivery. All
notices and communications to the Trustee shall be deemed duly given and effective only upon receipt.
Any notice or communication
to a Holder shall be mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier
guaranteeing next-day delivery to its address shown on the Security Register. Any notice or communication shall also be so mailed
to any Person described in TIA Section 313(c), to the extent required by the TIA. Failure to mail a notice or communication to
a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication
is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
If the Company mails
a notice or communication to Holders, it shall mail a copy to the Trustee and each Agent at the same time.
SECTION 107. NOTICE
TO HOLDERS; WAIVER.
Where this Indenture
provides for notice to Holders of Securities of any event, such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at the address of such
Holder as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice.
In case by reason of
the suspension of regular mail service, or by reason of any other cause it shall be impracticable to give such notice to Holders
of Registered Securities by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder. In any case in which notice to Holders of Registered Securities is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder of a Registered Security, shall
affect the sufficiency of such notice with respect to other Holders of Registered Securities.
Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
SECTION 108. CONFLICT
WITH TRUST INDENTURE ACT.
If any provision hereof
limits, qualifies or conflicts with any provision of the Trust Indenture Act or another provision hereof required to be included
in this Indenture by any of the provisions of the Trust Indenture Act, such provision of the Trust Indenture Act shall control.
If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded,
the former provision shall be deemed to apply to this Indenture as so modified or to be excluded.
SECTION
109. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section
headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
SECTION
110. SUCCESSORS AND ASSIGNS.
All covenants and agreements
in this Indenture by the Company shall bind its successors and assigns, whether or not so expressed.
SECTION
111. SEPARABILITY CLAUSE.
In case any provision
in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION
112. BENEFITS OF INDENTURE.
Nothing in this Indenture
or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder,
any Authenticating Agent, Paying Agent and Security Registrar, and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION
113. GOVERNING LAW.
This Indenture and the
Securities shall be governed by and construed in accordance with the laws of the State of New York, but without giving effect to
applicable principles of conflicts of law to the extent the application of the laws of another jurisdiction would be required thereby.
SECTION
114. LEGAL HOLIDAYS.
In any case where any
Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities) payment of principal and interest (and premium
and Additional Amounts, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date,
or at the Stated Maturity, provided that no interest shall accrue for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be.
SECTION
115. CORPORATE OBLIGATION.
No recourse may be taken,
directly or indirectly, against any incorporator, subscriber to the capital stock, stockholder, officer, director or employee of
the Company or the Trustee or of any predecessor or successor of the Company or the Trustee with respect to the Company’s
obligations on the Securities or the obligations of the Company or the Trustee under this Indenture or any certificate or other
writing delivered in connection herewith.
SECTION
116. WAIVER OF TRIAL JURY.
EACH OF THE COMPANY AND
THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
SECTION
117. FORCE MAJEURE.
In no event shall the
Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused
by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or
malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall
use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable
under the circumstances.
ARTICLE
II
SECURITY FORMS
SECTION
201. FORMS GENERALLY.
The Securities of each
series shall be Registered Securities and shall be in substantially such form or forms (including temporary or permanent global
form) as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture
and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required
to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities. If temporary Securities of any series are issued in global form
as permitted by Section 304, the form thereof shall be established as provided in the preceding sentence. A copy of the Board Resolution
establishing the form or forms of Securities of any series (or any such temporary global Security) shall be delivered to the Trustee
at or prior to the delivery of the Company Order contemplated by Section 303 for the authentication and delivery of such Securities
(or any such temporary global Security).
The definitive Securities
shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution thereof.
SECTION
202. FORM OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION.
The Trustee’s certificate
of authentication shall be in substantially the following form:
“This
is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
SECTION
203. SECURITIES IN GLOBAL FORM.
If Securities of a series
are issuable in global form, as contemplated by Section 301, then, notwithstanding clause (10) of Section 301 and the provisions
of Section 302, any such Security shall represent such of the Outstanding Securities of such series as shall be specified therein
and may provide that it shall represent the aggregate amount of Outstanding Securities from time to time endorsed thereon and that
the aggregate amount of Outstanding Securities represented thereby may from time to time be reduced to reflect exchanges. Any endorsement
of a Security in global form to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon instructions given by such Person or Persons as shall be specified
in such Security or in a Company Order to be delivered to the Trustee pursuant to Section 303 or Section 304. Subject to the provisions
of Section 303 and, if applicable, Section 304, the Trustee shall deliver and redeliver any Security in permanent global form in
the manner and upon instructions given by the Person or Persons specified in such Security or in the applicable Company Order.
If a Company Order pursuant to Section 303 or 304 has been, or simultaneously is, delivered, any instructions by the Company with
respect to endorsement or delivery or redelivery of a Security in global form shall be in writing but need not comply with Section
103 and need not be accompanied by an Opinion of Counsel.
The provisions of the
last sentence of Section 303 shall apply to any Security in global form if such Security was never issued and sold by the Company
and the Company delivers to the Trustee the Security in global form together with written instructions (which need not comply with
Section 103 and need not be accompanied by an Opinion of Counsel) with regard to the reduction in the principal amount of Securities
represented thereby, together with the written statement contemplated by the last sentence of Section 303.
Notwithstanding the provisions
of Sections 201 and 307, unless otherwise specified as contemplated by Section 301, payment of principal of (and premium, if any)
and interest on any Security in permanent global form shall be made to the Person or Persons specified therein.
Notwithstanding the provisions
of Section 308 and except as provided in the preceding paragraph, the Company, the Trustee and any agent of the Company or of the
Trustee shall treat a Person as the Holder of such principal amount of Outstanding Securities represented by a global Security
as shall be specified in a written statement, if any, of the Holder of such global Security, which is produced to the Security
Registrar by such Holder.
Global Securities may
be issued in either temporary or permanent form. Permanent global Securities will be issued in definitive form.
SECTION
204. BOOK-ENTRY SECURITIES.
Notwithstanding any provision
of this Indenture to the contrary:
(a) At
the discretion of the Company, any Registered Security may be issued from time to time, in whole or in part, in permanent global
form registered in the name of a Depositary, or its nominee. Each such Registered Security in permanent global form is hereafter
referred to as a “Book-Entry Security.” Subject to Section 303, upon such election, the Company shall execute, and
the Trustee or an Authenticating Agent shall authenticate and deliver, one or more Book-Entry Securities that (i) are denominated
in an amount equal to the aggregate principal amount of the Outstanding Securities of such series if elected in whole or such lesser
amount if elected in part, (ii) are registered in the name of the Depositary or its nominee, (iii) are delivered by the Trustee
or an Authenticating Agent to the Depositary or pursuant to the Depositary’s instructions and (iv) bear a legend in substantially
the following form (or such other form as the Depositary and the Company may agree upon):
UNLESS THIS SECURITY IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF [THE DEPOSITARY], TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF [NOMINEE OF THE DEPOSITARY] OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF [THE DEPOSITARY] (AND ANY PAYMENT IS MADE TO [NOMINEE OF THE DEPOSITARY] OR TO SUCH OTHER ENTITY AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [THE DEPOSITARY]), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, [NOMINEE OF THE DEPOSITARY], HAS AN INTEREST HEREIN.
(b) Any
Book-Entry Security shall be initially executed and delivered as provided in Section 303. Notwithstanding any other provision of
this Indenture, unless and until it is exchanged in whole or in part for Registered Securities not issued in global form, a Book-Entry
Security may not be transferred except as a whole by the Depositary to a nominee of such Depositary, by a nominee of such Depositary
to such Depositary or another nominee of such Depositary, or by such Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary.
(c) If
at any time the Depositary notifies the Company or the Trustee that it is unwilling or unable to continue as Depositary for any
Book-Entry Securities, the Company shall appoint a successor Depositary, whereupon the retiring Depositary shall surrender or cause
the surrender of its Book-Entry Security or Securities to the Trustee. The Trustee shall promptly notify the Company upon receipt
of such notice. If a successor Depositary has not been so appointed by the effective date of the resignation of the Depositary,
the Book-Entry Securities will be issued as Registered Securities not issued in global form, in an aggregate principal amount equal
to the principal amount of the Book-Entry Security or Securities theretofore held by the Depositary.
The Company
may at any time and in its sole discretion determine that the Securities shall no longer be Book-Entry Securities represented by
a global certificate or certificates, and will so notify the Depositary. Upon receipt of such notice, the Depositary shall promptly
surrender or cause the surrender of its Book-Entry Security or Securities to the Trustee. Concurrently therewith, Registered Securities
not issued in global form will be issued in an aggregate principal amount equal to the principal amount of the Book-Entry Security
or Securities theretofore held by the Depositary.
Upon any
exchange of Book-Entry Securities for Registered Securities not issued in global form as set forth in this Section 204(c), such
Book-Entry Securities shall be cancelled by the Trustee, and Securities issued in exchange for such Book-Entry Securities pursuant
to this Section shall be registered in such names and in such authorized denominations as the Depositary for such Book-Entry Securities,
pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee or any
Authenticating Agent shall deliver such Securities to the Persons in whose names such Securities are so registered.
(d) The
Company and the Trustee shall be entitled to treat the Person in whose name any Book-Entry Security is registered as the Holder
thereof for all purposes of the Indenture and any applicable laws, notwithstanding any notice to the contrary received by the Trustee
or the Company; and the Trustee and the Company shall have no responsibility for transmitting payments to, communication with,
notifying, or otherwise dealing with any beneficial owners of any Book-Entry Security. Neither the Company nor the Trustee shall
have any responsibility or obligations, legal or otherwise, to the beneficial owners or to any other party including the Depositary,
except for the Holder of any Book-Entry Security; provided however, notwithstanding anything herein to the contrary,
(i) for the purposes of determining whether the requisite principal amount of Outstanding Securities have given, made or taken
any request, demand, authorization, direction, notice, consent, waiver, instruction or other action hereunder as of any date, the
Trustee shall treat any Person specified in a written statement of the Depositary with respect to any Book-Entry Securities as
the Holder of the principal amount of such Securities set forth therein and (ii) nothing herein shall prevent the Company, the
Trustee, or any agent of the Company or Trustee, from giving effect to any written certification, proxy or other authorization
furnished by a Depositary with respect to any Book-Entry Securities, or impair, as between a Depositary and holders of beneficial
interests in such Securities, the operation of customary practices governing the exercise of the rights of the Depositary as Holder
of such Securities.
(e) So
long as any Book-Entry Security is registered in the name of a Depositary or its nominee, all payments of the principal of (and
premium, if any) and interest on such Book-Entry Security and redemption thereof and all notices with respect to such Book-Entry
Security shall be made and given, respectively, in the manner provided in the arrangements of the Company with such Depositary.
ARTICLE
III
THE SECURITIES
SECTION
301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal
amount of Securities that may be authenticated and delivered under this Indenture is unlimited.
The Securities may be
issued in one or more series. There shall be established in or pursuant to a Board Resolution, and set forth in an Officers’
Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series:
(1) the
title of the Securities of the series (which shall distinguish the Securities of the series from all other Securities);
(2) any
limit, if any, upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu
of, other Securities of the series pursuant to Section 304, 305, 306, 905 or 1107);
(3) whether
Securities of the series are to be issuable as Registered Securities, whether any Securities of the series are to be issuable initially
in temporary global form and whether any Securities of the series are to be issuable in permanent global form, as Book-Entry Securities
or otherwise, and, if so, whether beneficial owners of interests in any such permanent global Security may exchange such interests
for Securities of such series and of like tenor of any authorized form and denomination and the circumstances under which any such
exchanges may occur, if other than in the manner provided in Section 305, and the Depositary for any global Security or Securities;
(4) the
manner in which any interest payable on a temporary global Security on any Interest Payment Date will be paid if other than in
the manner provided in Section 304;
(5) the
date or dates on which the principal of (and premium, if any, on) the Securities of the series is payable or the method of determination
thereof;
(6) the
rate or rates, or the method of determination thereof, at which the Securities of the series shall bear interest, if any, whether
and under what circumstances Additional Amounts with respect to such Securities shall be payable, the date or dates from which
such interest shall accrue, the Interest Payment Dates on which such interest shall be payable and, if other than as set forth
in Section 101, the Regular Record Date for the interest payable on any Registered Securities on any Interest Payment Date;
(7) if
other than the Corporate Trust Office of the Trustee, the place or places where, subject to the provisions of Section 1002, the
principal of (and premium, if any), any interest on and any Additional Amounts with respect to the Securities of the series shall
be payable;
(8) the
period or periods within which, the price or prices (whether denominated in cash, securities or otherwise) at which and the terms
and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company, if the Company
is to have that option, and the manner in which the Company must exercise any such option;
(9) the
obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund or analogous provisions
or at the option of a Holder thereof and the period or periods within which, the price or prices (whether denominated in cash,
securities or otherwise) at which and the terms and conditions upon which Securities of the series shall be redeemed or purchased
in whole or in part pursuant to such obligation;
(10) the
denomination in which any Registered Securities of that series shall be issuable, if other than denominations of $2,000 and any
integral multiple of $1,000 in excess thereof;
(11) the
currency or currencies (including composite currencies) in which payment of the principal of (and premium, if any), any interest
on and any Additional Amounts with respect to the Securities of the series shall be payable if other than the currency of the United
States of America;
(12) if
the principal of (and premium, if any) or interest on the Securities of the series are to be payable, at the election of the Company
or a Holder thereof, in a currency or currencies (including composite currencies) other than that in which the Securities are stated
to be payable, the currency or currencies (including composite currencies) in which payment of the principal of (and premium, if
any) and interest on and any Additional Amounts with respect to Securities of such series as to which such election is made shall
be payable, and the periods within which and the terms and conditions upon which such election is to be made;
(13) if
the amount of payments of principal of (and premium, if any), any interest on and any Additional Amounts with respect to the Securities
of the series may be determined with reference to any commodities, currencies or indices, or values, rates or prices, the manner
in which such amounts shall be determined;
(14) if
other than the entire principal amount thereof, the portion of the principal amount of Securities of the series that shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to Section 502;
(15) any
additional means of satisfaction and discharge of this Indenture with respect to Securities of the series pursuant to Section 401,
any additional conditions to discharge pursuant to Section 401, 402, 403, 404, or 405, and the application, if any, of Section
403 and 404;
(16) any
deletions or modifications of or additions to the Events of Default set forth in Section 501, the right of the Trustee or the requisite
Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 502, or the covenants of
the Company set forth in Article X pertaining to the Securities of the series;
(17) the
terms, if any, on which the Securities of any series may be converted into or exchanged for stock or other securities of the Company
or other entities, any specific terms relating to the adjustment thereof and the period during which such Securities may be so
converted or exchanged;
(18) whether
the Securities of a series will be issued as part of units consisting of Securities and other securities of the Company or another
issuer; and
(19) any
other terms of the series permitted under the provisions of the Trust Indenture Act.
All Securities of any
one series shall be substantially identical except, in the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to the Board Resolution referred to above and (subject to Section 303) set forth, or determined
in the manner provided, in the Officers’ Certificate referred to above or in any such indenture supplemental hereto.
All Securities of any
one series need not be issued at the same time and, unless otherwise provided in such Board Resolution or supplemental indenture,
a series may be reopened for issuances of additional Securities of such series pursuant to a Board Resolution or in any indenture
supplemental hereto.
At the option of the
Company, interest on the Registered Securities of any series that bears interest may be paid by mailing a check or otherwise transmitting
payment to the address of any Holder as such address shall appear in the Security Register.
If any of the terms of
the series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action together
with such Board Resolution 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 Officers’ Certificate setting forth the terms of the series.
SECTION 302. DENOMINATIONS.
The Securities of each
series shall be issuable in such denominations as shall be specified as contemplated by Section 301. In the absence of any such
provisions with respect to the Securities of any series, the Registered Securities of such series denominated in Dollars shall
be issuable in denominations of $2,000 and any integral multiple of $1,000 in excess thereof. Unless otherwise provided as contemplated
by Section 301 with respect to any series of Securities, any Securities of a series denominated in a currency other than Dollars
shall be issuable in denominations that are the equivalent, as determined by the Company by reference to the noon buying rate in
the City of New York for cable transfers for such currency, as such rate is reported or otherwise made available by the Federal
Reserve Bank of New York, on the applicable issue date for such Securities, of $2,000 and any integral multiple of $1,000 in excess
thereof.
SECTION
303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall
be executed on behalf of the Company by its Chairman of the Board, its Chief Executive Officer, its President, its Chief Financial
Officer, its Treasurer or one of its Vice Presidents, under its corporate seal reproduced thereon or affixed thereto attested by
its Secretary or one of its Assistant Secretaries. The signature of any of these officers on the Securities may be manual or facsimile.
Coupons shall bear the facsimile signature of the Chairman of the Board, President, Treasurer or any Vice President of the Company.
Securities bearing the
manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding
that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities
or did not hold such offices at the date of such Securities.
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 Company Order for the authentication and delivery of such Securities,
and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities as in this Indenture provided
and not otherwise.
If the form or terms
of the Securities of the series have been established in or pursuant to one or more Board Resolutions or Officer’s Certificate
as permitted by Sections 201 and 301, in authenticating such Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be given (in addition to the other documents required by Section 103
hereof), and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating,
(a) if
the form of such Securities has been established by or pursuant to Board Resolution as permitted by Section 201, that such form
has been established in conformity with the provisions of this Indenture;
(b) if
the terms of such Securities have been established by or pursuant to Board Resolution as permitted by Section 301, that such terms
have been established in conformity with the provisions of this Indenture; and
(c) that
such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute legal, valid and binding obligations of the Company, enforceable in accordance
with their terms, except as such enforcement is subject to the effect of bankruptcy, insolvency, fraudulent conveyance, reorganization
or other laws relating to or affecting creditors’ rights, and general principles of equity (regardless of whether such enforcement
is considered in a proceeding in equity or at law); provided that such Opinion of Counsel need express no opinion as to
whether a court in the United States would render a money judgment in currency other than that of the United States.
If such form or terms have been so established,
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 not
reasonably acceptable to the Trustee.
Each Security shall be
dated the date of its authentication.
No Security shall be
entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but
never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in
Section 309 together with a written statement (which need not comply with Section 103 and need not be accompanied by an Opinion
of Counsel) stating that such Security has never been issued and sold by the Company, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
SECTION
304. TEMPORARY SECURITIES.
Pending the preparation
of definitive Securities of any series, the Company may execute, and upon Company Order, the Trustee shall authenticate and deliver,
temporary Securities that are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they are issued, in registered form and with such appropriate
insertions, omissions, substitutions and other variations as the officers of the Company executing such Securities may determine,
as evidenced by their execution of such Securities.
Except in the case of
temporary Securities in global form (which shall be exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall
be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office
or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series, the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Securities of the same series of authorized denominations. Until so exchanged,
the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive
Securities of such series.
All Outstanding temporary
Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of
the same series and of like tenor authenticated and delivered hereunder.
SECTION
305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause
to be kept for each series of Securities at one of the offices or agencies maintained pursuant to Section 1002 a register (the
register maintained in such office and in any other office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Registered Securities and of transfers of Registered Securities of such series.
The Trustee is hereby initially appointed “Security Registrar” for the purpose of registering Securities and transfers
of Securities as herein provided.
Upon surrender for registration
of transfer of any Registered Security of any series at the office or agency in a Place of Payment for that series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or
more new Registered Securities of the same series and of like tenor, of any authorized denominations and of a like aggregate principal
amount.
At the option of the
Holder, Registered Securities of any series may be exchanged for other Registered Securities of the same series and of like tenor,
of any authorized denominations and of a like aggregate principal amount, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate
and deliver, the Securities that the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing,
except as otherwise specified as contemplated by Section 301, any permanent global Security shall be exchangeable only as provided
in this paragraph. If the beneficial owners of interests in a permanent global Security are entitled to exchange such interest
for Securities of such series and of like tenor and principal amount of another authorized form and denomination, as specified
as contemplated by Section 301, then without unnecessary delay but in any event not later than the earliest date on which such
interests may be so exchanged, the Company shall deliver to the Trustee definitive Securities of that series in an aggregate principal
amount equal to the principal amount of such permanent global Security, executed by the Company. On or after the earliest date
on which such interests may be so exchanged, such permanent global Security shall be surrendered from time to time in accordance
with instructions given to the Trustee and the Depositary (which instructions shall be in writing but need not comply with Section
103 or be accompanied by an Opinion of Counsel) or such other depositary as shall be specified in the Company Order with respect
thereto to the Trustee, as the Company’s agent for such purpose, to be exchanged, in whole or in part, for definitive Securities
of the same series without charge and the Trustee shall authenticate and deliver, in exchange for each portion of such permanent
global Security, a like aggregate principal amount of other definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such permanent global Security to be exchanged; provided, however, that no such
exchanges may occur during a period beginning at the opening of business 15 days before any selection of Securities of that series
is to be redeemed and ending on the relevant Redemption Date. Promptly following any such exchange in part, such permanent global
Security marked to evidence the partial exchange shall be returned by the Trustee to the Depositary or such other depositary referred
to above in accordance with the instructions of the Company referred to above. If a Registered Security is issued in exchange for
any portion of a permanent global Security after the close of business at the office or agency where such exchange occurs on (i)
any Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date, or (ii)
any Special Record Date and before the opening of business at such office or agency on the related proposed date for payment of
Defaulted Interest, interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed
date for payment, as the case may be, in respect of such Registered Security, but will be payable on such Interest Payment Date
or proposed date for payment, as the case may be, only to the Person to whom interest in respect of such portion of such permanent
global Security is payable in accordance with the provisions of this Indenture.
All Securities issued
upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer
or exchange.
Every Registered Security
presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar
duly executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall
be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities,
other than exchange pursuant to Section 304, 905 or 1107 not involving any transfer.
The Company shall not
be required (i) to issue, register the transfer of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of Securities of such series selected for redemption
and ending at the close of business on the day of the mailing of the relevant notice of redemption or (ii) to register the transfer
of or exchange any Registered Security so selected for redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
SECTION
306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security
is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously Outstanding.
If there shall be delivered
to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such
security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence
of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute
and upon its request the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new
Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously Outstanding.
In case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead
of issuing a new Security, pay such Security.
Upon the issuance of
any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including the fee and expenses of the Trustee) connected
therewith.
Every new Security of
any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities
of that series duly issued hereunder.
The provisions of this
Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION
307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Registered
Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person
in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record
Date for such interest. Unless otherwise provided with respect to the Securities of any series, payment of interest may be made
at the option of the Company by check mailed or delivered to the address of any Person entitled thereto as such address shall appear
in the Security Register.
Any interest on any Registered
Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein
called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date
by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The
Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Registered Securities of such series
(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 Registered Security of such series 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 be not more than 15 days and not 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 Holder of Registered Securities of such
series at his address as it appears in the Security Register, not less than 10 days prior to such Special Record Date. The Trustee
may, in its discretion, in the name and at the expense of the Company, cause a similar notice to be published at least once in
an Authorized Newspaper, but such publication shall not be a condition precedent to the establishment of such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The
Company may make payment of any Defaulted Interest on the Registered Securities of any series 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.
Subject to the foregoing
provisions of this Section, each Security delivered under this Indenture, upon registration of transfer of, in exchange for or
in lieu of, any other Security, shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
SECTION
308. PERSONS DEEMED OWNERS.
Prior to due presentment
of a Registered Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name such Registered Security is registered as the owner of such Registered Security for the purpose
of receiving payment of principal of (and premium, if any) and (subject to Sections 305 and 307) interest on such Registered Security
and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent
of the Company or the Trustee shall be affected by notice to the contrary.
SECTION
309. CANCELLATION.
All Securities surrendered
for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee. All Registered Securities so delivered shall be promptly cancelled
by the Trustee. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner whatsoever, and all Securities so delivered shall be promptly
cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed
of in its customary manner.
SECTION
310. COMPUTATION OF INTEREST.
Except as otherwise specified
as contemplated by Section 301 for Securities of any series, interest on the Securities of each series shall be computed on the
basis of a year comprising twelve 30-day months.
SECTION
311. 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 identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers.
ARTICLE
IV
SATISFACTION AND DISCHARGE; LEGAL DEFEASANCE AND
COVENANT DEFEASANCE
SECTION
401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall
upon Company Request cease to be of further effect with respect to Securities of any series (except as to any surviving rights
of registration of transfer, exchange or replacement of such series of Securities herein expressly provided for), and the Trustee,
at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture with
respect to such Securities, when
(1) either
(A) all
such Securities of such series theretofore authenticated and delivered (other than (i) such Securities which have been destroyed,
lost or stolen and which have been replaced or paid as provided in Section 306 and (ii) such Securities of such series for whose
payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 1003) have been delivered to the Trustee for cancellation; or
(B) all
such Securities of such series not theretofore delivered to the Trustee for cancellation
(i) have
become due and payable, or
(ii) will
become due and payable at their Stated Maturity within one year, or
(iii) are
to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case
of (B)(i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee, as funds in trust for such purpose, an
amount in the currency or currencies or currency unit or units in which such Securities of such series are payable or U.S. Government
Obligations maturing as to principal and interest in such amounts and at such times as will, together with any interest thereon,
be sufficient to pay and discharge the entire indebtedness on such Securities of such series not theretofore delivered to the Trustee
for cancellation, for principal and any premium and interest to the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the
Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(3) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this Indenture with respect to such series of Securities
have been complied with.
Notwithstanding the satisfaction
and discharge of this Indenture with respect to the Outstanding Securities of such series pursuant to this Section 401, the obligations
of the Company to the Trustee under Section 607 and to any Authenticating Agent under Section 614 and, if money or U.S. Government
Obligations shall have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of this Section, the obligations
of the Trustee under Section 406, Article VI and the last paragraph of Section 1003 shall survive such satisfaction and discharge.
SECTION
402. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
In addition to the Company’s
rights under Section 401 (which shall not be affected by this Section 402), the Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers’ Certificate, at any time, elect to have either Section 403 or 404 hereof
applied to all Outstanding Securities of any series upon compliance with the conditions set forth in Sections 403 through 406 hereof.
SECTION
403. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company’s
exercise under Section 402 hereof of the option applicable to this Section 403, the Company and the Guarantors shall, subject to
the satisfaction of the conditions set forth in Section 405 hereof, be deemed to have been discharged from their obligations with
respect to all Outstanding Securities of a series on the date the conditions set forth below are satisfied (hereinafter, “Legal
Defeasance”). For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire
Indebtedness represented by the Outstanding Securities of a series, which shall thereafter be deemed to be “outstanding”
only for the purposes of Section 406 hereof and the other Sections of this Indenture referred to in (a) and (b) below, and to have
satisfied all its other obligations under such Securities and this Indenture (and the Trustee, on demand of and at the expense
of the Company, shall execute proper instruments acknowledging the same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder: (a) the rights of Holders of Outstanding Securities of any series to receive
payments in respect of the principal of, premium, if any, and interest, if any, on such Securities when such payments are due from
the trust referred to in Section 405, (b) the Company’s obligations with respect to such Securities under Sections 304, 305,
306 and 1002 of this Indenture, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company’s
obligations in connection therewith and (d) this Article IV. Subject to compliance with Sections 402 through 406 hereof, the Company
may exercise its option under this Section 403 notwithstanding the prior exercise of its option under Section 404 hereof.
SECTION
404. COVENANT DEFEASANCE.
Upon the Company’s
exercise under Section 402 hereof of the option applicable to this Section 404, the Company shall, subject to the satisfaction
of the conditions set forth in Section 405 hereof, be released from the operation of Section 801 hereof with respect to the Outstanding
Securities of a series and any other covenant contained in the Board Resolution or supplemental indenture relating to such series
on and after the date the conditions set forth in Section 405 are satisfied (hereinafter, “Covenant Defeasance”), and
the Securities of such series shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver,
consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue
to be deemed “outstanding” for all other purposes hereunder (it being understood that such Securities shall not be
deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the Outstanding
Securities of such series, the Company may omit to comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission
to comply shall not constitute a Default or an Event of Default under Section 501 hereof, but, except as specified above, the remainder
of this Indenture and such series of Securities shall be unaffected thereby. In addition, upon the Company’s exercise under
Section 402 hereof of the option applicable to this Section 404 hereof, subject to the satisfaction of the conditions set forth
in Section 405 hereof, Sections 501(3) through 501(6) and Section 501(9) hereof shall not constitute Events of Default.
SECTION
405. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be
the conditions to the application of either Section 403 or 404 hereof to the Outstanding Securities of any series:
In order to exercise
either Legal Defeasance or Covenant Defeasance:
(a) the
Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Securities, cash in United States
dollars, U.S. Government Obligations, or a combination thereof, in such amounts as will be sufficient, to pay the principal of,
or interest and premium, if any, on the Outstanding Securities of such series on the Stated Maturity or on the applicable redemption
date, as the case may be, and the Company must specify whether the Securities are being defeased to maturity or to a particular
redemption date;
(b) in
the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the
Trustee confirming that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling
or (ii) since the date of this Indenture, there has been a change in the applicable federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the Outstanding Securities of such series
will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject
to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance
had not occurred;
(c) in
the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to
the Trustee confirming that the Holders of the Outstanding Securities of such series will not recognize income, gain or loss for
federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(d) no
Default or Event of Default shall have occurred and be continuing either: (i) on the date of such deposit (other than a Default
or Event of Default resulting from the borrowing of funds to be applied to such deposit); or (ii) insofar as Events of Default
from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date of deposit;
(e) such
Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under any material
agreement or instrument (other than this Indenture) to which the Company is a party or by which the Company is bound;
(f) the
Company must have delivered to the Trustee an Opinion of Counsel to the effect that, assuming no intervening bankruptcy of the
Company or any Guarantor between the date of deposit and the 91st day following the deposit and assuming that no Holder is an “insider”
of the Company under applicable bankruptcy law, after the 91st day following the deposit, the trust funds will not be subject to
the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally;
(g) the
Company must deliver to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders of Securities over the other creditors of the Company with the intent of defeating, hindering,
delaying or defrauding creditors of the Company or others; and
(h) the
Company must deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
precedent relating to the Legal Defeasance or the Covenant Defeasance have been complied with.
SECTION
406. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST; OTHER
MISCELLANEOUS PROVISIONS.
Subject to Section 407
hereof, all money and non callable U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 406, the “Trustee”) pursuant to Section 401 or
404 hereof in respect of the Outstanding Securities of any series shall be held in trust and applied by the Trustee, in accordance
with the provisions of such Securities and this Indenture, to the payment, either directly or through any paying agent (including
the Company acting as paying agent) as the Trustee may determine, to the Holders of such Securities of all sums due and to become
due thereon in respect of principal, premium on , if any, and interest, but such money need not be segregated from other funds
except to the extent required by law.
The Company shall pay
and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable U.S. Government
Obligations deposited pursuant to Section 401 or 404 hereof or the principal and interest received in respect thereof other than
any such tax, fee or other charge which by law is for the account of the Holders of the Outstanding Securities.
Anything in this Article
IV to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon the written request
of the Company any money or non-callable U.S. Government Obligations held by it as provided in Section 401 or 404 hereof which,
in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered
to the Trustee, are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance
or Covenant Defeasance or satisfaction and discharge of this Indenture.
SECTION
407. REPAYMENT TO COMPANY.
Any money deposited with
the Trustee or any paying agent, or then held by the Company, in trust for the payment of the principal of, premium on, if any,
or interest on any Securities and remaining unclaimed for two years after such principal, and premium, if any, or interest has
become due and payable shall be paid to the Company on its written request or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Securities shall thereafter, as an unsecured creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such paying agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such paying agent, before being
required to make any such repayment, may at the expense of the Company cause to be published once, in the New York Times and The
Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION
408. REINSTATEMENT.
If the Trustee or Paying
Agent is unable to apply any money or U.S. Government Obligations deposited with respect to Securities of any series in accordance
with Section 401, 403 or 404 hereof, as the case may be, by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the Company’s obligations under this Indenture with
respect to the Securities of such series and the Securities of such series shall be revived and reinstated as though no deposit
had occurred pursuant to Section 401, 403 or 404 hereof until such time as the Trustee or Paying Agent is permitted to apply all
such money or U.S. Government Obligations in accordance with Section 401, 403 or 404 hereof, as the case may be; provided,
however, that, if the Company makes any payment of principal of, premium on, if any, or interest on any Securities following
the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive
such payment from the money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE
V
REMEDIES
SECTION
501. EVENTS OF DEFAULT.
An “Event of Default”
on a series occurs if:
(1) the
Company defaults in the payment of interest on any Security of such series when the same becomes due and payable and the Default
continues for a period of 30 days;
(2) the
Company defaults in the payment of the principal of any Security of such series when the same becomes due and payable at maturity,
upon redemption or otherwise;
(3) the
Company fails to comply with any of its other agreements in the Securities of such series or this Indenture (as they relate thereto)
and the Default continues for the period and after the notice specified below (except in the case of a default with respect to
any Change of Control Provisions or Article VIII (or any replacement provisions contemplated by Article VIII), which will constitute
Events of Default with notice but without passage of time);
(4) the
acceleration of any Indebtedness of the Company in an amount of $50.0 million or more, individually or in the aggregate, and such
acceleration does not cease to exist, or such Indebtedness is not satisfied, in either case within five days after such acceleration;
(5) the
failure by the Company to make any principal or interest payment in an amount of $50.0 million or more, individually or in the
aggregate, in respect of Indebtedness of the Company within five days of such principal or interest becoming due and payable (after
giving effect to any applicable grace period set forth in the documents governing such Indebtedness);
(6) a
final judgment or judgments in an amount of $50.0 million or more, individually or in the aggregate, for the payment of money having
been entered by a court or courts of competent jurisdiction against the Company and such judgment or judgments is not satisfied,
stayed, annulled or rescinded within 90 days after being entered;
(7) the
Company pursuant to or within the meaning of any Bankruptcy Law:
(a) commences
a voluntary case,
(b) consents
to the entry of an order for relief against it in an involuntary case,
(c) consents
to the appointment of a Custodian of it or for all or substantially all of its property, or
(d) makes
a general assignment for the benefit of creditors;
(8) a
court of competent jurisdiction enters into an order or decree under any Bankruptcy Law that:
(a) is
for relief against the Company in an involuntary case,
(b) appoints
a Custodian of the Company or for all or substantially all of its property, or
(c) orders
the liquidation of the Company,
and the order or decree
remains unstayed and in effect for 60 days; or
(9) any
other Event of Default occurs with respect to Securities of that series as provided in the supplemental indenture or Board Resolutions
establishing such series of Securities.
The term “Bankruptcy
Law” means the Bankruptcy Act or any similar Federal or State law for the relief of debtors. The term “Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
A Default under clause
(3) above is not an Event of Default until the Trustee notifies the Company, or the Holders of at least 25% in principal amount
of the Securities of the applicable series notify the Company and the Trustee of the Default and (except in the case of a default
with respect to any provisions of any supplemental indenture or Board Resolution establishing such series of Securities giving
the Holders of Securities of such series the right to require the Company to repurchase or redeem such Securities of such series
upon the occurrence of a change of control prior to the final maturity date of such Securities of such series (“Change of
Control Provisions”) or Article VIII (or any replacement provisions contemplated by Article VIII)) the Company does not cure
the Default within 90 days after receipt of the notice. The notice must specify the Default, demand that it be remedied and state
that the notice is a “Notice of Default.”
SECTION
502. ACCELERATION.
If any Event of Default
(other than an Event of Default specified in clause (7) or (8) of Section 501 hereof) with respect to Securities of any series
occurs and is continuing, either the Trustee or the Holders of at least 25% in principal amount of the then Outstanding Securities
of that series may declare all the Securities of that series to be due and payable immediately. Upon any such declaration, the
Securities of that series shall become due and payable immediately, by a notice in writing to the Company (and to the Trustee if
given by Holders). Notwithstanding the foregoing, if an Event of Default specified in clause (7) or (8) of Section 501 hereof occurs
with respect to any series of Securities, all outstanding Securities of that series shall become due and payable without further
action or notice. The Holders of a majority in aggregate principal amount of Securities of any series then Outstanding by notice
to the Trustee may on behalf of the Holders of all of the Securities of that series waive any existing Default or Event of Default
and its consequences under this Indenture except a continuing Default or Event of Default in the payment of interest or premium,
if any, on, or the principal of, the Securities of that series.
SECTION
503. OTHER REMEDIES.
If an Event of Default
with respect to Securities of any series occurs and is continuing, the Trustee may pursue any available remedy to collect the payment
of principal, premium, if any, and interest on the Securities of that series or to enforce the performance of any provision of
the Securities of that series or this Indenture.
The Trustee may maintain
a proceeding even if it does not possess any of the Securities in a series or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder of a Security in exercising any right or remedy accruing upon an Event of Default
shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative
to the extent permitted by law.
SECTION
504. WAIVER OF PAST DEFAULTS.
Holders of not less than
a majority in aggregate principal amount of the then outstanding Securities in any series by notice to the Trustee may on behalf
of the Holders of all of the Securities of that series waive any existing Default or Event of Default and its consequences hereunder,
except a continuing Default or Event of Default in the payment of the principal of, premium, if any, or interest on, the Securities
of that series (including in connection with an offer to purchase) (provided, however, that the Holders of a majority
in aggregate principal amount of the then outstanding Securities of any series may rescind an acceleration and its consequences,
including any related payment default that resulted from such acceleration, with respect to that series). Upon any such waiver,
such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
SECTION
505. CONTROL BY MAJORITY.
With respect to any series
of Securities, Holders of a majority in principal amount of the then outstanding Securities of that series may direct the time,
method and place of conducting any proceeding for exercising any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture that the Trustee
determines may be unduly prejudicial to the rights of other Holders of Securities of any series or that may involve the Trustee
in personal liability.
SECTION
506. LIMITATION ON SUITS.
A Holder of a Security
of any series may pursue a remedy with respect to this Indenture or the Securities of that series only if:
(a) the
Holder of a Security of that series gives to the Trustee written notice of a continuing Event of Default;
(b) the
Holders of at least 25% in principal amount of the then outstanding Securities of that series make a written request to the Trustee
to pursue the remedy;
(c) such
Holder of a Security or Holders of Securities offer and, if requested, provide to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense;
(d) the
Trustee does not comply with the request within 60 days after receipt of the request and the offer and, if requested, the provision
of indemnity; and
(e) during
such 60-day period the Holders of a majority in principal amount of the then outstanding Securities of that series do not give
the Trustee a direction inconsistent with the request.
A Holder of a Security
may not use this Indenture to prejudice the rights of another Holder of a Security or to obtain a preference or priority over another
Holder of a Security.
SECTION
507. RIGHTS OF HOLDERS OF SECURITIES TO RECEIVE PAYMENT.
Notwithstanding any other
provision of this Indenture, the right of any Holder of a Security of any series to receive payment of principal, premium, if any,
and interest on the Security, on or after the respective due dates expressed in the Security (including in connection with an offer
to purchase), or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired
or affected without the consent of such Holder.
SECTION
508. COLLECTION SUIT BY TRUSTEE.
With respect to the Securities
of any series, if an Event of Default specified in clause (1) or (2) of Section 501 hereof occurs and is continuing, the Trustee
is authorized to recover judgment in its own name and as trustee of an express trust against the Company for the whole amount of
principal of, premium on, if any, and interest remaining unpaid on the Securities of that series and interest on overdue principal
and, to the extent lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
SECTION
509. TRUSTEE MAY
FILE PROOFS OF CLAIM.
The Trustee is authorized
to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders of the Securities of any series allowed in any judicial proceedings relative to the Company (or any other
obligor upon the Securities), its creditors or its property and shall be entitled and empowered to collect, receive and distribute
any money or other property payable or deliverable on any such claims and any custodian in any such judicial proceeding is hereby
authorized by each Holder of that 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 the Holders, to pay to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section
607 of this Indenture. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 607 of this Indenture out of the estate in any such
proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and
all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed
to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder of any series of Securities any
plan of reorganization, arrangement, adjustment or composition affecting the Securities of that series or the rights of any Holder,
or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION
510. PRIORITIES.
If the Trustee collects
any money pursuant to this Article, it shall pay out the money in the following order:
(a) First:
to the Trustee, its agents and attorneys for amounts due under Section 607 of this Indenture, including payment of all compensation,
expense and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;
(b) Second:
to Holders of Securities for amounts due and unpaid on the Securities for principal, premium, if any, and interest, ratably, without
preference or priority of any kind, according to the amounts due and payable on the Securities for principal, premium, if any,
and interest, respectively; and
(c) Third:
to the Company or to such party as a court of competent jurisdiction shall direct.
The Trustee may fix a
record date and payment date for any payment to Holders of Securities pursuant to this Section 510.
SECTION
511. UNDERTAKING FOR COSTS.
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 a Trustee,
a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any
party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder of a Security pursuant to Section 507 hereof, or a suit
by Holders of more than 10% in principal amount of the then outstanding Securities of any series.
ARTICLE
VI
THE TRUSTEE
SECTION
601. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except
during the continuance of an Event of Default with respect to the Securities of any series:
(1) the
Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the Trustee; and
(2) in
the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon 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 they conform to the requirements
of this Indenture (but need not confirm or investigate the accuracy of mathematical calculation or other facts stated therein).
(b) In
case an Event of Default has occurred and is continuing with respect to the Securities of any series, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(c) No
provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that:
(1) this
Subsection shall not be construed to limit the effect of Subsection (a) of this Section;
(2) the
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts;
(3) the
Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding Securities of any series or of all series, determined as provided
in Section 505, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series; and
(4) no
provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not assured
to it.
(d) Whether
or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this Section.
SECTION
602. NOTICE OF DEFAULTS.
Within 90 days after
the occurrence of any Default or Event of Default with respect to the Securities of any series, the Trustee shall give notice of
such Default or Event of Default known to the Trustee to all Holders of Securities of such series in the manner provided in Section
107 and in compliance with the Trust Indenture Act, unless such Default or Event of Default shall have been cured or waived; provided,
however, that, except in the case of a Default or Event of Default in the payment of the principal of (or premium, if any)
or interest on or any Additional Amounts with respect to any Security of such series or in the payment of any sinking fund installment
with respect to Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board
of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interest of the Holders of Securities of such series; and provided,
further, that in the case of any Default or Event of Default of the character specified in Section 501(3) with respect to
Securities of such series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof.
SECTION
603. CERTAIN RIGHTS
OF TRUSTEE.
Subject to the provisions
of Section 601:
(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, direction, consent, order, bond, debenture, note, coupon, other evidence of indebtedness
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 or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and
any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever
in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence
of bad faith on its part, rely upon an Officers’ Certificate;
(d) the
Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory
to it against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction;
(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, direction, consent, order, bond, debenture, note, coupon, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled
to examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company and
shall incur no liability or additional liability of any kind by reason of such inquiry or investigation;
(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, except for any Affiliates of the Trustee, 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) the
Trustee shall not be charged with knowledge of any Default or Event of Default with respect to the Securities of any series for
which it is acting as Trustee unless either (1) a Responsible Officer shall have actual knowledge of such Default or Event of Default
or (2) written notice of such Default or Event of Default which is in fact such a default shall have been received by the Trustee
at the Corporate Trust Office of the Trustee and such notice references the Securities and this Indenture by the Company or any
other obligor on such Securities or by any Holder of such Securities;
(i) the
Trustee shall not be liable for any action taken, suffered or omitted 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.
(j)
in no event shall the Trustee be responsible or liable for special, indirect, 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;
(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, and each agent, custodian and other
Person employed to act hereunder; and
(l) the Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles
of officers authorized at such time to take specified actions pursuant to this Indenture.
SECTION
604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained
herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities. The Trustee shall not be accountable for the use or application by the Company
of Securities or the proceeds thereof.
SECTION
605. MAY HOLD SECURITIES.
The Trustee, any Authenticating
Agent, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any other capacity, may
become the owner or pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal with the Company with the same
rights it would have if it were not the Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION
606. MONEY HELD IN TRUST.
Money held by the Trustee
in trust hereunder 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 money received by it hereunder except as otherwise agreed with the Company.
SECTION
607. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to
pay to the Trustee from time to time compensation for all services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an express trust);
(2) except
as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the compensation and the
reasonable expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as shall be
determined to have been caused by its own negligence or willful misconduct; and
(3) to
indemnify the Trustee and each of its directors, officers, employees, agents and/or representatives for, and to hold each of them
harmless against, any loss, liability or expense incurred without negligence or willful misconduct on each of their part, arising
out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses
of defending themselves against any claim or liability in connection with the exercise or performance of any of the Trustee’s
powers or duties hereunder.
As security for the performance
of the obligations of the Company under this Section 607, the Trustee shall have a lien prior to the Securities on all property
and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of, premium, if any,
or interest, if any, on or any Additional Amounts with respect to particular Securities.
Any expenses and compensation
for any services rendered by the Trustee after the occurrence of an Event of Default (including the reasonable charges and expenses
of its counsel) specified in clause (7) or (8) of Section 501 shall constitute expenses and compensation for services of administration
under all applicable federal or state bankruptcy, insolvency, reorganization or other similar laws.
The provisions of this
Section 607 and any lien arising hereunder shall survive the resignation or removal of the Trustee or the discharge of the Company’s
obligations under this Indenture and the termination of this Indenture.
SECTION
608. DISQUALIFICATION; CONFLICTING INTERESTS.
(a) If
the Trustee has or shall acquire any conflicting interest, as defined in this Section 608, with respect to the Securities of any
series, it shall, within 90 days after ascertaining that it has such conflicting interest, either eliminate such conflicting interest
or resign with respect to the Securities of that series in the manner and with the effect hereinafter specified in this Article.
(b) In
the event that the Trustee shall fail to comply with the provisions of Subsection (a) of this Section 608 with respect to the Securities
of any series, the Trustee shall, within 10 days after the expiration of such 90-day period, transmit by mail to all Holders of
Securities of that series, as their names and addresses appear in the Security Register, notice of such failure in compliance with
the Trust Indenture Act.
(c) For
the purposes of this Section, the term “conflicting interest” shall have the meaning specified in Section 310(b) of
the Trust Indenture Act and the Trustee shall comply with Section 310(b) of the Trust Indenture Act; provided, that there
shall be excluded from the operation of Section 310(b)(1) of the Trust Indenture Act with respect to the Securities of any series
any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of
the Company are outstanding, if the requirements for such exclusion set forth in Section 310(b)(1) of the Trust Indenture Act are
met. For purposes of the preceding sentence, the optional provision permitted by the second sentence of Section 310(b)(1) of the
Trust Indenture Act shall be applicable.
SECTION
609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times
be a Trustee hereunder which shall be a corporation organized and doing business under the laws of the United States of America,
any State thereof or the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50 million and subject to supervision or examination by Federal or State (or the District of Columbia)
authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section 609, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.
The Indenture shall always
have a Trustee who satisfies the requirements of Sections 310(a)(1), 310(a)(2) and 310(a)(5) of the Trust Indenture Act.
SECTION
610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No
resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 611.
(b) The
Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company.
If the instrument of acceptance by a successor Trustee required by Section 611 shall not have been delivered to the resigning Trustee
within 30 days after the giving of such notice of resignation, the resigning Trustee may petition at the expense of the Company
any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(c) The
Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company. If the instrument of acceptance
by a successor Trustee required by Section 611 shall not have been delivered to the resigning Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition at the expense of the Company any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the Securities of such series.
(d) If
at any time:
(1) the
Trustee shall fail to comply with Section 608(a) after written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the
Trustee shall cease to be eligible under Section 609 and shall fail to resign after written request therefor by the Company or
by any such Holder of Securities, or
(3) the
Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company
by a Board Resolution may remove the Trustee with respect to all Securities, or (ii) subject to Section 505, any Holder who has
been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor
Trustee or Trustees.
(e) If
the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any
cause, with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee
may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one
Trustee with respect to the Securities of any particular series) and such successor Trustee or Trustees shall comply with the applicable
requirements of Section 611. If no successor Trustee with respect to the Securities of any series shall have been so appointed
by the Company and accepted appointment in the manner required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(f) The
Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any series by mailing written notice of such event by
first-class mail, postage prepaid, to all Holders of Securities of such series as their names and addresses appear in the Security
Register. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address
of its Corporate Trust Office.
SECTION
611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In
case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver
an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
(b) In
case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) 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, (2) if the retiring Trustee is not retiring with respect to all Securities, 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 (3) shall add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other
such Trustee; 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 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 all 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.
SECTION
612. 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, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of
the parties hereto; provided, however, that in the case of a corporation succeeding to all or substantially all the
corporate trust business of the Trustee, such successor corporation shall expressly assume all of the Trustee’s liabilities
hereunder. 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
613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST 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 indicated
therein.
SECTION
614. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint
an Authenticating Agent or Agents that shall be authorized to act on behalf of the Trustee to authenticate Securities issued upon
original issue and upon exchange, registration of transfer or partial redemption or pursuant to Section 306, 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. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery
on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized
and doing business under the laws of the United States of America, any State thereof or the District of Columbia having a combined
capital and surplus of not less than $50 million or equivalent amount expressed in a foreign currency and subject to supervision
or examination by Federal or State (or the District of Columbia) authority or authority of such country. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section 614, the combined capital and surplus of such Authenticating Agent shall be deemed
to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating
Agent shall cease to be eligible in accordance with the provisions of this Section 614, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section 614.
Any corporation into
which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from
any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided
such corporation shall be otherwise eligible under this Section 614, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent
may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section 614, the Trustee may appoint a successor Authenticating Agent which shall be
acceptable to the Company and shall mail written notice of such appointment by first-class mail, postage prepaid, to all Holders
as their names and addresses appear in the Security Register. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally
named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of
this Section 614.
The Trustee agrees to
pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section 614, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions of Section 607.
If an appointment is
made pursuant to this Section 614, the Securities may have endorsed thereon, in addition to the Trustee’s certificate of
authentication, an alternate certificate of authentication in the following form:
“This
is one of the Securities of the series designated therein referred to in the within mentioned Indenture.
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AS TRUSTEE |
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By |
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AS AUTHENTICATING AGENT |
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By |
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AS AUTHORIZED SIGNATORY” |
Notwithstanding any provision
of this Section 614 to the contrary, if at any time any Authenticating Agent appointed hereunder with respect to any series of
Securities shall not also be acting as the Security Registrar hereunder with respect to any series of Securities, then, in addition
to all other duties of an Authenticating Agent hereunder, such Authenticating Agent shall also be obligated (i) to furnish to the
Security Registrar promptly all information necessary to enable the Security Registrar to maintain at all times an accurate and
current Security Register and (ii) prior to authenticating any Security denominated in a foreign currency, to ascertain from the
Company the units of such foreign currency that are required to be determined by the Company pursuant to Section 302.
ARTICLE
VII
HOLDER’S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION
701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
With respect to each
series of Securities, the Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually,
not more than 15 days after each Regular Record Date relating to that series (or, if there is no Regular Record Date relating to
that series, on January 1 and July 1), a list, in such form as the Trustee may reasonably require, of the names and addresses of
the Holders of that series as of such dates, 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, such list to be dated as of a date not more than 15 days prior to the time such list is furnished;
provided, that so long as the Trustee
is the Security Registrar, the Company shall not be required to furnish or cause to be furnished such a list to the Trustee. The
Company shall otherwise comply with Section 312(a) of the Trust Indenture Act.
SECTION
702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The
Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders of each series contained
in the most recent list furnished to the Trustee as provided in Section 701 and the names and addresses of Holders of each series
received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished. The Trustee shall otherwise comply with Section 312(a) of the Trust Indenture
Act.
(b) Holders
of Securities may communicate pursuant to Section 312(b) of the Trust Indenture Act with other Holders with respect to their rights
under this Indenture or under the Securities. The Company, the Trustee, the Security Registrar and any other Person shall have
the protection of Section 312(c) of the Trust Indenture Act.
SECTION
703. REPORTS BY TRUSTEE.
(a) Within
60 days after May 15 of each year commencing with the year 2014, the Trustee shall transmit by mail to Holders a brief report dated
as of such May 15 that complies with Section 313(a) of the Trust Indenture Act. The Trustee shall comply with Section 313(b) of
the Trust Indenture Act. The Trustee shall transmit by mail all reports as required by Sections 313(c) and 313(d) of the Trust
Indenture Act.
(b) A
copy of each report pursuant to Subsection (a) of this Section 703 shall, at the time of its transmission to Holders, be filed
by the Trustee with each stock exchange upon which any Securities are listed, with the SEC and with the Company. The Company will
notify the Trustee when any Securities are listed or delisted on any stock exchange.
SECTION
704. REPORTS BY COMPANY.
The Company shall file
with the Trustee, within 15 days after the Company is required to file the same with the SEC, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may from time to
time by rules and regulations prescribe) which the Company may be required to file with the SEC pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934, as amended, and shall otherwise comply with Section 314(a) of the Trust Indenture
Act.
Delivery of such reports,
information and documents to the Trustee is for informational purposes only and the Trustee's receipt of such shall not constitute
constructive notice of any information contained therein or determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers' Certificates).
ARTICLE
VIII
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION
801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
(a) The
Company shall not, directly or indirectly, in any transaction or series of related transactions: (1) consolidate or merge with
or into another Person (whether or not the Company is the surviving corporation); (2) sell, assign, transfer, convey or otherwise
dispose of all or substantially all of the properties or assets of the Company and its Subsidiaries taken as a whole, or (3) assign
any of its obligations under the Securities and this Indenture, in one or more related transactions, to another Person; unless:
(i) either:
(A) the Company is the surviving corporation; or (B) the Person formed by or surviving any such consolidation or merger (if other
than the Company) or to which such sale, assignment, transfer, conveyance or other disposition shall have been made is a corporation
organized or existing under the laws of the United States, any state thereof or the District of Columbia;
(ii) the
Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment,
transfer, conveyance or other disposition shall have been made assumes all the obligations of the Company under the Securities
and this Indenture pursuant to agreements reasonably satisfactory to the Trustee;
(iii) immediately
after such transaction no Default or Event of Default exists;
(iv) the
Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such merger,
consolidation or sale, assignment, transfer, conveyance or other disposition of such properties or assets or assignment of its
obligations under the Securities and this Indenture and such supplemental indenture, if any, comply with this Indenture.
(b) The
Company shall not, directly or indirectly, lease all or substantially all of its properties or assets, in one or more related transactions,
to any other Person.
(c) Notwithstanding
the foregoing, this Section 801 shall not apply to a sale, assignment, transfer, conveyance or other disposition of assets between
or among the Company and any of its Wholly Owned Subsidiaries.
SECTION
802. SUCCESSOR PERSON SUBSTITUTED.
Upon any consolidation
or merger, any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets of
the Company, or any assignment of the obligations under the Securities and this Indenture in accordance with Section 801 hereof,
the successor corporation formed by such consolidation or into or with which the Company is merged or to which such sale, assignment,
transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for (so that from and after the date
of such consolidation, merger, sale, lease, conveyance or other disposition, the provisions of this Indenture referring to the
“Company” shall refer instead to the successor corporation and not to the Company), and may exercise every right and
power of the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein;
provided, however, that the predecessor Company shall not be relieved from the obligation to pay the principal of
and interest on the Securities except in the case of a sale of all of the Company’s assets that meets the requirements of
Section 801 hereof.
ARTICLE
IX
SUPPLEMENTAL INDENTURES
SECTION
901. WITHOUT CONSENT OF HOLDERS.
Notwithstanding Section
902 of this Indenture, the Company and the Trustee may amend or supplement this Indenture or the Securities of any series without
the consent of any Holder of a Security of any series:
(a) to
cure any ambiguity, defect or inconsistency;
(b) to
provide for uncertificated Securities in addition to or in place of certificated Securities or to alter the provisions of Article
II of this Indenture (including the related definitions) in a manner that does not materially adversely affect any Holder;
(c) to
establish the form or terms of Securities of any series as permitted by Sections 201 and 301 of this Indenture;
(d) to
provide for the assumption of the Company’s or any Guarantor’s obligations to the Holders of the Securities by a successor
to the Company pursuant to Article VIII of this Indenture;
(e) to
make any change that would provide any additional rights or benefits to the Holders of the Securities or that does not adversely
affect the legal rights hereunder of any such Holder;
(f) to
comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the Trust Indenture
Act;
(g) to
evidence and provide the acceptance of the appointment of a successor Trustee pursuant to Sections 610 and 611 of this Indenture;
and
(h) to
add a Guarantor of the Securities.
Upon the request of the
Company accompanied by a resolution of its Board of Directors authorizing the execution of any such amended or supplemental indenture,
and upon receipt by the Trustee of the documents described in Section 603 of this Indenture, the Trustee shall join with the Company
in the execution of any amended or supplemental indenture authorized or permitted by the terms of this 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 such amended or supplemental indenture that affects its own rights, duties or immunities under this Indenture or otherwise.
SECTION
902. WITH CONSENT OF HOLDERS.
Except as provided below
in this Section 902, the Company and the Trustee may amend or supplement this Indenture and the Securities of any series may be
amended or supplemented with the consent of the Holders of at least a majority in aggregate principal amount at maturity of Securities
of that series then Outstanding voting as a single class (including, without limitation, consents obtained in connection with a
purchase of, or tender offer or exchange offer for, that series of Securities), and, subject to Sections 504 and 507 hereof, any
existing Default or Event of Default (other than a Default or Event of Default in the payment of the principal of, premium, if
any, and interest, if any, on such Securities, except a payment default resulting from an acceleration that has been rescinded)
or compliance with any provision of this Indenture or such Securities may be waived with the consent of the Holders of a majority
in aggregate principal amount at maturity of the then Outstanding Securities of that series voting as a single class (including
without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, that series of Securities).
Upon the request of the
Company accompanied by a Board Resolution authorizing the execution of any such amended or supplemental indenture, and upon the
filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of that series of Securities as aforesaid,
and upon receipt by the Trustee of the documents described in Section 603 of this Indenture, the Trustee shall join with the Company
in the execution of such amended or supplemental indenture unless such amended or supplemental indenture directly 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 amended or supplemental indenture.
It shall not be necessary
for the consent of the Holders of Securities under this Section 902 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance thereof.
After an amendment, supplement
or waiver under this Section becomes effective, the Company shall mail to the Holders of Securities of any series affected thereby
a notice briefly describing the amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any such amended or supplemental indenture or waiver.
Subject to Sections 504
and 507 hereof, the Holders of a majority in aggregate principal amount at maturity of a series of Securities then Outstanding
voting as a single class may waive compliance in a particular instance by the Company with any provision of this Indenture or the
Securities. However, without the consent of each Holder of a series of Securities affected, an amendment or waiver under this Section
902 may not (with respect to the series of Securities held by a non-consenting Holder):
(a) reduce
the principal amount of the then Outstanding Securities whose Holders must consent to an amendment, supplement or waiver;
(b) reduce
the principal of or change the fixed maturity of any Security or alter any of the provisions with respect to the redemption of
the Securities unless otherwise specifically provided for in the supplemental indenture;
(c) reduce
the rate of or change the time for payment of interest on any Security;
(d) waive
a Default or Event of Default in the payment of principal of, or interest or premium, if any, on the Securities (except a rescission
of acceleration of the Securities by the Holders of any series of Securities of at least a majority in aggregate principal amount
of the then Outstanding Securities of that series and a waiver of the payment default that resulted from such acceleration);
(e) make
any Security payable in money other than that stated in the Security;
(f) make
any change in the provisions of this Indenture relating to waivers of past Defaults or the rights of Holders of Securities to receive
payments of principal of, or interest or premium, if any, on the Securities;
(g) waive
a redemption payment with respect to any Security (other than as may be specifically permitted by the supplemental indenture);
(h) cause
the Securities to become subordinated in right of payment to any other Indebtedness;
(i) release
any Guarantor from any of its obligations under its Guarantee or this Indenture, except in accordance with the terms thereof; or
(j) make
any change in Sections 504 or 507 or the foregoing amendment and waiver provisions.
SECTION
903. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement
to this Indenture or the Securities shall be set forth in a amended or supplemental indenture that complies with the Trust Indenture
Act as then in effect.
SECTION
904. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement
or waiver becomes effective, a consent to it by a Holder of a Security is a continuing consent by the Holder of a Security and
every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security,
even if notation of the consent is not made on any Security. However, any such Holder of a Security or subsequent Holder of a Security
may revoke the consent as to its Security if the Trustee receives written notice of revocation before the date the waiver, supplement
or amendment becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter
binds every Holder.
SECTION
905. NOTATION ON OR EXCHANGE OF SECURITIES.
The Trustee may place
an appropriate notation about an amendment, supplement or waiver on any Security thereafter authenticated. The Company in exchange
for all Securities of a series may issue and the Trustee shall, upon receipt of a written order from the Company to authenticate
such Securities, authenticate new Securities that reflect the amendment, supplement or waiver.
SECTION
906. TRUSTEE TO
SIGN AMENDMENTS, ETC.
The Trustee shall sign
any amended or supplemental indenture authorized pursuant to this Article IX if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The Company may not sign an amendment or supplemental indenture
until the Board of Directors approves it. In executing any amended or supplemental indenture, the Trustee shall be given and (subject
to Section 601 of this Indenture) shall be fully protected in relying upon, in addition to the documents required by Section 603
this Indenture, an Officer’s Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental
indenture is authorized or permitted by this Indenture.
ARTICLE
X
COVENANTS
SECTION
1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants
and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of (and premium, if
any), interest on and any Additional Amounts with respect to the Securities of that series in accordance with the terms of the
Securities and this Indenture.
SECTION
1002. MAINTENANCE OF OFFICE OR AGENCY.
If Securities of a series
are issuable only as Registered Securities, the Company will maintain in each Place of Payment for any series of Securities an
office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may
be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location,
and any change in the location, of such office or agency. 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, surrenders, notices and demands may
be made or served at the Corporate Trust Office of the Trustee.
The Company may also
from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee
of any such designation or rescission and of any change in the location of any such other office or agency.
SECTION
1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall
at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal
of (and premium, if any) or interest on or any Additional Amounts with respect to any of the Securities of that series, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company
shall have one or more Paying Agents for any series of Securities, the Company will, on or before each due date of the principal
of (and premium, if any) or interest on any Securities of that series, deposit with a 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 its action or failure so to act.
The Company will cause
each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will:
(1) hold
all sums held by it for the payment of the principal of (and premium, if any), interest on or any Additional Amounts with respect
to Securities of that series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons
or otherwise disposed of as herein provided;
(2) give
the Trustee notice of any default by the Company (or any other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any), interest on or any Additional Amounts with respect to the Securities of that series;
and
(3) at
any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
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 by Company
Order 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 trusts as those upon which sums were held by the Company or such Paying Agent; and, upon such
payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with
the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of (and premium, if any)
or interest on any Security of any series and remaining unclaimed for three years after such principal (and premium, if any) or
interest has become due and payable shall, unless otherwise required by mandatory provisions of applicable escheat, or abandoned
or unclaimed property law, be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from
such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to be published once, in an Authorized Newspaper in
the Borough of Manhattan, the City of New York and in such other Authorized Newspapers as the Trustee shall deem appropriate, notice
that such money remains unclaimed and that, after a date specified herein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will, unless otherwise required by mandatory provisions of
applicable escheat, or abandoned or unclaimed property law, be repaid to the Company.
SECTION
1004. EXISTENCE.
Subject to Article VIII,
the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence.
SECTION
1005. STATEMENT BY OFFICERS AS TO DEFAULT.
The Company shall deliver
to the Trustee, within 120 days after the end of each fiscal year, an Officers’ Certificate stating that a review of the
activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing
officers with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations under this
Indenture, and further stating, as to each such officer signing such certificate, that to the best of his or her knowledge the
Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in
the performance or observance of any of the terms, provisions and conditions of this Indenture (or, if a Default or Event of Default
shall have occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what action the
Company is taking or proposes to take with respect thereto) and that to the best of his or her knowledge no event has occurred
and remains in existence by reason of which payments on account of the principal of or interest, if any, on the Securities is prohibited
or if such event has occurred, a description of the event and what action the Company is taking or proposes to take with respect
thereto.
The Company shall, so
long as any of the Securities are outstanding, deliver to the Trustee, forthwith and in any event within five days upon any officer
becoming aware of any Default or Event of Default or an event which, with notice or the lapse of time or both, would constitute
an Event of Default, an Officers’ Certificate specifying such Default or Event of Default and what action the Company is
taking or proposes to take with respect thereto.
SECTION
1006. WAIVER OF CERTAIN COVENANTS.
The Company may omit
in any particular instance to comply with any covenant or condition set forth in Section 1005, or any covenant added for the benefit
of any series of Securities as contemplated by Section 301 (unless otherwise specified pursuant to Section 301) if before or after
the time for such compliance the Holders of a majority in principal amount of the Outstanding Securities of all series affected
by such omission (acting as one class) shall, by Act of such Holders, either waive such compliance in such instance or generally
waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or condition except
to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties
of the Trustee in respect of any such covenant or condition shall remain in full force and effect.
SECTION
1007. ADDITIONAL AMOUNTS.
If the Securities of
a series expressly provide for the payment of Additional Amounts, the Company will pay to the Holder of any Security of such series
Additional Amounts as expressly provided therein. Whenever in this Indenture there is mentioned, in any context, the payment of
the principal of or any premium or interest on, or in respect of, any Security of any series or the net proceeds received from
the sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of Additional
Amounts provided for in this Section 1007 to the extent that, in such context, Additional Amounts are, were or would be payable
in respect thereof pursuant to the provisions of this Section 1007 and express mention of the payment of Additional Amounts (if
applicable) in any provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such
express mention is not made.
If the Securities of
a series provide for the payment of Additional Amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear interest prior to Maturity, the first day on which
a payment of principal and any premium is made), and at least 10 days prior to each date of payment of principal and any premium
or interest if there has been any change with respect to the matters set forth in the below-mentioned Officers’ Certificate,
the Company shall furnish the Trustee and the Company’s principal Paying Agent or Paying Agents, if other than the Trustee,
with an Officers’ Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal
of and any premium or interest on the Securities of that series shall be made to Holders of Securities of that series who are United
States Aliens without withholding for or on account of any tax, assessment or other governmental charge described in the Securities
of that series. If any such withholding shall be required, then such Officers’ Certificate shall specify by country the amount,
if any, required to be withheld on such payments to such Holders of Securities and the Company will pay to such Paying Agent the
Additional Amounts required by this Section. The Company covenants to indemnify the Trustee and any Paying Agent for, and to hold
them harmless against any loss, liability or expense reasonably incurred without negligence or willful misconduct on their part
arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished
pursuant to this Section 1007.
ARTICLE
XI
REDEMPTION OF SECURITIES
SECTION
1101. APPLICABILITY OF ARTICLE.
Securities of any series
which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified
as contemplated by Section 301 for Securities of any series) in accordance with this Article.
SECTION
1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company
to redeem any Securities shall be evidenced by a Board Resolution. In case of any redemption at the election of the Company of
less than all the Securities of any series, the Company shall, a reasonable period prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the principal
amount of Securities of such series to be redeemed. 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 Officers’ Certificate evidencing compliance with such restriction.
SECTION
1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the
Securities of any series are to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days prior
to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, by
such method as the Trustee shall deem fair and appropriate and that may provide for the selection for redemption of portions (equal
to the minimum authorized denomination for Securities of that series or any integral multiple thereof) of the principal amount
of Securities of such series of a denomination larger than the minimum authorized denomination for Securities of that series or
of the principal amount of global Securities of such series.
The Trustee shall promptly
notify the Company and the Security Registrar in writing of the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this
Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which
has been or is to be redeemed.
SECTION
1104. NOTICE OF REDEMPTION.
Notice of redemption
shall be given in the manner provided in Section 107 to each Holder of Securities to be redeemed not less than 30 nor more than
60 days prior to the Redemption Date.
All notices of redemption
shall state:
(1) the
Redemption Date,
(2) the
Redemption Price,
(3) if
less than all the Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed,
(4) that
on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date,
(5) the
place or places where such Securities are to be surrendered for payment of the Redemption Price,
(6) that
the redemption is for a sinking fund, if such is the case, and
(7) the
“CUSIP” number, if applicable.
A notice of redemption
as contemplated by Section 107 need not identify particular Registered Securities to be redeemed. Notice of redemption of Securities
to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request and provision to
the Trustee of the notice information 10 days prior to delivery of the notice, by the Trustee in the name and at the expense of
the Company.
SECTION
1105. DEPOSIT OF REDEMPTION PRICE.
On or before 10:00 a.m.,
New York City time, on any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company
is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money sufficient to pay
the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on and any Additional
Amounts with respect to all the Securities to be redeemed on that date.
SECTION
1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption
having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption
Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price
and accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance
with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued interest (and any Additional
Amounts) to the Redemption Date; provided, however, that installments of interest whose Stated Maturity is on or
prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered
as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 307.
If any Security called
for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the Security or, in the case of Original Issue Discount
Securities, the Securities’ Yield to Maturity.
SECTION
1107. SECURITIES REDEEMED IN PART.
Any Registered Security
which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Security without service charge, a new Registered Security or Securities of the same series and
Stated Maturity, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange
for the unredeemed portion of the principal of the Security so surrendered.
SECTION
1108. PURCHASE OF SECURITIES.
Unless otherwise specified
as contemplated by Section 301, the Company and any Affiliate of the Company may at any time purchase or otherwise acquire Securities
in the open market or by private agreement. Such acquisition shall not operate as or be deemed for any purpose to be a redemption
of the indebtedness represented by such Securities. Any Securities purchased or acquired by the Company may be delivered to the
Trustee and, upon such delivery, the indebtedness represented thereby shall be deemed to be satisfied. Section 309 shall apply
to all Securities so delivered.
ARTICLE
XII
SINKING FUNDS
SECTION
1201. APPLICABILITY OF ARTICLE.
The provisions of this
Article shall be applicable to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated
by Section 301 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.” Unless otherwise provided 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 1202. 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
1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (1) may deliver
Outstanding Securities of a series (other than any previously called for redemption), and (2) may apply as a credit Securities
of a series which 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 payment shall be reduced accordingly.
SECTION
1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days
prior (unless a shorter period shall be satisfactory to the Trustee) to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing sinking fund payment
for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash
and the portion thereof, if any, which is to be satisfied by delivery of or by crediting Securities of that series pursuant to
Section 1202 and will also 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 1103 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 1104. Such notice having been duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Sections 1106 and 1107.
ARTICLE
XIII
MEETINGS OF HOLDERS OF SECURITIES
SECTION
1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders
of Securities of any or all series may be called at any time and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be made, given
or taken by Holders of Securities of such series.
SECTION
1302. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The
Trustee may at any time call a meeting of Holders of Securities of any series for any purpose specified in Section 1301, to be
held at such time and at such place in the Borough of Manhattan, the City of New York, or in any other location, as the Trustee
shall determine. Notice of every meeting of Holders of Securities of any series, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided in Section 107, not
less than 20 nor more than 180 days prior to the date fixed for the meeting.
(b) In
case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 10% in aggregate principal amount of the
Outstanding Securities of any series, shall have requested the Trustee for any such series to call a meeting of the Holders of
Securities of such series for any purpose specified in Section 1301, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have made the first publication of the notice of such meeting
within 30 days after receipt of such request or shall not thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series in the amount above specified, as the case may be, may determine the
time and the place in the Borough of Manhattan, the City of New York for such meeting and may call such meeting for such purposes
by giving notice thereof as provided in Subsection (a) of this Section.
SECTION
1303. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote
at any meeting of Holders of Securities of any series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding
Securities of such series by such Holder or Holders. The only Persons who shall be entitled to be present or to speak at any meeting
of Holders of Securities of any series shall be the Persons entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Company and its counsel.
SECTION
1304. QUORUM; ACTION.
The Persons entitled
to vote a majority in aggregate principal amount of the Outstanding Securities of a series shall constitute a quorum for a meeting
of Holders of Securities of such series. In the absence of a quorum within 30 minutes of the time appointed for any such meeting,
the meeting shall, if convened at the request of Holders of Securities of such series, be dissolved. In any other case, the meeting
may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting. Subject
to Section 1305(d), notice of the reconvening of any adjourned meeting shall be given as provided in Section 1302(a), except that
such notice need be given only once not less than five days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly that Persons entitled to vote a majority in principal amount
of the Outstanding Securities of such series shall constitute a quorum.
Except as limited by
the proviso to Section 902, any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the Holders of a majority in aggregate principal amount of the Outstanding
Securities of that series; provided, however, that, except as limited by the proviso to Section 902, any resolution
with respect to any request, demand, authorization, direction, notice, consent or waiver which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage that is less than a majority in aggregate principal amount
of the Outstanding Securities of a series may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum
is present as aforesaid by the affirmative vote of the Holders of such specified percentage in aggregate principal amount of the
Outstanding Securities of that series.
Except as limited by
the fourth paragraph of Section 902, any resolution passed or decision taken at any meeting of Holders of Securities of any series
duly held in accordance with this Section shall be binding on all the Holders of Securities of such series, whether or not present
or represented at the meeting.
SECTION
1305. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS.
(a) The
holding of Securities shall be proved in the manner specified in Section 105 and the appointment of any proxy shall be proved in
the manner specified in Section 105. Such regulations may provide that written instruments appointing proxies, regular on their
face, may be presumed valid and genuine without the proof specified in Section 105 or other proof.
(b) The
Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called
by the Company or by Holders of Securities as provided in Section 1302(b), in which case the Company or the Holders of Securities
of the series calling the meeting, as the case may be, shall appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in aggregate principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At
any meeting each Holder of a Security of such series and each proxy shall be entitled to one vote for each $1,000 principal amount
(or such other amount of the minimum denomination of any series of Securities as may be provided in the establishment of such series
as contemplated by Section 301 hereof) of the Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as
a Holder of a Security of such series or as a proxy.
(d) Any
meeting of Holders of Securities of any series duly called pursuant to Section 1302 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in aggregate principal amount of the Outstanding Securities of such series
represented at the meeting; and the meeting may be held as so adjourned without further notice.
SECTION
1306. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution
submitted to any meeting of Holders of Securities of any series shall be by written ballots on which shall be subscribed the signatures
of the Holders of Securities of such series or of their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with
the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any series shall be prepared by the secretary of the
meeting and there shall be attached to such record the original reports of the inspectors of votes on any vote by ballot taken
thereat and affidavits by one or more Persons having knowledge of the facts setting forth a copy of the notice of the meeting and
showing that such notice was given as provided in Section 1302 and, if applicable, Section 1304. Each copy shall be signed and
verified by the affidavits of the permanent chairman and secretary of the meeting and one such copy shall be delivered to the Company,
and another to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the matters therein stated.
* * *
This instrument may be
executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
[Signatures on following
page]
IN WITNESS WHEREOF, the
parties hereto have caused this Indenture to be duly executed as of the day and year first above written.
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NANOVIRICIDES, INC. |
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Name: |
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Title: |
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___________________, as Trustee |
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By: |
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Name: |
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Title: |
Exhibit 5.1
Letterhead of Kane Kessler, P.C.
1350 Avenue of the Americas, 26th Floor
New York, New York 10019
October 29, 2014
NanoViricides, Inc.
135 Wood Street, Suite 205
West Haven, Connecticut 06516
Re: Registration Statement on Form S-3 of
NanoViricides, Inc.
Ladies and Gentlemen:
We have acted as special
counsel to NanoViricides, Inc., a Nevada corporation (the “Company”) in connection with the preparation and
filing of a registration statement on Form S-3 (the “Registration Statement”) with the Securities and Exchange
Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”),
relating to up to $50,000,000 principal amount of securities consisting of (i) shares of common stock of the Company, par value
$0.001 per share (the “Common Shares”); (ii) shares of preferred stock of the Company, par value $0.001 per
share (the “Preferred Shares”); (iii) debt securities of the Company (the “Debt Securities”);
(iv) warrants to purchase Common Shares, Preferred Stock and/or Debt Securities of the Company (the “Warrants”);
and (v) units comprised of Common Shares, Preferred Shares, Debt Securities and Warrants (the “Units”, and collectively
with the Common Shares, Preferred Stock, Debt Securities and Warrants, the “Securities”). The Common Shares,
Preferred Shares, Debt Securities, Warrants and Units may be issued and sold or delivered from time to time as set forth in the
Registration Statement, and any amendment thereto, the prospectus contained therein (the “Prospectus”) and supplements
to the Prospectus (the “Prospectus Supplements”) and pursuant to Rule 415 of the General Rules and Regulations promulgated
under the Securities Act (the “Securities Act Rules”).
The Debt Securities
will be issued in one or more series pursuant to an indenture (as amended or supplemented from time to time) (the “Indenture”)
to be entered into between the Company and a trustee to be named (the “Trustee”). The Warrants will be
issued pursuant to one or more warrant agreements (each, a “Warrant Agreement”), by and between the Company
and the other parties to the Warrant Agreement.
In our capacity as
special counsel to the Company in connection with the matters referred to above, we have examined copies of the following: (i)
the Amended and Restated Articles of Incorporation of the Company, as amended to date and currently in effect (the “Articles
of Incorporation”), (ii) the Amended and Restated By-laws of the Company currently in effect (the “By-laws”),
and records of certain of the Company’s corporate proceedings as reflected in its minute books; and (iii) the Registration
Statement, in the form it is to be filed with the Commission on the date hereof. We have also examined such other documents, papers,
authorities and statutes as we have deemed necessary to form the basis of the opinions hereinafter set forth.
In our examination,
we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of the originals of such documents. As to certain facts material to this opinion, we have relied upon
oral or written statements and representations of officers and other representatives of the Company and certificates of public
officials, and such other documents and information as we have deemed necessary or appropriate to enable us to render the opinions
expressed below. We have not undertaken any independent investigation to determine the accuracy of any such facts.
We have assumed for
purposes of this opinion that (i) each of the parties to the Warrant Agreement and the Indenture, other than the Company, are or
will be duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; (ii) the Indenture
and any supplemental indentures thereto will be duly authorized, executed and delivered by the Trustee and will constitute a legally
valid and binding obligation of the Trustee, enforceable against the Trustee in accordance with its terms; (iii) the Warrant
Agreement will be duly authorized, executed and delivered by each of the parties to the Warrant Agreement (other than the Company)
and will constitute a legally valid and binding obligation of such parties, enforceable against such parties in accordance with
its terms; (iv) the Trustee and the parties to the Warrant Agreement are or will be duly qualified to engage in
the activities contemplated by the Indenture and the Warrant Agreement; (v) the Trustee and the parties to the Warrant Agreement
(other than the Company) have or will have the requisite organizational and legal power and authority to perform its obligations
under the Indenture and warrant Agreement, respectively; (vi) the Trustee is or will be qualified under the Trust Indenture Act
of 1939, as amended, and a Form T-1 will be properly filed as an exhibit to the Registration Statement; and (viii) any Debt Securities
that may be issued will be manually signed or countersigned, as the case may be, by duly authorized officers of the Trustee. In
addition, we have also assumed that the terms of the Offered Debt Securities (as defined below) will have been established so as
not to violate, conflict with or constitute a default under (a) any agreement or instrument to which the Company or their properties
are subject, (b) any law, rule or regulation to which the Company is subject, (c) any judicial or regulatory order or decree of
any governmental authority or (d) any consent, approval, license, authorization or validation of, or filing, recording or registration
with any governmental authority.
Based upon and subject to the foregoing
and the other qualifications, assumptions and limitations set forth herein, we are of the opinion that:
1. With respect to
any Common Shares, when (i) the Registration Statement, as finally amended (including all necessary post-effective amendments),
has become effective under the Securities Act; (ii) an appropriate Prospectus Supplement with respect to the Common Shares has
been prepared, delivered and filed in compliance with the Securities Act and the applicable Securities Act Rules; (iii) if the
Common Shares are to be sold pursuant to a firm commitment underwritten offering, the underwriting agreement with respect to the
Common Shares has been duly authorized, executed and delivered by the Company and the other parties thereto; (iv) the Board of
Directors of the Company, including any appropriate committee appointed thereby, and appropriate officers of the Company have taken
all necessary corporate action to approve the issuance of the Common Shares and related matters; (v) the issuance and sale of the
Common Shares does not violate any applicable law or the Articles of Incorporation or the By-laws or result in a default under
or breach of any agreement or instrument binding upon the Company and comply with any requirement or restriction imposed by any
court or governmental body having jurisdiction over the Company; and (vi) the due issuance and delivery of the Common Shares, upon
payment of adequate consideration therefore (not less than the par value of the Common Shares) in accordance with the Registration
Statement and Prospectus Supplement and, if applicable, a definitive underwriting agreement approved by the Board of Directors
of the Company, the Common Shares when issued will be validly issued, fully paid and non-assessable.
2. With respect to
any series of Preferred Shares (the “Offered Preferred Shares”), assuming (i) the Registration Statement, as
finally amended (including all necessary post-effective amendments), has become effective under the Securities Act; (ii) an appropriate
Prospectus Supplement with respect to the Offered Preferred Shares has been prepared, delivered and filed in compliance with the
Securities Act and the applicable Securities Act Rules; (iii) if the Offered Preferred Shares are to be sold pursuant to a firm
commitment underwritten offering, the underwriting agreement with respect to the Offered Preferred Shares has been duly authorized,
executed and delivered by the Company and the other parties thereto; (iv) the Board of Directors of the Company, including any
appropriate committee appointed thereby, and appropriate officers of the Company have taken all necessary corporate action to approve
the issuance of the Offered Preferred Shares and related matters; (v) the issuance and sale of the Offered Preferred Shares does
not violate any applicable law or the Articles of Incorporation or the By-laws or result in a default under or breach of any agreement
or instrument binding upon the Company and comply with any requirement or restriction imposed by any court or governmental body
having jurisdiction over the Company; and (vi) the due issuance and delivery of the Offered Preferred Shares, upon payment of adequate
consideration therefore (not less than the par value of the Offered Preferred Shares) in accordance with the Registration Statement
and Prospectus Supplement and, if applicable, a definitive underwriting agreement approved by the Board of Directors of the Company,
the Offered Preferred Shares when issued will be validly issued, fully paid and non-assessable.
3. With respect to
any series of Debt Securities (the “Offered Debt Securities”), when (i) the Registration Statement, as finally
amended (including all necessary post-effective amendments), has become effective under the Securities Act and the applicable Indenture
has been qualified under the Trust Indenture Act of 1939, as amended; (ii) an appropriate Prospectus Supplement or term sheet with
respect to the Offered Debt Securities has been prepared, delivered and filed in compliance with the Securities Act and the applicable
Securities Act Rules; (iii) if the Offered Debt Securities are to be sold pursuant to a firm commitment underwritten offering,
the underwriting agreement with respect to the Offered Debt Securities has been duly authorized, executed and delivered by the
Company and the other parties thereto; (iv) the Board of Directors, including any appropriate committee appointed thereby, and
appropriate officers of the Company have taken all necessary corporate action to approve the issuance and terms of the Offered
Debt Securities and related matters; (v) each Indenture and any supplemental indenture in respect of such Offered Debt Securities
provides that it shall be governed by New York law, that courts other than New York courts will give effect to such choice of law,
and shall have been duly authorized, executed and delivered by each party thereto; (vi) the terms of the Offered Debt Securities
and of their issuance and sale have been duly established in conformity with the applicable Indenture and any supplemental indenture
to be entered into in connection with the issuance of such Offered Debt Securities so as not to violate any applicable law, the
Articles of Incorporation or By-laws or result in a default under or breach of any agreement or instrument binding upon the Company
and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the
Company; and (vii) the Offered Debt Securities have been duly executed and authenticated in accordance with the provisions of the
applicable Indenture and any supplemental indenture to be entered into in connection with the issuance of such Offered Debt Securities
and duly delivered to the purchasers thereof upon payment of the agreed-upon consideration therefor, the Offered Debt Securities,
when issued and sold in accordance with the applicable Indenture, any supplemental indenture to be entered into in connection with
the issuance of such Offered Debt Securities and the applicable underwriting agreement, if any, or any other duly authorized, executed
and delivered valid and binding purchase or agency agreement, will be valid and binding obligations of the Company, except to the
extent that enforcement thereof may be limited by (a) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium
or other similar laws now or hereafter in effect relating to creditors’ rights generally, (b) general principles of equity
(regardless of whether enforceability is considered in a proceeding at law or in equity), (c) public policy considerations which
may limit the rights of parties to obtain remedies, (d) the waivers of any usury defense contained in the Indentures which may
be unenforceable, (e) requirements that a claim with respect to any Offered Debt Securities denominated in a currency, currency
unit or composite currency other than United States dollars (or a judgment denominated other than in United States dollars in respect
of such claim) be converted into United States dollars at a rate of exchange prevailing on a date determined pursuant to applicable
law, and (f) governmental authority to limit, delay or prohibit the making of payments outside the United States or in foreign
currencies, currency units or composite currencies.
4. With respect to
any Warrants, when (i) the Warrant Agreement has been duly authorized, executed, and delivered by the Company, (ii) the specific
terms of a particular issuance of Warrants have been duly established by a Warrant Agreement in accordance with applicable law
(including, without limitation, the adoption by the Board of Directors of the Company of a resolution duly authorizing the issuance
and delivery of the Warrants), duly authenticated by the parties to the Warrant Agreement and duly executed and delivered on behalf
of the Company against payment therefor in accordance with the terms and provisions of the Warrant Agreement and as contemplated
by the Registration Statement, the Prospectus and the related Prospectus Supplement(s), and (iii) the Registration Statement and
any required post-effective amendments thereto and any and all Prospectus Supplement(s) required by applicable laws have all become
effective under the Securities Act, and assuming (a) that the terms of the Warrants as executed and delivered are as described
in the Registration Statement, the Prospectus and the related Prospectus Supplement(s), b) that the Warrants as executed and delivered
do not violate any law applicable to the Company or result in a default under or breach of any agreement or instrument binding
upon the Company, and (c) that the Warrants as executed and delivered comply with all requirements and restrictions, if any, applicable
to the Company, whether imposed by any court or governmental or regulatory body having jurisdiction over the Company, the Warrants
will constitute valid and binding obligations of the Company.
We express no opinion
as to the validity, legally binding effect or enforceability of any provision of the Indenture, any supplemental indenture, or
the Offered Debt Securities that requires or relates to payment of any interest at a rate or in an amount that a court would determine
in the circumstances under applicable law to be commercially unreasonable or a penalty or a forfeiture. In addition, we express
no opinion as to the validity, legally binding effect or enforceability of (i) the waiver of rights and defenses contained in the
Indenture or Offered Debt Securities or (ii) provisions of the Indenture or Offered Debt Securities relating to severability.
The opinions set forth
herein are subject to the following additional qualifications, assumptions and exceptions:
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1. |
the effect of bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to or affecting the rights and remedies of creditors' generally; and |
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2. |
the effect of general principles of equity, whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefor may be brought. |
We hereby consent to
the filing of this opinion as Exhibit 5.1 to the Registration Statement and to the reference to us under the heading “Legal
Matters” in the Prospectus, which forms a part thereof. In giving this consent, we do not admit that we are in the category
of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated
thereunder.
We are qualified to
practice law in the State of New York and do not purport to be experts on any law other than the laws of the State of New York,
the General Corporation Law of the State of Delaware and the Federal law of the United States. We are not admitted or qualified
to practice in the State of Nevada; however, we are generally familiar with Chapter 78 of the Nevada Revised Statutes as currently
in effect and have made such inquiries as we deem necessary to render the opinions contemplated herein. We express no opinion regarding
the Securities Act, or any other federal or state securities laws or regulations. The opinion is being furnished in accordance
with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act. This opinion letter is limited to the specific
legal matters expressly set forth herein and is limited to present statutes, regulations and administrative and judicial interpretations.
We assume no obligation to revise or supplement this opinion in the event of future changes in such laws or regulations.
Very truly yours,
/s/ KANE KESSLER, P.C.
KANE KESSLER, P.C.
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC
ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-3 filed pursuant to Rule 462(b) under the Securities Act of 1933 of our report dated September
30, 2013 relating to the financial statements, which appears in NanoViricides, Inc.’s Annual Report on Form 10-K for the
year ended June 30, 2013. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
| /s/ Li and Company, PC |
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| Li and Company, PC |
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| Skillman, New Jersey |
|
| October 31, 2014 |
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