As filed with the Securities and Exchange
Commission on October 2, 2015
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
ALBANY
MOLECULAR RESEARCH, INC.
(Exact name of Registrant as specified
in its charter)
| Delaware |
|
14-1742717 |
| (State or other jurisdiction of incorporation or organization) |
|
(I.R.S. Employer Identification No.) |
26 Corporate Circle
Albany, New York 12203
(518) 512-2000
(Address, including zip code, and telephone
number, including area code, of
Registrant’s
principal executive offices)
William S. Marth
President and Chief Executive Officer
Albany Molecular Research, Inc.
26 Corporate Circle
Albany,
New York 12203
(518) 512-2000
(Name, address, including
zip code, and telephone number, including area code,
of agent for service)
With copies to:
| |
Lori M. Henderson, Esq. |
Danielle M. Lauzon, Esq. |
| |
Albany Molecular Research, Inc. |
Goodwin Procter LLP |
| |
26 Corporate Circle |
Exchange Place |
| |
Albany, NY 12203 |
Boston, Massachusetts 02109 |
| |
(518) 512-2000 |
(617) 570-1000 |
Approximate date of commencement of proposed
sale to the public: From time to time after the effective date of this Registration Statement.
If the only securities being registered on
this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.
o
If any of the securities being registered
on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest reinvestment plans, check the following box.
x
If this Form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective registration statement for the same offering.
o
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. o
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. o
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.
o
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,” “non-accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer o |
|
Accelerated filer x |
|
Non-accelerated filer o |
|
Smaller reporting company o |
CALCULATION OF REGISTRATION FEE
Title of Each Class Of Securities
To Be Registered | |
Amount to
Be Registered(1) | | |
Proposed Maximum
Offering Price Per
Unit(2) | | |
Proposed Maximum
Aggregate Offering
Price(3) | | |
Amount of
Registration Fee
(4) | |
| Common Stock(5) | |
| | | |
| | | |
| | | |
| | |
| Preferred Stock(6) | |
| | | |
| | | |
| | | |
| | |
| Debt Securities(7) | |
| | | |
| | | |
| | | |
| | |
| Warrants(8) | |
| | | |
| | | |
| | | |
| | |
| Units(9) | |
| | | |
| | | |
| | | |
| | |
| Total | |
$ | 90,000,000 | | |
| N.A. | | |
$ | 90,000,000 | | |
$ | 9,063 | |
| (1) | The amount to be registered consists of up to $90,000,000
of an indeterminate amount of common stock, preferred stock, debt securities, warrants and/or units. There is also being registered
hereunder such currently indeterminate number of (i) shares of common stock or other securities of the registrant as may
be issued upon conversion of, or in exchange for, convertible or exchangeable debt securities and/or preferred stock registered
hereby, or (ii) shares of preferred stock, common stock, debt securities or units as may be issued upon exercise of warrants
registered hereby, as the case may be. Any securities registered hereunder may be sold separately or as units with the other securities
registered hereunder. |
| (2) | The proposed maximum aggregate offering price per class of security will be determined from time to time by the registrant
in connection with the issuance by the registrant of the securities registered hereunder and is not specified as to each class
of security pursuant to General Instruction II.D. of Form S-3 under the Securities Act. |
| (3) | Estimated solely for purposes of computing the registration fee. No separate consideration will be received for (i) common
stock or other securities of the registrant that may be issued upon conversion of, or in exchange for, convertible or exchangeable
debt securities and/or preferred stock registered hereby, or (ii) preferred stock, common stock, debt securities or units that
may be issued upon exercise of warrants registered hereby, as the case may be. |
| (4) | Calculated pursuant to Rule 457(o) under the Securities Act. |
| (5) | Including such indeterminate amount of common stock as may be issued from time to time at indeterminate prices or upon conversion
of debt securities and/or preferred stock registered hereby, or upon exercise of warrants registered hereby, as the case may be. |
| (6) | Including such indeterminate amount of preferred stock as may be issued from time to time at indeterminate prices or upon conversion
of debt securities and/or preferred stock registered hereby, or upon exercise of warrants registered hereby, as the case may be. |
| (7) | Including such indeterminate principal amount of debt securities as may be issued from time to time at indeterminate prices
or upon exercise of warrants registered hereby, as the case may be. |
| (8) | Including such indeterminate number of warrants or other rights, including without limitation share purchase or subscription
rights, as may be issued from time to time at indeterminate prices. |
| (9) | Each unit will be issued under a unit agreement and will represent an interest in two or more securities, which may or may
not be separable from one another. |
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT
ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH
SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES
ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING PURSUANT
TO SAID SECTION 8(a), MAY DETERMINE.
The information in this preliminary 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 preliminary prospectus is not an offer to sell these securities, and it is not soliciting
an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION,
DATED October 2, 2015.
PROSPECTUS
$90,000,000
ALBANY MOLECULAR RESEARCH, INC.
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
From time to time, we may offer and sell
up to $90,000,000 of any combination of the securities described in this prospectus, either individually or in units. We will provide
specific terms of these offerings and securities in one or more supplements to this prospectus. We may also authorize one or more
free writing prospectuses to be provided to you in connection with these offerings. The prospectus supplement and any related free
writing prospectus may also add, update or change information contained in this prospectus. You should read this prospectus, the
applicable prospectus supplement and any related free writing prospectus carefully before buying any of the securities being offered.
This prospectus may not be used to consummate
a sale of any securities unless accompanied by a prospectus supplement.
Our common stock is listed on The NASDAQ
Global Market under the symbol “AMRI.” On October 1, 2015, the last reported sale price of our common stock on The
NASDAQ Global Market was $17.33. The applicable prospectus supplement will contain information, where applicable, as to any
other listing, if any, on The NASDAQ Global Market or any securities market or other exchange of the securities covered by the
applicable prospectus supplement.
Investing in our securities involves
a high degree of risk. You should review carefully the risks and uncertainties described under the heading “Risk Factors”
contained on page 2 herein and in the applicable prospectus supplement and any related free writing prospectus, and under similar
headings in the other documents that are incorporated by reference into this prospectus.
The securities may be sold directly by
us to investors, through agents designated from time to time or to or through underwriters or dealers, on a continuous or delayed
basis. For additional information on the methods of sale, you should refer to the section entitled “Plan of Distribution”
in this prospectus. If any agents or underwriters are involved in the sale of any securities with respect to which this prospectus
is being delivered, the names of such agents or underwriters and any applicable fees, commissions, discounts and over-allotment
options will be set forth in a prospectus supplement. The price to the public of such securities and the net proceeds that we expect
to receive from such sale will also be set forth in a prospectus supplement.
Neither the Securities and Exchange
Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus
is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2015.
Table of Contents
You should rely only on the information
contained or incorporated by reference in this prospectus and any applicable prospectus supplements. We have not authorized anyone
to provide you with information different from that contained in this prospectus. Offers to sell, and offers to buy, the securities
are valid only in jurisdictions where offers and sales are permitted. The information contained in this prospectus is accurate
only as to the date of this prospectus, regardless of the time of delivery of the prospectus or of any sale of the securities.
In this prospectus, references to the terms
“AMRI,” “we,” “us,” “our” and similar terms, refer to Albany Molecular Research,
Inc. and its wholly owned subsidiaries on a consolidated basis, unless we state or the context implies otherwise.
About
This Prospectus
This prospectus is part of a registration
statement on Form S-3 that we filed with the Securities and Exchange Commission, or SEC, utilizing a “shelf” registration
process. Under this shelf registration process, we may from time to time offer and sell common stock, preferred stock, debt securities,
warrants, units, or any combination of these securities, in one or more offerings up to a total dollar amount of $90,000,000. This
prospectus provides you with a general description of the securities we may offer. Each time we offer any securities under this
prospectus, we will provide a prospectus supplement that will contain more specific information about the terms of those securities.
We may also authorize one or more free writing prospectuses to be provided to you that may contain material information relating
to these offerings. This prospectus, together with applicable prospectus supplements and any related free writing prospectuses,
includes all material information relating to these offerings. We may also add, update or change in the prospectus supplement (and
in any related free writing prospectus that we may authorize to be provided to you) any of the information contained in this prospectus
or in the documents that we have incorporated by reference into this prospectus. We urge you to read carefully this prospectus,
any applicable prospectus supplement and any related free writing prospectus, together with the information incorporated herein
by reference as described under the heading “Where You Can Find Additional Information,” before buying any of the securities
being offered.
This prospectus may not be used to consummate
a sale of securities unless it is accompanied by a prospectus supplement.
You should rely only on the information
we have provided or incorporated by reference in this prospectus, any applicable prospectus supplement and any related free writing
prospectus that we may authorize to be provided to you. We have not authorized anyone to provide you with different information.
No dealer, salesperson or other person is authorized to give any information or to represent anything not contained in this prospectus,
any applicable prospectus supplement or any related free writing prospectus that we may authorize to be provided to you. You must
not rely on any unauthorized information or representation. This prospectus does not constitute an offer to sell or the solicitation
of an offer to buy any securities other than the securities described
in the accompanying prospectus supplement or an offer to sell or the solicitation of an offer to buy such securities in any circumstances
in which such offer or solicitation is unlawful. You should assume that the information in this prospectus, any applicable
prospectus supplement or any related free writing prospectus is accurate only as of the date on the front of the document and that
any information we have incorporated by reference is accurate only as of the date of the document incorporated by reference, regardless
of the time of delivery of this prospectus, any applicable prospectus supplement or any related free writing prospectus, or any
sale of a security.
This prospectus contains summaries of certain
provisions contained in some of the documents described herein, but reference is made to the actual documents for complete information.
All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein
have been filed, will be filed or will be incorporated by reference as exhibits to the registration statement of which this prospectus
is a part, and you may obtain copies of those documents as described below under “Where You Can Find Additional Information.”
RISK FACTORS
Investing in our securities involves significant
risks. Please see the risk factors under the heading “Risk Factors” in our most recent Annual Report on Form 10-K
on file with the SEC, as revised or supplemented by our Quarterly Reports
on Form 10-Q, as well as Current Reports on Form 8-K filed with the SEC since the filing of our most recent Annual Report
on Form 10-K, each of which is on file with the SEC and is incorporated by reference in this prospectus. Before making
an investment decision, you should carefully consider these risks as well as other information we include or incorporate by reference
in this prospectus and any prospectus supplement. The risks and uncertainties we have described are not the only ones facing our
company. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our
business operations. The occurrence of any of these risks might cause you to lose all or part of your investment in the offered
securities. The discussion of risks includes or refers to forward-looking statements; you should read the explanation of the qualifications
and limitations on such forward-looking statements discussed elsewhere in this prospectus.
RATIO OF EARNINGS
TO FIXED CHARGES
The following table sets forth our ratio
of earnings to fixed charges for the periods shown. You should read this table in conjunction with the financial statements and
notes incorporated by reference in this prospectus. We have no preferred shares outstanding and paid no dividends on preferred
shares during the periods indicated. Therefore, the ratios of earnings to combined fixed charges and preferred dividends are the
same as the ratios of earnings to fixed charges presented below.
| | |
Six
Months
Ended
June 30,
2015 | | |
Year Ended
December 31,
2014 | | |
Year Ended
December 31,
2013 | | |
Year Ended
December 31,
2012 | | |
Year Ended
December 31,
2011 | | |
Year Ended
December 31,
2010 | |
| Ratio of Earnings to Fixed Charges | |
| 0.32 | x | |
| * | | |
| 7.49 | x | |
| 0.06 | x | |
| * | | |
| * | |
*Earnings for the years ended December 31, 2014, 2011 and 2010
were inadequate to cover fixed charges by $17,425,406, $38,973,581 and $74,521,389 respectively.
For purposes of calculating the ratios
in the table above, earnings consist of net loss before income taxes. Fixed charges include interest expense on indebtedness and
an estimate of the interest expense within rental expense.
ABOUT ALBANY MOLECULAR
RESEARCH, INC.
Albany Molecular Research, Inc. (AMRI) is
a global contract research and manufacturing organization that provides customers fully integrated drug discovery, development,
and manufacturing services. AMRI supplies a broad range of services and technologies that support the discovery and development
of pharmaceutical products, the manufacturing of active pharmaceutical ingredients (“API”) and the manufacturing of
drug product for new and generic drugs, as well as research, development and manufacturing for the agrochemical and other industries.
With locations in the United States, Europe, and Asia, AMRI maintains geographic proximity and flexible cost models. Our executive
offices are located at 26 Corporate Circle, Albany, New York 12203 and our telephone number is (518) 512-2000. Our Internet web
address is http://www.amriglobal.com. The information on our web site is not incorporated by reference into this prospectus and
should not be considered to be part of this prospectus.
CAUTIONARY NOTE REGARDING
FORWARD-LOOKING STATEMENTS
This prospectus, including the information
incorporated by reference into this prospectus, contains, and any prospectus supplement may contain, statements that are forward-looking
statements within the meaning of the federal securities laws. We caution you that any forward-looking statements presented in this
prospectus, or which management may make orally or in writing from time to time, are based on management’s beliefs and assumptions
made by, and information currently available to, management. When we use the words “believe,” “expect,”
“anticipate,” “plan,” “intend,” “estimate,” “project,” “may,”
“will,” “should,” “continue,” “assume” and other similar expressions, they are
generally forward-looking statements. These statements include, among other things, statements regarding our intent, belief or
expectations with respect to:
| · | our business outlook; and |
| · | our future business and financial performance. |
These
statements are not guarantees of future performance and are subject to certain 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. The risks and uncertainties to which these statements are subject include,
but are not limited to, those risks and uncertainties described in “Risk
Factors” and elsewhere in this prospectus, the accompanying prospectus supplement, and the documents incorporated by reference
herein and therein, and include the following:
| · | general economic and business conditions, including unforeseen economic weakness in our markets; |
| · | our ability to meet our credit facility’s financial covenants; |
| · | our ability to obtain financing sufficient to meet our business needs; |
| · | our ability to integrate past or future acquisitions, including Cedarburg Pharmaceuticals, Oso Biopharmaceuticals Manufacturing,
SSCI/West Lafayette, and Gadea Grupo Farmaceutico, S.L. and make such acquisitions accretive to the company’s business model; |
| · | the ability of our strategic investments and acquisitions to perform as expected; |
| · | demand by pharmaceutical and biotechnology companies for our products and services; |
| · | trends in pharmaceutical and biotechnology companies’ outsourcing of chemical research and development, including softness
in these markets; |
| · | the risk that the company will not be able to replicate either in the short or long term the revenue stream that has been derived
from the royalties payable under the Allegra® license agreements, which ceased in May 2015; |
| · | the success of the sales of Allergan® and other products for which we receive royalties; |
| · | the risk that clients may terminate or reduce demand under any strategic or multi-year deal; |
| · | our ability to enforce our intellectual property and technology rights; |
| · | our ability to successfully comply with heightened scrutiny by the United States Food and Drug Administration (“FDA”)
on aseptic fill/finish operations; |
| · | the results of further FDA inspections; |
| · | our ability to effectively maintain compliance with applicable FDA and Drug Enforcement Administration regulations; |
| · | our ability to compete effectively and adjust to rapidly changing market dynamics; |
| · | our ability to take advantage of proprietary technology and expand the scientific tools available to us; |
| · | our ability to recruit and retain the highly skilled employees we need, including our senior management and experienced scientists; |
| · | our ability to enforce and protect our intellectual property and technology rights; |
| · | our ability to manage international operations and foreign currency risks; |
| · | terrorist attacks or acts of war; and |
| · | various other factors beyond our control. |
We caution you to carefully consider these
risks and not to place undue reliance on our forward-looking statements. Except as required by law, we assume no responsibility
for updating any forward-looking statements.
USE OF PROCEEDS
We currently intend to use the net proceeds
from the sale of any securities under this prospectus for general corporate purposes, which may include the following:
| · | the repayment and refinancing of debt; |
| · | the acquisition of other companies or businesses; and |
| · | other purposes as mentioned in any prospectus supplement. |
We
have not yet determined the amount of net proceeds to be used specifically for any of the foregoing purposes. Accordingly, our
management will have significant discretion and flexibility in applying the net proceeds from the sale of these securities.
Pending such uses, we may temporarily invest the net proceeds. The precise amounts and timing of the application of proceeds will
depend upon our funding requirements and the availability of other funds.
Based upon our financial needs, we may engage
in additional financings of a character and amount that we determine as the need arises.
THE SECURITIES WE
MAY OFFER
The descriptions of the securities contained
in this prospectus, together with the applicable prospectus supplements, summarize the material 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 U.S. federal income tax considerations relating to the securities, and the securities
exchange, if any, on which the securities will be listed.
We may sell from time to time, in one or
more offerings:
| · | any combination of the foregoing securities. |
In this prospectus, we will refer to the
common stock, preferred stock, debt securities, warrants, and units collectively as “securities.” The total dollar
amount of all securities that we may issue under this prospectus will not exceed $90,000,000.
This prospectus may not be used to consummate
a sale of securities unless it is accompanied by a prospectus supplement.
DESCRIPTION OF PREFERRED
STOCK
The following description of our preferred
stock, together with the additional information we include in any applicable prospectus supplements, summarizes the material terms
and provisions of the preferred stock that we may offer under this prospectus. The following description does not purport to be
complete and is subject to, and qualified in its entirety by, our Restated Certificate of Incorporation, as amended and our Amended
and Restated By-Laws, which are exhibits to the registration statement of which this prospectus forms a part, and by applicable
law. We refer to our Restated Certificate of Incorporation, as amended, as our certificate of incorporation, and we refer to our
Amended and Restated By-Laws as our by-laws. You can access complete information
by referring to our certificate of incorporation and by-laws.
General
Under
our certificate of incorporation, we have authority to issue 2,000,000 shares of preferred stock, par value $0.01 per share. We
do not have any shares of preferred stock outstanding as of the date of this prospectus. Shares of preferred stock may be issued
from time to time, in one or more series, as authorized by our board of directors. Subject to the rights of the shares of
any series of preferred stock that may be outstanding from time to time, our board of directors has the authority to:
| · | fix the number of shares of any series of preferred stock and to determine the designation of any such series; |
| · | determine and alter the powers, rights, preferences and privileges and the qualifications, limitations and restrictions granted
to or imposed upon any wholly unissued series of preferred stock; and |
| · | increase or decrease, but not below the number of shares of such series then outstanding, the number of shares of any series
subsequent to the issue of shares of that series (within the limitations or restrictions stated in any resolution or resolutions
of the board of directors originally fixing the number of shares constituting any series). |
The issuance of preferred stock, while providing
desirable flexibility in connection with possible acquisitions and other corporate purposes, could have the effect of delaying,
deferring or preventing a change in control without further action by our stockholders and may adversely affect the market price
of, and the voting and other rights of the holders of, our common stock.
Terms
If we decide to
issue any preferred stock pursuant to this prospectus, we will describe in a prospectus supplement the terms of the preferred stock,
including, if applicable, the following:
| · | the maximum number of shares; |
| · | the designation, relative ranking and stated value of the shares; |
| · | the annual dividend rate, if any, whether the dividend rate is fixed or variable, the date dividends
will accrue, the dividend payment dates, whether dividends will be cumulative and the method of calculation for dividends; |
| · | whether the payment of any dividends on preferred stock is subject to any restrictions against the
payment of any dividends contained in any then effective debt or other instrument; |
| · | the price and the terms and conditions for redemption, if any, including redemption at our option
or at the option of the holders, including the time period for redemption, and any accumulated dividends or premiums; |
| · | the liquidation preference, if any, and any accumulated dividends upon liquidation, dissolution or
winding up of our affairs; |
| · | any sinking fund or similar provision, and, if so, the terms and provisions relating to the purpose
and operation of the fund; |
| · | the terms and conditions, if any, for conversion or exchange of shares of any other class or classes
of our capital stock or any series of any other class or classes, or of any other series of the same class, or any other securities
or assets, including the price or the rate of conversion or exchange and the method, if any, of adjustment; |
| · | any limitations on issuances of any class or series of preferred stock ranking senior to or on a parity
with the series of preferred stock being issued as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; |
| · | if applicable, a discussion of material U.S. federal income tax considerations; |
| · | any listing of the preferred stock on any securities exchange or market; |
| · | the voting rights, if any, of the preferred stock; and |
| · | any or all other preferences and relative, participating, optional or other special rights, privileges
or qualifications, limitations, terms or restrictions of the preferred stock. |
When we issue shares of preferred stock
under this prospectus, the shares will be fully paid and nonassessable and will not have, or be subject to, any preemptive or similar
rights.
Delaware law provides that the holders of
preferred stock have the right to vote separately as a class on any proposal involving fundamental changes in the rights of holders
of that preferred stock. This right is in addition to any voting rights that may be provided for in a certificate of designation.
DESCRIPTION OF COMMON
STOCK
The following description of our common
stock, together with the additional information we include in any applicable prospectus supplements, summarizes the material terms
and provisions of the common stock that we may offer under this prospectus. The following description does not purport to be complete
and is subject to, and qualified in its entirety by, our certificate of incorporation and our by-laws. The terms of our common
stock may also be affected by Delaware law.
General
Under our certificate
of incorporation, we have authority to issue 100,000,000 shares of common stock, par value $0.01 per share. As of October 1, 2015,
there were 35,497,776 shares of our common stock issued and outstanding. For greater detail about our common stock, please refer
to our certificate of incorporation and by-laws.
Dividends
Subject to the prior rights of any series
of preferred stock which may from time to time be outstanding, the holders of our common stock are entitled to receive such dividends,
if any, as may be declared from time to time by our board of directors out of legally available funds.
Liquidation Preference
In the event we are liquidated, dissolved
or our affairs are wound up, after we pay or make adequate provision for all of our known debts and liabilities, each holder of
common stock shall be entitled to share ratably in the remaining assets available for distribution, subject to the prior rights
of any series of preferred stock which may from time to time be outstanding.
Voting Rights
Holders of common stock will have the exclusive
power to vote on all matters presented to our stockholders, including the election of directors, except as otherwise provided by
Delaware law or as provided with respect to any other class or series of stock. Holders of common stock are entitled to one vote
per share. There is no cumulative voting in the election of our directors, which means that, subject to any rights to elect directors
that are granted to the holders of any class or series of preferred stock, a plurality of the votes cast at a meeting of stockholders
at which a quorum is present is sufficient to elect a director.
Other Rights
Subject
to the preferential rights of any other class or series of stock, all shares of common stock have equal dividend, distribution,
liquidation and other rights, and have no preference, appraisal or exchange rights, except for any appraisal rights provided
by Delaware law. Furthermore, holders of common stock have no conversion, sinking fund or redemption rights, or preemptive rights
to subscribe for any of our securities. If applicable, material U.S. federal income tax considerations applicable to our common
stock will be described in the applicable prospectus supplement.
Certain Anti-Takeover Provisions of Delaware Law and our
Certificate of Incorporation and By-laws
Delaware General Corporation Law.
We are subject to the provisions of Section 203 of the Delaware General Corporation Law, which generally has an anti-takeover effect
for transactions not approved in advance by our board of directors, including discouraging attempts that might result in a premium
over the market price for the shares of our common stock held by stockholders. In general, Section 203 prohibits a publicly held
Delaware corporation from engaging in a “business combination” with an “interested stockholder” for a three-year
period following the time that such stockholder becomes an interested stockholder, unless the business combination is approved
in a prescribed manner. A “business combination” includes, among other things, a merger, asset or stock sale or other
transaction resulting in a financial benefit to the interested stockholder. An “interested stockholder” is a person
who, together with affiliates and associates, owns, or did own within three years prior to the determination of interested stockholder
status, 15% or more of the corporation’s voting stock. Under Section 203, a business combination between a corporation and
an interested stockholder is prohibited unless it satisfies one of the following conditions:
| · | before the stockholder became interested, the board of directors approved either the business combination or the transaction
which resulted in the stockholder becoming an interested stockholder; or |
| · | upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder
owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes
of determining the voting stock outstanding, shares owned by: |
| · | persons who are directors and also officers, and |
| · | employee stock plans, in some instances; or |
| · | at or after the time the stockholder became interested, the business combination was approved by the board of directors of
the corporation and authorized at an annual or special meeting of the stockholders by the affirmative vote of at least two-thirds
of the outstanding voting stock which is not owned by the interested stockholder. |
Staggered Board of Directors. Our
certificate of incorporation and by-laws provide that our board of directors be classified into three classes of directors of approximately
equal size. As a result, in most circumstances, a person can gain control of our board only by successfully engaging in a proxy
contest at two or more annual meetings.
Stockholder Action; Special Meeting of
Stockholders. Our certificate of incorporation provides that our stockholders may not take any action by written consent, but
only may take action at duly called annual or special meetings of stockholders. Our by-laws further provide that special meetings
of our stockholders may be only called by our board of directors, the chairman of the board or our chief executive officer.
Advance Notice Requirements for Stockholder
Proposals and Director Nominations. Our by-laws provide that stockholders seeking to bring business before our annual
meeting of stockholders, or to nominate candidates for election as directors at our annual meeting of stockholders, must provide
timely notice of their intent in writing. To be timely, a stockholder’s notice needs to be delivered to our principal executive
offices within specified time periods. Our by-laws also specify certain requirements as to the form and content of a stockholders’
meeting. These provisions may preclude our stockholders from bringing matters before our annual meeting of stockholders or from
making nominations for directors at our annual meeting of stockholders.
Authorized But Unissued Shares. Subject
to the rights of any existing preferred stock, our authorized but unissued shares of common stock and preferred stock are available
for future issuances without stockholder approval and could be utilized for a variety of corporate purposes, including future offerings
to raise additional capital, corporate acquisitions, employee benefit plans and stockholder rights plans. The existence of authorized
but unissued and unreserved common stock and preferred stock could render more difficult or discourage an attempt to obtain control
of us by means of a proxy contest, tender offer, merger or otherwise.
Removal of Directors. Our certificate
of incorporation provides that, subject to the rights, if any, of any series of undesignated preferred stock to elect and remove
directors whom the holders of any such stock have the right to elect, a director on our board of directors may be removed from
office only for cause and only by the affirmative vote of the holders of at least two-thirds or more of the shares then entitled
to vote at an election of our directors.
Transfer Agent
The transfer agent and registrar for our
common stock is Computershare Shareowner Services LLC. Its address is 250 Royall Street, Canton, MA 02021.
Listing
Our common stock is listed on The NASDAQ
Global Market under the symbol “AMRI.”
DESCRIPTION
OF DEBT SECURITIES
The following description, together with
the additional information we may include in any applicable prospectus supplements, summarizes the material terms and provisions
of the debt securities that we may offer under this prospectus. While the terms summarized below will apply generally to any debt
securities that we may offer, we will describe the particular terms of any debt securities in more detail in the applicable prospectus
supplement. If we indicate in the prospectus supplement, the terms of any debt securities offered under that prospectus supplement
may differ from the terms described below.
We may offer senior or subordinated debt
securities. Each series of debt securities may have different terms. The senior debt securities will be issued under one or more
senior indentures, dated as of a date prior to such issuance, between us and the trustee identified in the applicable prospectus
supplement, as amended or supplemented from time to time. We will refer to any such indenture throughout this prospectus as the
"senior indenture." Any subordinated debt securities will be issued under one or more separate indentures, dated as of
a date prior to such issuance, between us and the trustee identified in the applicable prospectus supplement, as amended or supplemented
from time to time. We will refer to any such indenture throughout this prospectus as the "subordinated indenture" and
to the trustee under the senior or subordinated indenture as the "trustee." The senior indenture and the subordinated
indenture are sometimes collectively referred to in this prospectus as the "indentures." The indentures will be subject
to and governed by the Trust Indenture Act of 1939, as amended. We will file as exhibits to the registration statement of which
this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, a form of indenture that describes
the terms of the particular debt securities we are offering before the issuance of the related debt securities. The following summaries
of material provisions of the debt securities and the indentures are subject to, and qualified in their entirety by reference to,
all the provisions of the indenture applicable to the debt securities that we may offer under this prospectus. We urge you to read
the applicable prospectus supplements related to the debt securities that we may offer under this prospectus, as well as any related
free writing prospectuses, and the complete indentures that contain the terms of the debt securities.
If we issue debt securities at a discount
from their principal amount, then, for purposes of calculating the aggregate initial offering price of the offered securities issued
under this prospectus, we will include only the initial offering price of the debt securities and not the principal amount of the
debt securities.
General
The indentures:
| · | do not limit the amount of debt securities that we may issue; |
| · | allow us to issue debt securities in one or more series; |
| · | do not require us to issue all of the debt securities of a series
at the same time; |
| · | allow us to reopen a series to issue additional debt securities without
the consent of the holders of the debt securities of such series; and |
| · | provide that the debt securities will be unsecured, except as may
be set forth in the applicable prospectus supplement. |
Unless we give you different information
in the applicable prospectus supplement, the senior debt securities will be unsubordinated obligations and will rank equally with
all of our other unsecured and unsubordinated indebtedness. Payments on the subordinated debt securities will be subordinated to
the prior payment in full of all of our senior indebtedness, as described under "—Subordination" and in the applicable
prospectus supplement.
Each indenture provides that we may, but
need not, designate more than one trustee under an indenture. Any trustee under an indenture may resign or be removed and a successor
trustee may be appointed to act with respect to the series of debt securities administered by the resigning or removed trustee.
If two or more persons are acting as trustee with respect to different series of debt securities, each trustee shall be a trustee
of a trust under the applicable indenture separate and apart from the trust administered by any other trustee. Except as otherwise
indicated in this prospectus, any action described in this prospectus to be taken by each trustee may be taken by each trustee
with respect to, and only with respect to, the one or more series of debt securities for which it is trustee under the applicable
indenture.
The prospectus supplement for each offering
will provide the following terms, where applicable:
| · | the title of the debt securities and whether they are senior or subordinated;
|
| · | the aggregate principal amount of the debt securities being offered,
the aggregate principal amount of the debt securities outstanding as of the most recent practicable date and any limit on their
aggregate principal amount, including the aggregate principal amount of debt securities authorized; |
| · | the price at which the debt securities will be issued, expressed as
a percentage of the principal and, if other than the principal amount thereof, the portion of the principal amount thereof payable
upon declaration of acceleration of the maturity thereof or, if applicable, the portion of the principal amount of such debt securities
that is convertible into common stock or other securities of ours or the method by which any such portion shall be determined;
|
| · | if convertible, the terms on which such debt securities are convertible,
including the initial conversion price or rate and the conversion period and any applicable limitations on the ownership or transferability
of common stock or other securities of ours received on conversion; |
| · | the date or dates, or the method for determining the date or dates,
on which the principal of the debt securities will be payable; |
| · | the fixed or variable interest rate or rates of the debt securities,
or the method by which the interest rate or rates is determined; |
| · | the date or dates, or the method for determining the date or dates,
from which interest will accrue; |
| · | the dates on which interest will be payable; |
| · | the record dates for interest payment dates, or the method by which
such dates will be determine; |
| · | the persons to whom interest will be payable; |
| · | the basis upon which interest will be calculated if other than that
of a 360-day year of twelve 30-day months; |
| · | any make-whole amount, which is the amount in addition to principal
and interest that is required to be paid to the holder of a debt security as a result of any optional redemption or accelerated
payment of such debt security, or the method for determining the make-whole amount; |
| · | the place or places where the principal of, and any premium or make-whole
amount, and interest on, the debt securities will be payable; |
| · | where the debt securities may be surrendered for registration of transfer
or conversion or exchange; |
| · | where notices or demands to or upon us in respect of the debt securities
and the applicable indenture may be served; |
| · | the times, prices and other terms and conditions upon which we may
redeem the debt securities; |
| · | any obligation we have to redeem, repay or purchase the debt securities
pursuant to any sinking fund or analogous provision or at the option of holders of the debt securities, and the times and prices
at which we must redeem, repay or purchase the debt securities as a result of such obligation; |
| · | the currency or currencies in which the debt securities are denominated
and payable if other than United States dollars, which may be a foreign currency or units of two or more foreign currencies or
a composite currency or currencies and the terms and conditions relating thereto, and the manner of determining the equivalent
of such foreign currency in United States dollars; |
| · | whether the principal of, and any premium or make-whole amount, or
interest on, the debt securities of the series are to be payable, at our election or at the election of a holder, in a currency
or currencies other than that in which the debt securities are denominated or stated to be payable, and other related terms and
conditions; |
| · | whether the amount of payments of principal of, and any premium or
make-whole amount, or interest on, the debt securities may be determined according to an index, formula or other method and how
such amounts will be determined; |
| · | whether the debt securities will be in registered form, bearer form,
or both, and (i) if in registered form, the person to whom any interest shall be payable, if other than the person in whose
name the security is registered at the close of business on the regular record date for such interest, or (ii) if in bearer
form, the manner in which, or the person to whom, any interest on the security shall be payable if otherwise than upon presentation
and surrender upon maturity; |
| · | any restrictions applicable to the offer, sale or delivery of securities
in bearer form and the terms upon which securities in bearer form of the series may be exchanged for securities in registered form
of the series and vice versa, if permitted by applicable laws and regulations; |
| · | whether any debt securities of the series are to be issuable initially
in temporary global form and whether any debt securities of the series are to be issuable in permanent global form with or without
coupons and, if so, whether beneficial owners of interests in any such permanent global security may, or shall be required to,
exchange their interests for other debt securities of the series, and the manner in which interest shall be paid; |
| · | the identity of the depositary for securities in registered form,
if such series are to be issuable as a global security; |
| · | the date as of which any debt securities in bearer form or in temporary
global form shall be dated if other than the original issuance date of the first security of the series to be issued; |
| · | the applicability, if any, of the defeasance and covenant defeasance
provisions described in this prospectus or in the applicable indenture; |
| · | whether and under what circumstances we will pay any additional amounts
on the debt securities in respect of any tax, assessment or governmental charge and, if so, whether we will have the option to
redeem the debt securities in lieu of making such a payment; |
| · | whether and under what circumstances the debt securities being offered
are convertible into common stock or other securities of ours, as the case may be, including the conversion price or rate and the
manner or calculation thereof; |
| · | the circumstances, if any, specified in the applicable prospectus
supplement, under which beneficial owners of interests in the global security may obtain definitive debt securities and the manner
in which payments on a permanent global debt security will be made if any debt securities are issuable in temporary or permanent
global form; |
| · | any provisions granting special rights to holders of securities upon
the occurrence of such events as specified in the applicable prospectus supplement; |
| · | if the debt securities of such series are to be issuable in definitive
form only upon receipt of certain certificates or other documents or satisfaction of other conditions, then the form and/or terms
of such certificates, documents or conditions; |
| · | the name of the applicable trustee and the nature of any material
relationship with us or any of our affiliates, and the percentage of debt securities of the class necessary to require the trustee
to take action; |
| · | any deletions from, modifications of or additions to our events of
default or covenants with regard to such debt securities and any change in the right of any trustee or any of the holders to declare
the principal amount of any of such debt securities due and payable; |
| · | applicable CUSIP numbers; and |
| · | any other terms of such debt securities not inconsistent with the
provisions of the applicable indenture. |
We may issue debt securities that provide
for less than the entire principal amount thereof to be payable upon declaration of acceleration of the maturity of the debt securities.
We refer to any such debt securities throughout this prospectus as "original issue discount securities." The applicable
prospectus supplement will describe the United States federal income tax consequences and other relevant considerations applicable
to original issue discount securities.
We also may issue indexed debt securities.
Payments of principal of, and premium and interest on, indexed debt securities are determined with reference to the rate of exchange
between the currency or currency unit in which the debt security is denominated and any other currency or currency unit specified
by us, to the relationship between two or more currencies or currency units or by other similar methods or formulas specified in
the prospectus supplement.
Except as described under "—Merger,
Consolidation or Sale of Assets" or as may be set forth in any prospectus supplement, the debt securities will not contain
any provisions that (i) would limit our ability to incur indebtedness or (ii) would afford holders of debt securities
protection in the event of (a) a highly leveraged or similar transaction involving us, or (b) a change of control or
reorganization, restructuring, merger or similar transaction involving us that may adversely affect the holders of the debt securities.
In the future, we may enter into transactions, such as the sale of all or substantially all of our assets or a merger or consolidation,
that may have an adverse effect on our ability to service our indebtedness, including the debt securities, by, among other things,
substantially reducing or eliminating our assets.
Our governing instruments do not define
the term "substantially all" as it relates to the sale of assets. Additionally, Delaware cases interpreting the term
"substantially all" rely upon the facts and circumstances of each particular case. Consequently, to determine whether
a sale of "substantially all" of our assets has occurred, a holder of debt securities must review the financial and other
information that we have disclosed to the public.
We will provide you with more information
in the applicable prospectus supplement regarding any deletions, modifications, or additions to the events of default or covenants
that are described below, including any addition of a covenant or other provision providing event risk or similar protection.
Payment
Unless we give you different information in the applicable prospectus
supplement, the principal of, and any premium or make-whole amount, and interest on, any series of the debt securities will be
payable at the corporate trust office of the trustee. We will provide you with the address of the trustee in the applicable prospectus
supplement. We may also pay interest by mailing a check to the address of the person entitled to it as it appears in the applicable
register for the debt securities or by wire transfer of funds to that person at an account maintained within the United States.
All monies that we pay to a paying agent or a trustee for the
payment of the principal of, and any premium or make-whole amount, or interest on, any debt security will be repaid to us if unclaimed
at the end of two years after the obligation underlying payment becomes due and payable. After funds have been returned to us,
the holder of the debt security may look only to us for payment, without payment of interest for the period which we hold the funds.
Denomination, Interest, Registration
and Transfer
Unless otherwise described in the applicable
prospectus supplement, the debt securities of any series will be issuable in denominations of $1,000 and integral multiples of
$1,000.
Subject to the limitations imposed upon
debt securities that are evidenced by a computerized entry in the records of a depository company rather than by physical delivery
of a note, a holder of debt securities of any series may:
| · | exchange them for any authorized denomination of other debt securities
of the same series and of a like aggregate principal amount and kind upon surrender of such debt securities at the corporate trust
office of the applicable trustee or at the office of any transfer agent that we designate for such purpose; and |
| · | surrender them for registration of transfer or exchange at the corporate
trust office of the applicable trustee or at the office of any transfer agent that we designate for such purpose. |
Every debt security surrendered for registration
of transfer or exchange must be duly endorsed or accompanied by a written instrument of transfer satisfactory to the applicable
trustee or transfer agent. Payment of a service charge will not be required for any registration of transfer or exchange of any
debt securities, but we or the trustee may require payment of a sum sufficient to cover any tax or other governmental charge payable
in connection therewith. If in addition to the applicable trustee, the applicable prospectus supplement refers to any transfer
agent initially designated by us for any series of debt securities, we may at any time rescind the designation of any such transfer
agent or approve a change in the location through which any such transfer agent acts, except that we will be required to maintain
a transfer agent in each place of payment for such series. We may at any time designate additional transfer agents for any series
of debt securities.
Neither we, nor any trustee, will be required
to:
| · | issue, register the transfer of or exchange debt securities of any
series during a period beginning at the opening of business 15 days before the day that the notice of redemption of any debt
securities selected for redemption is mailed and ending at the close of business on the day of such mailing; |
| · | register the transfer of or exchange any debt security, or portion
thereof, so selected for redemption, in whole or in part, except the unredeemed portion of any debt security being redeemed in
part; and |
| · | issue, register the transfer of or exchange any debt security that
has been surrendered for repayment at the option of the holder, except the portion, if any, of such debt security not to be so
repaid. |
Merger, Consolidation or Sale
of Assets
The indentures provide that we may, without
the consent of the holders of any outstanding debt securities, (i) consolidate with, (ii) sell, lease or convey all or
substantially all of our assets to, or (iii) merge with or into, any other entity provided that:
| · | either we are the continuing entity, or the successor entity, if other
than us, assumes the obligations (a) to pay the principal of, and any premium or make-whole amount, and interest on, all of
the debt securities and (b) to duly perform and observe all of the covenants and conditions contained in each indenture; |
| · | after giving effect to the transaction, there is no event of default
under the indentures and no event which, after notice or the lapse of time, or both, would become such an event of default, occurs
and continues; and |
| · | an officers' certificate and legal opinion covering such conditions
are delivered to each applicable trustee. |
Covenants
Existence. Except
as described under "—Merger, Consolidation or Sale of Assets," the indentures require us to do or cause to be done
all things necessary to preserve and keep in full force and effect our existence, rights and franchises. However, the indentures
do not require us to preserve any right or franchise if we determine that any right or franchise is no longer desirable in the
conduct of our business.
Payment of taxes and other claims. The
indentures require us to pay, discharge or cause to be paid or discharged, before they become delinquent (i) all taxes, assessments
and governmental charges levied or imposed on us, and (ii) all lawful claims for labor, materials and supplies which, if unpaid,
might by law become a lien upon our property. However, we will not be required to pay, discharge or cause to be paid or discharged
any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate
proceedings.
Provision of financial information. The
indentures require us to (i) within 15 days of each of the respective dates by which we are required to file our annual
reports, quarterly reports and other documents with the SEC, file with the trustee copies of the annual report, quarterly report
and other documents that we file with the SEC under Section 13 or 15(d) of the Exchange Act, (ii) file with the trustee
and the SEC any additional information, documents and reports regarding compliance by us with the conditions and covenants of the
indentures, as required, (iii) within 30 days after the filing with the trustee, mail to all holders of debt securities,
as their names and addresses appear in the applicable register for such debt securities, without cost to such holders, summaries
of any documents and reports required to be filed by us pursuant to (i) and (ii) above, and (iv) supply, promptly
upon written request and payment of the reasonable cost of duplication and delivery, copies of such documents to any prospective
holder.
Additional covenants. The
applicable prospectus supplement will set forth any our additional covenants relating to any series of debt securities.
Events of Default, Notice and
Waiver
Unless the applicable prospectus supplement
states otherwise, when we refer to "events of default" as defined in the indentures with respect to any series of debt
securities, we mean:
| · | default in the payment of any installment of interest on any debt
security of such series continuing for 30 days; |
| · | default in the payment of principal of, or any premium or make-whole
amount on, any debt security of such series for five business days at its stated maturity; |
| · | default in making any sinking fund payment as required for any debt
security of such series for five business days; |
| · | default in the performance or breach of any covenant or warranty in
the debt securities or in the indenture by us continuing for 60 days after written notice as provided in the applicable indenture,
but not of a covenant added to the indenture solely for the benefit of a series of debt securities issued thereunder other than
such series; |
| · | a default under any bond, debenture, note, mortgage, indenture or
instrument: |
| (i) | having an aggregate principal amount of at least $30,000,000; or |
| (ii) | under which there may be issued, secured or evidenced any existing or later created indebtedness for money borrowed by us,
if we are directly responsible or liable as obligor or guarantor, if the default results in the indebtedness becoming or being
declared due and payable prior to the date it otherwise would have, without such indebtedness having been discharged, or such acceleration
having been rescinded or annulled, within 30 days after notice to the issuing company specifying such default. Such notice
shall be given to us by the trustee, or to us and the trustee by the holders of at least 10% in principal amount of the outstanding
debt securities of that series. The written notice shall specify such default and require us to cause such indebtedness to be discharged
or cause such acceleration to be rescinded or annulled and shall state that such notice is a "Notice of Default" under
such indenture; |
| · | bankruptcy, insolvency or reorganization, or court appointment of
a receiver, liquidator or trustee of us; and
|
| · | any other event of default provided with respect to a particular series
of debt securities. |
If an event of default occurs and is continuing
with respect to debt securities of any series outstanding, then the applicable trustee or the holders of 25% or more in principal
amount of the debt securities of that series will have the right to declare the principal amount of all the debt securities of
that series to be due and payable. If the debt securities of that series are original issue discount securities or indexed securities,
then the applicable trustee or the holders of 25% or more in principal amount of the debt securities of that series will have the
right to declare the portion of the principal amount as may be specified in the terms thereof to be due and payable. However, at
any time after such a declaration of acceleration has been made, but before a judgment or decree for payment of the money due has
been obtained by the applicable trustee, the holders of at least a majority in principal amount of outstanding debt securities
of such series or of all debt securities then outstanding under the applicable indenture may rescind and annul such declaration
and its consequences if:
| · | we have deposited with the applicable trustee all required payments
of the principal, any premium or make-whole amount, interest and, to the extent permitted by law, interest on overdue installment
of interest, plus applicable fees, expenses, disbursements and advances of the applicable trustee; and |
| · | all events of default, other than the non-payment of accelerated principal,
or a specified portion thereof, and any premium or make-whole amount, have been cured or waived. |
The indentures also provide that the holders
of at least a majority in principal amount of the outstanding debt securities of any series or of all debt securities then outstanding
under the applicable indenture may, on behalf of all holders, waive any past default with respect to such series and its consequences,
except a default:
| · | in the payment of the principal, any premium or make-whole amount,
or interest; |
| · | in respect of a covenant or provision contained in the applicable
indenture that cannot be modified or amended without the consent of the holders of the outstanding debt security that is affected
by the default; or |
| · | in respect of a covenant or provision for the benefit or protection
of the trustee, without its express written consent. |
The indentures require each trustee to give
notice to the holders of debt securities within 90 days of a default unless such default has been cured or waived. However,
the trustee may withhold notice if specified persons of such trustee consider such withholding to be in the interest of the holders
of debt securities. The trustee may not withhold notice of a default in the payment of principal, any premium or interest on any
debt security of such series or in the payment of any sinking fund installment in respect of any debt security of such series.
The indentures provide that holders of debt
securities of any series may not institute any proceedings, judicial or otherwise, with respect to such indenture or for any remedy
under the indenture, unless the trustee fails to act for a period of 60 days after the trustee has received a written request
to institute proceedings in respect of an event of default from the holders of 25% or more in principal amount of the outstanding
debt securities of such series, as well as an offer of indemnity reasonably satisfactory to the trustee. However, this provision
will not prevent any holder of debt securities from instituting suit for the enforcement of payment of the principal of, and any
premium or make-whole amount, and interest on, such debt securities at the respective due dates thereof.
The indentures provide that, subject to
provisions in each indenture relating to its duties in the case of a default, a trustee has no obligation to exercise any of its
rights or powers at the request or direction of any holders of any series of debt securities then outstanding under the indenture,
unless the holders have offered to the trustee reasonable security or indemnity. The holders of at least a majority in principal
amount of the outstanding debt securities of any series or of all debt securities then outstanding under an indenture shall have
the right to direct the time, method and place of conducting any proceeding for any remedy available to the applicable trustee,
or of exercising any trust or power conferred upon such trustee. However, a trustee may refuse to follow any direction which:
| · | is in conflict with any law or the applicable indenture; |
| · | may involve the trustee in personal liability; or |
| · | may be unduly prejudicial to the holders of debt securities of the
series not joining the proceeding. |
Within 120 days after the close of
each fiscal year, we will be required to deliver to each trustee a certificate, signed by one of our several specified officers,
stating whether or not that officer has knowledge of any default under the applicable indenture. If the officer has knowledge of
any default, the notice must specify the nature and status of the default.
Modification of the Indentures
The indentures provide that modifications
and amendments may be made only with the consent of the affected holders of a majority in principal amount of all outstanding debt
securities issued under that indenture. However, no such modification or amendment may, without the consent of the holders of the
debt securities affected by the modification or amendment:
| · | change the stated maturity of the principal of, or any premium or
make-whole amount on, or any installment of principal of or interest on, any such debt security; |
| · | reduce
the principal amount of, the rate or amount of interest on, or any premium or make-whole amount payable on redemption of, any
such debt security; |
| | | |
| · | reduce
the amount of principal of an original issue discount security that would be due and payable upon declaration of acceleration
of the maturity thereof or would be provable in bankruptcy, or adversely affect any right of repayment of the holder of any such
debt security; |
| | | |
| · | change
the place of payment or the coin or currency for payment of principal of, or any premium or make-whole amount, or interest on,
any such debt security; |
| | | |
| · | impair
the right to institute suit for the enforcement of any payment on or with respect to any such debt security; |
| | | |
| · | reduce
the percentage in principal amount of any outstanding debt securities necessary to modify or amend the applicable indenture with
respect to such debt securities, to waive compliance with particular provisions thereof or defaults and consequences thereunder
or to reduce the quorum or voting requirements set forth in the applicable indenture; and |
| | | |
| · | modify any of the foregoing provisions or any of the provisions relating
to the waiver of particular past defaults or covenants, except to increase the required percentage to effect such action or to
provide that some of the other provisions may not be modified or waived without the consent of the holder of such debt security.
|
The holders of a majority in aggregate principal
amount of the outstanding debt securities of each series may, on behalf of all holders of debt securities of that series, waive,
insofar as that series is concerned, our compliance with material restrictive covenants of the applicable indenture.
We and our respective trustee may make modifications
and amendments of an indenture without the consent of any holder of debt securities for any of the following purposes:
| · | to
evidence the succession of another person to us as obligor under such indenture; |
| · | to add to our covenants for the benefit of the holders of all or any
series of debt securities or to surrender any right or power conferred upon us in such indenture; |
| · | to add events of default for the benefit of the holders of all or
any series of debt securities; |
| · | to add or change any provisions of an indenture (i) to change
or eliminate restrictions on the payment of principal of, or premium or make-whole amount, or interest on, debt securities in bearer
form, or (ii) to permit or facilitate the issuance of debt securities in uncertificated form, provided that such action shall
not adversely affect the interests of the holders of the debt securities of any series in any material respect; |
| · | to change or eliminate any provisions of an indenture, provided that
any such change or elimination shall become effective only when there are no debt securities outstanding of any series created
prior thereto which are entitled to the benefit of such provision; |
| · | to secure the debt securities; |
| · | to establish the form or terms of debt securities of any series; |
| · | to provide for the acceptance of appointment by a successor trustee
or facilitate the administration of the trusts under an indenture by more than one trustee; |
| · | to cure any ambiguity, defect or inconsistency in an indenture, provided
that such action shall not adversely affect the interests of holders of debt securities of any series issued under such indenture;
and |
| · | to supplement any of the provisions of an indenture to the extent
necessary to permit or facilitate defeasance and discharge of any series of such debt securities, provided that such action shall
not adversely affect the interests of the holders of the outstanding debt securities of any series. |
Voting
The indentures provide that in determining
whether the holders of the requisite principal amount of outstanding debt securities of a series have given any request, demand,
authorization, direction, notice, consent or waiver under the indentures or whether a quorum is present at a meeting of holders
of debt securities:
| · | the principal amount of an original issue discount security that shall
be deemed to be outstanding shall be the amount of the principal thereof that would be due and payable as of the date of such determination
upon declaration of acceleration of the maturity thereof; |
| · | the principal amount of any debt security denominated in a foreign
currency that shall be deemed outstanding shall be the United States dollar equivalent, determined on the issue date for such debt
security, of the principal amount or, in the case of an original issue discount security, the United States dollar equivalent on
the issue date of such debt security of the amount determined as provided in the preceding bullet point; |
| · | the principal amount of an indexed security that shall be deemed outstanding
shall be the principal face amount of such indexed security at original issuance, unless otherwise provided for such indexed security
under such indenture; and |
| · | debt securities owned by us or any other obligor upon the debt securities
or by any affiliate of ours or of such other obligor shall be disregarded. |
The indentures contain provisions for convening
meetings of the holders of debt securities of a series. A meeting will be permitted to be called at any time by the applicable
trustee, and also, upon request, by us or the holders of at least 25% in principal amount of the outstanding debt securities of
such series, in any such case upon notice given as provided in such indenture. Except for any consent that must be given by the
holder of each debt security affected by the modifications and amendments of an indenture described above, any resolution presented
at a meeting or adjourned meeting duly reconvened at which a quorum is present may be adopted by the affirmative vote of the holders
of a majority of the aggregate principal amount of the outstanding debt securities of that series represented at such meeting.
Notwithstanding the preceding paragraph,
except as referred to above, any resolution relating to a request, demand, authorization, direction, notice, consent, waiver or
other action that may be made, given or taken by the holders of a specified percentage, which is less than a majority of the aggregate
principal amount of the outstanding debt securities of a series, may be adopted at a meeting or adjourned meeting duly reconvened
at which a quorum is present by the affirmative vote of such specified percentage.
Any resolution passed or decision taken
at any properly held meeting of holders of debt securities of any series will be binding on all holders of such series. The quorum
at any meeting called to adopt a resolution, and at any reconvened meeting, will be persons holding or representing a majority
in principal amount of the outstanding debt securities of a series. However, if any action is to be taken relating to a consent
or waiver which may be given by the holders of at least a specified percentage in principal amount of the outstanding debt securities
of a series, the persons holding such percentage will constitute a quorum.
Notwithstanding the foregoing provisions,
the indentures provide that if any action is to be taken at a meeting with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action that such indenture expressly provides may be made, given or taken by the holders of a
specified percentage in principal amount of all outstanding debt securities affected by such action, or of the holders of such
series and one or more additional series:
| · | there
shall be no minimum quorum requirement for such meeting; and |
| · | the principal amount of the outstanding debt securities of such series
that vote in favor of such request, demand, authorization, direction, notice, consent, waiver or other action shall be taken account
in determining whether such request, demand, authorization, direction, notice, consent, waiver or other action has been made, given
or taken under such indenture. |
Subordination
Unless otherwise provided in the applicable
prospectus supplement, subordinated debt securities will be subject to the following subordination provisions.
Upon any distribution to our creditors in
a liquidation, dissolution or reorganization, the payment of the principal of and interest on any subordinated debt securities
will be subordinated to the extent provided in the applicable indenture in right of payment to the prior payment in full of all
senior debt. However, our obligation to make payments of the principal of and interest on such subordinated debt securities otherwise
will not be affected. No payment of principal or interest will be permitted to be made on subordinated debt securities at any time
if a default on senior debt exists that permits the holders of such senior debt to accelerate its maturity and the default is the
subject of judicial proceedings or we receive notice of the default. After all senior debt is paid in full and until the subordinated
debt securities are paid in full, holders of subordinated debt securities will be subrogated to the rights of holders of senior
debt to the extent that distributions otherwise payable to holders of subordinated debt securities have been applied to the payment
of senior debt. The subordinated indenture will not restrict the amount of senior debt or other indebtedness of ours. As a result
of these subordination provisions, in the event of a distribution of assets upon insolvency, holders of subordinated debt securities
may recover less, ratably, than our general creditors.
The term "senior debt" will be
defined in the applicable indenture as the principal of and interest on, or substantially similar payments to be made by us in
respect of, other outstanding indebtedness, whether outstanding at the date of execution of the applicable indenture or subsequently
incurred, created or assumed. The prospectus supplement may include a description of additional terms implementing the subordination
feature.
No restrictions will be included in any
indenture relating to subordinated debt securities upon the creation of additional senior debt.
If this prospectus is being delivered in
connection with the offering of a series of subordinated debt securities, the accompanying prospectus supplement or the information
incorporated in this prospectus by reference will set forth the approximate amount of senior debt outstanding as of the end of
our most recent fiscal quarter.
Discharge, Defeasance and Covenant
Defeasance
Unless otherwise indicated in the applicable
prospectus supplement, the indentures allow us to discharge our obligations to holders of any series of debt securities issued
under any indenture when:
| · | either (i) all securities of such series have already been delivered
to the applicable trustee for cancellation; or (ii) all securities of such series have not already been delivered to the applicable
trustee for cancellation but (a) have become due and payable, (b) will become due and payable within one year, or (c) if
redeemable at our option, are to be redeemed within one year, and we have irrevocably deposited with the applicable trustee, in
trust, funds in such currency or currencies, currency unit or units or composite currency or currencies in which such debt securities
are payable, an amount sufficient to pay the entire indebtedness on such debt securities in respect of principal and any premium
or make-whole amount, and interest to the date of such deposit if such debt securities have become due and payable or, if they
have not, to the stated maturity or redemption date; |
| · | we have paid or caused to be paid all other sums payable; and |
| · | an officers' certificate and an opinion of counsel stating the conditions
to discharging the debt securities have been satisfied has been delivered to the trustee. |
Unless otherwise indicated in the applicable
prospectus supplement, the indentures provide that, upon our irrevocable deposit with the applicable trustee, in trust, of an amount,
in such currency or currencies, currency unit or units or composite currency or currencies in which such debt securities are payable
at stated maturity, or government obligations, or both, applicable to such debt securities, which through the scheduled payment
of principal and interest in accordance with their terms will provide money in an amount sufficient to pay the principal of, and
any premium or make-whole amount, and interest on, such debt securities, and any mandatory sinking fund or analogous payments thereon,
on the scheduled due dates therefor, the issuing company may elect either:
| · | to defease and be discharged from any and all obligations with respect
to such debt securities; or |
| · | to be released from its obligations with respect to such debt securities
under the applicable indenture or, if provided in the applicable prospectus supplement, its obligations with respect to any other
covenant, and any omission to comply with such obligations shall not constitute an event of default with respect to such debt securities.
|
Notwithstanding the above, we may not elect
to defease and be discharged from the obligation to pay any additional amounts upon the occurrence of particular events of tax,
assessment or governmental charge with respect to payments on such debt securities and the obligations to register the transfer
or exchange of such debt securities, to replace temporary or mutilated, destroyed, lost or stolen debt securities, to maintain
an office or agency in respect of such debt securities, or to hold monies for payment in trust.
The indentures only permit us to establish
the trust described in the paragraph above if, among other things, we have delivered to the applicable trustee an opinion of counsel
to the effect that the holders of such debt securities will not recognize income, gain or loss for United States federal income
tax purposes as a result of such defeasance or covenant defeasance and will be subject to United States federal income tax on the
same amounts, in the same manner and at the same times as would have been the case if such defeasance or covenant defeasance had
not occurred. Such opinion of counsel, in the case of defeasance, will be required to refer to and be based upon a ruling received
from or published by the Internal Revenue Service or a change in applicable United States federal income tax law occurring after
the date of the indenture. In the event of such defeasance, the holders of such debt securities would be able to look only to such
trust fund for payment of principal, any premium or make-whole amount, and interest.
When we use the term "government obligations,"
we mean securities that are:
| · | direct obligations of the United States or the government that issued
the foreign currency in which the debt securities of a particular series are payable, for the payment of which its full faith and
credit is pledged; or |
| · | obligations of a person controlled or supervised by and acting as
an agency or instrumentality of the United States or other government that issued the foreign currency in which the debt securities
of such series are payable, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United
States or such other government, which are not callable or redeemable at the option of the issuer thereof and shall also include
a depository receipt issued by a bank or trust company as custodian with respect to any such government obligation or a specific
payment of interest on or principal of any such government obligation held by such custodian for the account of the holder of a
depository receipt. However, except as required by law, such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the custodian in respect of the government obligation
or the specific payment of interest on or principal of the government obligation evidenced by such depository receipt. |
Unless otherwise provided in the applicable
prospectus supplement, if after we have deposited funds and/or government obligations to effect defeasance or covenant defeasance
with respect to debt securities of any series, (i) the holder of a debt security of such series is entitled to, and does,
elect under the terms of the applicable indenture or the terms of such debt security to receive payment in a currency, currency
unit or composite currency other than that in which such deposit has been made in respect of such debt security, or (ii) a
conversion event occurs in respect of the currency, currency unit or composite currency in which such deposit has been made, the
indebtedness represented by such debt security will be deemed to have been, and will be, fully discharged and satisfied through
the payment of the principal of, and premium or make-whole amount, and interest on, such debt security as they become due out of
the proceeds yielded by converting the amount so deposited in respect of such debt security into the currency, currency unit or
composite currency in which such debt security becomes payable as a result of such election or such cessation of usage based on
the applicable market exchange rate.
When we use the term "conversion event,"
we mean the cessation of use of:
| · | a currency, currency unit or composite currency both by the government
of the country that issued such currency and for the settlement of transactions by a central bank or other public institutions
of or within the international banking community; |
| · | the European Currency Unit both within the European Monetary System
and for the settlement of transactions by public institutions of or within the European Communities; or |
| · | any currency unit or composite currency other than the European Currency
Unit for the purposes for which it was established. |
Unless otherwise provided in the applicable
prospectus supplement, all payments of principal of, and any premium or make-whole amount, and interest on, any debt security that
is payable in a foreign currency that ceases to be used by its government of issuance shall be made in United States dollars.
In the event that (i) we effect covenant
defeasance with respect to any debt securities and (ii) those debt securities are declared due and payable because of the
occurrence of any event of default, the amount in the currency, currency unit or composite currency in which such debt securities
are payable, and government obligations on deposit with the applicable trustee, will be sufficient to pay amounts due on such debt
securities at the time of their stated maturity but may not be sufficient to pay amounts due on such debt securities at the time
of the acceleration resulting from such event of default. However, the issuing company would remain liable to make payments of
any amounts due at the time of acceleration.
The applicable prospectus supplement may
further describe the provisions, if any, permitting such defeasance or covenant defeasance, including any modifications to the
provisions described above, with respect to the debt securities of or within a particular series.
Conversion Rights
The terms and conditions, if any, upon which
the debt securities are convertible into common stock or other securities of ours will be set forth in the applicable prospectus
supplement. The terms will include whether the debt securities are convertible into shares of common stock or other securities
of ours, the conversion price, or manner of calculation thereof, the conversion period, provisions as to whether conversion will
be at the issuing company's option or the option of the holders, the events requiring an adjustment of the conversion price and
provisions affecting conversion in the event of the redemption of the debt securities and any restrictions on conversion.
Global Securities
The debt securities of a series may be issued
in whole or in part in the form of one or more global securities that will be deposited with, or on behalf of, a depository identified
in the applicable prospectus supplement relating to such series. Global securities, if any, issued in the United States are expected
to be deposited with The Depository Trust Company, or DTC, as depository. We may issue global securities in either registered or
bearer form and in either temporary or permanent form. We will describe the specific terms of the depository arrangement with respect
to a series of debt securities in the applicable prospectus supplement relating to such series. We expect that unless the applicable
prospectus supplement provides otherwise, the following provisions will apply to depository arrangements.
Once a global security is issued, the depository
for such global security or its nominee will credit on its book-entry registration and transfer system the respective principal
amounts of the individual debt securities represented by such global security to the accounts of participants that have accounts
with such depository. Such accounts shall be designated by the underwriters, dealers or agents with respect to such debt securities
or by us if we offer such debt securities directly. Ownership of beneficial interests in such global security will be limited to
participants with the depository or persons that may hold interests through those participants.
We expect that, under procedures established
by DTC, ownership of beneficial interests in any global security for which DTC is the depository will be shown on, and the transfer
of that ownership will be effected only through, records maintained by DTC or its nominee, with respect to beneficial interests
of participants with the depository, and records of participants, with respect to beneficial interests of persons who hold through
participants with the depository. Neither we nor the trustee will have any responsibility or liability for any aspect of the records
of DTC or for maintaining, supervising or reviewing any records of DTC or any of its participants relating to beneficial ownership
interests in the debt securities. The laws of some states require that certain purchasers of securities take physical delivery
of such securities in definitive form. Such limits and laws may impair the ability to own, pledge or transfer beneficial interest
in a global security.
So long as the depository for a global security
or its nominee is the registered owner of such global security, such depository or such nominee, as the case may be, will be considered
the sole owner or holder of the debt securities represented by the global security for all purposes under the applicable indenture.
Except as described below or in the applicable prospectus supplement, owners of beneficial interest in a global security will not
be entitled to have any of the individual debt securities represented by such global security registered in their names, will not
receive or be entitled to receive physical delivery of any such debt securities in definitive form and will not be considered the
owners or holders thereof under the applicable indenture. Beneficial owners of debt securities evidenced by a global security will
not be considered the owners or holders thereof under the applicable indenture for any purpose, including with respect to the giving
of any direction, instructions or approvals to the trustee under the indenture. Accordingly, each person owning a beneficial interest
in a global security with respect to which DTC is the depository must rely on the procedures of DTC and, if such person is not
a participant with the depository, on the procedures of the participant through which such person owns its interests, to exercise
any rights of a holder under the applicable indenture. We understand that, under existing industry practice, if DTC requests any
action of holders or if an owner of a beneficial interest in a global security desires to give or take any action which a holder
is entitled to give or take under the applicable indenture, DTC would authorize the participants holding the relevant beneficial
interest to give or take such action, and such participants would authorize beneficial owners through such participants to give
or take such actions or would otherwise act upon the instructions of beneficial owners holding through them.
Payments of principal of, and any premium
or make-whole amount, and interest on, individual debt securities represented by a global security registered in the name of a
depository or its nominee will be made to or at the direction of the depository or its nominee, as the case may be, as the registered
owner of the global security under the applicable indenture. Under the terms of the applicable indenture, we and the trustee may
treat the persons in whose name debt securities, including a global security, are registered as the owners thereof for the purpose
of receiving such payments. Consequently, neither we nor the trustee have or will have any responsibility or liability for the
payment of such amounts to beneficial owners of debt securities including principal, any premium or make-whole amount, or interest.
We believe, however, that it is currently the policy of DTC to immediately credit the accounts of relevant participants with such
payments, in amounts proportionate to their respective holdings of beneficial interests in the relevant global security as shown
on the records of DTC or its nominee. We also expect that payments by participants to owners of beneficial interests in such global
security held through such participants will be governed by standing instructions and customary practices, as is the case with
securities held for the account of customers in bearer form or registered in street name, and will be the responsibility of such
participants. Redemption notices with respect to any debt securities represented by a global security will be sent to the depository
or its nominee. If less than all of the debt securities of any series are to be redeemed, we expect the depository to determine
the amount of the interest of each participant in such debt securities to be redeemed to be determined by lot. Neither we, the
trustee, any paying agent nor the security registrar for such debt securities will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial ownership interests in the global security for such
debt securities or for maintaining any records with respect thereto.
Neither we nor the trustee will be liable
for any delay by the holders of a global security or the depository in identifying the beneficial owners of debt securities, and
we and the trustee may conclusively rely on, and will be protected in relying on, instructions from the holder of a global security
or the depository for all purposes. The rules applicable to DTC and its participants are on file with the SEC.
If a depository for any debt securities
is at any time unwilling, unable or ineligible to continue as depository and we do not appoint a successor depository within 90 days,
we will issue individual debt securities in exchange for the global security representing such debt securities. In addition, we
may at any time and at our sole discretion, subject to any limitations described in the applicable prospectus supplement relating
to such debt securities, determine not to have any of such debt securities represented by one or more global securities and in
such event will issue individual debt securities in exchange for the global security or securities representing such debt securities.
Individual debt securities so issued will be issued in denominations of $1,000 and integral multiples of $1,000.
The debt securities of a series may also
be issued in whole or in part in the form of one or more bearer global securities that will be deposited with a depository, or
with a nominee for such depository, identified in the applicable prospectus supplement. Any such bearer global securities may be
issued in temporary or permanent form. The specific terms and procedures, including the specific terms of the depositary arrangement,
with respect to any portion of a series of debt securities to be represented by one or more bearer global securities will be described
in the applicable prospectus supplement.
No Recourse
There is no recourse
under any obligation, covenant or agreement in the applicable indenture or with respect to any security against any of our or our
successor's past, present or future shareholders, employees, officers or directors.
DESCRIPTION OF WARRANTS
The following description, together with
the additional information we may include in any applicable prospectus supplements, summarizes the material terms and provisions
of the warrants that we may offer under this prospectus and the related warrant agreements and warrant certificates. While the
terms summarized below will apply generally to any warrants that we may offer, we will describe the particular terms of any series
of warrants in more detail in the applicable prospectus supplement. If we indicate in the prospectus supplement, the terms of any
warrants offered under that prospectus supplement may differ from the terms described below.
We will file as exhibits to the registration
statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form
of warrant agreement, including a form of warrant certificate, that describes the terms of the particular warrants we are offering
before the issuance of the related warrants. The following summaries of material provisions of the warrants and the warrant agreements
are subject to, and qualified in their entirety by reference to, all the provisions of the warrant agreement and warrant certificate
applicable to the warrants that we may offer under this prospectus. We urge you to read the applicable prospectus supplements related
to the warrants that we may offer under this prospectus, as well as any related free writing prospectuses, and the complete warrant
agreements and warrant certificates that contain the terms of the warrants.
General
We may issue warrants for the purchase
of common stock, preferred stock and/or debt securities in one or more series. We may issue warrants independently or together
with common stock, preferred stock and/or debt securities, and the warrants may be attached to or separate from these securities.
We will evidence each series of warrants
by warrant certificates that we will issue under a separate agreement. We may enter into a warrant agreement with a warrant agent.
We will indicate the name and address and other information regarding the warrant agent in the applicable prospectus supplement
relating to a particular series of warrants.
If we decide to issue warrants pursuant
to this prospectus, we will specify in a prospectus supplement the terms of the series of warrants, including, if applicable, the
following:
| · | the offering price and aggregate number of warrants offered; |
| · | the currency for which the warrants may be purchased; |
| · | 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; |
| · | the date on and after which the warrants and the related securities will be separately transferable; |
| · | in the case of warrants to purchase common stock or preferred stock, the number of shares of common stock or preferred stock,
as the case may be, purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon such
exercise; |
| · | in the case of warrants to purchase debt securities, the principal
amount of debt securities purchasable upon exercise of one warrant and the price at, and currency in which, this principal amount
of debt securities 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; |
| · | a discussion of any material U.S. federal income tax considerations of holding or exercising the warrants; |
| · | the terms of the securities issuable upon exercise of the warrants; and |
| · | any other specific terms, preferences, rights or limitations of or restrictions on the warrants. |
Before exercising their warrants, holders
of warrants will not have any of the rights of holders of the securities purchasable upon such exercise, including, in the case
of warrants to purchase common stock or preferred stock, the right to receive dividends, if any, or payments upon our liquidation,
dissolution or winding up or to exercise voting rights, if any.
Exercise of Warrants
Each warrant will entitle the holder to
purchase shares of our common stock, preferred stock or debt securities at the exercise price that we describe in the applicable
prospectus supplement. Holders of the warrants may exercise the warrants at any time up to the specified time on the expiration
date that we set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised
warrants will become void.
Holders of the warrants may exercise the
warrants by delivering the warrant certificate representing the warrants to be exercised together with specified information, and
paying the required amount to the warrant agent in immediately available funds, as provided in the applicable prospectus supplement.
We will set forth on the reverse side of the warrant certificate and in the applicable prospectus supplement the information that
the holder of the warrant will be required to deliver to the warrant agent.
Upon receipt of the required payment and
the warrant certificate properly completed and duly executed at the corporate trust office of the warrant agent or any other office
indicated in the applicable prospectus supplement, we will issue and deliver the common stock, preferred stock or debt securities
purchasable upon such exercise. If fewer than all of the warrants represented by the warrant certificate are exercised, then we
will issue a new warrant certificate for the remaining amount of warrants. If we so indicate in the applicable prospectus supplement,
holders of the warrants may surrender shares of common stock or preferred stock or debt securities as all or part of the exercise
price for warrants.
Enforceability of Rights by Holders of Warrants
Each warrant agent will act solely as our
agent under the applicable warrant agreement and will not assume any obligation or relationship of agency or trust with any holder
of any warrant. A single bank or trust company may act as warrant agent for more than one issue of warrants. A warrant agent will
have no duty or responsibility in case of any default by us under the applicable warrant agreement or warrant, including any duty
or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a warrant may,
without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action its right
to exercise, and receive the securities purchasable upon exercise of, its warrants.
DESCRIPTION OF UNITS
The following description, together with
the additional information that we include in any applicable prospectus supplements and in any related free writing prospectuses,
summarizes the material terms and provisions of the units that we may offer under this prospectus. While the terms we have summarized
below will apply generally to any units that we may offer under this prospectus, we will describe the particular terms of any series
of units in more detail in the applicable prospectus supplement. The terms of any units offered under a prospectus supplement may
differ from the terms described below.
We will file as exhibits to the registration
statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form
of unit agreement that describes the terms of the series of units we are offering, and any supplemental agreements, before the
issuance of the related series of units. The following summaries of material terms and provisions of the units are subject to,
and qualified in their entirety by reference to, all the provisions of the unit agreement and any supplemental agreements applicable
to a particular series of units. We urge you to read the applicable prospectus supplements related to the particular series of
units that we may offer under this prospectus, as well as any related free writing prospectuses and the complete unit agreement
and any supplemental agreements that contain the terms of the units.
General
We may issue units comprised of shares
of common stock, preferred stock, debt securities and warrants in any combination. Each unit will be issued so that the holder
of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations
of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities included
in the unit may not be held or transferred separately, at any time or at any time before a specified date.
We will describe in the applicable prospectus
supplement the terms of the series of units, including:
| · | the designation and terms of the units, including whether and under what circumstances the securities comprising the units
may be held or transferred separately; |
| · | any provisions of the governing unit agreement that differ from those described below; and |
| · | any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the
units. |
The provisions described in this section,
as well as those described under “Description of Common Stock,” “Description of Preferred Stock,” “Description
of Debt Securities” and “Description of Warrants,” will apply to each unit and to the common stock, preferred
stock, debt securities and warrants included in each unit, respectively.
Issuance in Series
We may issue units in such amounts and
in such numerous distinct series as we determine.
Enforceability of Rights by Holders of Units
Each unit agent will act solely as our
agent under the applicable unit agreement and will not assume any obligation or relationship of agency or trust with any holder
of any unit. A single bank or trust company may act as unit agent for more than one series of units. A unit agent will have no
duty or responsibility in case of any default by us under the applicable unit agreement or unit, including any duty or responsibility
to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a unit may, without the consent of
the related unit agent or the holder of any other unit, enforce by appropriate legal action its rights as holder under any security
included in the unit.
Title
We, the unit agent and any of its agents,
may treat the registered holder of any unit certificate as an absolute owner of the units evidenced by that certificate for any
purpose and as the person entitled to exercise the rights attaching to the units so requested, despite any notice to the contrary.
PLAN OF DISTRIBUTION
We may sell the securities being offered
hereby in one or more of the following methods from time to time:
| · | a block trade (which may involve crosses) in which the broker or dealer so engaged will attempt to sell the securities as agent
but may position and resell a portion of the block as principal to facilitate the transaction; |
| · | purchases by a broker or dealer as principal and resale by such broker or dealer for its own account pursuant to this prospectus; |
| · | exchange distributions and/or secondary distributions; |
| · | ordinary brokerage transactions and transactions in which the broker solicits purchasers; |
| · | to one or more underwriters for resale to the public or to investors; |
| · | in “at the market offerings,” within the meaning of Rule 415(a)(4) of the Securities Act, to or through a market
maker or into an existing trading market, on an exchange or otherwise; |
| · | transactions not involving market makers or established trading markets, including direct sales or privately negotiated transactions; |
| · | transactions in options, swaps or other derivatives that may or may not be listed on an exchange; or |
| · | through a combination of these methods of sale. |
The securities that we distribute by any
of these methods may be sold, in one or more transactions, at:
| · | a fixed price or prices, which may be changed; |
| · | market prices prevailing at the time of sale; |
| · | prices related to prevailing market prices; or |
We will set forth in a prospectus supplement
the terms of the offering of securities, including:
| · | the name or names of any agents or underwriters; |
| · | the purchase price of the securities being offered and the proceeds we will receive from the sale; |
| · | any over-allotment options under which underwriters may purchase additional securities from us; |
| · | any agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation; |
| · | the public offering price; |
| · | any discounts or concessions allowed or reallowed or paid to dealers; and |
| · | any securities exchanges or markets on which such securities may be listed. |
If underwriters are used in the sale, they
will acquire the securities for their own account and may resell the securities from time to time in one or more transactions at
a fixed public offering price or at varying prices determined at the time of sale. The obligations of the underwriters to purchase
the securities will be subject to the conditions set forth in the applicable underwriting agreement. We may offer the securities
to the public through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate. Subject
to certain conditions, the underwriters will be obligated to purchase all of the securities offered by the prospectus supplement,
other than securities covered by any over-allotment option. Any public offering price and any discounts or concessions allowed
or reallowed or paid to dealers may change from time to time. We may use underwriters with whom we have a material relationship.
We will describe in the prospectus supplement, naming the underwriter, the nature of any such relationship.
We may sell securities directly or through
agents we designate from time to time. We will name any agent involved in the offering and sale of securities and we will describe
any commissions we will pay the agent in the prospectus supplement. Unless the prospectus supplement states otherwise, our agent
will act on a best-efforts basis for the period of its appointment.
We may also sell securities directly to
one or more purchasers without using underwriters or agents.
Underwriters, dealers and agents that participate
in the distribution of the securities may be underwriters as defined in the Securities Act and any discounts or commissions they
receive from us and any profit on their resale of the securities may be treated as underwriting discounts and commissions under
the Securities Act. We will identify in the applicable prospectus supplement any underwriters, dealers or agents and will describe
their compensation. We may have agreements with the underwriters, dealers and agents to indemnify them against specified civil
liabilities, including liabilities under the Securities Act. Underwriters, dealers and agents may engage in transactions with or
perform services for us in the ordinary course of their businesses.
The warrants and the units that we may
offer will be new issues of securities with no established trading market. Any underwriters may make a market in these securities,
but will not be obligated to do so and may discontinue any market making at any time without notice. We cannot guarantee the liquidity
of the trading markets for any securities.
Unless otherwise specified in the applicable
prospectus supplement, each class or series of securities will be a new issue with no established trading market, other than our
common stock, which is listed on The NASDAQ Global Market. We may elect to list any other class or series of securities on any
exchange, but we are not obligated to do so. It is possible that one or more underwriters may make a market in a class or series
of securities, but the underwriters will not be obligated to do so and may discontinue any market making at any time without notice.
We cannot give any assurance as to the liquidity of the trading market for any of the securities.
In connection with an offering, an underwriter
may purchase and sell securities in the open market. These transactions may include short sales, stabilizing transactions and purchases
to cover positions created by short sales. Short sales involve the sale by the underwriters of a greater number of securities than
they are required to purchase in the offering. “Covered” short sales are sales made in an amount not greater than the
underwriters’ option to purchase additional securities, if any, from us in the offering. If the underwriters have an over-allotment
option to purchase additional securities from us, the underwriters may close out any covered short position by either exercising
their over-allotment option or purchasing securities in the open market. In determining the source of securities to close out the
covered short position, the underwriters may consider, among other things, the price of securities available for purchase in the
open market as compared to the price at which they may purchase securities through the over-allotment option. “Naked”
short sales are any sales in excess of such option or where the underwriters do not have an over-allotment option. The underwriters
must close out any naked short position by purchasing securities in the open market. A naked short position is more likely to be
created if the underwriters are concerned that there may be downward pressure on the price of the securities in the open market
after pricing that could adversely affect investors who purchase in the offering.
Accordingly, to cover these short sales
positions or to otherwise stabilize or maintain the price of the securities, the underwriters may bid for or purchase securities
in the open market and may impose penalty bids. If penalty bids are imposed, selling concessions allowed to syndicate members or
other broker-dealers participating in the offering are reclaimed if securities previously distributed in the offering are repurchased,
whether in connection with stabilization transactions or otherwise. The effect of these transactions may be to stabilize or maintain
the market price of the securities at a level above that which might otherwise prevail in the open market. The impositions of a
penalty bid may also affect the price of the securities to the extent that it discourages resale of the securities. The magnitude
or effect of any stabilization or other transactions is uncertain. These transactions may be effected on The NASDAQ Global Market
or otherwise and, if commenced, may be discontinued at any time.
In compliance with guidelines of the Financial
Industry Regulatory Authority, or FINRA, the maximum consideration or discount to be received by any FINRA member or independent
broker dealer may not exceed 8% of the aggregate amount of the securities offered pursuant to this prospectus and any applicable
prospectus supplement.
INCORPORATION OF
DOCUMENTS BY REFERENCE
The Securities and Exchange Commission
allows us to incorporate by reference the information that we file with them. Incorporation by reference means that we can disclose
important information to you by referring you to other documents that are legally considered to be part of this prospectus and
later information that we file with the Securities and Exchange Commission will automatically update and supersede the information
in this prospectus, any supplement and the documents listed below. Our Securities and Exchange Commission file number is 001-35622.
We incorporate by reference the specific documents listed below:
| · | our Annual Report on Form 10-K for the year ended December 31, 2014, filed with the SEC on March 16, 2015; |
| · | the information specifically incorporated by reference into our Annual Report on Form 10-K for the year ended December 31,
2014 from our definitive proxy statement on Schedule 14A (other than information furnished rather than filed), which was filed
with the SEC on April 28, 2015; |
| · | our Quarterly Reports on Form 10-Q for the period ended March 31, 2015, filed with the SEC on May 8, 2015, and for the period
ended June 30, 2015, filed with the SEC on August 7, 2015; |
| · | our Current
Reports on Form 8-K, filed with the SEC on January 15, 2015, February 13, 2015, February 17, 2015, April 7, 2015, June 5, 2015,
July 16, 2016, August 5, 2015, August 19, 2015 and October 1, 2015; and |
| · | the description of our common stock contained in the Registration Statement on Form 8-A, filed with the SEC on January
29, 1999, and all amendments and reports updating such description. |
All documents filed by us under Section
13(a), 13(c), 14 or 15(d) of the Exchange Act (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and
exhibits filed on such form that are related to such items) on or after the date of this prospectus until the date on which the
registration statement containing this prospectus has been withdrawn shall also be deemed to be incorporated by reference in this
prospectus and to be a part of this prospectus from the date of filing of those documents. Any statement contained in this prospectus
or in a previously filed document incorporated or deemed to be incorporated by reference in this prospectus shall be deemed to
be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or in any
other subsequently filed document that also is or was deemed to be incorporated by reference in this prospectus modifies or supersedes
that statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute
a part of this prospectus.
The information relating to us contained
in this prospectus should be read together with the information in the documents incorporated by reference.
Upon oral or written request and at no cost
to the requester, we will provide to any person, including a beneficial owner, to whom a prospectus is delivered, a copy of any
or all of the information that has been incorporated by reference in this prospectus but not delivered with this prospectus. All
requests should be made to: Albany Molecular Research, Inc., 26 Corporate Circle, Albany, New York 12203, Attn: Secretary. Telephone
requests may be directed to the Secretary at (518) 512-2000. You should rely only on the information incorporated by reference
or provided in this prospectus. We have not authorized anyone to provide you with different information. You should not assume
that the information in this prospectus or the documents incorporated by reference is accurate as of any date other than the date
on the front of this prospectus or those documents.
WHERE YOU CAN FIND
MORE INFORMATION
We are subject to the informational requirements
of the Exchange Act, and we are required to file reports and proxy statements and other information with the Securities and Exchange
Commission. You may read and copy these reports, proxy statements and information at the Securities and Exchange Commission’s
Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. You may obtain information on the operation of the Public
Reference Room by calling the Securities and Exchange Commission at 1-800-SEC-0330. The Securities and Exchange Commission
maintains a web site that contains reports, proxy and information statements and other information regarding registrants, including
Albany Molecular Research, Inc., that file electronically with the Securities and Exchange Commission. You may access the Securities
and Exchange Commission’s web site at http://www.sec.gov.
This prospectus is part of a registration
statement that we filed with the SEC. The registration statement contains more information than this prospectus regarding us and
the securities, including exhibits and schedules. You can obtain a copy of the registration statement from the SEC at any address
listed above or from the SEC’s web site.
EXPERTS
The consolidated financial statements and
related financial schedule of Albany Molecular Research, Inc. and subsidiaries as of December 31, 2014 and 2013, and for each of
the years in the three-year period ended December 31, 2014, and management's assessment of the effectiveness of internal control
over financial reporting as of December 31, 2014 have been incorporated by reference herein in reliance upon the report of KPMG
LLP, independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts
in accounting and auditing.
The audit report on the effectiveness of
internal control over financial reporting as of December 31, 2014, contains an explanatory paragraph that states that management
excluded from its assessment of the effectiveness of internal control over financial reporting as of December 31, 2014, Cedarburg
Pharmaceuticals, Inc.’s and Oso BioPharmaceuticals Manufacturing, LLC’s (collectively, the “Acquired Businesses”),
internal control over financial reporting associated with assets representing 13% of consolidated assets, and revenues representing
approximately 10% of consolidated revenues included in the consolidated financial statements of the Company as of and for the year
ended December 31, 2014. Our audit of internal control over financial reporting of Albany Molecular Research, Inc. also excluded
an evaluation of the internal control over financial reporting of the Acquired Businesses.
LEGAL MATTERS
Goodwin Procter LLP, Boston, Massachusetts
has passed upon the validity of the shares of our common stock offered by this prospectus. Any underwriters will also be advised
about the validity of the securities and other legal matters by their own counsel, which will be named in the prospectus supplement.
$90,000,000
ALBANY MOLECULAR RESEARCH, INC.
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
PROSPECTUS
, 2015
We have not authorized any dealer, salesperson or other person
to give any information or represent anything not contained in this prospectus. You must not rely on any unauthorized information.
If anyone provides you with different or inconsistent information, you should not rely on it. This prospectus does not offer to
sell any securities in any jurisdiction where it is unlawful. Neither the delivery of this prospectus, nor any sale made hereunder,
shall create any implication that the information in this prospectus is correct after the date hereof.
Part II
INFORMATION NOT REQUIRED
IN PROSPECTUS
Item 14.
Other Expenses of Issuance and Distribution.
The following table sets forth the estimated
costs and expenses, other than underwriting discounts and commissions, payable by us in connection with the offering of the securities
being registered. All the amounts shown are estimates, except for the SEC registration fee.
| SEC registration fee | |
$ | 9,063 | |
| NASDAQ Global Market listing fee | |
| * | |
| Accountants’ fees and expenses | |
| * | |
| Legal fees and expenses | |
| * | |
| Transfer agent fees and expenses | |
| * | |
| Printing expenses | |
| * | |
| TOTAL | |
$ | * | |
*
Estimated expenses not presently known.
Item 15.
Indemnification of Directors and Officers.
Section 102 of the Delaware General Corporation
Law, or the DGCL, allows a corporation to eliminate the personal liability of directors of the corporation to the corporation or
its stockholders for monetary damages for a breach of fiduciary duty as a director, except for liability:
| |
- for any breach of the director’s duty of loyalty to the corporation or its stockholders; |
| |
|
| |
- for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law; |
| |
|
| |
- under section 174 of the DGCL regarding unlawful dividends and stock purchases; or |
| |
|
| |
- for any transaction from which the director derived an improper personal benefit. |
Our certificate of incorporation includes
a provision that eliminates the personal liability of our directors for monetary damages for breach of fiduciary duty as a director,
except to the extent such exemption from liability is expressly forbidden by the DGCL as it now exists or is later amended.
Section 145 of the DGCL provides that a
corporation may indemnify directors and officers as well as other employees and individuals against expenses (including attorneys’
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any threatened,
pending or completed actions, suits or proceedings in which such person is made a party by reason of such person being or having
been a director, officer, employee of or agent of the corporation. The statute provides that it is not exclusive of other rights
to which those seeking indemnification may be entitled under any by-law, agreement, vote of stockholders or disinterested directors
or otherwise.
Our certificate of incorporation and by-laws
require us to indemnify to the fullest extent authorized or permitted by the DGCL (as it existed at the time of the adoption of
the certificate of incorporation, or, if the DGCL is later amended to permit broader indemnification, as so amended) each 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, arbitrative or investigative, by reason of the fact that he is or was a director or officer of
Albany Molecular Research, Inc., or is or was serving at the request of Albany Molecular Research, Inc. as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including service with respect
to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a director, officer,
employee or agent, or in any other capacity while serving as a director, officer, employee or agent. We are only required to indemnify
any such person seeking indemnification in connection with an action initiated by such person if such action was authorized by
the board of directors, unless such action was brought to enforce an officer or director’s rights to indemnification as set
forth in our certificate of incorporation and by-laws. Our by-laws also provide that we must advance expenses to a director within
10 days after the receipt by us of a written statement from such director requesting such advance or advances from time to time,
whether prior to or after final disposition of the matter with respect to which such expenses are being advanced upon receipt of
an undertaking, if such undertaking is required by the DGCL, by or on behalf of such director to repay such amount if it is ultimately
determined that the director is not entitled to be indemnified by us. Our certificate of incorporation further states that we may,
by action of our board of directors, provide indemnification to officers, employees and agents of the company with the same scope
and effect as the foregoing provisions relating to directors.
Our certificate of incorporation provides
that the rights to indemnification and advancement of expenses conferred by it are not exclusive of any other right that any person
may have or acquire under any statute, any amendment to the certificate of incorporation, by-laws, agreement, vote of stockholders
or disinterested directors or otherwise.
We currently maintain directors and officers
liability insurance.
Item 16.
Exhibits and Financial Statement Schedules.
A list of exhibits filed with this registration
statement on Form S-3 is set forth on the Exhibit Index and is incorporated herein by reference.
Item 17.
Undertakings.
The undersigned Registrant
hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
| (i) | To include any prospectus required by Section 10(a)(3) of
the Securities Act; |
| (ii) | To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding
the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would
not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes
in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation
of Registration Fee” table in the effective registration statement. |
| (iii) | To include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the
registration statement. |
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and
(a)(1)(iii) of this section do not apply if the information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Securities and Exchange Commission by the registrant pursuant
to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in the registration statement, or is contained
in a form of prospectus filed pursuant to Rule 424(b) that is part of this Registration Statement.
| (2) | That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof. |
| (3) | To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the termination of the offering. |
| (4) | That, for the purpose of determining liability under
the Securities Act to any purchaser: |
| (i) | Each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed
part of and included in the registration statement; and |
| (ii) | Each prospectus required to be filed pursuant to Rule 424(b)(2),
(b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant
to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the
Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form
of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described
in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an
underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in
the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof. Provided, however , that no statement made in a registration statement or
prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into
the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract
of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus
that was part of the registration statement or made in any such document immediately prior to such effective date. |
| (5) | That, for the purpose of determining liability of the
registrant under the Securities Act to any purchaser in the initial distribution of the securities: The undersigned registrant
undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser
by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered
to offer or sell such securities to such purchaser: |
| (i) | Any preliminary prospectus or prospectus of the undersigned
registrant relating to the offering required to be filed pursuant to Rule 424; |
| (ii) | Any free writing prospectus relating to the offering prepared
by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
| (iii) | The portion of any other free writing prospectus relating
to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of
the undersigned registrant; and |
| (iv) | Any other communication that is an offer in the offering
made by the undersigned registrant to the purchaser. |
| (6) | That, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report
pursuant to section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (7) | That, for purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed
by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective. |
| (8) | That, for the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains
a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (9) | To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310
of the Trust Indenture Act of 1939 in accordance with the rules and regulations prescribed by the Securities and Exchange
Commission under Section 305(b)(2) of the Trust Indenture Act of 1939. |
Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements
of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Albany, State of New York, on this 2nd day of October, 2015.
| |
ALBANY MOLECULAR RESEARCH, INC. |
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|
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By: |
/s/ Felicia I. Ladin |
|
| |
|
Felicia I. Ladin |
|
| |
|
Senior Vice President, Chief Financial Officer and Treasurer |
|
KNOW ALL PERSONS BY
THESE PRESENTS, that each person whose signature appears below constitutes and appoints William S. Marth, Felicia Ladin and Lori
M. Henderson, and each of them, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this registration statement and sign any registration statement (or amendment thereto)
for the same offering covered by the registration statement that is to be effective upon filing pursuant to Rule 462 promulgated
under the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith and about the
premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or any of them, or their or his or her substitute or substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature |
|
Capacity |
|
Date |
| |
|
|
|
|
| /s/ William S. Marth |
|
President and Chief Executive Officer (Principal Executive Officer and Director) |
|
October 2, 2015 |
| William S. Marth |
|
|
|
|
| |
|
|
|
|
| /s/ Felicia I. Ladin |
|
Senior Vice President, Chief Financial Officer and Treasurer (Principal Financial and Accounting Officer) |
|
October 2, 2015 |
| Felicia I. Ladin |
|
|
|
|
| |
|
|
|
|
| /s/Thomas E. D’Ambra, Ph.D. |
|
Chairman of the Board of Directors (Chairman of the Board of Directors) |
|
October 2, 2015 |
| Thomas E. D’Ambra, Ph.D. |
|
|
|
|
| |
|
|
|
|
| /s/ Una S. Ryan, Ph.D., O.B.E. |
|
Director |
|
October 2, 2015 |
| Una S. Ryan, Ph.D., O.B.E. |
|
|
|
|
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|
|
|
|
| /s/Arthur J. Roth |
|
Director |
|
October 2, 2015 |
| Arthur J. Roth |
|
|
|
|
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|
|
|
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| /s/ Gabriel Leung |
|
Director |
|
October 2, 2015 |
| Gabriel Leung |
|
|
|
|
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|
|
|
|
| /s/ Kevin O’Connor |
|
Director |
|
October 2, 2015 |
| Kevin O’Connor |
|
|
|
|
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|
|
|
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| /s/ Veronica G. H. Jordan, Ph.D. |
|
Director |
|
October 2, 2015 |
| Veronica G. H. Jordan, Ph.D. |
|
|
|
|
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|
|
|
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| /s/ Gerardo Gutiérrez |
|
Director |
|
October 2, 2015 |
| Gerardo Gutiérrez |
|
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EXHIBIT INDEX
Exhibit
Number |
|
Description |
| |
|
|
| 1.1* |
|
Form of Underwriting Agreement. |
| |
|
|
| 3.1 |
|
Restated Certificate of Incorporation (incorporated herein by reference to Exhibit 3.2 to our Annual Report on Form 10-K for the fiscal year ended December 31, 1998 (File No. 000-25323)). |
| |
|
|
| 3.2 |
|
Certificate of Amendment to the Restated Certificate of Incorporation of Albany Molecular Research, Inc. (incorporated herein by reference to Exhibit 3.1 to our Current Report on Form 8-K filed with the Securities and Exchange Commission on June 5, 2015 (File No. 001-35622)). |
| |
|
|
| 3.3 |
|
Amended and Restated By-laws (incorporated herein by reference to Exhibit 3.1 to our Annual Report on Form 10-K for the fiscal year ended December 31, 1998 (File No. 000-25323)). |
| |
|
|
| 4.1 |
|
Form of Specimen Common Stock Certificate. |
| |
|
|
| 4.2 |
|
Registration Rights Agreement by and between Albany Molecular Research, Inc. and 3-Gutinver, S.L., dated as of July 16, 2015 (incorporated herein by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K with the Securities and Exchange Commission on July 16, 2015 (File No. 001-35622)). |
| |
|
|
| 4.3* |
|
Form of Certificate of Designations. |
| |
|
|
| 4.4* |
|
Form of Preferred Stock Certificate. |
| |
|
|
| 4.5 |
|
Form of indenture for senior debt securities and the related form of senior debt security. |
| |
|
|
| 4.6 |
|
Form of indenture for subordinated debt securities and the related form of subordinated debt security. |
| |
|
|
| 4.7* |
|
Form of Warrant Agreement (including Forms of Warrant Certificates). |
| |
|
|
| 4.8* |
|
Form of Unit Agreement (including Forms of Unit Certificates). |
| |
|
|
| 5.1 |
|
Opinion of Goodwin Procter LLP. |
| |
|
|
| 12.1 |
|
Computation of Ratio of Earnings to Fixed Charges. |
| |
|
|
| 23.1 |
|
Consent of KPMG LLP. |
| |
|
|
| 23.2 |
|
Consent of Goodwin Procter (contained in Exhibit 5.1 hereto). |
| |
|
|
| 24.1 |
|
Powers of Attorney (included on the signature page to this Registration Statement). |
| |
|
|
| 25.1** |
|
Form T-1 Statement of Eligibility of Trustee for Senior Indenture under the Trust Indenture Act of 1939. |
| |
|
|
| 25.2** |
|
Form T-1 Statement of Eligibility of Trustee for Subordinated Indenture under the Trust Indenture Act of 1939. |
| * |
To be filed if necessary by amendment or as an exhibit to a document to be incorporated or deemed to be incorporated by reference in this registration statement, including a Current Report on Form 8-K. |
| ** |
To be filed pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939. |
Exhibit 4.1
Exhibit 4.5
ALBANY MOLECULAR RESARCH, INC.
TO
Trustee
Indenture
Dated as of ,
20
Senior Debt Securities
TABLE OF CONTENTS
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Page |
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| Article 1 - DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
1 |
| Section 101 |
Definitions |
1 |
| Section 102 |
Compliance Certificates and Opinions |
8 |
| Section 103 |
Form of Documents Delivered to Trustee |
8 |
| Section 104 |
Acts of Holders |
9 |
| Section 105 |
Notices, etc., to Trustee and Company |
10 |
| Section 106 |
Notice to Holders; Waiver |
10 |
| Section 107 |
Counterparts; Effect of Headings and Table of Contents |
11 |
| Section 108 |
Successors and Assigns |
11 |
| Section 109 |
Severability Clause |
11 |
| Section 110 |
Benefits of Indenture |
11 |
| Section 111 |
Governing Law |
11 |
| Section 112 |
Legal Holidays |
11 |
| Section 113 |
Limited Liability; Immunity of Stockholders, Directors, Officers and Agents of the Company |
11 |
| Section 114 |
Conflict with Trust Indenture Act |
12 |
| Article 2 - SECURITIES FORMS |
12 |
| Section 201 |
Forms of Securities |
12 |
| Section 202 |
Form of Trustee’s Certificate of Authentication |
12 |
| Section 203 |
Securities Issuable in Global Form |
12 |
| Article 3 - THE SECURITIES |
13 |
| Section 301 |
Amount Unlimited; Issuable in Series |
13 |
| Section 302 |
Denominations |
15 |
| Section 303 |
Execution, Authentication, Delivery and Dating |
16 |
| Section 304 |
Temporary Securities |
17 |
| Section 305 |
Registration, Registration of Transfer, Conversion and Exchange |
19 |
| Section 306 |
Mutilated, Destroyed, Lost and Stolen Securities |
21 |
| Section 307 |
Payment of Interest; Interest Rights Preserved |
22 |
| Section 308 |
Persons Deemed Owners |
24 |
| Section 309 |
Cancellation |
24 |
| Section 310 |
Computation of Interest |
24 |
| Section 311 |
CUSIP Numbers |
24 |
| Article 4 - SATISFACTION AND DISCHARGE |
25 |
| Section 401 |
Satisfaction and Discharge of Indenture |
25 |
| Section 402 |
Application of Trust Funds |
25 |
| Article 5 - REMEDIES |
26 |
| Section 501 |
Events of Default |
26 |
| Section 502 |
Acceleration of Maturity; Rescission and Annulment |
27 |
| Section 503 |
Collection of Indebtedness and Suits for Enforcement by Trustee |
27 |
| Section 504 |
Trustee May File Proofs of Claim |
28 |
| Section 505 |
Trustee May Enforce Claims Without Possession of Securities or Coupons |
28 |
| Section 506 |
Application of Money Collected |
29 |
| Section 507 |
Limitation on Suits |
29 |
| Section 508 |
Unconditional Right of Holders to Receive Principal, Premium or Make-Whole Amount, if any, and Interest |
29 |
| Section 509 |
Restoration of Rights and Remedies |
29 |
| Section 510 |
Rights and Remedies Cumulative |
30 |
| Section 511 |
Delay or Omission Not Waiver |
30 |
| Section 512 |
Control by Holders of Securities |
30 |
| Section 513 |
Waiver of Past Defaults |
30 |
| Section 514 |
Waiver of Usury, Stay or Extension Laws |
30 |
| Section 515 |
Undertaking for Costs |
31 |
| Article 6 - THE TRUSTEE |
31 |
| Section 601 |
Notice of Defaults |
31 |
| Section 602 |
Certain Rights of Trustee |
31 |
| Section 603 |
Not Responsible for Recitals or Issuance of Securities |
32 |
| Section 604 |
May Hold Securities |
32 |
| Section 605 |
Money Held in Trust |
33 |
| Section 606 |
Compensation and Reimbursement |
33 |
| Section 607 |
Corporate Trustee Required; Eligibility; Conflicting Interests |
33 |
| Section 608 |
Resignation and Removal; Appointment of Successor |
33 |
| Section 609 |
Acceptance of Appointment by Successor |
34 |
| Section 610 |
Merger, Conversion, Consolidation or Succession to Business |
35 |
| Section 611 |
Appointment of Authenticating Agent |
35 |
| Section 612 |
Certain Duties and Responsibilities of the Trustee |
36 |
| Article 7 - HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY |
37 |
| Section 701 |
Disclosure of Names and Addresses of Holders |
37 |
| Section 702 |
Reports by Trustee |
38 |
| Section 703 |
Reports by Company |
38 |
| Section 704 |
Company to Furnish Trustee Names and Addresses of Holders |
38 |
| Article 8 - CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE |
38 |
| Section 801 |
Consolidations and Mergers of Company and Sales, Leases and Conveyances Permitted Subject to Certain Conditions |
38 |
| Section 802 |
Rights and Duties of Successor Corporation |
39 |
| Section 803 |
Officers’ Certificate and Opinion of Counsel |
39 |
| Article 9 - SUPPLEMENTAL INDENTURES |
39 |
| Section 901 |
Supplemental Indentures Without Consent of Holders |
39 |
| Section 902 |
Supplemental Indentures with Consent of Holders |
40 |
| Section 903 |
Execution of Supplemental Indentures |
41 |
| Section 904 |
Effect of Supplemental Indentures |
41 |
| Section 905 |
Conformity with Trust Indenture Act |
41 |
| Section 906 |
Reference in Securities to Supplemental Indentures |
41 |
| Article 10 - COVENANTS |
41 |
| Section 1001 |
Payment of Principal, Premium or Make-Whole Amount, if any; and Interest |
41 |
| Section 1002 |
Maintenance of Office or Agency |
42 |
| Section 1003 |
Money for Securities Payments to Be Held in Trust |
43 |
| Section 1004 |
Existence |
44 |
| Section 1005 |
Maintenance of Properties |
44 |
| Section 1006 |
Insurance |
44 |
| Section 1007 |
Payment of Taxes and Other Claims |
44 |
| Section 1008 |
Statement as to Compliance |
44 |
| Section 1009 |
Waiver of Certain Covenants |
44 |
| Article 11 - REDEMPTION OF SECURITIES |
44 |
| Section 1101 |
Applicability of Article |
44 |
| Section 1102 |
Election to Redeem; Notice to Trustee |
44 |
| Section 1103 |
Selection by Trustee of Securities to Be Redeemed |
45 |
| Section 1104 |
Notice of Redemption |
45 |
| Section 1105 |
Deposit of Redemption Price |
46 |
| Section 1106 |
Securities Payable on Redemption Date |
46 |
| Section 1107 |
Securities Redeemed in Part |
47 |
| Article 12 - SINKING FUNDS |
47 |
| Section 1201 |
Applicability of Article |
47 |
| Section 1202 |
Satisfaction of Sinking Fund Payments with Securities |
47 |
| Section 1203 |
Redemption of Securities for Sinking Fund |
47 |
| Article 13 - REPAYMENT AT THE OPTION OF HOLDERS |
48 |
| Section 1301 |
Applicability of Article |
48 |
| Section 1302 |
Repayment of Securities |
48 |
| Section 1303 |
Exercise of Option |
48 |
| Section 1304 |
When Securities Presented for Repayment Become Due and Payable |
49 |
| Section 1305 |
Securities Repaid in Part |
49 |
| Article 14 - DEFEASANCE AND COVENANT DEFEASANCE |
49 |
| Section 1401 |
Applicability of Article; Company’s Option to Effect Defeasance or Covenant Defeasance |
49 |
| Section 1402 |
Defeasance and Discharge |
50 |
| Section 1403 |
Covenant Defeasance |
50 |
| Section 1404 |
Conditions to Defeasance or Covenant Defeasance |
50 |
| Section 1405 |
Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions |
51 |
| Article 15 - MEETINGS OF HOLDERS OF SECURITIES |
52 |
| Section 1501 |
Purposes for Which Meetings May Be Called |
52 |
| Section 1502 |
Call, Notice and Place of Meetings |
52 |
| Section 1503 |
Persons Entitled to Vote at Meetings |
52 |
| Section 1504 |
Quorum; Action |
53 |
| Section 1505 |
Determination of Voting Rights; Conduct and Adjournment of Meetings |
53 |
| Section 1506 |
Counting Votes and Recording Action of Meetings |
54 |
| Article 16 - CONVERSION OF SECURITIES |
54 |
| Section 1601 |
Applicability of Article; Conversion Privilege and Conversion Price |
54 |
| Section 1602 |
Exercise of Conversion Privilege |
55 |
| Section 1603 |
Fractions of Shares |
56 |
| Section 1604 |
Adjustment of Conversion Price |
56 |
| Section 1605 |
Notice of Adjustments of Conversion Price |
58 |
| Section 1606 |
Notice of Certain Corporate Action |
58 |
| Section 1607 |
Company to Reserve Common Stock |
59 |
| Section 1608 |
Taxes on Conversion |
59 |
| Section 1609 |
Covenants as to Common Stock |
59 |
| Section 1610 |
Cancellation of Converted Securities |
59 |
| Section 1611 |
Provisions in Case of Consolidation, Merger or Sale of Assets; Special Distributions |
59 |
| Section 1612 |
Trustee Adjustment Disclaimer; Company Determination Final |
60 |
| Section 1613 |
When No Adjustment Required |
60 |
| Section 1614 |
Equivalent Adjustments |
61 |
ALBANY MOLECULAR RESARCH, INC.
Reconciliation and tie between the Trust Indenture Act of 1939,
as amended (the “Trust Indenture Act” or “TIA”) and the Indenture, dated as of ,
20 .
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Trust Indenture Act Section |
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Indenture Section |
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| § 310(a)(1) |
|
607 |
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| (a)(2) |
|
607 |
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| (b) |
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607,608 |
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| § 312(c) |
|
701 |
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| § 313(a) |
|
702 |
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| (c) |
|
702 |
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| § 314(a) |
|
703 |
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| (a)(4) |
|
1008 |
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| (c)(1) |
|
102 |
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| (c)(2) |
|
102 |
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| (e) |
|
102 |
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| § 315(b) |
|
601 |
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| § 316(a) (last sentence) |
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101(“Outstanding”) |
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| (a)(1)(A) |
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502, 512 |
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| (a)(1)(B) |
|
513 |
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| (b) |
|
508 |
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| § 317(a)(1) |
|
503 |
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| (a)(2) |
|
504 |
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| § 318(a) |
|
111 |
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| (c) |
|
111 |
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NOTE: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Indenture.
Attention should also be directed to Section 318(c) of
the Trust Indenture Act, which provides that the provisions of Sections 310 to and including 317 of the Trust Indenture Act are
a part of and govern every qualified indenture, whether or not physically contained therein.
INDENTURE, dated as of ,
20 , Albany Molecular Research, Inc., a corporation organized under the laws of the State of Delaware (hereinafter
called the “Company”), having its principal office at 26 Corporate Circle, Albany, New York 12203, and ,
as Trustee hereunder (hereinafter called the “Trustee”), having a Corporate Trust Office at .
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for
its lawful purposes senior debt securities (hereinafter called the “Securities”) evidencing its unsecured and senior
indebtedness, and has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time
of the Securities, to be issued in one or more Series as provided in this Indenture.
This Indenture is subject to the provisions of the Trust Indenture
Act of 1939, as amended (the “Trust Indenture Act” or “TIA”), that are deemed to be incorporated into this
Indenture and shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid and legally
binding 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 a Series thereof, as follows:
Article
1 - 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 other terms used herein which are defined in the TIA,
either directly or by reference therein, have the meanings assigned to them therein, and the terms “cash transactions”
and “self-liquidating paper,” as used in TIA Section 311, shall have the meanings assigned to them in the rules
of the Commission adopted under the TIA;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(4) any reference to an “Article” or a “Section”
refers to an Article or Section, as the case may be, of this Indenture; and
(5) 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.
“Act,” when used with respect to any Holder,
has the meaning specified in Section 104.
“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 pursuant to Section 611 hereof to act on behalf of the Trustee to authenticate Securities of one or more Series.
“Authorized Newspaper” means a newspaper,
printed 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 each place in connection with which
the term is used or in the financial community of each such place. Whenever successive publications are required to be made in
Authorized Newspapers, the successive publications may be made in the same or in different Authorized Newspapers in the same city
meeting the foregoing requirements and in each case on any Business Day.
“Bankruptcy Law” has the meaning specified
in Section 501.
“Bearer Security” means any Security established
pursuant to Section 201 which is payable to the bearer.
“Board of Directors” when used with reference
to the Company, means the board of directors of the Company, or any committee of that board duly authorized to act hereunder, or
any director or directors and/or officer or officers of the Company, to whom the board or committee shall have duly delegated its
authority.
“Board Resolution” means a copy of (1) a
resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors
or a duly authorized committee of the Board of Directors and to be in full force and effect on the date of such certification,
or (2) a certificate signed by the director or directors and/or officer or officers to whom the Board of Directors shall have
duly delegated its authority, together with a resolution certified by the Secretary or an Assistant Secretary of the Company to
have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification authorizing
such delegation, and, in each case, delivered to the Trustee.
“Business Day,” when used with respect to
any Place of Payment or any other particular location referred to in this Indenture or in the Securities, means, unless otherwise
specified with respect to any Securities issued pursuant to Section 301, any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banking institutions in that Place of Payment or particular location are authorized
or required by law, regulation or executive order to close.
“Capital Stock” means, with respect to any
Person, any capital stock (including preferred stock), shares, interests, participations or other ownership interests (however
designated) of such Person and any rights (other than debt securities convertible into or exchangeable for corporate stock), warrants
or options to purchase any thereof.
“Clearstream” means Clearstream Banking Luxembourg,
société anonyme, or its successor.
“Closing Price” means the closing price of
a share of Common Stock of the Company as reported on The NASDAQ Global Select Market.
“Code” means the Internal Revenue Code of
1986, as amended, and the regulations thereunder.
“Commission” means the Securities and Exchange
Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after execution of this instrument
such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing
such duties on such date.
“Common Depository” has the meaning specified
in Section 304.
“Common Stock” means, with respect to any
Person, all shares of capital stock issued by such Person other than Preferred Stock.
“Company” means the Person named as the “Company”
in the first paragraph of this Indenture until a successor corporation shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter “Company” shall mean such successor corporation.
“Company Request” and “Company Order”
mean, respectively, a written request or order signed in the name of the Company by the Chief Executive Officer, the President,
or a Vice President, and by its Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee.
“Constituent Person” has the meaning specified
in Section 1611.
“Conversion Event” means the cessation of
use of (i) a Foreign Currency both by the government of the country which issued such currency and for the settlement of transactions
by a central bank or other public institutions of or within the international banking community, (ii) the ECU both within
the European Monetary System and for the settlement of transactions by public institutions of or within the European Communities
or (iii) any currency unit (or composite currency) other than the ECU for the purposes for which it was established.
“Conversion Price” has the meaning specified
in Section 1601.
“Corporate Trust Office” means the office
of the Trustee at which, at any particular time, its corporate trust business shall be principally administered, which office at
the date hereof is located at [ ].
“corporation” includes corporations, associations,
companies and business trusts.
“coupon” means any interest coupon appertaining
to a Bearer Security.
“Covenant Defeasance” has the meaning specified
in Section 1403.
“Custodian” has the meaning specified in
Section 501.
“Defaulted Interest” has the meaning specified
in Section 307.
“Defeasance” has the meaning specified in
Section 1402.
“Distribution Record Date” has the meaning
specified in Section 1611.
“Dividend Record Date” has the meaning specified
in Section 1604.
“Dollar” or the sign “$”
means a dollar or other equivalent unit in such coin or currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
“DTC” means The Depository Trust Company
and any successor to DTC in its capacity as depository for any Securities.
“ECU” means the European Currency Unit as
defined and revised from time to time by the Council of the European Communities.
“Euroclear” means the operator of the Euroclear
System.
“European Communities” means the European
Economic Community, the European Coal and Steel Community and the European Atomic Energy Community.
“European Monetary System” means the European
Monetary System established by the Resolution of December 5, 1978 of the Council of the European Communities.
“Event of Default” has the meaning specified
in Article Five.
“Exchange Act” means the Securities Exchange
Act of 1934, as amended, as in force at the date as of which this Indenture was executed; provided, however, that
in the event the Exchange Act is amended after such date, “Exchange Act” means to the extent required by any such amendment,
the Exchange Act as so amended.
“Exchange Date” has the meaning specified
in Section 304.
“FINRA” means the Financial Industry Regulatory
Authority, Inc.
“Foreign Currency” means any currency, currency
unit or composite currency, including, without limitation, the ECU issued by the government of one or more countries other than
the United States of America or by any recognized confederation or association of such governments.
“GAAP” means, except as otherwise provided
herein, generally accepted accounting principles, as in effect from time to time, as used in the United States applied on a consistent
basis.
“Global Security” means a Security evidencing
all or a part of a series of Securities issued to and registered in the name of the depository for such series, or its nominee,
in accordance with Section 305, and bearing the legend prescribed in Section 203.
“Government Obligations” means (i) securities
which are (A) direct obligations of the United States of America or the government which issued the Foreign Currency in which
the Securities of a particular series are payable, for the payment of which its full faith and credit is pledged or (B) obligations
of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America or such government
which issued the Foreign Currency in which the Securities of such series are payable, the payment of which is unconditionally guaranteed
as a full faith and credit obligation by the United States of America or such other government, which, in either case, are not
callable or redeemable at the option of the issuer thereof, and (iii) a depository receipt issued by a bank or trust company
as custodian with respect to any such Government Obligation or a specific payment of interest on or principal of any such Government
Obligation held by such custodian for the account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt
from any amount received by the custodian in respect of the Government Obligation or the specific payment of interest on or principal
of the Government Obligation evidenced by such depository receipt.
“Holder” means, in the case of a Registered
Security, the Person in whose name a Security is registered in the Security Register and, in the case of a Bearer Security, the
bearer thereof and, when used with respect to any coupon, shall mean the bearer thereof.
“Indenture” means this instrument as originally
executed or as it may be supplemented or amended from time to time 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; provided, however, that, if at any time more than one Person is acting as Trustee under this
instrument, “Indenture” shall mean, with respect to any one or more series of Securities for which such Person is Trustee,
this instrument as originally executed or as it may be supplemented or amended from time to time by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall include the terms of the or those particular series
of Securities for which such Person is Trustee established as contemplated by Section 301, exclusive, however, of any provisions
or terms which relate solely to other series of Securities for which such Person is Trustee, regardless of when such terms or provisions
were adopted, and exclusive of any provisions or terms adopted by means of one or more indentures supplemental hereto executed
and delivered after such Person had become such Trustee but to which such Person, as such Trustee, was not a party.
“Indexed Security” means a Security the terms
of which provide that the principal amount thereof payable at Stated Maturity may be more or less than the principal face amount
thereof at original issuance.
“Interest,” when used with respect to an
Original Issue Discount Security which by its terms bears interest only after Maturity, shall mean interest payable after Maturity.
“Interest Payment Date,” when used with respect
to any Security, means the Stated Maturity of an installment of interest on such Security.
“Make-Whole Amount,” when used with respect
to any Security, means the amount, if any, in addition to principal (and accrued interest thereon, if any) which is required by
a Security, under the terms and conditions specified therein or as otherwise specified as contemplated by Section 301, to
be paid by the Company to the Holder thereof in connection with any optional redemption or accelerated payment of such Security.
“mandatory sinking fund payment” has the
meaning specified in Section 1201.
“Market Value of the Distribution” has the
meaning specified in Section 1604.
“Maturity,” when used with respect to any
Security, means the date on which the principal (or, if the context so requires, in the case of an Original Issue Discount Security,
or lesser amount or, in the case of an Indexed Security, an amount determined in accordance with the specified terms of that Security)
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, notice of redemption, notice of option to elect repayment or otherwise.
“Officers’ Certificate” means a certificate
signed by the Chief Executive Officer, the President, or a Vice President (whether or not designated by a number or word or words
added before or after the title “Vice President”), and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee.
“Opinion of Counsel” means a written opinion
of counsel, who may be counsel for the Company or who may be an employee of or other counsel for the Company.
“optional sinking fund payment” has the meaning
specified in Section 1201.
“Original Issue Discount Security” means
any Security which provides for an amount (excluding any amounts attributable to accrued but unpaid interest thereon) 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 canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption
(including repayment at the option of the Holder) money in the necessary amount has been theretofore 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 and any coupons appertaining thereto; provided, however,
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;
(iii) Securities, except to the extent provided in Sections
1402 and 1403, with respect to which the Company has effected Defeasance and/or Covenant Defeasance as provided in Article Fourteen;
and
(iv) Securities which 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 are present at a meeting of Holders for quorum
purposes, and for the purpose of making the calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such determination or calculation and that shall be deemed to be
Outstanding for such purpose shall be equal to the amount of principal thereof that would be (or shall have been declared to be)
due and payable, at the time of such determination, upon a declaration of acceleration of the maturity thereof pursuant to Section 502,
(ii) the principal amount of any Security denominated in a Foreign Currency that may be counted in making such determination
or calculation and that shall be deemed Outstanding for such purpose shall be equal to the Dollar equivalent, determined pursuant
to Section 301 as of the date such Security is originally issued by the Company, of the principal amount (or, in the case
of an Original Issue Discount Security, the Dollar equivalent as of such date of original issuance of the amount determined as
provided in clause (i) above) of such Security, (iii) the principal amount of any Indexed Security that may be counted
in making such determination or calculation and that shall be deemed outstanding for such purpose shall be equal to the principal
face amount of such Indexed Security at original issuance, unless otherwise provided with respect to such Security pursuant to
Section 301, and (iv) 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 making such calculation or in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded.
Securities owned as provided in clause (iv) above 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. In case of a dispute as to such right, the advice of counsel shall be full protection in respect of any decision made
by the Trustee in accordance with such advice.
“Paying Agent” means any Person authorized
by the Company to pay the principal of (and premium or Make-Whole Amount, if any) or interest on any Securities or coupons on behalf
of the Company.
“Person” means any individual, corporation,
limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof, or any other entity or organization.
“Place of Payment,” when used with respect
to the Securities of or within any series, means the place or places where the principal of (and premium or Make-Whole Amount,
if any) and interest on such Securities are payable as specified as contemplated by Sections 301 and 1002.
“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 or a Security to which a mutilated, destroyed, lost or stolen coupon appertains
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security or the Security to which the mutilated,
destroyed, lost or stolen coupon appertains.
“Preferred Stock” means, with respect to
any Person, all capital stock issued by such Person that is entitled to a preference or priority over any other capital stock issued
by such Person with respect to any distribution of such Person’s assets, whether by dividend or upon any voluntary or involuntary
liquidation, dissolution or winding up.
“Redemption Date,” when used with respect
to any Security to be redeemed, in whole or in part, 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 specified in the related Officers’ Certificate or supplemental indenture
contemplated by and pursuant to Section 301, at which it is to be redeemed pursuant to this Indenture.
“Reference Date” has the meaning specified
in Section 1604.
“Registered Security” shall mean any Security
which is registered in the Security Register.
“Regular Record Date” for the interest payable
on any Interest Payment Date on the Registered Securities of or within any series means the date specified for that purpose as
contemplated by Section 301, whether or not a Business Day.
“Repayment Date” means, when used with respect
to any Security to be repaid at the option of the Holder, the date fixed for such repayment by or pursuant to this Indenture.
“Repayment Price” means, when used with respect
to any Security to be repaid at the option of the Holder, the price at which it is to be repaid by or pursuant to this Indenture.
“Responsible Officer,” when used with respect
to 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”), Assistant Vice President, Trust Officer or Assistant Trust Officer working in its Corporate Trust
Department, or any other officer of the Trustee customarily performing functions similar to those performed by any of the above
designated officers and working in its Corporate Trust Department, and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of such officer’s knowledge and familiarity with the particular
subject and who shall have direct responsibility for the administration of this Indenture.
“Rights” has the meaning specified in Section 1604.
“Rights Record Date” has the meaning specified
in Section 1604.
“Security” and “Securities”
has the meaning stated in the first recital of this Indenture and, more particularly, means any Security or Securities authenticated
and delivered under this Indenture; provided, however, that, if at any time there is more than one Person acting
as Trustee under this Indenture, “Securities” with respect to the Indenture as to which such Person is Trustee shall
have the meaning stated in the first recital of this Indenture and shall more particularly mean Securities authenticated and delivered
under this Indenture, exclusive, however, of Securities of any series as to which such Person is not Trustee.
“Security Register” and “Security
Registrar” have the respective meanings specified in Section 305.
A “Series” of Securities means all securities
denoted as part of the same series authorized by or pursuant to a particular Board Resolution.
“Short Term Rights” has the meaning specified
in Section 1604.
“Special Record Date” for the payment of
any Defaulted Interest on the Registered Securities of or within any series means a date fixed by the Company 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 or a coupon
representing such installment of interest as the fixed date on which the principal of such Security or such installment of principal
or interest is due and payable.
“Trading Day” means any day on which The
NASDAQ Global Select Market is open for business.
“Trigger Events” has the meaning specified
in Section 1604.
“Trust Indenture Act” or “TIA”
means the Trust Indenture Act of 1939, as amended and as in force at the date as of which this Indenture was executed, except as
provided in Section 905.
“Trustee” means the Person named as the “Trustee”
in the first paragraph of this Indenture 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; provided,
however, that if at any time there is more than one such Person, “Trustee” as used with respect to the Securities
of any series shall mean only the Trustee with respect to Securities of that series.
“Unadjusted Distribution” has the meaning
specified in Section 1604.
“United States” means, unless otherwise specified
with respect to any Securities pursuant to Section 301, the United States of America (including the states and the District
of Columbia), its territories, its possessions and other areas subject to its jurisdiction.
“United States Person” means, unless otherwise
specified with respect to any Securities pursuant to Section 301, an individual who is a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in or under the laws of the United States or an estate
or trust the income of which is subject to United States Federal income taxation regardless of its source.
“Yield to Maturity” means the yield to maturity,
computed at the time of issuance of a Security (or, if applicable, at the most recent redetermination of interest on such Security)
and as set forth in such Security in accordance with generally accepted United States bond yield computation principles.
Section 102 Compliance
Certificates and Opinions. 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, 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, 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 (including certificates delivered pursuant to Section 1008) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such condition or covenant 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 individual,
he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not
such condition or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 103 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 an Opinion of Counsel, or a certificate or representations by counsel, unless
such officer knows, or in the exercise of reasonable care should know, that the opinion, certificate or representations with respect
to the matters upon which his certificate or opinion is based are erroneous. Any such Opinion of Counsel or certificate or representations
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 as 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 104 Acts
of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by Holders of the Outstanding Securities of all series or
one or more series, as the case may be, may be embodied in and evidenced by one or more instruments of substantially similar tenor
signed by such Holders in person or by agents duly appointed in writing. If Securities of a series are issuable as Bearer Securities,
any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or
taken by Holders of Securities of such series may, alternatively, be embodied in and evidenced by the record of Holders of Securities
of such series voting in favor thereof, either in person or by proxies duly appointed in writing, at any meeting of Holders of
Securities of such series duly called and held in accordance with the provisions of Article Fifteen, or a combination of such instruments
and any such record. 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 or so voting at any such meeting. Proof of execution
of any such instrument or of a writing appointing any such agent, or of the holding by any Person of a Security, shall be sufficient
for any purpose of this Indenture and conclusive in favor of the Trustee and the Company and any agent of the Trustee or 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 1506.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public
or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or
writing acknowledged to 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 reasonable
manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by
the Security Register. As to any matter relating to beneficial ownership interests in any Global Security, the appropriate depository’s
records shall be dispositive for purposes of this Indenture.
(d) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed, as depository, by any trust company, bank, banker or other depository,
wherever situated, if such certificate shall be deemed by the Trustee to be satisfactory, showing that at the date therein mentioned
such Person had on deposit with such depository, or exhibited to it, the Bearer Securities therein described; or such facts may
be proved by the certificate or affidavit of the Person holding such Bearer Securities, if such certificate or affidavit is deemed
by the Trustee to be satisfactory. The Trustee and the Company may assume that such ownership of any Bearer Security continues
until (1) another certificate or affidavit bearing a later date issued in respect of the same Bearer Security is produced,
or (2) such Bearer Security is produced to the Trustee by some other Person, or (3) such Bearer Security is surrendered
in exchange for a Registered Security, or (4) such Bearer Security is no longer Outstanding. The ownership of Bearer Securities
may also be proved in any other manner which the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company may, at its option,
in or pursuant to a Board Resolution, fix in advance a record date for the determination of Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have no obligation to do so. Notwithstanding
TIA Section 316(c), such record date shall be the record date specified in or pursuant to such Board Resolution, which shall
be a date not earlier than the date 30 days prior to the first solicitation of Holders generally in connection therewith and not
later than the date such solicitation is completed. If such a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of record at the close
of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction,
notice, consent, waiver or other Act, and for that purpose the Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not later than eleven months after the record date.
(f) 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 upon the conversion thereof or in exchange therefor or in lieu thereof in respect
of anything done, omitted or suffered to be done by the Trustee, any Security Registrar, any Paying Agent, any Authenticating Agent
or the Company in reliance thereon, whether or not notation of such action is made upon such Security.
Section 105 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 [ ]
or at any other address previously furnished in writing to the Company by the Trustee, Attention: [ ];
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: [ ];
or
(3) either the Trustee or the Company, by the other party or
by any Holder, shall be sufficient for every purpose hereunder if given by facsimile transmission, receipt confirmed by telephone
followed by an original copy delivered by guaranteed overnight courier; if to the Trustee at facsimile number [ ];
and if to the Company at facsimile number [ ].
Section 106 Notice
to Holders; Waiver. Where this Indenture provides for notice of any event to Holders of Registered Securities by the Company
or the Trustee, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each such Holder affected by such event, at his address as it appears in the Security Register,
not later than the latest date, if any, and not earlier than the earliest date, if any, prescribed for the giving of such notice.
In any case where 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 shall affect the sufficiency of such notice with respect to other Holders
of Registered Securities or the sufficiency of any notice to Holders of Bearer Securities given as provided herein. Any notice
mailed to a Holder in the manner herein prescribed shall be conclusively deemed to have been received by such Holder, whether
or not such Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification to Holders
of Registered Securities as shall be made with the approval of the Trustee shall constitute a sufficient notification to such Holders
for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified
with respect to any Securities pursuant to Section 301, where this Indenture provides for notice to Holders of Bearer Securities
of any event, such notice shall be sufficiently given if published in an Authorized Newspaper in The City of New York and in such
other city or cities as may be specified in such Securities on a Business Day, such publication to be not later than the latest
date, if any, and not earlier than the earliest date, if any, prescribed for the giving of such notice. Any such notice shall be
deemed to have been given on the date of such publication or, if published more than once, on the date of the first such publication.
If by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be impracticable to publish any notice to Holders of
Bearer Securities as provided above, then such notification to Holders of Bearer Securities as shall be given with the approval
of the Trustee shall constitute sufficient notice to such Holders for every purpose hereunder. Neither the failure to give notice
by publication to any particular Holder of Bearer Securities as provided above, nor any defect in any notice so published, shall
affect the sufficiency of such notice with respect to other Holders of Bearer Securities or the sufficiency of any notice to Holders
of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent
or waiver required or permitted under this Indenture shall be in the English language, except that any published notice may be
in an official language of the country of publication.
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 107 Counterparts;
Effect of Headings and Table of Contents. This Indenture 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 Indenture. The Article
and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 108 Successors
and Assigns. All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether
so expressed or not.
Section 109 Severability
Clause. In case any provision in this Indenture or in any Security or coupon shall be held invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 110 Benefits
of Indenture. Nothing in this Indenture or in the Securities or coupons, if any, express or implied, shall give to any Person,
other than the parties hereto, any Security Registrar, any Paying Agent, any Authenticating Agent and their successors hereunder
and the Holders any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 111 Governing
Law. This Indenture and the Securities and coupons shall be governed by and construed in accordance with the laws of the State
of New York. This Indenture is subject to the provisions of the TIA that are required to be part of this Indenture and shall,
to the extent applicable, be governed by such provisions.
Section 112 Legal
Holidays. In any case where any Interest Payment Date, Redemption Date, Repayment Date, sinking fund payment date, Stated
Maturity or Maturity of any Security or the last date on which a Holder has the right to convert or exchange a Security shall
not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or any Security or
coupon other than a provision in the Securities of any series which specifically states that such provision shall apply in lieu
hereof), payment of interest or principal (and premium or Make-Whole Amount, if any) or conversion or exchange of such Security
need not be made at such Place of Payment on such date, but (except as otherwise provided in the supplemental indenture with respect
to such Security) 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, Redemption Date, Repayment Date or sinking fund payment date, or at the Stated Maturity or
Maturity, or on such last day for conversion or exchange, provided that no interest shall accrue on the amount so payable for
the period from and after such Interest Payment Date, Redemption Date, Repayment Date, sinking fund payment date, Stated Maturity
or Maturity, as the case may be.
Section 113 Limited
Liability; Immunity of Stockholders, Directors, Officers and Agents of the Company. Notwithstanding any other provision of
this Indenture or of the Securities of any series to the contrary, no recourse under or upon any obligation, covenant or agreement
contained in this Indenture or in any Security, or for the payment of any sums due on account of any indebtedness evidenced thereby,
including without limitation principal, premium or interest, if any, or for any claim based on this Indenture or any Security
or otherwise in respect of this Indenture or any Security, shall be had, whether by levy or execution or otherwise, against (i) the
Company, the Company’s assets or against any past, present or future stockholder, employee, officer, director or agent,
as such, of the Company or any successor, either directly or through the Company or any successor, under any rule of law, statute,
constitutional provision or by the enforcement of any assessment or penalty, or by any legal or equitable proceeding or otherwise,
nor shall any such parties be personally liable for any such amounts, obligations or claims, or liable for any deficiency judgment
based thereon or with respect thereto, it being expressly understood that the sole remedies hereunder or under any other document
with respect to the Securities against such parties with respect to such amounts, obligations or claims shall be against the Company
and that all such liability of and recourse against such parties is expressly waived and released by the acceptance of the Securities
by the Holders and as part of the consideration for the issue of the Securities.
Section 114 Conflict
with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with another provision hereof which is required
or deemed to be included in this Indenture by any of the provisions of the Trust Indenture Act, such required provision 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 latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may
be.
Article
2 - SECURITIES FORMS
Section 201 Forms
of Securities. The Registered Securities, if any, of each series and the Bearer Securities, if any, of each series and related
coupons shall be substantially in the form of Exhibit A hereto or in such other form as shall be established in one or
more indentures supplemental hereto or approved from time to time by or pursuant to a Board Resolution in accordance with Section 301,
shall have such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture
or any indenture supplemental hereto, and may have such letters, numbers or other marks of identification or designation and such
legends or endorsements placed thereon as the Company may deem appropriate and as are not inconsistent with the provisions of
this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any
rule or regulation of any over-the-counter market or securities exchange, on which the Securities may be quoted or listed, or
to conform to usage.
Unless otherwise specified as contemplated by Section 301,
Bearer Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed
or engraved or produced by any combination of these methods on a steel engraved border or steel engraved borders or mechanically
reproduced on safety paper or may be produced in any other manner, all as determined by the officers executing such Securities
or coupons, as evidenced by their execution of such Securities or coupons.
Section 202 Form
of Trustee’s Certificate of Authentication. Subject to Section 611, 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.
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Section 203 Securities
Issuable in Global Form. If Securities of or within a series are issuable in the form of one or more Global Securities, then,
notwithstanding clause (8) of Section 301 and the provisions of Section 302, any such Global Security or Securities
may provide that it or they shall represent the aggregate amount of all Outstanding Securities of such series (or such lesser
amount as is permitted by the terms thereof) from time to time endorsed thereon and may also provide that the aggregate amount
of Outstanding Securities of such series represented thereby may from time to time be increased or decreased to reflect exchanges.
Any endorsement of any Global Security to reflect the amount, or any increase or decrease in the amount, or changes in the rights
of Holders thereof, of Outstanding Securities represented thereby shall be made (or caused to be made) by the Trustee in such
manner or by such Person or Persons as shall be specified therein or in the Company Order to be delivered to the Trustee pursuant
to Section 303 or 304. Subject to the provisions of Section 303 and, if applicable, Section 304, the Trustee shall
deliver and redeliver any Global Security in permanent global form in the manner and upon instructions given by the Person or
Persons specified therein 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 Global
Security shall be in writing but need not comply with Section 102 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall
apply to any Security represented by a Global Security if such Security was never issued and sold by the Company and the Company
delivers to the Trustee the Global Security together with written instructions (which need not comply with Section 102 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 Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any premium or Make-Whole Amount, if any, and interest
on any Global Security in permanent global form shall be made to the registered Holder thereof.
Notwithstanding the provisions of Section 308 and except
as provided in the preceding paragraph, the Company, the Trustee and any agent of the Company and the Trustee shall treat as the
Holder of such principal amount of Outstanding Securities represented by a permanent Global Security (i) in the case of a
permanent Global Security in registered form, the Holder of such permanent Global Security in registered form, or (ii) in
the case of a permanent Global Security in bearer form, Euroclear or Clearstream.
Any Global Security authenticated and delivered hereunder shall
bear a legend in substantially the following form:
“This Security is a Global Security within the meaning
set forth in the Indenture hereinafter referred to and is registered in the name of a Depository or a nominee of a Depository.
This Security is exchangeable for Securities registered in the name of a person other than the Depository or its nominee only in
the limited circumstances described in the Indenture, and may not be transferred except as a whole by the Depository to a nominee
of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository
or its nominee to a successor Depository or its nominee.”
Article
3- THE SECURITIES
Section 301 Amount
Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series, each of
which shall be authorized pursuant to Board Resolutions of the Company. There shall be established in one or more Board Resolutions
or pursuant to authority granted by one or more Board Resolutions and, subject to Section 303, 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, including “CUSIP”
numbers (which shall distinguish the Securities of such series from all other series of Securities);
(2) Any limit 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 of transfer of, or upon conversion of, or in exchange for, or in lieu of, other Securities of the series pursuant
to Section 304, 305, 306, 906, 1107 or 1305) and the minimum authorized denominations with respect to the Securities of such
series;
(3) The price (expressed as a percentage of the principal amount
thereof) at which such Securities will be issued and, if other than the principal amount thereof, the portion of the principal
amount thereof payable upon declaration of acceleration of the maturity thereof or (if applicable) the portion of the principal
amount of such Securities that is convertible into Common Stock or Preferred Stock or the method by which any such portion shall
be determined;
(4) If convertible, the terms on which such Securities are convertible,
including the initial conversion price or rate and the conversion period and any applicable limitations on the ownership or transferability
of Common Stock or Preferred Stock receivable on conversion;
(5) The date or dates, or the method for determining such date
or dates, on which the principal of such Securities will be payable;
(6) The rate or rates (which may be fixed or variable), or the
method by which such rate or rates shall be determined, at which such Securities will bear interest, if any;
(7) The date or dates, or the method for determining such date
or dates, from which any such interest will accrue, the Interest Payment Dates on which any such interest will be payable, the
Regular Record Dates for such Interest Payment Dates, or the method by which such dates shall be determined, the Persons to whom
such interest shall be payable, and the basis upon which interest shall be calculated if other than that of a 360-day year of twelve
30-day months;
(8) The Make-Whole Amount, if any, or method for determining
the Make-Whole Amount, if any, payable with respect to such Securities, and the terms upon which such amount, if any, will be payable;
(9) The place or places where the principal of (and premium
or Make-Whole Amount, if any) and interest, if any, on such Securities will be payable, where such Securities may be surrendered
for registration of transfer or conversion or exchange and where notices or demands to or upon the Company in respect of such Securities
and this Indenture may be served;
(10) The period or periods, if any, within which, the price
or prices at which and the other terms and conditions upon which such Securities may, pursuant to any optional or mandatory redemption
provisions, be redeemed, as a whole or in part, at the option of the Company;
(11) The obligation, if any, of the Company to redeem, repay
or purchase such Securities pursuant to any sinking fund or analogous provision or at the option of a Holder thereof, and the period
or periods within which, the price or prices at which and the other terms and conditions upon which such Securities will be redeemed,
repaid or purchased, as a whole or in part, pursuant to such obligation;
(12) If other than Dollars, the currency or currencies in which
such Securities are denominated and payable, which may be a foreign currency or units of two or more foreign currencies or a composite
currency or currencies, the manner of determining the equivalent thereof in Dollars for purposes of the definition of “Outstanding”
in Section 101, and the terms and conditions relating thereto;
(13) Whether the amount of payments of principal of (and premium
or Make-Whole Amount, if any, including any amount due upon redemption, if any) or interest on such Securities may be determined
with reference to an index, formula or other method (which index, formula or method may, but need not be, based on the yield on
or trading price of other securities, including United States Treasury securities or on a currency, currencies, currency unit or
units, or composite currency or currencies) and the manner in which such amounts shall be determined;
(14) Whether the principal of (and premium or Make-Whole Amount,
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, currency unit or units or composite currency or currencies other than that in which such Securities are
denominated or stated to be payable, the period or periods within which, and the terms and conditions upon which, such election
may be made, and the time and manner of, and identity of the exchange rate agent with responsibility for, determining the exchange
rate between the currency or currencies, currency unit or units or composite currency or currencies in which such Securities are
denominated or stated to be payable and the currency or currencies, currency unit or units or composite currency or currencies
in which such Securities are to be so payable;
(15) Provisions, if any, granting special rights to the Holders
of Securities of the series upon the occurrence of such events as may be specified;
(16) Any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to Securities of the series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set forth herein;
(17) Whether and under what circumstances the Company will pay
any additional amounts on such Securities in respect of any tax, assessment or governmental charge and, if so, whether the Company
will have the option to redeem such Securities in lieu of making such payment;
(18) Whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or both, any restrictions applicable to the offer, sale or delivery
of Bearer Securities and the terms upon which Bearer Securities of the series may be exchanged for Registered Securities of the
series and vice versa (if permitted by applicable laws and regulations), 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 with or
without coupons and, if so, whether beneficial owners of interests in any such permanent global Security may, or shall be required
to, 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, or shall be required to, occur, if other than in the manner provided in the Indenture, and,
if Registered Securities of the series are to be issuable as a Global Security, the identity of the depository for such series;
(19) The date as of which any Bearer Securities of the series
and any temporary Global Security representing outstanding Securities of the series shall be dated if other than the date of original
issuance of the first Security of the series to be issued;
(20) The Person to whom any interest on any Registered Security
of the series shall be payable, if other than 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 the manner in which, or the Person to whom, any
interest on any Bearer Security of the series shall be payable, if otherwise than upon presentation and surrender of the coupons
appertaining thereto as they severally mature, and the extent to which, or the manner in which, any interest payable on a temporary
Global Security on an Interest Payment Date will be paid if other than in the manner provided herein; provided, however,
in each case, that the manner of determining such Person or making such payment shall be acceptable to the Trustee (as not imposing
on it any undue administrative burden or risk of liability);
(21) The applicability, if any, of the Defeasance and Covenant
Defeasance provisions of Article Fourteen hereof to the Securities of the series;
(22) The obligation, if any, of the Company to permit the conversion
of the Securities of such series into Common Stock or Preferred Stock, as the case may be, and the terms and conditions upon which
such conversion shall be effected (including, without limitation, the initial conversion price or rate, the conversion period,
any adjustment of the applicable conversion price and any requirements relative to the reservation of such shares for purposes
of conversion);
(23) If the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, then the form and/or terms of such certificates, documents
or conditions;
(24) Designation of the Trustee, if different from the Trustee
under the Indenture, with respect to such series and the terms applicable to such Trustee (which shall be accepted by such Trustee
by its execution and delivery of a supplemental indenture as provided therein); and
(25) Any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining
to any Bearer Securities of such 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 such Board Resolution (subject to Section 303) and set forth in
such Officers’ Certificate 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, a series may be reopened, without the consent of the Holders, for issuances of
additional Securities of such series.
If any of the terms of the Securities of any series are established
by action taken pursuant to one or more Board Resolutions, a copy of an appropriate record of such action(s) 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 Securities of such series.
Section 302 Denominations.
The Securities of each series shall be issuable in such denominations as shall be specified as contemplated by Section 301.
With respect to Securities of any series denominated in Dollars, in the absence of any such provisions with respect to the Securities
of any series, the Securities of such series, other than Global Securities (which may be of any denomination), shall be issuable
in denominations of $1,000 and any integral multiple thereof or the equivalent amounts thereof in the case of Securities denominated
in the Foreign Currency or currency unit.
Section 303 Execution,
Authentication, Delivery and Dating. The Securities and any coupons appertaining thereto shall be executed on behalf of the
Company by its Chief Executive Officer, its President, or one of its Vice Presidents, under its corporate seal reproduced thereon,
and attested by its Secretary or one of its Assistant Secretaries. The signature of any of these officers on the Securities and
coupons may be manual or facsimile signatures of the present or any future such authorized officer and may be imprinted or otherwise
reproduced on the Securities.
Securities and coupons 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 or coupons.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series, together with any coupon appertaining thereto, executed by
the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities
(accompanied by a copy of the Board Resolution and the Officers’ Certificate or supplemental indenture contemplated by Section 301),
and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities; provided, however,
that, in connection with its original issuance, no Bearer Security shall be mailed or otherwise delivered to any location in the
United States; and provided further that, unless otherwise specified with respect to any series of Securities pursuant
to Section 301, a Bearer Security may be delivered in connection with its original issuance only if the Person entitled to
receive such Bearer Security shall have furnished a certificate to Euroclear or Clearstream, as the case may be, in the form set
forth in Exhibit B-1 to this Indenture or such other certificate as may be specified by the Company with respect to any
series of Securities pursuant to Section 301, dated no earlier than 15 days prior to the earlier of the date on which such
Bearer Security is delivered and the date on which any temporary Security first becomes exchangeable for such Bearer Security in
accordance with the terms of such temporary Security and this Indenture. If any Security shall be represented by a permanent Global
Security, then, for purposes of this Section and Section 304, the notation of a beneficial owner’s interest therein
upon original issuance of such Security or upon exchange of a portion of a temporary Global Security shall be deemed to be delivery
in connection with its original issuance of such beneficial owner’s interest in such permanent Global Security. Except as
permitted by Section 306, the Trustee shall not authenticate and deliver any Bearer Security unless all appurtenant coupons
for interest then matured have been detached and canceled.
If all the Securities of any series are not to be issued at
one time and if the Board Resolution or supplemental indenture establishing such series shall so permit, such Company Order may
set forth procedures acceptable to the Trustee for the issuance of such Securities and determining the terms of particular Securities
of such series, such as interest rate or formula, maturity date, date of issuance and date from which interest shall accrue. In
authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to TIA Section 315(a) through 315(d)) shall be fully protected in relying
upon,
(i) an Opinion of Counsel stating that
(a) the form or forms of such Securities and any coupons have
been established in conformity with the provisions of this Indenture;
(b) the terms of such Securities and any coupons have been established
in conformity with the provisions of this Indenture; and
(c) such Securities, together with any coupons appertaining
thereto, when completed by appropriate insertions and executed and delivered by the Company to the Trustee for authentication in
accordance with this Indenture, authenticated and delivered by the Trustee in accordance with this Indenture and issued by the
Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute legal, valid and legally
binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent
transfer, reorganization and other similar laws of general applicability relating to or affecting the enforcement of creditors’
rights generally and to general equitable principles; and
(ii) an Officers’ Certificate stating that all conditions
precedent provided for in this Indenture relating to the issuance of the Securities have been complied with and that, to the best
of the knowledge of the signers of such certificate, that no Event of Default with respect to any of the Securities shall have
occurred and be continuing.
If such form or terms have been so established, the Trustee
shall not be required to authenticate such Securities (or to enter into the related supplemental indenture, if applicable) if the
issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties, obligations or immunities
under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all the Securities of any series are not to be issued at one time, it shall not be necessary to deliver
an Officers’ Certificate otherwise required pursuant to Section 301 or a Company Order, or an Opinion of Counsel or
an Officers’ Certificate otherwise required pursuant to the preceding paragraph at the time of issuance of each Security
of such series, but such order, opinion and certificates, with appropriate modifications to cover such future issuances, shall
be delivered at or before the time of issuance of the first Security of such series.
Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified as contemplated by Section 301.
No Security or coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears on such Security or Security to which such coupon
appertains a certificate of authentication substantially in the form provided for herein duly executed by the Trustee (subject
to Section 611) by manual signature of an authorized signatory, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if any Security (including a Global 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 102 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.
(a) 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 which
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, or, if authorized, in bearer form with
one or more coupons or without coupons, and with such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as conclusively evidenced by their execution of such Securities. In the case
of Securities of any series, such temporary Securities may be in global form.
Except in the case of temporary Global Securities (which shall
be exchanged as otherwise provided herein or as otherwise provided in or pursuant to a Board Resolution or supplemental indenture
pursuant to Section 301), 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 (accompanied by any non-matured coupons appertaining
thereto), the Company shall execute (in accordance with a Company Order delivered at or prior to the authentication of the first
definitive security to such series) and the Trustee shall authenticate and deliver in exchange therefor a like principal amount
of definitive Securities of the same series of authorized denominations; provided, however, that no definitive Bearer
Security shall be delivered in exchange for a temporary Registered Security; and provided further that a definitive
Bearer Security shall be delivered in exchange for a temporary Bearer Security only in compliance with the conditions set forth
in Section 303. 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.
(b) Unless otherwise provided in or pursuant to a Board Resolution
or supplemental indenture pursuant to Section 301, the following provisions of this Section 304(b) shall govern the exchange
of temporary Securities other than through the facilities of the DTC. If any such temporary Security is issued in global form,
then such temporary Global Security shall, unless otherwise provided therein, be delivered to the London office of a depository
or common depository upon and pursuant to written direction of the Company (the “Common Depository”), for the benefit
of Euroclear and Clearstream, for credit to the respective accounts of the beneficial owners of such Securities (or to such other
accounts as they may direct).
Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such temporary Global Security (the “Exchange Date”),
the Company shall deliver to the Trustee definitive Securities, in aggregate principal amount equal to the principal amount of
such temporary Global Security, executed by the Company. On or after the Exchange Date, such temporary Global Security shall be
surrendered by the Common Depository to the Trustee, as the Company’s agent for such purpose, to be exchanged, in whole or
from time to time in part, for definitive Securities without charge, and the Trustee shall authenticate and deliver, in exchange
for each portion of such temporary Global Security, an equal aggregate principal amount of definitive Securities of the same series
of authorized denominations and of like tenor as the portion of such temporary Global Security to be exchanged. The definitive
Securities to be delivered in exchange for any such temporary Global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination thereof, as specified as contemplated by Section 301,
and, if any combination thereof is so specified, as requested by the beneficial owner thereof (as directed by or pursuant to information
provided by the Common Depository); provided, however, that, unless otherwise specified in such temporary Global
Security, upon such presentation by the Common Depository, such temporary Global Security shall be accompanied by a certificate
dated the Exchange Date or a subsequent date and signed by Euroclear as to the portion of such temporary Global Security held for
its account then to be exchanged and a certificate dated the Exchange Date or a subsequent date and signed by Clearstream as to
the portion of such temporary Global Security held for its account then to be exchanged, each in the form set forth in Exhibit
B-2 to this Indenture or in such other form as may be established pursuant to Section 301; and provided further
that definitive Bearer Securities shall be delivered in exchange for a portion of a temporary Global Security only in compliance
with the requirements of Section 303.
Unless otherwise specified in such temporary Global Security,
the interest of a beneficial owner of Securities of a series in a temporary Global Security shall be exchanged for definitive Securities
of the same series and of like tenor following the Exchange Date when the account holder instructs Euroclear or Clearstream, as
the case may be, to request such exchange on his behalf and delivers to Euroclear or Clearstream, as the case may be, a certificate
in the form set forth in Exhibit B-1 to this Indenture (or in such other form as may be established pursuant to Section 301),
dated no earlier than 15 days prior to the Exchange Date, copies of which certificate shall be available from the offices of Euroclear
and Clearstream, the Trustee, any Authenticating Agent appointed for such series of Securities and each Paying Agent. Unless otherwise
specified in such temporary Global Security, any such exchange shall be made free of charge to the beneficial owners of such temporary
Global Security, except that a Person receiving definitive Securities must bear the cost of insurance, postage, transportation
and the like unless such Person takes delivery of such definitive Securities in person at the offices of Euroclear or Clearstream.
Definitive Securities in bearer form to be delivered in exchange for any portion of a temporary Global Security shall be delivered
only to an address located outside the United States.
Until exchanged in full as hereinabove provided, the 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, except that, unless otherwise specified as contemplated
by Section 301, interest payable on a temporary Global Security on an Interest Payment Date for Securities of such series
occurring prior to the applicable Exchange Date shall be payable to Euroclear and Clearstream on such Interest Payment Date upon
delivery by Euroclear and Clearstream to the Trustee of a certificate or certificates in the form set forth in Exhibit B-2
to this Indenture (or in such other forms as may be established pursuant to Section 301), for credit without further interest
on or after such Interest Payment Date to the respective accounts of Persons who are the beneficial owners of such temporary Global
Security on such Interest Payment Date and who have each delivered to Euroclear or Clearstream, as the case may be, a certificate
dated no earlier than 15 days prior to the Interest Payment Date occurring prior to such Exchange Date in the form set forth as
Exhibit B-1 to this Indenture (or in such other forms as may be established pursuant to Section 301). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to this paragraph shall satisfy the certification requirements
of the preceding two paragraphs of this Section 304(b) and of the third paragraph of Section 303 of this Indenture and
the interests of the Persons who are the beneficial owners of the temporary Global Security with respect to which such certification
was made will be exchanged for definitive Securities of the same series and of like tenor on the Exchange Date or the date of certification
if such date occurs after the Exchange Date, without further act or deed by such beneficial owners. Except as otherwise provided
in this paragraph, no payments of principal or interest owing with respect to a beneficial interest in a temporary Global Security
will be made unless and until such interest in such temporary Global Security shall have been exchanged for an interest in a definitive
Security. Any interest so received by Euroclear and Clearstream and not paid as herein provided shall be returned to the Trustee
prior to the expiration of two years after such Interest Payment Date in order to be repaid to the Company.
With respect to Exhibit B-1 or B-2 to this Indenture,
the Company may, in its discretion and if required or desirable under applicable law, substitute one or more other forms of such
exhibits for such exhibits, eliminate the requirement that any or all certificate be provided, or change the time that any certificate
may be required, provided that such substitute form or forms or notice of elimination or change of such certification
requirement have theretofore been delivered to the Trustee with a Company Request and such form or forms, elimination or change
is reasonably acceptable to the Trustee.
Section 305 Registration,
Registration of Transfer, Conversion and Exchange. The Company shall cause to be kept at the Corporate Trust Office of the
Trustee or in any office or agency of the Company in a Place of Payment a register for each series of Securities (the registers
maintained in such office or in any such office or agency of the Company in a Place of Payment being herein sometimes referred
to collectively 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. The Security
Register shall be in written form or any other form capable of being converted into written form within a reasonable time. The
Trustee, at its Corporate Trust Office, is hereby initially appointed “Security Registrar” for the purpose of registering
Registered Securities and transfers of Registered Securities on such Security Register as herein provided. In the event that the
Trustee shall cease to be Security Registrar, it shall have the right to examine, and be provided a copy of, the Security Register
at all reasonable times.
Subject to the provisions of this Section 305, upon surrender
for registration of transfer of any Registered Security of any series at any office or agency of the Company 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, of any authorized denominations and of a like aggregate
principal amount, bearing a number not contemporaneously outstanding, and containing identical terms and provisions.
Subject to the provisions of this Section 305, at the option
of the Holder, Registered Securities of any series may be exchanged for other Registered Securities of the same series, of any
authorized denomination or denominations and of a like aggregate principal amount, containing identical terms and provisions, upon
surrender of the Registered Securities to be exchanged at any such office or agency. Whenever any such Registered Securities are
so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Registered Securities
which the Holder making the exchange is entitled to receive. Unless otherwise specified with respect to any series of Securities
as contemplated by Section 301, Bearer Securities may not be issued in exchange for Registered Securities.
If (but only if) permitted by the applicable Board Resolution
and (subject to Section 303) set forth in the applicable Officers’ Certificate, or in any indenture supplemental hereto,
delivered as contemplated by Section 301, at the option of the Holder, Bearer Securities of any series may be exchanged for
Registered Securities of the same series of any authorized denominations and of a like aggregate principal amount and tenor, upon
surrender of the Bearer Securities to be exchanged at any such office or agency, with all unmatured coupons and all matured coupons
in default thereto appertaining. If the Holder of a Bearer Security is unable to produce any such unmatured coupon or coupons or
matured coupon or coupons in default, any such permitted exchange may be effected if the Bearer Securities are accompanied by payment
in funds acceptable to the Company (or to the Trustee for the Security in case of matured coupons in default) in an amount equal
to the face amount of such missing coupon or coupons, or the surrender of such missing coupon or coupons may be waived by the Company
and the Trustee if there is furnished to them such security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to any Paying Agent any such missing coupon in respect
of which such a payment shall have been made, such Holder shall be entitled to receive the amount of such payment; provided,
however, that, except as otherwise provided in Section 1002, interest represented by coupons shall be payable only
upon presentation and surrender of those coupons at an office or agency located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such office or agency in a permitted exchange for a Registered
Security of the same series and like tenor after the close of business at such office or agency 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,
such Bearer Security shall be surrendered without the coupon relating to such Interest Payment Date or proposed date for payment,
as the case may be, and 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 the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance with the provisions of this Indenture. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities
which 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 depository for any permanent Global Security is DTC, then, unless the terms of such Global Security expressly permit such
Global Security to be exchanged in whole or in part for definitive Securities, a Global Security may be transferred, in whole
but not in part, only to a nominee of DTC, or by a nominee of DTC to DTC, or to a successor to DTC for such Global Security selected
or approved by the Company or to a nominee of such successor to DTC. If at any time DTC notifies the Company that it is unwilling
or unable to continue as depository for the applicable Global Security or Securities or if at any time DTC ceases to be a clearing
agency registered under the Exchange Act if so required by applicable law or regulation, the Company shall appoint a successor
depository with respect to such Global Security or Securities. If (w) a successor depository for such Global Security or
Securities is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such unwillingness,
inability or ineligibility, (x) the Company delivers to the Trustee for Securities of such series in registered form a Company
Order stating that the Securities of such series shall be exchangeable, (y) an Event of Default has occurred and is continuing
and the beneficial owners representing a majority in principal amount of the applicable series of Securities represented by such
Global Security or Securities advise DTC to cease acting as depository for such Global Security or Securities or (z) the
Company, in its sole discretion, determines at any time that all Outstanding Securities (but not less than all) of any series
issued or issuable in the form of one or more Global Securities shall no longer be represented by such Global Security or Securities,
then the Company shall execute, and the Trustee shall authenticate and deliver definitive Securities of like series, rank, tenor
and terms in definitive form in an aggregate principal amount equal to the principal amount of such Global Security or Securities.
If any beneficial owner of an interest in a permanent global Security is otherwise 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 and provided that any applicable notice provided in the permanent Global Security shall have been given, then
without unnecessary delay but in any event not later than the earliest date on which such interest may be so exchanged, the Company
shall execute, and the Trustee shall authenticate and deliver definitive Securities in aggregate principal amount equal to the
principal amount of such beneficial owner’s interest in such permanent Global Security. On or after the earliest date on
which such interests may be so exchanged, such permanent Global Security shall be surrendered for exchange by DTC or such other
depository as shall be specified in the Company Order with respect thereto to the Trustee, as the Company’s agent for such
purpose; provided, however, that no such exchanges may occur during a period beginning at the opening of business
15 days before any selection of Securities to be redeemed and ending on the relevant Redemption Date if the Security for which
exchange is requested may be among those selected for redemption; and provided further that no Bearer Security delivered
in exchange for a portion of a permanent Global Security shall be mailed or otherwise delivered to any location in the United
States. 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 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 conversion
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 conversion or exchange.
Every Registered Security presented or surrendered for registration
of transfer or for conversion, exchange or redemption shall (if so required by the Company or the Security Registrar) 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 to the Holder for any registration
of transfer or conversion 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 conversion or exchange of Securities,
other than exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any transfer.
The Company or the Trustee, as applicable, shall not be required
(i) to issue, register the transfer of or exchange any Security if such Security may be among those selected for redemption
during a period beginning at the opening of business 15 days before selection of the Securities to be redeemed under Section 1103
and ending at the close of business on (A) if such Securities are issuable only as Registered Securities, the day of the mailing
of the relevant notice of redemption and (B) if such Securities are issuable as Bearer Securities, the day of the first publication
of the relevant notice of redemption or, if such Securities are also issuable as Registered Securities and there is no publication,
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, in the case of any Registered Security to be redeemed in part, the portion
thereof not to be redeemed, or (iii) to exchange any Bearer Security so selected for redemption except that such a Bearer
Security may be exchanged for a Registered Security of that series and like tenor, provided that such Registered Security
shall be simultaneously surrendered for redemption, or (iv) to issue, register the transfer of or exchange any Security which
has been surrendered for repayment at the option of the Holder, except the portion, if any, of such Security not to be so repaid.
Furthermore, notwithstanding any other provision of this Section 305,
the Company will not be required to exchange any Securities if, as a result of the exchange, the Company would suffer adverse consequences
under any United States law or regulation.
Section 306 Mutilated,
Destroyed, Lost and Stolen Securities. If any mutilated Security or a Security with a mutilated coupon appertaining to it
is surrendered to the Trustee or the Company, together with, in proper cases, such security or indemnity as may be required by
the Company or the Trustee to save each of them or any agent of either of them harmless, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a new Security of the same series and principal amount, containing identical
terms and provisions and bearing a number not contemporaneously outstanding, with coupons corresponding to the coupons, if any,
appertaining to the surrendered Security.
If there shall be delivered to the Company and to the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any Security or coupon, 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 or coupon 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
or in exchange for the Security to which a destroyed, lost or stolen coupon appertains (with all appurtenant coupons not destroyed,
lost or stolen), a new Security of the same series and principal amount, containing identical terms and provisions and bearing
a number not contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining to such destroyed,
lost or stolen Security or to the Security to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs,
in case any such mutilated, destroyed, lost or stolen Security or coupon has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Security, with coupons corresponding to the coupons, if any, appertaining
to such destroyed, lost or stolen Security or to the Security to which such destroyed, lost or stolen coupon appertains, pay such
Security or coupon if the applicant for such payment shall furnish to the Company and the Trustee for such Security such security
or indemnity as may be required by them to save each of them harmless, and in the case of destruction, loss or theft, evidence
satisfactory to the Company and Trustee and any agent of any of them of the destruction, loss or theft of such Security and the
ownership thereof; provided, however, that payment of principal of (and premium or Make-Whole Amount, if any), and
interest, if any, on, Bearer Securities shall, except as otherwise provided in Section 1002, be payable only at an office
or agency located outside the United States and, unless otherwise specified as contemplated by Section 301, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or in exchange for a Security to which a destroyed,
lost or stolen coupon appertains, shall constitute an original additional contractual obligation of the Company, whether or not
the destroyed, lost or stolen Security and its coupons, if any, or the destroyed, lost or stolen coupon 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 and their coupons, if any, 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 or coupons.
Section 307 Payment
of Interest; Interest Rights Preserved. Except as otherwise specified with respect to a series of Securities in accordance
with the provisions of Section 301, interest on any Registered Security that 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 payment at the office or agency of the Company
maintained for such purpose pursuant to Section 1002; provided, however, that each installment of interest
on any Registered Security may at the Company’s option be paid by (i) mailing a check for such interest, payable to
or upon the written order of the Person entitled thereto pursuant to Section 308, to the address of such Person as it appears
on the Security Register or (ii) transfer to an account maintained by the payee located inside the United States.
Unless otherwise provided as contemplated by Section 301
with respect to the Securities of any series, payment of interest may be made, in the case of a Bearer Security, by transfer to
an account maintained by the payee with a bank located outside the United States.
Unless otherwise provided as contemplated by Section 301,
every permanent Global Security will provide that interest, if any, payable on any Interest Payment Date will be paid to DTC, Euroclear
and/or Clearstream, as the case may be, with respect to that portion of such permanent Global Security held for its account by
Cede & Co. or the Common Depository, as the case may be, for the purpose of permitting such party to credit the interest
received by it in respect of such permanent Global Security to the accounts of the beneficial owners thereof.
In case a Bearer Security of any series is surrendered in exchange
for a Registered Security of such series after the close of business (at an office or agency in a Place of Payment for such series)
on any Regular Record Date and before the opening of business (at such office or agency) on the next succeeding Interest Payment
Date, such Bearer Security shall be surrendered without the coupon relating to such Interest Payment Date and interest will not
be payable on such Interest Payment Date in respect of the Registered Security issued in exchange for such Bearer Security, but
will be payable only to the Holder of such coupon when due in accordance with the provisions of this Indenture.
Except as otherwise specified with respect to a series of Securities
in accordance with the provisions of Section 301, any interest on any Registered Security of any series that 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 registered Holder thereof 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 (which shall not be less than 20 days after such notice is received
by the Trustee), and at the same time the Company shall deposit with the Trustee an amount of money in the currency or currencies,
currency unit or units or composite currency or currencies in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series) 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 on or 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 in each Place of Payment, but such publications 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 mailed as aforesaid, 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). In case a Bearer Security of any series is surrendered at the office
or agency in a Place of Payment for such series in exchange for a Registered Security of such series after the close of business
at such office or agency on 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, such Bearer Security shall be surrendered without the coupon relating to such
proposed date of payment and Defaulted Interest will not be payable on such proposed date of payment in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
(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 over-the-counter
market or securities exchange on which such Securities may be quoted or listed, and upon such notice as may be required by such
market or 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 and Section 305,
each Security delivered under this Indenture upon registration of transfer of or upon conversion of or 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 Security for the purpose of receiving payment of principal of (and premium or Make-Whole Amount, if any), and (subject
to Sections 305 and 307) interest on, such Registered Security and for all other purposes whatsoever, whether or not such Registered
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. All such payments so made to any such Person, or upon such Person’s order, shall be valid, and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge the liability for money payable upon any such Security.
Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the Company or the Trustee may treat the Holder of any Bearer
Security and the Holder of any coupon as the absolute owner of such Security or coupon for the purpose of receiving payment thereof
or on account thereof and for all other purposes whatsoever, whether or not such Security or coupon 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.
No holder of any beneficial interest in any Global Security
held on its behalf by a depository shall have any rights under this Indenture with respect to such Global Security and such depository
(which is the Holder of such security) shall be treated by the Company, the Trustee, and any agent of the Company or the Trustee
as the owner of such Global Security for all purposes whatsoever. None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial
ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership
interests.
Notwithstanding the foregoing, with respect to any Global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the Company or the Trustee, from giving effect to any written
certification, proxy or other authorization furnished by any depository, as a Holder, with respect to such Global Security or impair,
as between such depository and owners of beneficial interests in such Global Security, the operation of customary practices governing
the exercise of the rights of such depository (or its nominee) as Holder of such Global Security.
Section 309 Cancellation.
All Securities and coupons surrendered for payment, redemption, repayment at the option of the Holder, registration of transfer
or conversion 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, and any such Securities and coupons and Securities and coupons surrendered directly to the Trustee
for any such purpose, upon direction by the Company, shall be promptly cancelled by it. 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 may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation
any Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered shall
be promptly cancelled by the Trustee. If the Company shall so acquire any of the Securities, however, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are surrendered
to the Trustee for cancellation. 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. Cancelled Securities and coupons held by the Trustee
shall be disposed of by the Trustee in accordance with its customary practices (subject to the record retention requirements of
the Exchange Act).
Section 310 Computation
of Interest. Except as otherwise specified as contemplated by Section 301 with respect to Securities of any series, interest
on the Securities of each series shall be computed on the basis of a 360-day year consisting of 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, however,
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. The Company will
promptly notify the Trustee of any change in the “CUSIP” numbers.
Article
4- SATISFACTION AND DISCHARGE
Section 401 Satisfaction
and Discharge of Indenture. This Indenture shall upon Company Request cease to be of further effect with respect to any series
of Securities specified in such Company Request (except as to any surviving rights of registration of transfer or conversion or
exchange of Securities of such series herein expressly provided for), and the Trustee, upon receipt of a Company Order, and at
the expense of the Company, shall execute instruments in form and substance satisfactory to the Trustee and the Company acknowledging
satisfaction and discharge of this Indenture as to such series when
(1) either
(A) all Securities of such series theretofore authenticated
and delivered and all coupons, if any, appertaining thereto (other than (i) coupons appertaining to Bearer Securities surrendered
for exchange for Registered Securities and maturing after such exchange, whose surrender is not required or has been waived as
provided in Section 305, (ii) Securities and coupons of such series which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306, (iii) coupons appertaining to Securities called for redemption
and maturing after the relevant Redemption Date, whose surrender has been waived as provided in Section 1106, and (iv) Securities
and coupons 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 Securities of such series and, in the case of (i) or
(ii) below, any coupons appertaining thereto 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) if redeemable at the option of the Company, 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 (i), (ii) or (iii) above,
has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose an amount in the currency
or currencies, currency unit or units or composite currency or currencies in which the Securities of such series are payable, sufficient
to pay and discharge the entire indebtedness on such Securities and such coupons not theretofore delivered to the Trustee for cancellation,
for principal (and premium or Make-Whole Amount, if any) 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 as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee and any predecessor Trustee under Section 606, the obligations of the Company
to any Authenticating Agent under Section 611 and, if money shall have been deposited with and held by the Trustee pursuant
to subclause (B) of clause (1) of this Section, the obligations of the Trustee under Section 402 and the last paragraph
of Section 1003 shall survive such satisfaction and discharge.
Section 402 Application
of Trust Funds. Subject to the provisions of the last paragraph of Section 1003, all money deposited with the Trustee
pursuant to Section 401 shall be held in trust and applied by it, in accordance with the provisions of the Securities, the
coupons and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium or Make-Whole Amount,
if any), and any interest for whose payment such money has been deposited with or received by the Trustee, but such money need
not be segregated from other funds except to the extent required by law.
Article
5- REMEDIES
Section 501 Events
of Default. “Event of Default,” wherever used herein with respect to any particular series of Securities, means
any one of the following events (whatever the reason for such Event of Default and whether or not it shall be voluntary or involuntary
or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(1) default in the payment of any interest on any Security of
that series or of any coupon appertaining thereto, when such interest or coupon becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (or premium or
Make-Whole Amount, if any, on) any Security of that series when it becomes due and payable at its Maturity; or
(3) default in the deposit of any sinking fund payment, to the
extent applicable to such series of Securities, when and as due by the terms of any Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture with respect to any Security of that series (other than a covenant or warranty a default
in whose performance or whose breach is elsewhere in this Section specifically dealt with or which has expressly been included
in this Indenture solely for the benefit of a series of Securities other than that series), and continuance of such default or
breach for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of that series a written
notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default”
hereunder; or
(5) default under any bond, debenture, note, mortgage, indenture
or instrument under which there may be issued or by which there may be secured or evidenced any indebtedness for money borrowed
by the Company, having an aggregate principal amount outstanding of at least $30,000,000, whether such indebtedness now exists
or shall hereafter be created, which default shall have resulted in such indebtedness becoming or being declared due and payable
prior to the date on which it would otherwise have become due and payable, without such indebtedness having been discharged, or
such acceleration having been rescinded or annulled, within a period of 30 days after there shall have been given, by registered
or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 10% in principal
amount of the Outstanding Securities of that series a written notice specifying such default and requiring the Company to cause
such indebtedness to be discharged or cause such acceleration to be rescinded or annulled and stating that such notice is a “Notice
of Default” hereunder; provided, however, that, subject to the provisions of Sections 601 and 602, the
Trustee shall not be deemed to have knowledge of such default unless either (A) a Responsible Officer of the Trustee shall
have knowledge of such default or (B) the Trustee shall have received written notice thereof from the Company, from any Holder,
from the holder of any such indebtedness or from the trustee under any such mortgage, indenture or other instrument; or
(6) 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 its creditors;
or
(7) a court of competent jurisdiction enters 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 90 days; or
(8) any other Event of Default provided with respect to Securities
of that series.
As used in this Section 501, the term “Bankruptcy
Law” means title 11, U.S. Code or any similar Federal or state law for the relief of debtors and the term “Custodian”
means any receiver, trustee, assignee, liquidator or other similar official under any Bankruptcy Law.
Section 502 Acceleration
of Maturity; Rescission and Annulment. If an Event of Default with respect to Securities of any series at the time Outstanding
occurs and is continuing, then and in every such case the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if Securities of that Series are Original Issue Discount
Securities or Indexed Securities, such portion of the principal as may be specified in the terms thereof) of all the Securities
of that series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by the Holders),
and upon any such declaration such principal or specified portion thereof shall become immediately due and payable.
At any time after such a declaration of acceleration with respect
to Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities of
that series, by written notice to the Company and the Trustee, may rescind and annul such declaration of acceleration and its consequences
if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the currency, currency unit or composite currency in which the Securities of such series are payable (except
as otherwise specified pursuant to Section 301 for the Securities of such series):
(A) all overdue installments of interest on all Outstanding
Securities of that series and any related coupons,
(B) the principal of (and premium or Make-Whole Amount, if any,
on) any Outstanding Securities of that series which have become due otherwise than by such declaration of acceleration and interest
thereon at the rate or rates borne by or provided for in such Securities,
(C) to the extent that payment of such interest is lawful, interest
upon overdue installments of interest at the rate or rates borne by or provided for in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of (or premium or Make-Whole Amount, if any) or interest on Securities of that
series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair
any right consequent thereon.
Section 503 Collection
of Indebtedness and Suits for Enforcement by Trustee. The Company covenants that if:
(1) default is made in the payment of any installment of interest
on any Security of any series and any related coupon when such interest becomes due and payable and such default continues for
a period of 30 days, or
(2) default is made in the payment of the principal of (or premium
or Make-Whole Amount, if any, on) any Security of any series at its Maturity,
then the Company will, upon demand of the Trustee, pay to the
Trustee, for the benefit of the Holders of such Securities of such series and coupons, the whole amount then due and payable on
such Securities and coupons for principal (and premium or Make-Whole Amount, if any) and interest, with interest upon any overdue
principal (and premium or Make-Whole Amount, if any) and, to the extent that payment of such interest shall be legally enforceable,
upon any overdue installments of interest at the rate or rates borne by or provided for in such Securities, and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection
of the sums so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may enforce the same against
the Company or any other obligor upon such Securities of such series and collect the moneys adjudged or decreed to be payable in
the manner provided by law out of the property of the Company or any other obligor upon such Securities of such series, wherever
situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders
of Securities of such series and any related coupons by such appropriate judicial proceedings as the Trustee shall deem necessary
to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or
in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 504 Trustee
May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities
or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal
of the Securities of any series shall then be due and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the Company for the payment of overdue principal, premium or Make-Whole Amount,
if any, or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of such series, of principal (and premium or Make-Whole Amount, if any)
and interest owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator (or other similar official) in any such judicial proceeding is hereby authorized by each Holder of Securities of such
series and coupons 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 and any predecessor Trustee, their agents and counsel, and any other amounts due the Trustee or any
predecessor Trustee under Section 606.
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 a Security or coupon any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or coupons or the rights of any Holder thereof, or to authorize the Trustee
to vote in respect of the claim of any Holder of a Security or coupon in any such proceeding.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the Trustee shall be a party) the Trustee shall be held
to represent all the Holders of the Securities, and it shall not be necessary to make any Holders of the Securities parties to
any such proceedings.
Section 505 Trustee
May Enforce Claims Without Possession of Securities or Coupons. All rights of action and claims under this Indenture or any
of the Securities or coupons may be prosecuted and enforced by the Trustee without the possession of any of the Securities or
coupons or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall
be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment
of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable
benefit of the Holders of the Securities and coupons in respect of which such judgment has been recovered.
Section 506 Application
of Money Collected. Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal (or premium or Make-Whole
Amount, if any) or interest, upon presentation of the Securities or coupons, or both, as the case may be, and the notation thereon
of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities and coupons for principal (and premium or Make-Whole Amount, if any) and interest, in respect of which or for the
benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the aggregate
amounts due and payable on such Securities and coupons for principal (and premium or Make-Whole Amount, if any) and interest, respectively;
and
THIRD: To the payment of the remainder, if any, to the Company.
Section 507 Limitation
on Suits. No Holder of any Security of any series or any related coupon shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture or the Securities or any related coupon, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities
of that series;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture or the Securities, except in the manner herein provided and
for the equal and ratable benefit of all such Holders.
Section 508 Unconditional
Right of Holders to Receive Principal, Premium or Make-Whole Amount, if any, and Interest. Notwithstanding any other provision
in this Indenture, the Holder of any Security or coupon shall have the right which is absolute and unconditional to receive payment
of the principal of (and premium or Make-Whole Amount, if any) and (subject to Sections 305 and 307) interest on such Security
or payment of such coupon on the respective due dates expressed in such Security or coupon (or, in the case of redemption, on
the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
Section 509 Restoration
of Rights and Remedies. If the Trustee or any Holder of a Security or coupon has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such case, the Company, the Trustee and the Holders of Securities
and coupons shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had
been instituted.
Section 510 Rights
and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or coupons in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders of Securities or coupons is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder
or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 511 Delay
or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Security or coupon to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may
be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders of Securities or coupons,
as the case may be.
Section 512 Control
by Holders of Securities. The Holders of not less than a majority in principal amount of the Outstanding Securities of any
series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee with respect to the Securities of such series, provided
that:
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve
it in personal liability or be unduly prejudicial to the Holders of Securities of such series not joining therein.
Nothing in this Indenture shall impair the right of the Trustee
in its discretion to take any action deemed proper by the Trustee and which is not inconsistent with such direction by Holders.
Section 513 Waiver
of Past Defaults. The Holders of not less than a majority in principal amount of the Outstanding Securities of any series
may on behalf of the Holders of all the Securities of such series and any related coupons waive any past default hereunder with
respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium or Make-Whole
Amount, if any) or interest on any Security of such series or any related coupons, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected;
or
(3) in respect of a covenant or provision hereof for the benefit
or protection of the Trustee, without its express written consent.
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 Event of Default or impair any right consequent thereon.
Section 514 Waiver
of Usury, Stay or Extension Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension
law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture;
and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been enacted.
Section 515 Undertaking
for Costs. All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant
in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys’ fees and expenses, against any party litigant in such suit having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than
10% in principal amount of the Outstanding Securities of any series, or to any suit instituted by any Holder for the enforcement
of the payment of the principal of (or premium or Make-Whole Amount, if any) or interest on any Security on or after the respective
Stated Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date).
Article
6- THE TRUSTEE
Section 601 Notice
of Defaults. Within 90 days after the occurrence of any default hereunder with respect to the Securities of any series, the
Trustee shall transmit in the manner and to the extent provided in TIA Section 313(c), notice of such default hereunder known
to the Trustee, unless such default shall have been cured or waived; provided, however, that, except in the case
of a default in the payment of the principal of (or premium or Make-Whole Amount, if any) or interest on any Security of such
series, or in the payment of any sinking or purchase fund installment with respect to the 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 determine that the withholding of such notice is in the
interests of the Holders of the Securities and coupons of such series; and provided further that in the case of
any default or breach of the character specified in Section 501(4) with respect to the Securities and coupons of such series,
no such notice to Holders shall be given until at least 60 days after the occurrence thereof. For the purpose of this Section,
the term “default” means any event which is, or after notice or lapse of time or both would become, an Event of Default
with respect to the Securities of such series.
Section 602 Certain
Rights of Trustee. Subject to the provisions of TIA Section 315(a) through 315(d):
(1) the Trustee may conclusively rely and shall be fully protected
in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon or other paper or document (whether in its original or facsimile form)
reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order (other than delivery of any Security, together with any coupons
appertaining thereto, to the Trustee for authentication and delivery pursuant to Section 303 which shall be sufficiently evidenced
as provided therein) and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(3) 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;
(4) the Trustee may consult with counsel of its own selection
and the written 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;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities of any series
or any related coupons pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity
reasonably satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(6) 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 or other paper or document, unless requested in writing so to do by the Holders of
not less than a majority in aggregate principal amount of the Outstanding Securities of any series; provided that, if the
payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making
of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Indenture, the Trustee may require reasonable indemnity against such expenses or liabilities as a condition to
proceeding; the reasonable expenses of every such examination shall be paid by the Holders or, if paid by the Trustee, shall be
repaid by the Holders upon demand. 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, relevant to the facts or matters that are the subject of its inquiry,
personally or by agent or attorney at the expense of the Company and shall incur no liability or additional liability of any kind
by reason of such inquiry or investigation;
(7) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(8) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred
upon it by this Indenture;
(9) any permissive right or power available to the Trustee under
this Indenture or any supplement hereto shall not be construed to be a mandatory duty or obligation;
(10) the Trustee shall not be charged with knowledge of any
matter (including any default, other than as described in Section 501(1), (2) or (3)) unless and except to the extent
actually known to a Responsible Officer of the Trustee or to the extent written notice thereof is received by the Trustee at the
Corporate Trust Office;
(11) the Trustee shall have no liability for any inaccuracy
in the books and records of, or for any actions or omissions of, DTC, Euroclear or Clearstream or any depository acting on behalf
of any of them;
(12) 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 by the Trustee to act hereunder;
and
(13) the Trustee may request that the Company deliver an Officers’
Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions
pursuant to this Indenture, which Officers’ Certificate may be signed by any person authorized to sign an Officers’
Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.
The Trustee shall not be required 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 adequate indemnity against
such risk or liability is not reasonably assured to it.
Except during the continuance of an Event of Default, the Trustee
undertakes to perform 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.
Section 603 Not
Responsible for Recitals or Issuance of Securities. The recitals contained herein and in the Securities, except the Trustee’s
certificate of authentication, and in any coupons shall be taken as the statements of the Company, and neither the Trustee nor
any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities or coupons, except that the Trustee represents that it is duly authorized
to execute and deliver this Indenture, authenticate the Securities and perform its obligations hereunder. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities or the proceeds thereof.
The Trustee shall have no responsibility with respect to any information, statement or recital in any offering prospectus or other
disclosure materials prepared or distributed with respect to the Securities.
Section 604 May
Hold Securities. The Trustee, any Paying Agent, Security Registrar, Authenticating Agent or any other agent of the Company,
in its individual or any other capacity, may become the owner or pledgee of Securities and coupons and, subject to TIA Sections
310(b) and 311, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Paying Agent, Security
Registrar, Authenticating Agent or such other agent.
Section 605 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
in writing with the Company.
Section 606 Compensation
and Reimbursement. The Company agrees:
(1) to pay to the Trustee as agreed upon in writing from time
to time reasonable 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
each of the Trustee and any predecessor Trustee upon its request for all reasonable expenses, and disbursements incurred by the
Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the reasonable expenses and
disbursements of its agents and counsel), except any such expense or disbursement as shall be determined to have been caused by
its own negligence, willful misconduct or bad faith; and
(3) to indemnify each of the Trustee and any predecessor Trustee
for, and to hold it harmless against, any loss, liability, claim, damage or expense incurred without negligence, willful misconduct
or bad faith on its 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 itself against any claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(7) or Section 501(8), the expenses (including the reasonable charges
and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under
any applicable Federal or state bankruptcy, insolvency or other similar law.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien for payment of the Trustee’s fees and expenses prior to the Securities
upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of
(or premium or Make-Whole Amount, if any) or interest on particular Securities or any coupons.
The provisions of this Section shall survive the termination
of this Indenture and the resignation or removal of the Trustee.
Section 607 Corporate
Trustee Required; Eligibility; Conflicting Interests. There shall at all times be a Trustee hereunder which shall be eligible
to act as Trustee under TIA Section 310(a)(1) and shall have at all times a combined capital and surplus of at least $50,000,000
(or which shall have a combined capital and surplus of at least $10,000,000 and whose ultimate parent holding company shall have
a combined capital and surplus of at least $50,000,000. If the Trustee publishes reports of condition at least annually, pursuant
to law or the requirements of Federal, state, territorial or District of Columbia supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of the Trustee 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. Neither the Company nor any Person directly or indirectly controlling, controlled by, or under common control with the
Company shall serve as Trustee.
Section 608 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 609.
(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 an instrument of acceptance by a successor Trustee shall
not have been delivered to the Trustee within 60 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.
(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 an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee
within 60 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.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
TIA Section 310(b) after written request therefor by the Company or by any Holder of a Security 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 607
and shall fail to resign after written request therefor by the Company or by any Holder of a Security who has been a bona fide
Holder of a Security for at least six months, 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 or pursuant to a Board Resolution may remove the Trustee and appoint a successor
Trustee with respect to all Securities, or (ii) subject to TIA Section 315(e), any Holder of a Security 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 or pursuant to 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). If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee with respect to the Securities of such series and
to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities
of any series shall have been so appointed by the Company or the Holders of Securities and accepted appointment in the manner hereinafter
provided, any Holder of a Security 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 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 in the manner provided for notices to the Holders of Securities in Section 106. 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 609 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 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, subject nevertheless to its claim, if any, provided for in Section 606.
(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, pursuant to Article
Nine hereof, 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 609, 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 610 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 of 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. In case any Securities
or coupons 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 or coupons so authenticated
with the same effect as if such successor Trustee had itself authenticated such Securities or coupons. In case any Securities or
coupons shall not have been authenticated by such predecessor Trustee, any such successor Trustee may authenticate and deliver
such Securities or coupons, in either its own name or that of its predecessor Trustee, with the full force and effect which this
Indenture provides for the certificate of authentication of the Trustee.
Section 611 Appointment
of Authenticating Agent. At any time when any of the Securities remain Outstanding, the Trustee may appoint an Authenticating
Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon conversion or exchange, registration of transfer or partial redemption or repayment thereof,
and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes
as if authenticated by the Trustee hereunder. Any such appointment shall be evidenced by an instrument in writing signed by a Responsible
Officer of the Trustee, a copy of which instrument shall be promptly furnished to the Company. 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 bank or trust company or corporation organized and doing business and in
good standing under the laws of the United States of America or of any state or the District of Columbia, authorized under such
laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision
or examination by Federal or state authorities. If such Authenticating Agent publishes reports of condition at least annually,
pursuant to law or the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section,
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. In case at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
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, without the execution or filing of any paper or further act on the part of the Trustee or the Authenticating
Agent.
An Authenticating Agent for any series of Securities may at
any time resign by giving written notice of resignation to the Trustee for such series and to the Company. The Trustee for any
series of Securities may at any time terminate the agency of an Authenticating Agent by giving written notice of termination 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, the Trustee
for such series may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give notice of
such appointment to all Holders of Securities of the series with respect to which such Authenticating Agent will serve in the manner
set forth in Section 106. 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 herein. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation including reimbursement of its reasonable expenses for its services under this Section, subject
to Section 606.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to or in lieu of the Trustee’s
certificate of authentication, an alternate certificate of authentication substantially 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 Authenticating Agent |
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Section 612 Certain
Duties and Responsibilities of the Trustee.
(a) With respect to the Securities of any series, except during
the continuance of an Event of Default with respect to the Securities of such 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 which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under
a duty to examine the same to determine whether or not they conform to the requirements of this Indenture, but shall not be under
any duty to verify the contents or accuracy thereof.
(b) In case an Event of Default with respect to the Securities
of any series has occurred and is continuing, the Trustee shall, with respect to Securities of such series, 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 man
would exercise or use under the circumstances in the conduct of his 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
taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount
of the Outstanding Securities of any series relating to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the
Securities of such series; 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 adequate indemnity against such risk or liability is not reasonably assured to it; and, the Trustee shall be under no obligation
to exercise any of its rights and powers under this Indenture at the request of any Holder, unless such Holder shall have offered
to the Trustee security and indemnity satisfactory to it against any loss, liability or expense.
(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 612.
(e) The Trustee shall not be liable for interest on any money
or assets held by it except to the extent the Trustee may agree in writing with the Company. Assets held in trust by the Trustee
need not be segregated from other assets except to the extent required by law.
Article
7- HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701 Disclosure
of Names and Addresses of Holders. Every Holder of Securities or coupons, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee nor any Authenticating Agent nor any Paying Agent nor any Security
Registrar shall be held accountable by reason of the disclosure of any information as to the names and addresses of the Holders
of Securities in accordance with TIA Section 312, regardless of the source from which such information was derived, and that
the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under TIA Section 312(b).
Section 702 Reports
by Trustee. The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture
as may be required by TIA Section 313 at the times and in the manner provided by the TIA, which shall initially be not less
than every twelve months commencing on , 20 . A copy of each such report shall, at the time of such transmission to Holders,
be filed by the Trustee with each over-the-counter market or securities exchange, if any, upon which any Securities are quoted
or listed, with the Commission and with the Company. The Company will notify the Trustee when any Securities are quoted or listed
on any over-the-counter market or securities exchange or delisted therefrom.
Section 703 Reports
by Company. The Company will:
(1) file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe)
which the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act; or, if the Company is not required to file information, documents or reports pursuant to either of such Sections, then it
will file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission,
such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of
the Exchange Act in respect of a security quoted or listed and registered on an over-the-counter market or national securities
exchange as may be prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants of this Indenture as may be required from time to time by
such rules and regulations;
(3) transmit by mail to the Holders of Securities, within 30
days after the filing thereof with the Trustee, in the manner and to the extent provided in TIA Section 313(c), such summaries
of any information, documents and reports required to be filed by the Company pursuant to paragraphs (1) and (2) of this
Section as may be required by rules and regulations prescribed from time to time by the Commission; and
(4) 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).
Section 704 Company
to Furnish Trustee Names and Addresses of Holders. The Company will furnish or cause to be furnished to the Trustee:
(a) semiannually, not later than 15 days after the Regular Record
Date for interest for each series of Securities, a list, in such form as the Trustee may reasonably require, of the names and addresses
of the Holders of Registered Securities of such series as of such Regular Record Date, or if there is no Regular Record Date for
interest for such series of Securities, semiannually, upon such dates as are set forth in the Board Resolution or indenture supplemental
hereto authorizing such series, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than
15 days prior to the time such list is furnished,
provided, however, that, so long as the Trustee
is the Security Registrar, no such list shall be required to be furnished.
Article
8 - CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
Section 801 Consolidations
and Mergers of Company and Sales, Leases and Conveyances Permitted Subject to Certain Conditions. The Company may consolidate
with, or sell, lease or convey all or substantially all of its assets to, or merge with or into any other corporation, provided
that in any such case, (1) either the Company shall be the continuing corporation, or the successor corporation shall be a
corporation organized and existing under the laws of the United States or a State thereof and such successor corporation shall
expressly assume the due and punctual payment of the principal of (and premium or Make-Whole Amount, if any) and any interest on
all of the Securities, according to their tenor, and the due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed by the Company by supplemental indenture, complying with Article Nine hereof, satisfactory
to the Trustee, executed and delivered to the Trustee by such corporation, (2) immediately after giving effect to such transaction
and treating any indebtedness which becomes an obligation of the Company as a result thereof as having been incurred by the Company
at the time of such transaction, no Event of Default, and no event which, after notice or the lapse of time, or both, would become
an Event of Default, shall have occurred and be continuing and (3) the Company shall have delivered to the Trustee the Officer’s
Certificate and Opinion of Counsel required pursuant to Section 803 below.
Section 802 Rights
and Duties of Successor Corporation. In case of any such consolidation, merger, sale, lease or conveyance and upon any such
assumption by the successor corporation, such successor corporation shall succeed to and be substituted for the Company, with the
same effect as if it had been named herein as the party of the first part, and the predecessor corporation, except in the event
of a lease, shall be relieved of any further obligation under this Indenture and the Securities. Such successor corporation thereupon
may cause to be signed, and may issue either in its own name or in the name of the Company, any or all of the Securities issuable
hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the order of such
successor corporation, instead of the Company, and subject to all the terms, conditions and limitations in this Indenture prescribed,
the Trustee shall authenticate and shall deliver any Securities which previously shall have been signed and delivered by the officers
of the Company to the Trustee for authentication, and any Securities which such successor corporation thereafter shall cause to
be signed and delivered to the Trustee for that purpose. All the Securities so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance,
such changes in phraseology and form (but not in substance) may be made in the Securities thereafter to be issued as may be appropriate.
Section 803 Officers’
Certificate and Opinion of Counsel. Any consolidation, merger, sale, lease or conveyance permitted under Section 801 is
also subject to the condition that the Trustee receive an Officers’ Certificate and an Opinion of Counsel to the effect that
any such consolidation, merger, sale, lease or conveyance, and the assumption by any successor corporation, complies with the provisions
of this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.
Article
9 - SUPPLEMENTAL INDENTURES
Section 901 Supplemental
Indentures Without Consent of Holders. Without the consent of any Holders of Securities or coupons, the Company, when authorized
by or pursuant to a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the Company contained herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power
herein conferred upon the Company; or
(3) to add any additional Events of Default for the benefit
of the Holders of all or any series of Securities (and if such Events of Default are to be for the benefit of less than all series
of Securities, stating that such Events of Default are expressly being included solely for the benefit of such series); provided,
however, that in respect of any such additional Events of Default such supplemental indenture may provide for a particular
period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide
for an immediate enforcement upon such default or may limit the remedies available to the Trustee upon such default or may limit
the right of the Holders of a majority in aggregate principal amount of that or those series of Securities to which such additional
Events of Default apply to waive such default; or
(4) to add to or change any of the provisions of this Indenture
to provide that Bearer Securities may be registrable as to principal, to change or eliminate any restrictions on the payment of
principal of or premium or Make-Whole Amount, if any, or interest on Bearer Securities, to permit Bearer Securities to be issued
in exchange for Registered Securities, to permit Bearer Securities to be issued in exchange for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of Securities in uncertificated form, provided that any such action
shall not adversely affect the interests of the Holders of Securities of any series or any related coupons in any material respect;
or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series
and any related coupons as permitted or contemplated by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one
Trustee; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture which shall not be inconsistent with the provisions of this Indenture, provided
such provisions shall not adversely affect the interests of the Holders of Securities of any series or any related coupons in any
material respect; or
(10) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the Defeasance and discharge of any series of Securities pursuant to
Sections 401, 1402 and 1403; provided that any such action shall not adversely affect the interests of the Holders of Securities
of such series and any related coupons or any other series of Securities in any material respect; or
(11) to make provisions with respect to Holders’ rights
of conversion with respect to any series of Securities pursuant to Article Sixteen.
Section 902 Supplemental
Indentures with Consent of Holders. With the consent of the Holders of not less than a majority in principal amount of all
Outstanding Securities affected by such supplemental indenture, by Act of said Holders delivered to the Company and the Trustee,
the Company, when authorized by or pursuant to a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture
or of modifying in any manner the rights of the Holders of Securities and any related coupons under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected
thereby:
(1) change the Stated Maturity of the principal of (or premium
or Make-Whole Amount, if any, on) or any installment of principal of or interest on, any Security; or reduce the principal amount
thereof or the rate or amount of interest thereon, or any premium or Make-Whole Amount payable upon the redemption thereof, or
reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon a declaration of acceleration
of the Maturity thereof pursuant to Section 502 or the amount thereof provable in bankruptcy pursuant to Section 504,
or adversely affect any right of repayment at the option of the Holder of any Security, or change any Place of Payment where, or
the currency or currencies, currency unit or units or composite currency or currencies in which, any Security or any premium or
Make-Whole Amount or the interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof (or, in the case of redemption or repayment at the option of the Holder, on or after the
Redemption Date or the Repayment Date, as the case may be), or (if Securities of such series are convertible) adversely affect
the right of the Holder to convert any Security as provided in Article Sixteen; or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver with respect to such series (or compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or reduce the requirements of Section 1504 for
quorum or voting, or
(3) modify any of the provisions of this Section, Section 513
or Section 1009, except to increase the required percentage to effect such action or to provide that certain other provisions
of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby,
provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes
in the references to “the Trustee” and concomitant changes in this Section 902 and Section 1009, or the deletion
of this proviso, in accordance with the requirements of Sections 609(b) and 901(11).
It shall not be necessary for any Act of Holders under this
Section 902 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
Section 903 Execution
of Supplemental Indentures. In executing, or accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modification thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 612) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or
otherwise.
Section 904 Effect
of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder and of any coupon appertaining thereto shall be bound
thereby.
Section 905 Conformity
with Trust Indenture Act. Every supplemental indenture executed pursuant to this Article shall conform to the requirements
of the Trust Indenture Act as then in effect.
Section 906 Reference
in Securities to Supplemental Indentures. Securities of any series authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall, if required by the Trustee, bear a notation in form approved by the Trustee
as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed
by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.
Article
10 - COVENANTS
Section 1001 Payment
of Principal, Premium or Make-Whole Amount, if any; and Interest. The Company covenants and agrees for the benefit of the Holders
of each series of Securities that it will duly and punctually pay the principal of (and premium or Make-Whole Amount, if any) and
interest on the Securities of that series in accordance with the terms of such series of Securities, any coupons appertaining thereto
and this Indenture. Unless otherwise specified as contemplated by Section 301 with respect to any series of Securities, any
interest due on Bearer Securities on or before Maturity shall be payable only upon presentation and surrender of the several coupons
for such interest installments as are evidenced thereby as they severally mature. Unless otherwise specified with respect to Securities
of any series pursuant to Section 301, at the option of the Company (upon written notice to the Trustee), all payments of
principal may be paid by check to the registered Holder of the Registered Security or other Person entitled thereto against surrender
of such Security.
Section 1002 Maintenance
of Office or Agency. If Securities of a series are issuable only as Registered Securities, the Company shall 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 or conversion, where Securities of that series may be surrendered for registration of transfer or conversion 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.
If Securities of a series are issuable as Bearer Securities, the Company will maintain: (A) in the Borough of Manhattan, The
City of New York, an office or agency where any Registered Securities of that series may be presented or surrendered for payment
or conversion, where any Registered Securities of that series may be surrendered for registration of transfer, where Securities
of that series may be surrendered for conversion or exchange, where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served and where Bearer Securities of that series and related coupons may be
presented or surrendered for payment or conversion in the circumstances described in the following paragraph (and not otherwise);
(B) subject to any laws or regulations applicable thereto, in a Place of Payment for that series which is located outside
the United States, an office or agency where Securities of that series and related coupons may be presented and surrendered for
payment; provided, however, that if the Securities of that series are listed on any stock exchange located outside
the United States and such stock exchange shall so require, the Company will maintain a Paying Agent for the Securities of that
series in any required city located outside the United States, as the case may be, so long as the Securities of that series are
listed on such exchange; and (C) subject to any laws or regulations applicable thereto, in a Place of Payment for that series
located outside the United States an office or agency where any Registered Securities of that series may be surrendered for registration
of transfer, where Securities of that series may be surrendered for conversion 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 each 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, except that Bearer Securities
of that series and the related coupons may be presented and surrendered for payment or conversion at the offices specified in the
Security, in London, England, and the Company hereby appoints the same as its agent to receive such respective presentations, surrenders,
notices and demands, and the Company hereby appoints the Trustee its agent to receive all such presentations, surrenders, notices
and demands.
Unless otherwise specified with respect to any Securities pursuant
to Section 301, no payment of principal, premium or Make-Whole Amount or interest on Bearer Securities shall be made at any
office or agency of the Company in the United States or by check mailed to any address in the United States or by transfer to an
account maintained with a bank located in the United States; provided, however, that, if the Securities of a series
are payable in Dollars, payment of principal of and any premium or Make-Whole Amount and interest on any Bearer Security shall
be made at the office of the Company’s Paying Agent in the Borough of Manhattan, The City of New York, if (but only if) payment
in Dollars of the full amount of such principal, premium or Make-Whole Amount, or interest, as the case may be, at all offices
or agencies outside the United States maintained for the purpose by the Company in accordance with this Indenture, is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may from time to time designate one or more other
offices or agencies (in or outside the Place of Payment) where the Securities of one or more series may be presented or surrendered
for any or all of 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 accordance
with the requirements set forth above 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. Unless
otherwise specified with respect to any Securities pursuant to Section 301 with respect to a series of Securities, the Company
hereby designates as a Place of Payment for each series of Securities, each of (i) the office or agency of the Company in
the Borough of Manhattan, The City of New York, and (ii) the Corporate Trust Office of the Trustee (as Paying Agent); and
the Company hereby initially appoints the Trustee at its Corporate Trust Office as Paying Agent in such city; and the Company hereby
initially appoints as its agent to receive all such presentations, surrenders, notices and demands each of the Trustee, at its
Corporate Trust Office.
Unless otherwise specified with respect to any Securities pursuant
to Section 301, if and so long as the Securities of any series (i) are denominated in a Foreign Currency or (ii) may
be payable in a Foreign Currency, or so long as it is required under any other provision of the Indenture, then the Company will
maintain with respect to each such series of Securities, or as so required, at least one exchange rate agent (of which it shall
give written notice to the Trustee).
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 any Securities and any related coupons, it will, on or before each due date of the principal of (and premium or Make-Whole
Amount, if any), or interest on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum in the currency or currencies, currency unit or units or composite currency or currencies in which the Securities
of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series) sufficient
to pay the principal (and premium or Make-Whole Amount, 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 and any related coupons, it will, on or before each due date of the principal of (and premium or Make-Whole
Amount, if any), or interest on any Securities of that series, deposit with a Paying Agent a sum (in the currency or currencies,
currency unit or units or composite currency or currencies described in the preceding paragraph) sufficient to pay the principal
(and premium or Make-Whole Amount, 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 Make-Whole Amount, if any, 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 principal of
(and premium or Make-Whole Amount, if any) or interest on Securities 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) in the making of any such payment of principal (and premium or Make-Whole Amount, if any)
or interest on 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 such 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 sums.
Except as otherwise provided in the Securities of any series,
and subject to applicable laws, 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 or Make-Whole Amount, if any) or interest on any Security of any series and remaining
unclaimed for two years after such principal (and premium or Make-Whole Amount, if any) or interest has become due and payable
shall be paid to the Company upon 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 of such principal
of (and premium or Make-Whole Amount, if any) or interest on any Security, without interest thereon, 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, 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 publication, any unclaimed balance
of such money then remaining will be repaid to the Company.
Section 1004 Existence.
Subject to Article Eight, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect
its corporate existence, all material rights (by certificate of incorporation, bylaws and statute) and material franchises; provided,
however, that the Company shall not be required to preserve any such right or franchise if the Board of Directors shall
determine that the preservation thereof is no longer desirable in the conduct of the business of the Company.
Section 1005 Maintenance
of Properties. The Company will cause all of its material properties used or useful in the conduct of its business to be maintained
and kept in good condition, repair and working order, normal wear and tear, casualty and condemnation excepted, and supplied with
all necessary equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof
(and the Company may take out of service for a period of time, any of its properties that have been condemned or suffered any loss
due to casualty in order to make such repairs, betterments and improvements), all as in the judgment of the Company may be necessary
so that the business carried on in connection therewith may be properly and advantageously conducted at all times; provided,
however, that the Company shall not be prevented from (i) removing permanently any property that has been condemned
or suffered a loss due to casualty based on the Company’s reasonable judgment that such removal is in the best interest of
the Company, or (ii) selling or otherwise disposing of its properties for value in the ordinary course of business.
Section 1006 Insurance.
The Company will cause its insurable properties to be insured against loss or damage in an amount deemed reasonable by the Board
of Directors with insurers of recognized responsibility.
Section 1007 Payment
of Taxes and Other Claims. The Company will pay or discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or imposed upon it or upon the income, profits or property
of the Company, and (2) all lawful claims for labor, materials and supplies which, if unpaid, might by law become a lien upon
the property of the Company; provided, however, that the Company shall not be required to pay or discharge or cause
to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings.
Section 1008 Statement
as to Compliance. The Company will deliver to the Trustee, within 120 days after the end of each fiscal year, a brief certificate
from the principal executive officer, principal financial officer or principal accounting officer as to his or her knowledge of
the Company’s compliance with all conditions and covenants under this Indenture and, in the event of any noncompliance, specifying
such noncompliance and the nature and status thereof. For purposes of this Section 1008, such compliance shall be determined
without regard to any period of grace or requirement of notice under this Indenture.
Section 1009 Waiver
of Certain Covenants. The Company may omit in any particular instance to comply with any term, provision or condition set forth
in Sections 1004 to 1008, inclusive, if before or after the time for such compliance the Holders of at least a majority in principal
amount of all outstanding Securities of such series, 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 term, provision or condition shall remain in full force and effect.
Article
11 - 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 or pursuant to a Board
Resolution. In case of any redemption at the election of the Company of less than all of the Securities of any series, the Company
shall, at least 45 days prior to the giving of the notice of redemption in Section 1104 (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 issued on the same day with the same
terms 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 issued on such date with the same terms not previously called
for redemption, by such method as the Trustee shall deem fair and appropriate and which 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.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) 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 Security redeemed or to be redeemed
only in part, to the portion of the principal amount of such Security 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 106, not less than 30 days nor more
than 60 days prior to the Redemption Date, unless a shorter period is specified by the terms of such series established pursuant
to Section 301, to each Holder of Securities to be redeemed, but failure to give such notice in the manner herein provided
to the Holder of any Security designated for redemption as a whole or in part, or any defect in the notice to any such Holder,
shall not affect the validity of the proceedings for the redemption of any other such Security or portion thereof.
Any notice that is mailed to the Holders of Registered Securities
in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, accrued interest to the Redemption
Date payable as provided in Section 1106, if any,
(3) if less than all Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial redemption, the principal amount) of the particular Security or
Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the Redemption Date, upon surrender of such Security, the holder
will receive, without a charge, a new Security or Securities of authorized denominations for the principal amount thereof remaining
unredeemed,
(5) that on the Redemption Date the Redemption Price and accrued
interest to the Redemption Date payable as provided in Section 1106, if any, will become due and payable upon each such Security,
or the portion thereof, to be redeemed and, if applicable, that interest thereon shall cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities, together
in the case of Bearer Securities with all coupons appertaining thereto, if any, maturing after the Redemption Date, are to be surrendered
for payment of the Redemption Price and accrued interest, if any, or for conversion,
(7) that the redemption is for a sinking fund, if such is the
case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be accompanied by all coupons maturing subsequent to the date
fixed for redemption or the amount of any such missing coupon or coupons will be deducted from the Redemption Price, unless security
or indemnity satisfactory to the Company, the Trustee for such series and any Paying Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and
any Registered Securities of such series are not to be redeemed, and if such Bearer Securities may be exchanged for Registered
Securities not subject to redemption on this Redemption Date pursuant to Section 305 or otherwise, the last date, as determined
by the Company, on which such exchanges may be made,
(10) the CUSIP number of such Security, if any, and
(11) if applicable, that a Holder of Securities who desires
to convert Securities for redemption must satisfy the requirements for conversion contained in such Securities, the then existing
conversion price or rate, the place or places where such Securities may be surrendered for conversion, and the date and time when
the option to convert shall expire.
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, by the Trustee in the name and at the expense
of the Company.
Section 1105 Deposit
of Redemption Price. On or prior to 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, which it may not do in the case of a sinking fund payment under Article
Twelve, segregate and hold in trust as provided in Section 1003) an amount of money in the currency or currencies, currency
unit or units or composite currency or currencies in which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) sufficient to pay on the Redemption Date the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities or portions thereof
which are to be redeemed on that date.
If any Securities called for redemption are converted, any money
deposited with the Trustee or with any Paying Agent or so segregated and held in trust for the redemption of such Security shall
be paid to the Company upon Company Request or, if then held by the Company, shall be discharged from such trust.
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 in the currency or currencies, currency unit
or units or composite currency or currencies in which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) (together with accrued interest, if any, to the Redemption Date),
and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such
Securities shall, if the same were interest-bearing, cease to bear interest and the coupons for such interest appertaining to any
Bearer Securities so to be redeemed, except to the extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons, if any, appertaining thereto maturing after the Redemption
Date, such Security shall be paid by the Company at the Redemption Price, together with accrued interest, if any, to the Redemption
Date; provided, however, that installments of interest on Bearer Securities whose Stated Maturity is on or prior
to the Redemption Date shall be payable only at an office or agency located outside the United States (except as otherwise provided
in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon presentation and surrender
of coupons for such interest; and provided further that except as otherwise provided with respect to Securities convertible
into the Company’s Common Stock or Preferred Stock, installments of interest on Registered Securities 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 Bearer Security surrendered for redemption shall not
be accompanied by all appurtenant coupons maturing after the Redemption Date, such Security may be paid after deducting from the
Redemption Price an amount equal to the face amount of all such missing coupons, or the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee if there be furnished to them such security or indemnity as they may require to save
each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to the Trustee or any Paying
Agent any such missing coupon in respect of which a deduction shall have been made from the Redemption Price, such Holder shall
be entitled to receive the amount so deducted; provided, however, that interest represented by coupons shall be payable
only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise
specified as contemplated by Section 301, only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium or Make-Whole Amount, if any) shall, until paid, bear interest from
the Redemption Date at the rate borne by the Security.
Section 1107 Securities
Redeemed in Part. Any Registered Security which is to be redeemed only in part (pursuant to the provisions of this Article
or of Article Twelve) 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 Security or Securities of the same series, 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. If a Global Security is so surrendered, the Company shall execute and the Trustee shall authenticate
and deliver to the depository, without service charge, a new Global Security in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Global Security so surrendered.
Article
12 - 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 such Securities of any series is herein referred to as an “optional
sinking fund payment.” If provided for by the terms of any Securities of any series, the cash amount of any mandatory 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 may, in satisfaction of all or any part of any mandatory sinking fund
payment with respect to the Securities of a series, (1) deliver Outstanding Securities of such series (other than any previously
called for redemption) together in the case of any Bearer Securities of such series with all unmatured coupons appertaining thereto
and (2) apply as a credit Securities of such 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, as provided for by the terms of such Securities, or which have otherwise been acquired by the Company; provided
that such Securities so delivered or applied as a credit have not been previously so credited. Such Securities shall be received
and credited for such purpose by the Trustee at the applicable Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such mandatory sinking fund payment shall be reduced accordingly.
Section 1203 Redemption
of Securities for Sinking Fund. Not less than 60 days prior to each sinking fund payment date for Securities of any series,
the Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing mandatory sinking
fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment
of cash in the currency or currencies, currency unit or units or composite currency or currencies in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series) and the portion
thereof, if any, which is to be satisfied by delivering and crediting Securities of that series pursuant to Section 1202,
and the optional amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and will also deliver
to the Trustee any Securities to be so delivered and credited. If such Officers’ Certificate shall specify an optional amount
to be added in cash to the next ensuing mandatory sinking fund payment, the Company shall thereupon be obligated to pay the amount
therein specified. 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
13 - REPAYMENT AT THE OPTION OF HOLDERS
Section 1301 Applicability
of Article. Repayment of Securities of any series before their Stated Maturity at the option of Holders thereof shall be made
in accordance with the terms of such Securities, if any, and (except as otherwise specified by the terms of such series established
pursuant to Section 301) in accordance with this Article.
Section 1302 Repayment
of Securities. Securities of any series subject to repayment in whole or in part at the option of the Holders thereof will,
unless otherwise provided in the terms of such Securities, be repaid at a price equal to the principal amount thereof, together
with interest, if any, thereon accrued to the Repayment Date specified in or pursuant to the terms of such Securities. The Company
covenants that on or prior to the Repayment Date it will 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 in the currency
or currencies, currency unit or units or composite currency or currencies in which the Securities of such series are payable (except
as otherwise specified pursuant to Section 301 for the Securities of such series) sufficient to pay the principal (or, if
so provided by the terms of the Securities of any series, a percentage of the principal) of, and (except if the Repayment Date
shall be an Interest Payment Date) accrued interest on, all the Securities or portions thereof, as the case may be, to be repaid
on such date.
Section 1303 Exercise
of Option. Securities of any series subject to repayment at the option of the Holders thereof will contain an “Option
to Elect Repayment” form on the reverse of such Securities. In order for any Security to be repaid at the option of the Holder,
the Trustee must receive at the Place of Payment therefor specified in the terms of such Security (or at such other place or places
of which the Company shall from time to time notify the Holders of such Securities) not earlier than 60 days nor later than 30
days prior to the Repayment Date (1) the Security so providing for such repayment together with the “Option to Elect
Repayment” form on the reverse thereof duly completed by the Holder (or by the Holder’s attorney duly authorized in
writing) or (2) a telegram, telex, facsimile transmission or a letter from a member of a national securities exchange, or
the FINRA, or a commercial bank or trust company in the United States setting forth the name of the Holder of the Security, the
principal amount of the Security, the principal amount of the Security to be repaid, the CUSIP number, if any, or a description
of the tenor and terms of the Security, a statement that the option to elect repayment is being exercised thereby and a guarantee
that the Security to be repaid, together with the duly completed form entitled “Option to Elect Repayment” on the reverse
of the Security, will be received by the Trustee not later than the fifth Business Day after the date of such telegram, telex,
facsimile transmission or letter; provided, however, that such telegram, telex, facsimile transmission or letter
shall only be effective if such Security and form duly completed are received by the Trustee by such fifth Business Day. If less
than the entire principal amount of such Security is to be repaid in accordance with the terms of such Security, the principal
amount of such Security to be repaid, in increments of the minimum denomination for Securities of such series, and the denomination
or denominations of the Security or Securities to be issued to the Holder for the portion of the principal amount of such Security
surrendered that is not to be repaid, must be specified. The principal amount of any Security providing for repayment at the option
of the Holder thereof may not be repaid in part if, following such repayment, the unpaid principal amount of such Security would
be less than the minimum authorized denomination of Securities of the series of which such Security to be repaid is a part. Except
as otherwise may be provided by the terms of any Security providing for repayment at the option of the Holder thereof, exercise
of the repayment option by the Holder shall be irrevocable unless waived by the Company.
Section 1304 When
Securities Presented for Repayment Become Due and Payable. If Securities of any series providing for repayment at the option
of the Holders thereof shall have been surrendered as provided in this Article and as provided by or pursuant to the terms of such
Securities, such Securities or the portions thereof, as the case may be, to be repaid shall become due and payable and shall be
paid by the Company on the Repayment Date therein specified, and on and after such Repayment Date (unless the Company shall default
in the payment of such Securities on such Repayment Date) such Securities shall, if the same were interest-bearing, cease to bear
interest and the coupons for such interest appertaining to any Bearer Securities so to be repaid, except to the extent provided
below, shall be void. Upon surrender of any such Security for repayment in accordance with such provisions, together with all coupons,
if any, appertaining thereto maturing after the Repayment Date, the principal amount of such Security so to be repaid shall be
paid by the Company, together with accrued interest, if any, to the Repayment Date; provided, however, that coupons
whose Stated Maturity is on or prior to the Repayment Date shall be payable only at an office or agency located outside the United
States (except as otherwise provided in Section 1002) and, unless otherwise specified pursuant to Section 301, only upon
presentation and surrender of such coupons; and provided further that, in the case of Registered Securities, installments of interest,
if any, whose Stated Maturity is on or prior to the Repayment Date shall be payable (but without interest thereon, unless the Company
shall default in the payment thereof) 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 Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such Security may be paid after deducting from the amount
payable therefor as provided in Section 1302 an amount equal to the face amount of all such missing coupons, or the surrender
of such missing coupon or coupons may be waived by the Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to the Trustee or any Paying Agent any such missing coupon in respect of which a deduction shall have been made as provided in
the preceding sentence, such Holder shall be entitled to receive the amount so deducted; provided, however, that
interest represented by coupons shall be payable only at an office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon presentation and
surrender of those coupons.
If the principal amount of any Security surrendered for repayment
shall not be so repaid upon surrender thereof, such principal amount (together with interest, if any, thereon accrued to such Repayment
Date) shall, until paid, bear interest from the Repayment Date at the rate of interest or Yield to Maturity (in the case of Original
Issue Discount Securities) set forth in such Security.
Section 1305 Securities
Repaid in Part. Upon surrender of any Registered Security which is to be repaid in part only, the Company shall execute and
the Trustee shall authenticate and deliver to the Holder of such Security, without service charge and at the expense of the Company,
a new Registered Security or Securities of the same series, of any authorized denomination specified by the Holder, in an aggregate
principal amount equal to and in exchange for the portion of the principal of such Security so surrendered which is not to be repaid.
Article
14- DEFEASANCE AND COVENANT DEFEASANCE
Section 1401 Applicability
of Article; Company’s Option to Effect Defeasance or Covenant Defeasance. If, pursuant to Section 301, provision
is made for either or both of (a) Defeasance of the Securities of or within a series under Section 1402 or (b) Covenant
Defeasance of the Securities of or within a series under Section 1403, then the provisions of such Section or Sections, as
the case may be, together with the other provisions of this Article (with such modifications thereto as may be specified pursuant
to Section 301 with respect to any Securities), shall be applicable to such Securities and any coupons appertaining thereto,
and the Company may at its option by Board Resolution, at any time, with respect to such Securities and any coupons appertaining
thereto, elect to have Section 1402 (if applicable) or Section 1403 (if applicable) be applied to such Outstanding Securities
and any coupons appertaining thereto upon compliance with the conditions set forth below in this Article.
Section 1402 Defeasance
and Discharge. Upon the Company’s exercise of the above option applicable to this Section with respect to any Securities
of or within a series, the Company shall be deemed to have been discharged from its obligations with respect to such Outstanding
Securities and any coupons appertaining thereto on the date the conditions set forth in Section 1404 are satisfied (hereinafter,
“Defeasance”). For this purpose, such Defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by such Outstanding Securities and any coupons appertaining thereto, which shall thereafter
be deemed to be “Outstanding” only for the purposes of Section 1405 and the other Sections of this Indenture referred
to in clauses (A) and (B) below, and to have satisfied all of its other obligations under such Securities and any coupons
appertaining thereto and this Indenture insofar as such Securities and any coupons appertaining thereto are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following which
shall survive until otherwise terminated or discharged hereunder: (A) the rights of Holders of such Outstanding Securities
and any coupons appertaining thereto to receive, solely from the trust fund described in Section 1404 and as more fully set
forth in such Section, payments in respect of the principal of (and premium or Make-Whole Amount, if any) and interest, if any,
on such Securities and any coupons appertaining thereto when such payments are due, (B) the Company’s obligations with
respect to such Securities under Sections 305, 306, 1002 and 1003, and the Company’s obligations under Section 606 hereof
(C) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (D) this Article. Subject to compliance
with this Article Fourteen, the Company may exercise its option under this Section notwithstanding the prior exercise of its option
under Section 1403 with respect to such Securities and any coupons appertaining thereto.
Section 1403 Covenant
Defeasance. Upon the Company’s exercise of the above option applicable to this Section with respect to any Securities
of or within a series, the Company shall be released from its obligations under Sections 1004 to 1009, inclusive, and, if specified
pursuant to Section 301, its obligations under any other covenant contained herein or in any indenture supplemental hereto,
with respect to such Outstanding Securities and any coupons appertaining thereto on and after the date the conditions set forth
in Section 1404 are satisfied (hereinafter, “Covenant Defeasance”), and such Securities and any coupons appertaining
thereto shall thereafter be deemed to be 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 Sections 1004 to 1009, inclusive, or such other covenant,
but shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance
means that, with respect to such Outstanding Securities and any coupons appertaining thereto, 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 Section or such other covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason
of reference in any such Section or such other 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(4) or 501(8) or otherwise, as the case may
be, but, except as specified above, the remainder of this Indenture and such Securities and any coupons appertaining thereto shall
be unaffected thereby.
Section 1404 Conditions
to Defeasance or Covenant Defeasance. The following shall be the conditions to application of Section 1402 or Section 1403
to any Outstanding Securities of or within a series and any coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the requirements of Section 607 who shall agree to comply with
the provisions of this Article Fourteen applicable to it) as trust funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities and any coupons appertaining
thereto, (1) an amount in such currency, currencies or currency unit in which such Securities and any coupons appertaining
thereto are then specified as payable at Stated Maturity, or (2) Government Obligations applicable to such Securities and
coupons appertaining thereto (determined on the basis of the currency, currencies or currency unit in which such Securities and
coupons appertaining thereto are then specified as payable at Stated Maturity) which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment of principal
of (and premium or Make-Whole Amount, if any) and interest, if any, on such Securities and any coupons appertaining thereto, money
in an amount, or (3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment
of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, (i) the principal of (and premium or Make-Whole Amount, if any) and interest, if
any, on such Outstanding Securities and any coupons appertaining thereto on the Stated Maturity of such principal or installment
of principal or interest and (ii) any mandatory sinking fund payments or analogous payments applicable to such Outstanding
Securities and any coupons appertaining thereto on the day on which such payments are due and payable in accordance with the terms
of this Indenture and of such Securities and any coupons appertaining thereto.
(b) Such Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which
the Company is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse
of time or both would become an Event of Default with respect to such Securities and any coupons appertaining thereto shall have
occurred and be continuing on the date of such deposit or, insofar as Sections 501(6) and 501(7) are concerned, at any time during
the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied
until the expiration of such period).
(d) In the case of an election under Section 1402, the
Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling, or (ii) since the date of execution of this Indenture, there
has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such opinion shall
confirm that, the Holders of such Outstanding Securities and any coupons appertaining thereto will not recognize income, gain or
loss for Federal income tax purposes as a result of such 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 Defeasance had not occurred.
(e) In the case of an election under Section 1403, the
Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding Securities
and any coupons appertaining thereto 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.
(f) The Company shall have delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that all conditions precedent to the Defeasance under Section 1402 or
the Covenant Defeasance under Section 1403 (as the case may be) have been complied with and an Opinion of Counsel to the effect
that either (i) as a result of a deposit pursuant to subsection (a) above and the related exercise of the Company’s
option under Section 1402 or Section 1403 (as the case may be), registration is not required under the Investment Company
Act of 1940, as amended, by the Company, with respect to the trust funds representing such deposit or by the Trustee for such trust
funds or (ii) all necessary registrations under said Act have been effected.
(g) Notwithstanding any other provisions of this Section, such
Defeasance or Covenant Defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations
which may be imposed on the Company in connection therewith pursuant to Section 301.
(h) The payment of amounts payable to the Trustee pursuant to
this Indenture shall be paid or provided for to the reasonable satisfaction of the Trustee.
Section 1405 Deposited
Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions. Subject to the provisions of the last
paragraph of Section 1003, all money and Government Obligations (or other property as may be provided pursuant to Section 301)
(including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 1405,
the “Trustee”) pursuant to Section 1404 in respect of any Outstanding Securities of any series and any coupons
appertaining thereto shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and
any coupons appertaining thereto and this Indenture, to the payment, either directly or through any Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities and any coupons appertaining
thereto of all sums due and to become due thereon in respect of principal (and premium or Make-Whole Amount, if any) and interest,
but such money need not be segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant
to Section 301, if, after a deposit referred to in Section 1404(a) has been made, (a) the Holder of a Security in
respect of which such deposit was made is entitled to, and does, elect pursuant to Section 301 or the terms of such Security
to receive payment in a currency or currency unit other than that in which the deposit pursuant to Section 1404(a) has been
made in respect of such Security, or (b) a Conversion Event occurs in respect of the currency or currency unit in which the
deposit pursuant to Section 1404(a) has been made, the indebtedness represented by such Security and any coupons appertaining
thereto shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and
premium or Make-Whole Amount, if any), and interest, if any, on such Security as the same becomes due out of the proceeds yielded
by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in
respect of such Security into the currency or currency unit in which such Security becomes payable as a result of such election
or Conversion Event based on the applicable market exchange rate for such currency or currency unit in effect on the second Business
Day prior to each payment date, except, with respect to a Conversion Event, for such currency or currency unit in effect (as nearly
as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Section 1404 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 such Outstanding Securities and any coupons appertaining thereto.
Anything in this Article to the contrary notwithstanding, subject
to Section 606, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or Government
Obligations (or other property and any proceeds therefrom) held by it as provided in Section 1404 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 which would then be required to be deposited to effect a Defeasance or Covenant Defeasance,
as applicable, in accordance with this Article.
Article
15- MEETINGS OF HOLDERS OF SECURITIES
Section 1501 Purposes
for Which Meetings May Be Called. A meeting of Holders of Securities of any 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 1502 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 1501, to be held at such time and at such place 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 106,
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 25% in principal amount of the Outstanding Securities of any series shall have requested the Trustee
to call a meeting of the Holders of Securities of such series for any purpose specified in Section 1501, 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 20 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 for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in subsection (a) of this Section.
Section 1503 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 1504 Quorum;
Action. The Persons entitled to vote a majority in principal amount of the Outstanding Securities of a series shall constitute
a quorum for a meeting of Holders of Securities of such series; provided, however, that if any action is to be taken
at such meeting with respect to a consent or waiver which this Indenture expressly provides may be given by the Holders of not
less than a specified percentage in principal amount of the Outstanding Securities of a series, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding Securities of such series shall constitute a quorum. In the absence
of a quorum within 30 minutes after 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 the reconvening
of any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 10 days; at the reconvening
of any meeting adjourned or further adjourned for lack of a quorum, the Persons entitled to vote 25% in aggregate principal amount
of the then Outstanding Securities shall constitute a quorum for the taking of any action set forth in the notice of the original
meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in Section 1502(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.
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 Persons entitled to vote a majority in aggregate principal amount of the Outstanding Securities represented at such
meeting; provided, however, that, except as limited by the proviso to Section 902, any resolution with respect
to any request, demand, authorization, direction, notice, consent, waiver or other action which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage, which is less than a majority, in 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 principal amount of the Outstanding
Securities of that series.
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 and the related coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504,
if any action is to be taken at a meeting of Holders of Securities of any series with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action that this Indenture expressly provides may be made, given or taken by the Holders
of a specified percentage in principal amount of all Outstanding Securities affected thereby, or of the Holders of such series
and one or more additional series:
(i) there shall be no minimum quorum requirement for such meeting;
and
(ii) the principal amount of the Outstanding Securities of such
series that vote in favor of such request, demand, authorization, direction, notice, consent, waiver or other action shall be taken
into account in determining whether such request, demand, authorization, direction, notice, consent, waiver or other action has
been made, given or taken under this Indenture.
Section 1505 Determination
of Voting Rights; Conduct and Adjournment of Meetings.
(a) Notwithstanding any provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of Holders of Securities of a series in regard to
proof of the holding of Securities of such series and of the appointment of proxies and in regard to the appointment and duties
of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such
other matters concerning the conduct of the meeting as it shall deem appropriate. Except as otherwise permitted or required by
any such regulations, the holding of Securities shall be proved in the manner specified in Section 104 and the appointment
of any proxy shall be proved in the manner specified in Section 104 or by having the signature of the Person executing the
proxy witnessed or guaranteed by any trust company, bank or banker authorized by Section 104 to certify to the holding of
Bearer Securities. 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 104 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 1502(b), in which case the Company or the Holders of Securities of the series calling the meeting, as the case
may be, shall in like manner 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 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
or proxy shall be entitled to one vote for each $1,000 principal amount 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 proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1502 at which a quorum is present may be adjourned from time to time by Persons entitled to vote
a majority in 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 1506 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 said 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 fact, setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 1502
and, if applicable, Section 1504. 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.
Article
16 - CONVERSION OF SECURITIES
Section 1601 Applicability
of Article; Conversion Privilege and Conversion Price. Securities of any series which are convertible shall be convertible
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 Sixteen. Subject to and upon compliance with the provisions of this Article Sixteen, at any
time during the period specified in the Securities, at the option of the Holder thereof, any Security or any portion of the principal
amount thereof which is $1,000 or an integral multiple of $1,000 may be converted at the principal amount thereof, or of such portion
thereof, into fully paid and nonassessable shares (calculated as to each conversion to the nearest 1/100 of a share) of Common
Stock of the Company, at the Conversion Price, determined as hereinafter provided, in effect at the time of conversion. In case
a Security or portion thereof is called for redemption, such conversion right in respect of the Security or portion so called shall
expire at the close of business on the Business Day immediately preceding the Redemption Date, unless the Company defaults in making
the payment due upon redemption, in which case such conversion right shall terminate on the date such default is cured.
The price at which shares of Common Stock shall be delivered
upon conversion (herein called the “Conversion Price”) of Securities of any series shall be specified in such Securities.
The Conversion Price shall be adjusted in certain instances as provided in Section 1604.
In case the Company shall, by dividend or otherwise, declare
or make a distribution on its Common Stock referred to in paragraph (4) of Section 1604, the Holder of each Security,
upon the conversion thereof pursuant to this Article Sixteen subsequent to the close of business on the date fixed for the
determination of stockholders entitled to receive such distribution and prior to the effectiveness of the Conversion Price adjustment
in respect of such distribution pursuant to paragraph (4) of Section 1604, shall be entitled to receive for each share
of Common Stock into which such Security is converted, the portion of the evidence of indebtedness, shares of Capital Stock or
assets so distributed applicable to one share of Common Stock; provided, however, that, at the election of the Company
(whose election shall be evidenced by a Board Resolution filed with the Trustee) with respect to all Holders so converting, the
Company may, in lieu of distributing to such Holder any portion of such distribution not consisting of cash or securities of the
Company, pay such Holder an amount in cash equal to the fair market value thereof (as determined in good faith by the Board of
Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee). If any conversion
of a Security entitled to the benefits described in the immediately preceding sentence occurs prior to the payment date for a distribution
to holders of Common Stock which the Holder of the Security so converted is entitled to receive in accordance with the immediately
preceding sentence, the Company may elect (such election to be evidenced by a Board Resolution filed with the Trustee) to distribute
to such Holder a due bill for the evidences of indebtedness, shares of Capital Stock or assets to which such Holder is so entitled,
provided that such due bill (i) meets any applicable requirements of the principal over-the-counter market or national securities
exchange or other market on which the Common Stock is then traded, and (ii) requires payment or delivery of such evidences
of indebtedness or assets no later than the date of payment or delivery thereof to holders of Common Stock receiving such distribution.
Section 1602 Exercise
of Conversion Privilege. In order to exercise the conversion privilege, the Holder of any Security to be converted shall surrender
such Security, duly endorsed or assigned to the Company or in blank, at any office or agency maintained by the Company pursuant
to Section 1002, accompanied by written notice to the Company at such office or agency that the Holder elects to convert such
Security or, if less than the entire principal amount thereof is to be converted, the portion thereof to be converted and shall
comply with any additional requirements set forth in such Security. Securities surrendered for conversion during the period from
the close of business on any Regular Record Date next preceding any Interest Payment Date to the opening of business on such Interest
Payment Date shall (except for Securities the Maturity of which is prior to such Interest Payment Date) be accompanied by payment
in funds acceptable to the Company of an amount equal to the interest payable on such Interest Payment Date on the principal amount
of Securities being surrendered for conversion and such interest shall be paid on such Interest Payment Date as provided in Section 307.
Except as provided in the preceding sentence, no payment or adjustment shall be made upon any conversion on account of any interest
accrued on the Securities surrendered for conversion or on account of any dividends on the Common Stock issued upon conversion.
The Company’s delivery to the Holder of the fixed number
of shares of the Common Stock of the Company (and any cash in lieu of any fractional share of Common Stock) into which the Security
is convertible shall be deemed to satisfy the Company’s obligation to pay the principal amount of the Security and all accrued
interest and original issue discount that has not previously been paid. The shares of Common Stock of the Company so delivered
shall be treated as issued first in payment of accrued interest and original issue discount and then in payment of principal. Thus,
accrued interest and original issue discount shall be treated as paid, rather than canceled, extinguished or forfeited.
Securities shall be deemed to have been converted immediately
prior to the close of business on the day of surrender of such Securities for conversion in accordance with the foregoing provisions,
and at such time the rights of the Holders of such Securities as Holders shall cease, and the Person or Persons entitled to receive
the Common Stock issuable upon conversion shall be treated for all purposes as the record holder or holders of such Common Stock
at such time. As promptly as practicable on or after the conversion date, the Company shall issue and shall deliver at such office
or agency a certificate or certificates for the number of full shares of Common Stock issuable upon conversion, together with payment
in lieu of any fraction of a share, as provided in Section 1603.
In the case of any Security which is converted in part only,
as promptly as practicable on or after the conversion date the Company shall execute and the Trustee shall authenticate and make
available for delivery to the Holder thereof (or the Depositary in the case of a Global Security), at the expense of the Company,
a new Security or Securities, of authorized denominations in aggregate principal amount equal to the unconverted portion of the
principal amount of such Security.
Section 1603 Fractions
of Shares. No fractional shares of Common Stock shall be issued upon conversion of Securities. If more than one Security shall
be surrendered for conversion at one time by the same Holder, the number of full shares of Common Stock which shall be issuable
upon conversion thereof shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions
thereof) so surrendered. Instead of any fractional share of Common Stock which would otherwise be issuable upon conversion of any
Security or Securities (or specified portions thereof), the Company shall pay a cash adjustment (rounded to the nearest cent) in
respect of such fraction in an amount equal to the same fraction of the Closing Price per share of the Common Stock on the day
of conversion (or, if such day is not a Trading Day, on the Trading Day immediately preceding such day).
Section 1604 Adjustment
of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(1) If the Company pays or makes a dividend or other distribution
(a) on its Common Stock exclusively in Common Stock or (b) on any other class of Capital Stock of the Company, which
dividend or distribution includes Common Stock of the Company, the Conversion Price in effect at the opening of business on the
day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution (the
“Dividend Record Date”) shall be reduced by multiplying such Conversion Price by a fraction of which the numerator
shall be the number of shares of Common Stock of the Company outstanding at the close of business on the Dividend Record Date and
the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution.
Such reduction shall become effective immediately after the opening of business on the day following the date fixed for such determination.
For the purposes of this paragraph (1), the number of shares of Common Stock of the Company at any time outstanding shall not include
shares held in the treasury of the Company, but shall include shares issuable in respect of scrip certificates issued in lieu of
fractions of shares of Common Stock. The Company shall not pay any dividend or make any distribution on shares of Common Stock
held in the treasury of the Company.
(2) Subject to paragraph (6) of this Section, if the Company
pays or makes a dividend or other distribution on its Common Stock consisting exclusively of Short Term Rights (as defined below),
or otherwise issues Short Term Rights to all holders of its Common Stock, the Conversion Price in effect at the opening of business
on the day following the record date for the determination of holders of Common Stock entitled to receive such Short Term Rights
(the “Rights Record Date”) shall be reduced by multiplying such Conversion Price by a fraction of which the numerator
shall be the number of shares of Common Stock of the Company outstanding at the close of business on the Rights Record Date plus
the number of shares of Common Stock of the Company which the aggregate of the offering price of the total number of shares of
Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the
number of shares of Common Stock of the Company outstanding at the close of business on the Rights Record Date plus the number
of shares of Common Stock so offered for subscription or purchase. Such reduction shall become effective immediately after the
opening of business on the day following the Rights Record Date. For the purposes of this paragraph (2), the number of shares of
Common Stock of the Company at any time outstanding shall not include shares held in the treasury of the Company, but shall include
shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock of the Company. The Company
shall not issue any rights, options or warrants in respect of shares of its Common Stock held in the treasury of the Company. When
used in this Section 1604, the term “Short Term Rights” shall mean rights, warrants or options entitling the holders
thereof (for a period commencing no earlier than the Rights Record Date and expiring not more than 45 days after the Rights Record
Date) to subscribe for or purchase shares of Common Stock of the Company at a price per share less than the current market price
per share (determined as provided in paragraph (7) of this Section 1604) of the Common Stock of the Company on the Rights
Record Date.
(3) In case outstanding shares of Common Stock of the Company
shall be subdivided into a greater number of shares of Common Stock, the Conversion Price in effect at the opening of business
on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in
case outstanding shares of Common Stock of the Company shall be combined into a smaller number of shares of Common Stock, the Conversion
Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be
proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of
business on the day following the day upon which such subdivision or combination becomes effective.
(4) Subject to the last sentence of this paragraph (4) of
this Section, if the Company, by dividend or otherwise, (a) distributes to all holders of its Common Stock evidences of its
indebtedness, shares of any class of Capital Stock of the Company or other assets (other than cash dividends out of current or
retained earnings), or (b) distributes to substantially all holders of Common Stock rights or warrants to subscribe for securities
(other than Short Term Rights to which paragraph (2) of this Section 1604 applies), the Conversion Price shall be reduced
by multiplying such Conversion Price by a fraction of which the numerator shall be the current market price per share (determined
as provided in paragraph (7) of this Section 1604) of the Common Stock of the Company on the Reference Date (as defined
below) less the fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive
and described in a Board Resolution filed with the Trustee), on the Reference Date, of the portion of the evidences of indebtedness
and other assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock (collectively,
the “Market Value of the Distribution”) and the denominator shall be such current market price per share of the Common
Stock of the Company. Such reduction shall become effective immediately prior to the opening of business on the day (the “Reference
Date”) following the later of (a) the date fixed for the payment of such distribution and (b) the date 20 days
after notice relating to such distribution is required to be given pursuant to Section 1606(a). If the Board of Directors
determines the fair market value of any distribution for purposes of this paragraph (4) by reference to the actual or when
issued trading market for any securities comprising such distribution, it must in doing so consider the prices in such market over
the same period used in computing the current market price per share pursuant to paragraph (7) of this Section 1604.
In the event that, with respect to any distribution to which this paragraph (4) of Section 1604 would otherwise apply,
the Market Value of the Distribution is greater than the current market price per share of the Common Stock (such distribution
being referred to herein as an “Unadjusted Distribution”), then the adjustment provided by this paragraph (4) shall
not be made and in lieu thereof the provisions of Section 1611 shall apply with respect to such Unadjusted Distribution.
(5) The Company may, but shall not be required to, make such
reductions in the Conversion Price, in addition to those required by paragraphs (1), (2), (3), and (4) of this Section 1604,
as it considers to be advisable in order that any event treated for federal income tax purposes as a dividend of stock or stock
rights shall not be taxable to the recipients. In addition, the Company, from time to time, may decrease the Conversion Price by
any amount and for any reason, temporarily or otherwise, including situations where the Board of Directors determines such decrease
to be fair and appropriate with respect to transactions in which holders of Common Stock have the right to participate.
(6) Rights or warrants issued or distributed by the Company
to all holders of its Common Stock entitling the holders thereof to subscribe for or purchase shares of Common Stock or Preferred
Stock, which rights or warrants (i) are deemed to be transferred with such shares of Common Stock, (ii) are not exercisable
and (iii) are also issued or distributed in respect of future issuances of Common Stock, in each case in clauses (i) through
(iii) until the occurrence of a specified event or events (“Trigger Events”), shall for purposes of this Section 1604
not be deemed issued or distributed until the occurrence of the earliest Trigger Event. Each share of Common Stock issued upon
conversion of Securities pursuant to this Article Sixteen shall be entitled to receive the appropriate number of Common Stock purchase
rights (the “Rights”), if any, and the certificates representing the Common Stock issued upon conversion shall bear
such legends, if any. Notwithstanding anything to the contrary in this Article Sixteen, there shall not be any adjustment to the
Conversion Price as a result of (i) the distribution of separate certificates representing the Rights; (ii) the occurrence
of certain events entitling holders of Rights to receive, upon exercise thereof, Common Stock or other securities of the Company
or other securities of another corporation; or (iii) the exercise of such Rights. No adjustment in the Conversion Price need
be made for rights to purchase or the sale of Common Stock pursuant to a Company plan providing for reinvestment of dividends or
interest.
(7) For the purpose of any computation under paragraph (2),
(4) or (5) of this Section 1604, the “current market price” per share of Common Stock of the Company
on any date shall be deemed to be the average of the daily Closing Prices for the 15 consecutive Trading Days selected by the Company
commencing not more than 30 Trading Days before, and ending not later than, the date in question.
(8) No adjustment in the Conversion Price shall be required
unless such adjustment would require an increase or decrease of at least 1% in the Conversion Price; provided, however,
that any adjustments which by reason of this paragraph (8) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this Article Sixteen shall be made to the nearest cent or to
the nearest one-hundredth of a share of Common Stock, as the case may be.
(9) Anything herein to the contrary notwithstanding, in the
event the Company shall declare any dividend or distribution requiring an adjustment in the Conversion Price hereunder and shall,
thereafter and before the payment of such dividend or distribution to stockholders, legally abandon its plan to pay such dividend
or distribution, the Conversion Price then in effect hereunder, if changed to reflect such dividend or distribution, shall upon
the legal abandonment of such plan be changed to the Conversion Price which would have been in effect at the time of such abandonment
(after giving effect to all other adjustments not so legally abandoned pursuant to the provisions of this Article Sixteen) had
such dividend or distribution never been declared.
(10) Notwithstanding any other provision of this Section 1604,
no adjustment to the Conversion Price shall reduce the Conversion Price below the then par value per share of the Common Stock
of the Company, and any such purported adjustment shall instead reduce the Conversion Price to such par value. Notwithstanding
the foregoing sentence, the Company hereby covenants that it will from time to time take all such action as may be required to
assure that the par value per share of the Common Stock is at all times equal to or less than the Conversion Price.
(11) In the event that this Article Sixteen requires adjustments
to the Conversion Price under more than one of paragraphs (1), (2), (3) or (4) of this Section 1604, and the
record or effective dates for the transaction giving rise to such adjustments shall occur on the same date, then such adjustments
shall be made by applying (to the extent they are applicable), first, the provisions of paragraph (3) of this Section 1604,
second, the provisions of paragraph (1) of this Section 1604, third, the provisions of paragraph (4) of this Section 1604
and, fourth, the provisions of paragraph (2) of this Section 1604. Anything herein to the contrary notwithstanding, no
single event shall require or result in duplicative adjustments in the Conversion Price pursuant to this Section 1604. After
an adjustment to the Conversion Price under this Article Sixteen, any subsequent event requiring an adjustment under this
Article Sixteen shall cause an adjustment to the Conversion Price as so adjusted. If, after an adjustment, a Holder of a Security
upon conversion of such Security receives shares of two or more classes of Capital Stock of the Company, the Conversion Price shall
thereafter be subject to adjustment upon the occurrence of an action taken with respect to any such class of Capital Stock as is
contemplated by this Article Sixteen with respect to the Common Stock in this Article Sixteen.
Section 1605 Notice
of Adjustments of Conversion Price. Whenever the Conversion Price is adjusted as herein provided:
(1) the Company shall compute the adjusted Conversion Price
in accordance with Section 1604 or Section 1611 and shall prepare an Officer’s Certificate setting forth the adjusted
Conversion Price and showing in reasonable detail the facts upon which such adjustment is based, and such certificate shall forthwith
be filed (with a copy to the Trustee) at each office or agency maintained for the purpose of conversion of any Securities pursuant
to Section 1002; and
(2) a notice stating that the Conversion Price has been adjusted
and setting forth the adjusted Conversion Price shall forthwith be required, and as soon as practicable after it is required, such
notice shall be mailed by the Company to all Holders at their last addresses as they shall appear in the Security Register.
Section 1606 Notice
of Certain Corporate Action. In case:
(1) the Company shall take any action that would require a Conversion
Price adjustment pursuant to Section 1604 or Section 1611; or
(2) there shall occur any reclassification of the Common Stock
of the Company (other than a subdivision or combination of its outstanding shares of Common Stock), or any consolidation or merger
to which the Company is a party, or the sale, transfer or lease of all or substantially all of the assets of the Company and for
which approval of any stockholders of the Company is required; or
(3) there shall occur the voluntary or involuntary dissolution,
liquidation or winding up of the Company, then the Company shall cause to be filed at each office or agency maintained for the
purpose of conversion of Securities pursuant to Section 1002, and shall cause to be mailed to all Holders at their last addresses
as they shall appear in the Security Register, at least 10 days prior to the applicable record, effective or expiration date hereinafter
specified, a notice stating (x) the date on which a record is to be taken for the purpose of any dividend, distribution or
granting of rights, warrants or options, or, if a record is not to be taken, the date as of which the holders of Common Stock of
record to be entitled to such dividend, distribution, rights, options or warrants are to be determined, or (y) the date on
which such reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding up is expected to become
effective, and, if applicable, the date as of which it is expected that holders of Common Stock of record shall be entitled to
exchange their shares of Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up.
Section 1607 Company
to Reserve Common Stock. The Company shall at all times reserve and keep available, free from preemptive rights, out of its
authorized but unissued Common Stock, for the purpose of effecting the conversion of Securities, a number of shares of Common Stock
for the conversion of all outstanding Securities of any series which is convertible into Common Stock.
Section 1608 Taxes
on Conversion. The Company will pay any and all taxes that may be payable in respect of the issue or delivery of shares of
Common Stock on conversion of Securities pursuant hereto. The Company shall not, however, be required to pay any tax which may
be payable in respect of any transfer involved in the issue and delivery of shares of Common Stock in a name other than that of
the Holder of the Security or Securities to be converted, and no such issue or delivery shall be made unless and until the Person
requesting such issue has paid to the Company the amount of any such tax, or has established to the satisfaction of the Company
that such tax has been paid.
Section 1609 Covenants
as to Common Stock. The Company covenants that all shares of Common Stock which may be issued upon conversion of Securities
will upon issue be duly and validly issued, fully paid and nonassessable, free of preemptive or any similar rights, and, except
as provided in Section 1608, the Company will pay all taxes, liens and charges with respect to the issue thereof.
The Company will endeavor promptly to comply with all Federal
and state securities laws regulating the offer and delivery of shares of Common Stock upon conversion of Securities, if any, and
will list or cause to have quoted such shares of Common Stock on each national securities exchange or in the over-the-counter market
or such other market on which the Common Stock is then listed or quoted.
Section 1610 Cancellation
of Converted Securities. All Securities delivered for conversion shall be delivered to the Trustee to be cancelled by or at
the direction of the Trustee, which shall dispose of the same as provided in Section 309.
Section 1611 Provisions
in Case of Consolidation, Merger or Sale of Assets; Special Distributions. If any of the following shall occur, namely: (i) any
reclassification or change of outstanding shares of Common Stock issuable upon conversion of Securities (other than a change in
par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination),
(ii) any consolidation or merger to which the Company is a party other than a merger in which the Company is the continuing
corporation and which does not result in any reclassification of, or change (other than a change in name, or par value, or from
par value to no par value, or from no par value to par value or as a result of a subdivision or combination) in, outstanding shares
of Common Stock or (iii) any sale or conveyance of all or substantially all of the property or business of the Company as
an entirety, then the Person formed by such consolidation or resulting from such merger or which acquires such properties or assets,
as the case may be, shall as a condition precedent to such transaction execute and deliver to the Trustee a supplemental indenture
providing that the Holder of each Security then outstanding shall have the right thereafter, during the period such Security shall
be convertible as specified in Section 1601, to convert such Security only into the kind and amount of securities, cash and
other property receivable, if any, upon such consolidation, merger, sale, transfer or lease by a holder of the number of shares
of Common Stock of the Company into which such Security might have been converted immediately prior to such consolidation, merger,
sale, transfer or lease; provided that the kind and amount of securities, cash and other property so receivable shall be determined
on the basis of the following assumptions. The holder of Common Stock referred to in the foregoing sentence:
(1) is not (a) a Person with which the Company consolidated,
(b) a Person into which the Company merged or which merged into the Company, or (c) a Person to which such sale, transfer
or lease was made (any Person described in the foregoing clauses (a), (b), or (c), hereinafter referred to as a “Constituent
Person”), or (d) an Affiliate of a Constituent Person; and
(2) failed to exercise his rights of election, if any, as to
the kind or amount of securities, cash and other property receivable upon such consolidation, merger, sale, transfer or lease (provided
that if the kind or amount of securities, cash and other property receivable upon such consolidation, merger, sale transfer or
lease is not the same for each share of Common Stock of the Company in respect of which such rights of election shall not have
been exercised, then for the purpose of this Section 1611 the kind and amount of securities, cash and other property receivable
upon such consolidation, merger, sale, transfer or lease shall be deemed to be the kind and amount so receivable per share by a
plurality of such shares of Common Stock).
Such supplemental indenture shall provide for adjustments which,
for events subsequent to the effective date of such supplemental indenture, shall be as nearly equivalent as may be practicable
to the adjustments provided for in this Article Sixteen. If, in the case of any such consolidation, merger, sale transfer
or lease the stock or other securities and property (including cash) receivable thereupon by a holder of Common Stock includes
shares of stock or other securities and property of a corporation other than the successor or purchasing corporation, as the case
may be, in such consolidation, merger, sale, transfer or lease then such supplemental indenture shall also be executed by such
other corporation and shall contain such additional provisions to protect the interests of the Holders of the Securities as the
Board of Directors of the Company shall reasonably consider necessary by reason of the foregoing. The above provisions of this
Section 1611 shall similarly apply to successive consolidations, mergers, sales, transfers or leases.
In the event the Company shall execute a supplemental indenture
pursuant to this Section 1611, the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating
the reasons therefor, the kind or amount of shares of stock or securities or property (including cash) receivable by Holders of
the Securities upon the conversion of their Securities after any such reclassification, change, consolidation, merger, sale, transfer
or lease and any adjustment to be made with respect thereto.
If the Company makes a distribution to all holders of its Common
Stock that constitutes an Unadjusted Distribution pursuant to the last sentence of paragraph (4) of Section 1604, then,
from and after the record date for determining the holders of Common Stock entitled to receive such distribution (the “Distribution
Record Date”), a Holder of a Security who converts such Security in accordance with the provisions of this Indenture shall,
upon conversion, be entitled to receive, in addition to the shares of Common Stock into which the Security is convertible, the
kind and amount of evidences of indebtedness, shares of Capital Stock, or other assets or subscription rights or warrants, as the
case may be, comprising the distribution that such Holder would have received if such Holder had converted the Security immediately
prior to the Distribution Record Date.
Section 1612 Trustee
Adjustment Disclaimer; Company Determination Final. The Trustee has no duty to determine when an adjustment under this Article
Sixteen should be made, how it should be made or what it should be. The Trustee has no duty to determine whether a supplemental
indenture under Section 1611 need be entered into or whether any provisions of any supplemental indenture are correct. The
Trustee shall not be accountable for and makes no representation as to the validity or value of any securities or assets issued
upon conversion of Securities. The Trustee shall not be responsible for the Company’s failure to comply with this Article
Sixteen. Any determination that the Company or the Board of Directors must make pursuant to this Article Sixteen is conclusive,
absent manifest error.
Section 1613 When
No Adjustment Required. Except as expressly set forth in Section 1604, no adjustment in the Conversion Price shall be
made because the Company issues, in exchange for cash, property or services, shares of its Common Stock, or any securities convertible
into or exchangeable for shares of its Common Stock, or securities (including warrants, rights and options) carrying the right
to subscribe for or purchase shares of its Common Stock or such convertible or exchangeable securities.
(1) Notwithstanding anything herein to the contrary, no adjustment
in the Conversion Price shall be made pursuant to Section 1604 in respect of any dividend or distribution if the Holders may
participate therein (on a basis to be determined in good faith by the Board of Directors) and receive the same consideration they
would have received if they had converted the Securities immediately prior to the record date with respect to such dividend or
distribution.
Section 1614 Equivalent
Adjustments. In the event that, as a result of an adjustment made pursuant to Section 1604 above, the holder of any Security
thereafter surrendered for conversion shall become entitled to receive any shares of Capital Stock of the Company other than shares
of its Common Stock, thereafter the Conversion Price of such other shares so receivable upon conversion of any Securities shall
be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with
respect to Common Stock contained in this Article Sixteen.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed all as of the day and year first above written.
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ALBANY MOLECULAR RESARCH, INC. |
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EXHIBIT A
FORM OF REDEEMABLE OR NON-REDEEMABLE SENIOR
SECURITY
[Face of Security]
[If the Holder of this Security (as indicated below) is The
Depository Trust Company (“DTC”) or a nominee of DTC, this Security is a Global Security and the following two legends
apply:
Unless this Security is presented by an authorized representative
of The Depository Trust Company, a New York corporation, (“DTC”) to the Company or its agent for registration of transfer,
conversion, exchange or payment, and such Security issued is registered in the name of Cede & Co., or in such other name
as requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as
is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL, inasmuch as the registered owner hereof, Cede & Co., has an interest herein.
Unless and until this Security is exchanged in whole or in
part for Securities in certificated form, this Security may not be transferred except as a whole by DTC to a nominee thereof or
by a nominee thereof to DTC or another nominee of DTC or by DTC or any such nominee to a successor of DTC or a nominee of such
successor.]
[If this Security is an Original Issue Discount Security,
insert — FOR PURPOSES OF SECTION 1273 and 1275 OF THE UNITED STATES INTERNAL REVENUE CODE, THE AMOUNT OF ORIGINAL ISSUE
DISCOUNT ON THIS SECURITY IS % OF ITS PRINCIPAL AMOUNT, THE ISSUE DATE IS ,
20 , AND THE YIELD TO MATURITY IS %. THE METHOD USED TO DETERMINE THE AMOUNT OF
ORIGINAL ISSUE DISCOUNT APPLICABLE TO THE SHORT ACCRUAL PERIOD OF ,
20 TO ,
20 , IS % OF THE PRINCIPAL AMOUNT OF THIS SECURITY.]
ALBANY MOLECULAR RESARCH, INC.
[Designation of Series]
CUSIP No.
Albany Molecular Research, Inc., a Delaware corporation (herein
referred to as the “Company,” which term includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to or
registered assigns the principal sum of Dollars
on (the
“Stated Maturity Date”) [or insert date fixed for earlier redemption (the “Redemption Date,” and
together with the Stated Maturity Date with respect to principal repayable on such date, the “Maturity Date.”)]
[If the Security is to bear interest prior to Maturity, insert
— and to pay interest thereon from or
from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on and
in each
year (each, an “Interest Payment Date”), commencing ,
at the rate of % per annum, until the principal hereof is paid or duly provided for. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Holder
in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record
Date for such interest, which shall be the or
(whether
or not a Business Day), as the case may be, next preceding such Interest Payment Date [at the office or agency of the Company maintained
for such purpose; provided, however, that such interest may be paid, at the Company’s option, by mailing a
check to such Holder at its registered address or by transfer of funds to an account maintained by such Holder within the United
States]. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date, and may be paid to the Holder in whose name this Security (or one or more Predecessor Securities) is registered
at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or may
be paid at any time in any other lawful manner not inconsistent with the requirements of any over-the-counter market or securities
exchange on which the Securities of this series may be quoted or listed, and upon such notice as may be required by such market
or exchange, all as more fully provided in the Indenture. Interest will be computed on the basis of a 360-day year of twelve 30-day
months.]
[If the Security is not to bear interest prior to Maturity,
insert — The principal of this Security shall not bear interest except in the case of a default in payment of principal
upon acceleration, upon redemption or at the [Stated] Maturity Date and in such case the overdue principal of this Security shall
bear interest at the rate of % per annum (to the extent that the payment of such interest shall be legally
enforceable), which shall accrue from the date of such default in payment to the date payment of such principal has been made or
duly provided for. Interest on any overdue principal shall be payable on demand. Any such interest on any overdue principal that
is not so paid on demand shall bear interest at the rate of % per annum (to the extent that the payment
of such interest shall be legally enforceable), which shall accrue from the date of such demand for payment to the date payment
of such interest has been made or duly provided for, and such interest shall also be payable on demand.]
The principal of this Security payable on the Stated Maturity
Date [or the principal of, premium or Make-Whole Amount, if any, and, if the Redemption Date is not an Interest Payment Date, interest
on this Security payable on the Redemption Date] will be paid against presentation of this Security at the office or agency of
the Company maintained for that purpose in ,
in such coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and
private debts.
Interest payable on this Security on any Interest Payment Date
and on the [Stated] Maturity Date [or Redemption Date, as the case may be,] will include interest accrued from and including the
next preceding Interest Payment Date in respect of which interest has been paid or duly provided for (or from and including ,
if no interest has been paid on this Security) to but excluding such Interest Payment Date or the [Stated] Maturity Date [or Redemption
Date, as the case may be.] If any Interest Payment Date or the [Stated] Maturity Date or [Redemption Date] falls on a day that
is not a Business Day, as defined below, principal, premium or Make-Whole Amount, if any, and/or interest payable with respect
to such Interest Payment Date or [Stated] Maturity Date [or Redemption Date, as the case may be,] will be paid on the next succeeding
Business Day with the same force and effect as if it were paid on the date such payment was due, and no interest shall accrue on
the amount so payable for the period from and after such Interest Payment Date or [Stated] Maturity Date [or Redemption Date, as
the case may be.] “Business Day” means any day, other than a Saturday or Sunday, that is neither a legal holiday nor
a day on which banking institutions in The City of New York are required or authorized by law, regulation or executive order to
close.
[If this Security is a Global Security, insert —
All payments of principal, premium or Make-Whole Amount, if any, and interest in respect of this Security will be made by the Company
in immediately available funds.]
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the Certificate of Authentication hereon has been executed
by the Trustee by manual signature of one of its authorized signatories, this Security shall not be entitled to any benefit under
the Indenture, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its facsimile corporate seal.
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[Reverse of Security]
ALBANY MOLECULAR RESARCH, INC.
This Security is one of a duly authorized issue of securities
of the Company (herein called the “Securities”), issued and to be issued in one or more series under an
Indenture, dated as of ,
20 (herein called the “Indenture”) between the Company and ,
as Trustee (herein called the “Trustee,” which term includes any successor trustee under the Indenture with respect
to the series of which this Security is a part), to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee
and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered.
This Security is one of the duly authorized series of Securities designated on the face hereof (collectively, the “Securities”),
[if applicable, insert — and the aggregate principal amount of the Securities to be issued under such series is limited
to $ (except for Securities authenticated and delivered upon transfer of,
or in exchange for, or in lieu of other Securities).] All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
If an Event of Default, as defined in the Indenture, shall occur
and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect
provided in the Indenture.
[If applicable, insert — The Securities may not
be redeemed prior to the Stated Maturity Date.]
[If applicable, insert — The Securities are subject
to redemption [ (l) (If applicable, insert — on in
any year commencing with the year and ending with the year
through operation of the sinking fund for this series at
a Redemption Price equal to 100% of the principal amount, and (2) ] [If applicable, insert — at any time [on
or after ], as a whole or in part, at the election of the
Company, at the following Redemption Prices (expressed as percentages of the principal amount):
If redeemed on or before ,
% and if redeemed during the 12-month period beginning of
the years indicated at the Redemption Prices indicated below.
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and thereafter at a Redemption Price equal to %
of the principal amount, together in the case of any such redemption [If applicable, insert — (whether through operation
of the sinking fund or otherwise)] with accrued interest to the Redemption Date; provided, however, that installments of
interest on this Security whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holder of this Security,
or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face
hereof, all as provided in the Indenture.]
[If applicable, insert — The Securities are subject
to redemption (1) on in
any year commencing with the year and
ending with the year through
operation of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed
as percentages of the principal amount) set forth in the table below, and (2) at any time [on or after ],
as a whole or in part, at the election of the Company, at the Redemption Prices for redemption otherwise than through operation
of the sinking fund (expressed as percentages of the principal amount) set forth in the table below: If redeemed during the 12-month
period beginning of
the years indicated,
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and thereafter at a Redemption Price equal to %
of the principal amount, together in the case of any such redemption (whether through operation of the sinking fund or otherwise)
with accrued interest to the Redemption Date; provided, however, that installments of interest on this Security whose
Stated Maturity is on or prior to such Redemption Date will be payable to the Holder of this Security, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in
the Indenture.]
[If applicable, insert — Notwithstanding the foregoing,
the Company may not, prior to ,
redeem any Securities as contemplated by [Clause (2) of] the preceding paragraph as a part of, or in anticipation of, any
refunding operation by the application, directly or indirectly, of moneys borrowed having an interest cost to the Company (calculated
in accordance with generally accepted financial practice) of less than % per annum.]
[If applicable, insert — The sinking fund for the
Securities provides for the redemption on in
each year, beginning with the year and
ending with the year ,
of [not less than] $ ] [(“mandatory sinking fund”) and not more
than $ ] aggregate principal amount of the Securities. [The Securities acquired
or redeemed by the Company otherwise than through [mandatory] sinking fund payments may be credited against subsequent [mandatory]
sinking fund payments otherwise required to be made in the [describe order] order in which they become due.]]
Notice of redemption will be given by mail to Holders of Securities,
not less than 30 nor more than 60 days prior to the Redemption Date, all as provided in the Indenture.
In the event of redemption of this Security in part only, a
new Security or Securities for the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation
hereof.
[If applicable, insert conversion provisions set forth in any
Board Resolution or indenture supplemental to the Indenture.]
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities
under the Indenture at any time by the Company and the Trustee with the consent of the Holders of not less than a majority of the
aggregate principal amount of all Securities issued under the Indenture at the time Outstanding and affected thereby. The Indenture
also contains provisions permitting the Holders of not less than a majority of the aggregate principal amount of the Outstanding
Securities, on behalf of the Holders of all such Securities, to waive compliance by the Company with certain provisions of the
Indenture. Furthermore, provisions in the Indenture permit the Holders of not less than a majority of the aggregate principal amount,
in certain instances, of the Outstanding Securities of any series to waive, on behalf of all of the Holders of Securities of such
series, certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of this Security and other Securities issued upon
the registration of transfer hereof or conversion or in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of (and premium or Make-Whole Amount, if any) and interest on this Security at the times, places and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein [and herein] set forth, the transfer of this Security is registrable in the Security Register of the Company upon surrender
of this Security for registration of transfer at the office or agency of the Company in any place where the principal of (and premium
or Make-Whole Amount, if any) and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or by his attorney
duly authorized in writing, and thereupon one or more new Securities, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations
therein [and herein] set forth, this Security is exchangeable for a like aggregate principal amount of Securities of different
authorized denominations but otherwise having the same terms and conditions, as requested by the Holder hereof surrendering the
same.
The Securities of this series are issuable only in registered
form [without coupons] in denominations of $ and any integral multiple thereof.
No service charge shall be made for any such registration of
transfer or conversion or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith,
Prior to due presentment of this 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 this Security
is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of
or premium or Make-Whole Amount, if any, or the interest on this Security, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture or any indenture supplemental thereto, against any past, present or future stockholder,
employee, officer or director, as such, of the Company or of any successor, either directly or through the Company or any successor,
whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise,
all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and
released.
The Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely in such State.
EXHIBIT B
FORMS OF CERTIFICATION
EXHIBIT B-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON
ENTITLED TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be
delivered]
This is to certify that, as of the date hereof, and except as
set forth below, the above-captioned Securities held by you for our account (i) are owned by person(s) that are not citizens
or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject
to United States Federal income taxation regardless of its source (“United States person(s)”), (ii) are owned
by United States person(s) that are (a) foreign branches of United States financial institutions (financial institutions,
as defined in United States Treasury Regulations Section 2.165-12(c)(1)(v) are herein referred to as “financial institutions”)
purchasing for their own account or for resale, or (b) United States person(s) who acquired the Securities through foreign
branches of United States financial institutions and who hold the Securities through such United States financial institutions
on the date hereof (and in either case (a) or (b), each such United States financial institution hereby agrees, on its own
behalf or through its agent, that you may advise Albany Molecular Research, Inc. or its agent that such financial institution will
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986,
as amended, and the regulations thereunder), or (iii) are owned by United States or foreign financial institution(s) for purposes
of resale during the restricted period (as defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, in addition, if the owner is a United States or foreign financial institution described in clause (iii) above (whether
or not also described in clause (i) or (ii)), this is to further certify that such financial institution has not acquired
the Securities for purposes of resale directly or indirectly to a United States person or to a person within the United States
or its possessions.
As used herein, “United States” means the United
States of America (including the States and the District of Columbia); and its “possessions” include Puerto Rico, the
U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex or by telecopy
on or prior to the date on which you intend to submit your certification relating to the above-captioned Securities held by you
for our account in accordance with your operating procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this certification applies as of such date.
This certificate excepts and does not relate to [U.S.$] of such
interest in the above-captioned Securities in respect of which we are not able to certify and as to which we understand an exchange
for an interest in a permanent Global Security or an exchange for and delivery of definitive Securities (or, if relevant, collection
of any interest) cannot be made until we do so certify.
We understand that this certificate may be required in connection
with certain tax legislation in the United States. If administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof
to any interested party in such proceedings.
Dated:
[To be dated no earlier than the 15th day prior to (i) the
Exchange Date or (ii) the relevant Interest Payment Date occurring prior to the Exchange Date, as applicable]
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EXHIBIT B-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CLEARSTREAM S.A. IN CONNECTION WITH THE EXCHANGE OF A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST PAYABLE
PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be
delivered]
This is to certify that, based solely on written certifications
that we have received in writing, by tested telex or by electronic transmission from each of the persons appearing in our records
as persons entitled to a portion of the principal amount set forth below (our “Member Organizations”) substantially
in the form attached hereto, as of the date hereof, [U.S.$] principal amount of the above-captioned Securities (i) is owned
by person(s) that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate
or trust the income of which is subject to United States Federal income taxation regardless of its source (“United States
person(s)”), (ii) is owned by United States person(s) that are (a) foreign branches of United States financial
institutions (financial institutions, as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v) are herein referred
to as “financial institutions”) purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States financial institutions and who hold the Securities through
such United States financial institutions on the date hereof (and in either case (a) or (b), each such financial institution
has agreed, on its own behalf or through its agent, that we may advise Albany Molecular Research, Inc. or its agent that such financial
institution will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) is owned by United States or foreign financial institution(s)
for purposes of resale during the restricted period (as defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, to the further effect, that financial institutions described in clause (iii) above (whether or not also described in
clause (i) or (ii)) have certified that they have not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its possessions.
As used herein, “United States” means the United
States of America (including the States and the District of Columbia); and its “Possessions” include Puerto Rico, the
U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We further certify that (i) we are not making available
herewith for exchange (or, if relevant, collection of any interest) any portion of the temporary Global Security representing the
above-captioned Securities excepted in the above-referenced certificates of Member Organizations and (ii) as of the date hereof
we have not received any notification from any of our Member Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for exchange (or, if relevant, collection of any interest)
are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in connection
with certain tax legislation in the United States. If administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof
to any interested party in such proceedings.
Dated:
[To be dated no earlier than the Exchange Date or the relevant
Interest Payment Date occurring prior to the Exchange Date, as applicable]
[ ,
as Operator of the Euroclear System] [Clearstream Banking Luxembourg]
Exhibit 4.6
ALBANY MOLECULAR RESEARCH, INC.
TO
Trustee
Indenture
Dated as of ,
20
Subordinated Debt Securities
TABLE OF CONTENTS
Table of Contents
| |
|
Page |
| |
|
|
| ARTICLE ONE - DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION |
1 |
| Section 101 |
Definitions |
1 |
| Section 102 |
Compliance Certificates and Opinions |
9 |
| Section 103 |
Form of Documents Delivered to Trustee |
9 |
| Section 104 |
Acts of Holders |
10 |
| Section 105 |
Notices, etc., to Trustee and Company |
11 |
| Section 106 |
Notice to Holders; Waiver |
11 |
| Section 107 |
Counterparts; Effect of Headings and Table
of Contents |
12 |
| Section 108 |
Successors and Assigns |
12 |
| Section 109 |
Severability Clause |
12 |
| Section 110 |
Benefits of Indenture |
12 |
| Section 111 |
Governing Law |
12 |
| Section 112 |
Legal Holidays |
12 |
| Section 113 |
Limited Liability; Immunity of Stockholders,
Directors, Officers and Agents of the Company |
12 |
| Section 114 |
Conflict with Trust Indenture Act |
13 |
| Article
Two - SECURITIES FORMS |
13 |
| Section 201 |
Forms of Securities |
13 |
| Section 202 |
Form of Trustee’s Certificate of
Authentication |
13 |
| Section 203 |
Securities Issuable in Global Form |
13 |
| Article
Three - THE SECURITIES |
14 |
| Section 301 |
Amount Unlimited; Issuable in Series |
14 |
| Section 302 |
Denominations |
17 |
| Section 303 |
Execution, Authentication, Delivery and
Dating |
17 |
| Section 304 |
Temporary Securities |
18 |
| Section 305 |
Registration, Registration of Transfer,
Conversion and Exchange |
20 |
| Section 306 |
Mutilated, Destroyed, Lost and Stolen Securities |
22 |
| Section 307 |
Payment of Interest; Interest Rights Preserved |
23 |
| Section 308 |
Persons Deemed Owners |
25 |
| Section 309 |
Cancellation |
25 |
| Section 310 |
Computation of Interest |
25 |
| Section 311 |
CUSIP Numbers |
25 |
| Article
Four - SATISFACTION AND DISCHARGE |
26 |
| Section 401 |
Satisfaction and Discharge of Indenture |
26 |
| Section 402 |
Application of Trust Funds |
26 |
| Article
Five – REMEDIES |
27 |
| Section
501 |
Events of Default |
27 |
| Section 502 |
Acceleration of Maturity; Rescission and
Annulment |
28 |
| Section 503 |
Collection of Indebtedness and Suits for
Enforcement by Trustee |
28 |
| Section 504 |
Trustee May File Proofs of Claim |
29 |
| Section 505 |
Trustee May Enforce Claims Without Possession
of Securities or Coupons |
29 |
| Section 506 |
Application of Money Collected |
29 |
| Section 507 |
Limitation on Suits |
30 |
| Section 508 |
Unconditional Right of Holders to Receive
Principal, Premium or Make-Whole Amount, if any, and Interest |
30 |
| Section 509 |
Restoration of Rights and Remedies |
30 |
| Section 510 |
Rights and Remedies Cumulative |
31 |
| Section 511 |
Delay or Omission Not Waiver |
31 |
| Section 512 |
Control by Holders of Securities |
31 |
| Section 513 |
Waiver of Past Defaults |
31 |
| Section 514 |
Waiver of Usury, Stay or Extension Laws |
31 |
| Section 515 |
Undertaking for Costs |
32 |
| Article
Six - THE TRUSTEE |
32 |
| Section 601 |
Notice of Defaults |
32 |
| Section 602 |
Certain Rights of Trustee |
32 |
| Section 603 |
Not Responsible for Recitals or Issuance
of Securities |
33 |
| Section 604 |
May Hold Securities |
33 |
| Section 605 |
Money Held in Trust |
34 |
| Section 606 |
Compensation and Reimbursement |
34 |
| Section 607 |
Corporate Trustee Required; Eligibility;
Conflicting Interests |
34 |
| Section 608 |
Resignation and Removal; Appointment of
Successor |
34 |
| Section 609 |
Acceptance of Appointment by Successor |
35 |
| Section 610 |
Merger, Conversion, Consolidation or Succession
to Business |
36 |
| Section 611 |
Appointment of Authenticating Agent |
36 |
| Section 612 |
Certain Duties and Responsibilities of
the Trustee |
37 |
| Article
Seven - HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY |
38 |
| Section 701 |
Disclosure of Names and Addresses of Holders |
38 |
| Section 702 |
Reports by Trustee |
38 |
| Section 703 |
Reports by Company |
39 |
| Section 704 |
Company to Furnish Trustee Names and Addresses
of Holders |
39 |
| Article
Eight - CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE |
39 |
| Section 801 |
Consolidations and Mergers of Company and
Sales, Leases and Conveyances Permitted Subject to Certain Conditions |
39 |
| Section 802 |
Rights and Duties of Successor Corporation |
40 |
| Section 803 |
Officers’ Certificate and Opinion
of Counsel |
40 |
| Article
Nine - SUPPLEMENTAL INDENTURES |
40 |
| Section
901 |
Supplemental Indentures Without
Consent of Holders |
40 |
| Section 902 |
Supplemental Indentures with Consent of
Holders |
41 |
| Section 903 |
Execution of Supplemental Indentures |
42 |
| Section 904 |
Effect of Supplemental Indentures |
42 |
| Section 905 |
Conformity with Trust Indenture Act |
42 |
| Section 906 |
Reference in Securities to Supplemental
Indentures |
42 |
| Article
Ten – COVENANTS |
42 |
| Section 1001 |
Payment of Principal, Premium or Make-Whole
Amount, if any; and Interest |
42 |
| Section 1002 |
Maintenance of Office or Agency |
43 |
| Section 1003 |
Money for Securities Payments to Be Held
in Trust |
44 |
| Section 1004 |
Existence |
44 |
| Section 1005 |
Maintenance of Properties |
44 |
| Section 1006 |
Insurance |
45 |
| Section 1007 |
Payment of Taxes and Other Claims |
45 |
| Section 1008 |
Statement as to Compliance |
45 |
| Section 1009 |
Waiver of Certain Covenants |
45 |
| Article
Eleven - REDEMPTION OF SECURITIES |
45 |
| Section 1101 |
Applicability of Article |
45 |
| Section 1102 |
Election to Redeem; Notice to Trustee |
45 |
| Section 1103 |
Selection by Trustee of Securities to Be
Redeemed |
45 |
| Section 1104 |
Notice of Redemption |
46 |
| Section 1105 |
Deposit of Redemption Price |
47 |
| Section 1106 |
Securities Payable on Redemption Date |
47 |
| Section 1107 |
Securities Redeemed in Part |
48 |
| Article
Twelve - SINKING FUNDS |
48 |
| Section 1201 |
Applicability of Article |
48 |
| Section 1202 |
Satisfaction of Sinking Fund Payments with
Securities |
48 |
| Section 1203 |
Redemption of Securities for Sinking Fund |
48 |
| Article
Thirteen - REPAYMENT AT THE OPTION OF HOLDERS |
49 |
| Section 1301 |
Applicability of Article |
49 |
| Section 1302 |
Repayment of Securities |
49 |
| Section 1303 |
Exercise of Option |
49 |
| Section 1304 |
When Securities Presented for Repayment
Become Due and Payable |
49 |
| Section 1305 |
Securities Repaid in Part |
50 |
| Article
Fourteen - DEFEASANCE AND COVENANT DEFEASANCE |
50 |
| Section 1401 |
Applicability of Article; Company’s
Option to Effect Defeasance or Covenant Defeasance |
50 |
| Section 1402 |
Defeasance and Discharge |
50 |
| Section 1403 |
Covenant Defeasance |
51 |
| Section 1404 |
Conditions to Defeasance or Covenant Defeasance |
51 |
| Section 1405 |
Deposited Money and Government Obligations
to Be Held in Trust; Other Miscellaneous Provisions |
52 |
| Article
Fifteen - MEETINGS OF HOLDERS OF SECURITIES |
53 |
| Section
1501 |
Purposes for Which Meetings
May Be Called |
53 |
| Section 1502 |
Call, Notice and Place of Meetings |
53 |
| Section 1503 |
Persons Entitled to Vote at Meetings |
53 |
| Section 1504 |
Quorum; Action |
54 |
| Section 1505 |
Determination of Voting Rights; Conduct
and Adjournment of Meetings |
54 |
| Section 1506 |
Counting Votes and Recording Action of
Meetings |
55 |
| Article
Sixteen - SUBORDINATION OF SECURITIES |
55 |
| Section 1601 |
Agreement to Subordinate |
55 |
| Section 1602 |
Payment Over of Proceeds upon Dissolution,
Etc |
55 |
| Section 1603 |
No Payment When Senior Indebtedness in
Default |
56 |
| Section 1604 |
Reliance by Senior Indebtedness on Subordination
Provisions |
57 |
| Section 1605 |
Subrogation to Rights of Holders of Senior
Indebtedness |
57 |
| Section 1606 |
Provisions Solely to Define Relative Rights |
57 |
| Section 1607 |
Trustee to Effectuate Subordination |
58 |
| Section 1608 |
No Waiver of Subordination Provisions |
58 |
| Section 1609 |
Notice to Trustee |
58 |
| Section 1610 |
Reliance on Judicial Order or Certificate
of Liquidating Agent |
59 |
| Section 1611 |
Trustee Not Fiduciary for Holders of Senior
Indebtedness |
59 |
| Section 1612 |
Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee’s Rights |
59 |
| Section 1613 |
Article Applicable to Paying Agents |
59 |
| Article
Seventeen - CONVERSION OF SECURITIES |
59 |
| Section 1701 |
Applicability of Article; Conversion Privilege
and Conversion Price |
59 |
| Section 1702 |
Exercise of Conversion Privilege |
60 |
| Section 1703 |
Fractions of Shares |
61 |
| Section 1704 |
Adjustment of Conversion Price |
61 |
| Section 1705 |
Notice of Adjustments of Conversion Price |
63 |
| Section 1706 |
Notice of Certain Corporate Action |
63 |
| Section 1707 |
Company to Reserve Common Stock |
64 |
| Section 1708 |
Taxes on Conversion |
64 |
| Section 1709 |
Covenants as to Common Stock |
64 |
| Section 1710 |
Cancellation of Converted Securities |
64 |
| Section 1711 |
Provisions in Case of Consolidation, Merger
or Sale of Assets; Special Distributions |
64 |
| Section 1712 |
Trustee Adjustment Disclaimer; Company
Determination Final |
65 |
| Section 1713 |
When No Adjustment Required |
66 |
| Section 1714 |
Equivalent Adjustments |
66 |
ALBANY MOLECULAR RESEARCH, INC.
Reconciliation and tie between the Trust Indenture Act of 1939,
as amended (the “Trust Indenture Act” or “TIA”) and the Indenture, dated as of ,
20 .
|
Trust Indenture Act Section |
|
Indenture Section |
|
| § 310(a)(1) |
|
607 |
|
| (a)(2) |
|
607 |
|
| (b) |
|
607, 608 |
|
| § 312(c) |
|
701 |
|
| § 313(a) |
|
702 |
|
| (c) |
|
702 |
|
| § 314(a) |
|
703 |
|
| (a)(4) |
|
1008 |
|
| (c)(1) |
|
102 |
|
| (c)(2) |
|
102 |
|
| (e) |
|
102 |
|
| § 315(b) |
|
601 |
|
| § 316(a) (last sentence) |
|
101(“Outstanding”) |
|
| (a)(1)(A) |
|
502, 512 |
|
| (a)(1)(B) |
|
513 |
|
| (b) |
|
508 |
|
| § 317(a)(1) |
|
503 |
|
| (a)(2) |
|
504 |
|
| § 318(a) |
|
111 |
|
| (c) |
|
111 |
|
NOTE: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Indenture.
Attention should also be directed to Section 318(c) of
the Trust Indenture Act, which provides that the provisions of Sections 310 to and including 317 of the Trust Indenture Act are
a part of and govern every qualified indenture, whether or not physically contained therein.
INDENTURE, dated as of ,
20 , between Albany Molecular Research, Inc., a corporation organized under the laws of the State of Delaware
(hereinafter called the “Company”), having its principal office at 26 Corporate Circle, Albany, New York 12203, and
, as Trustee
hereunder (hereinafter called the “Trustee”), having a Corporate Trust Office at .
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for
its lawful purposes subordinated debt securities (hereinafter called the “Securities”) evidencing its unsecured and
subordinated indebtedness, and has duly authorized the execution and delivery of this Indenture to provide for the issuance from
time to time of the Securities, to be issued in one or more Series as provided in this Indenture.
This Indenture is subject to the provisions of the Trust Indenture
Act of 1939, as amended (the “Trust Indenture Act” or “TIA”), that are deemed to be incorporated into this
Indenture and shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid and legally
binding 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 a Series thereof, as follows:
Article
One - 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 other terms used herein which are defined in the TIA,
either directly or by reference therein, have the meanings assigned to them therein, and the terms “cash transactions”
and “self-liquidating paper,” as used in TIA Section 311, shall have the meanings assigned to them in the rules
of the Commission adopted under the TIA;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(4) any reference to an “Article” or a “Section”
refers to an Article or Section, as the case may be, of this Indenture; and
(5) 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.
“Act,” when used with respect to any Holder,
has the meaning specified in Section 104.
“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 pursuant to Section 611 hereof to act on behalf of the Trustee to authenticate Securities of one or more Series.
“Authorized Newspaper” means a newspaper,
printed 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 each place in connection with which
the term is used or in the financial community of each such place. Whenever successive publications are required to be made in
Authorized Newspapers, the successive publications may be made in the same or in different Authorized Newspapers in the same city
meeting the foregoing requirements and in each case on any Business Day.
“Bankruptcy Law” has the meaning specified
in Section 501.
“Bearer Security” means any Security established
pursuant to Section 201 which is payable to the bearer.
“Board of Directors” when used with reference
to the Company, means the board of directors of the Company, or any committee of that board duly authorized to act hereunder, or
any director or directors and/or officer or officers of the Company, to whom the board or committee shall have duly delegated its
authority.
“Board Resolution” means a copy of (1) a
resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors
or a duly authorized committee of the Board of Directors and to be in full force and effect on the date of such certification,
or (2) a certificate signed by the director or directors and/or officer or officers to whom the Board of Directors shall have
duly delegated its authority, together with a resolution certified by the Secretary or an Assistant Secretary of the Company to
have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification authorizing
such delegation, and, in each case, delivered to the Trustee.
“Business Day,” when used with respect to
any Place of Payment or any other particular location referred to in this Indenture or in the Securities, means, unless otherwise
specified with respect to any Securities issued pursuant to Section 301, any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banking institutions in that Place of Payment or particular location are authorized
or required by law, regulation or executive order to close.
“Capital Stock” means, with respect to any
Person, any capital stock (including preferred stock), shares, interests, participations or other ownership interests (however
designated) of such Person and any rights (other than debt securities convertible into or exchangeable for corporate stock), warrants
or options to purchase any thereof.
“Clearstream” means Clearstream Banking Luxembourg,
société anonyme, or its successor.
“Closing Price” means the closing price of
a share of Common Stock of the Company as reported on The NASDAQ Global Select Market.
“Code” means the Internal Revenue Code of
1986, as amended, and the regulations thereunder.
“Commission” means the Securities and Exchange
Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after execution of this instrument
such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing
such duties on such date.
“Common Depository” has the meaning specified
in Section 304.
“Common Stock” means, with respect to any
Person, all shares of capital stock issued by such Person other than Preferred Stock.
“Company” means the Person named as the “Company”
in the first paragraph of this Indenture until a successor corporation shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter “Company” shall mean such successor corporation.
“Company Request” and “Company Order”
mean, respectively, a written request or order signed in the name of the Company by its Chief Executive Officer, the President,
or a Vice President, and by its Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee.
“Constituent Person” has the meaning specified
in Section 1711.
“Conversion Event” means the cessation of
use of (i) a Foreign Currency both by the government of the country which issued such currency and for the settlement of transactions
by a central bank or other public institutions of or within the international banking community, (ii) the ECU both within
the European Monetary System and for the settlement of transactions by public institutions of or within the European Communities
or (iii) any currency unit (or composite currency) other than the ECU for the purposes for which it was established.
“Conversion Price” has the meaning specified
in Section 1701.
“Corporate Trust Office” means the office
of the Trustee at which, at any particular time, its corporate trust business shall be principally administered, which office at
the date hereof is located at [ ].
“corporation” includes corporations, associations,
companies and business trusts.
“coupon” means any interest coupon appertaining
to a Bearer Security.
“Covenant Defeasance” has the meaning specified
in Section 1403.
“Custodian” has the meaning specified in
Section 501.
“Defaulted Interest” has the meaning specified
in Section 307.
“Defeasance” has the meaning specified in
Section 1402.
“Distribution Record Date” has the meaning
specified in Section 1711.
“Dividend Record Date” has the meaning specified
in Section 1704.
“Dollar” or the sign “$”
means a dollar or other equivalent unit in such coin or currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
“DTC” means The Depository Trust Company
and any successor to DTC in its capacity as depository for any Securities.
“ECU” means the European Currency Unit as
defined and revised from time to time by the Council of the European Communities.
“Euroclear” means the operator of the Euroclear
System.
“European Communities” means the European
Economic Community, the European Coal and Steel Community and the European Atomic Energy Community.
“European Monetary System” means the European
Monetary System established by the Resolution of December 5, 1978 of the Council of the European Communities.
“Event of Default” has the meaning specified
in Article Five.
“Exchange Act” means the Securities Exchange
Act of 1934, as amended, as in force at the date as of which this Indenture was executed; provided, however, that
in the event the Exchange Act is amended after such date, “Exchange Act” means to the extent required by any such amendment,
the Exchange Act as so amended.
“Exchange Date” has the meaning specified
in Section 304.
“FINRA” means the Financial Industry Regulatory
Authority, Inc.
“Foreign Currency” means any currency, currency
unit or composite currency, including, without limitation, the ECU issued by the government of one or more countries other than
the United States of America or by any recognized confederation or association of such governments.
“GAAP” means, except as otherwise provided
herein, generally accepted accounting principles, as in effect from time to time, as used in the United States applied on a consistent
basis.
“Global Security” means a Security evidencing
all or a part of a series of Securities issued to and registered in the name of the depository for such series, or its nominee,
in accordance with Section 305, and bearing the legend prescribed in Section 203.
“Government Obligations” means (i) securities
which are (A) direct obligations of the United States of America or the government which issued the Foreign Currency in which
the Securities of a particular series are payable, for the payment of which its full faith and credit is pledged or (B) obligations
of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America or such government
which issued the Foreign Currency in which the Securities of such series are payable, the payment of which is unconditionally guaranteed
as a full faith and credit obligation by the United States of America or such other government, which, in either case, are not
callable or redeemable at the option of the issuer thereof, and (iii) a depository receipt issued by a bank or trust company
as custodian with respect to any such Government Obligation or a specific payment of interest on or principal of any such Government
Obligation held by such custodian for the account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt
from any amount received by the custodian in respect of the Government Obligation or the specific payment of interest on or principal
of the Government Obligation evidenced by such depository receipt.
“Guaranty” by any Person means any Obligation,
contingent or otherwise, of such Person guaranteeing any Indebtedness of any other Person (the “primary obligor”) in
any manner, whether directly or indirectly, and including, without limitation, every Obligation of such Person (i) to purchase
or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or to purchase (or to advance or supply funds
for the purchase of) any security for the payment of such Indebtedness, (ii) to purchase property, securities or services
for the purpose of assuring the holder of such Indebtedness of the payment of such Indebtedness or (iii) to maintain working
capital, equity capital or other financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness; provided, however, that a Guaranty by any Person shall not include endorsements
by such Person for collection or deposit, in either case in the ordinary course of business. The terms “Guaranteed,”
“Guaranteeing” and “Guarantor” shall have meanings correlative to the foregoing.
“Holder” means, in the case of a Registered
Security, the Person in whose name a Security is registered in the Security Register and, in the case of a Bearer Security, the
bearer thereof and, when used with respect to any coupon, shall mean the bearer thereof.
“Indebtedness” means, with respect to any
Person, without duplication, (i) any Obligation of such Person relating to any indebtedness of such Person (A) for borrowed
money (whether or not the recourse of the lender is to the whole of the assets, of such person or only to a portion thereof), (B) evidenced
by notes, debentures or similar instruments (including purchase money obligations) given in connection with the acquisition of
any property or assets (other than trade accounts payable for inventory or similar property acquired in the ordinary course of
business), including securities, for the payment of which such Person is liable, directly or indirectly, or the payment of which
is secured by a lien, charge or encumbrance on property or assets of such Person, (C) for goods, materials or services purchased
in the ordinary course of business (other than trade accounts payable arising in the ordinary course of business), (D) with
respect to letters of credit or bankers acceptances issued for the account of such Person or performance, surety or similar bonds,
(E) for the payment of money relating to a capitalized lease Obligation or (F) under interest rate swaps, caps or similar
agreements and foreign exchange contracts, currency swaps or similar agreements; (ii) any liability of others of the kind
described in the preceding clause (i), which such Person has Guaranteed or which is otherwise its legal liability; and (iii) any
and all deferrals, renewals, extensions and refunding of, or amendments, modifications or supplements to, any liability of the
kind described in any of the preceding clauses (i) or (ii).
“Indenture” means this instrument as originally
executed or as it may be supplemented or amended from time to time 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; provided, however, that, if at any time more than one Person is acting as Trustee under this
instrument, “Indenture” shall mean, with respect to any one or more series of Securities for which such Person is Trustee,
this instrument as originally executed or as it may be supplemented or amended from time to time by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall include the terms of the or those particular series
of Securities for which such Person is Trustee established as contemplated by Section 301, exclusive, however, of any provisions
or terms which relate solely to other series of Securities for which such Person is Trustee, regardless of when such terms or provisions
were adopted, and exclusive of any provisions or terms adopted by means of one or more indentures supplemental hereto executed
and delivered after such Person had become such Trustee but to which such Person, as such Trustee, was not a party.
“Indexed Security” means a Security the terms
of which provide that the principal amount thereof payable at Stated Maturity may be more or less than the principal face amount
thereof at original issuance.
“Interest,” when used with respect to an
Original Issue Discount Security which by its terms bears interest only after Maturity, shall mean interest payable after Maturity.
“Interest Payment Date,” when used with respect
to any Security, means the Stated Maturity of an installment of interest on such Security.
“Make-Whole Amount,” when used with respect
to any Security, means the amount, if any, in addition to principal (and accrued interest thereon, if any) which is required by
a Security, under the terms and conditions specified therein or as otherwise specified as contemplated by Section 301, to
be paid by the Company to the Holder thereof in connection with any optional redemption or accelerated payment of such Security.
“mandatory sinking fund payment” has the
meaning specified in Section 1201.
“Market Value of the Distribution” has the
meaning specified in Section 1704.
“Maturity,” when used with respect to any
Security, means the date on which the principal (or, if the context so requires, in the case of an Original Issue Discount Security,
or lesser amount or, in the case of an Indexed Security, an amount determined in accordance with the specified terms of that Security)
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, notice of redemption, notice of option to elect repayment or otherwise.
“Obligation” of any Person with respect to
any specified Indebtedness means any obligation of such Person to pay principal, premium, interest (including interest accruing
on or after the filing of any petition in bankruptcy or for reorganization relating to such Person, whether or not a claim for
such post-petition interest is allowed in such proceeding), penalties, reimbursement or indemnification amounts, fees, expenses
or other amounts relating to such Indebtedness.
“Officers’ Certificate” means a certificate
signed by the Chairman of the Board of Directors, the Chief Executive Officer, the President, or a Vice President (whether or not
designated by a number or word or words added before or after the title “Vice President”), and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of the Company, and delivered to the Trustee.
“Opinion of Counsel” means a written opinion
of counsel, who may be counsel for the Company or who may be an employee of or other counsel for the Company.
“optional sinking fund payment” has the meaning
specified in Section 1201.
“Original Issue Discount Security” means
any Security which provides for an amount (excluding any amounts attributable to accrued but unpaid interest thereon) 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 canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption
(including repayment at the option of the Holder) money in the necessary amount has been theretofore 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 and any coupons appertaining thereto; provided, however,
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;
(iii) Securities, except to the extent provided in Sections
1402 and 1403, with respect to which the Company has effected Defeasance and/or Covenant Defeasance as provided in Article Fourteen;
and
(iv) Securities which 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 are present at a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an Original Issue Discount Security that may be
counted in making such determination or calculation and that shall be deemed to be Outstanding for such purpose shall be equal
to the amount of principal thereof that would be (or shall have been declared to be) due and payable, at the time of such determination,
upon a declaration of acceleration of the maturity thereof pursuant to Section 502, (ii) the principal amount of any
Security denominated in a Foreign Currency that may be counted in making such determination or calculation and that shall be deemed
Outstanding for such purpose shall be equal to the Dollar equivalent, determined pursuant to Section 301 as of the date such
Security is originally issued by the Company, of the principal amount (or, in the case of an Original Issue Discount Security,
the Dollar equivalent as of such date of original issuance of the amount determined as provided in clause (i) above) of such
Security, (iii) the principal amount of any Indexed Security that may be counted in making such determination or calculation
and that shall be deemed outstanding for such purpose shall be equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided with respect to such Security pursuant to Section 301, and (iv) 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 making such calculation
or in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible
Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities owned as provided in clause (iv) above
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. In case of a dispute as to such right, the advice
of counsel shall be full protection in respect of any decision made by the Trustee in accordance with such advice.
“Paying Agent” means any Person authorized
by the Company to pay the principal of (and premium or Make-Whole Amount, if any) or interest on any Securities or coupons on behalf
of the Company.
“Payment Blockage Notice” and “Payment
Blockage Period” have the respective meanings specified in Section 1603.
“Person” means any individual, corporation,
limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof, or any other entity or organization.
“Place of Payment,” when used with respect
to the Securities of or within any series, means the place or places where the principal of (and premium or Make-Whole Amount,
if any) and interest on such Securities are payable as specified as contemplated by Sections 301 and 1002.
“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 or a Security to which a mutilated, destroyed, lost or stolen coupon appertains
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security or the Security to which the mutilated,
destroyed, lost or stolen coupon appertains.
“Preferred Stock” means, with respect to
any Person, all capital stock issued by such Person that is entitled to a preference or priority over any other capital stock issued
by such Person with respect to any distribution of such Person’s assets, whether by dividend or upon any voluntary or involuntary
liquidation, dissolution or winding up.
“Proceeding” has the meaning specified in
Section 1602.
“Redemption Date,” when used with respect
to any Security to be redeemed, in whole or in part, 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 specified in the related Officers’ Certificate or supplemental indenture
contemplated by and pursuant to Section 301, at which it is to be redeemed pursuant to this Indenture.
“Reference Date” has the meaning specified
in Section 1704.
“Registered Security” shall mean any Security
which is registered in the Security Register.
“Regular Record Date” for the interest payable
on any Interest Payment Date on the Registered Securities of or within any series means the date specified for that purpose as
contemplated by Section 301, whether or not a Business Day.
“Repayment Date” means, when used with respect
to any Security to be repaid at the option of the Holder, the date fixed for such repayment by or pursuant to this Indenture.
“Repayment Price” means, when used with respect
to any Security to be repaid at the option of the Holder, the price at which it is to be repaid by or pursuant to this Indenture.
“Responsible Officer,” when used with respect
to 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”), Assistant Vice President, Trust Officer or Assistant Trust Officer working in its Corporate Trust
Department, or any other officer of the Trustee customarily performing functions similar to those performed by any of the above
designated officers and working in its Corporate Trust Department, and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of such officer’s knowledge and familiarity with the particular
subject and who shall have direct responsibility for the administration of this Indenture.
“Rights” has the meaning specified in Section 1704.
“Rights Record Date” has the meaning specified
in Section 1704.
“Securities Payment” has the meaning specified
in Section 1602.
“Security” and “Securities”
has the meaning stated in the first recital of this Indenture and, more particularly, means any Security or Securities authenticated
and delivered under this Indenture; provided, however, that, if at any time there is more than one Person acting
as Trustee under this Indenture, “Securities” with respect to the Indenture as to which such Person is Trustee shall
have the meaning stated in the first recital of this Indenture and shall more particularly mean Securities authenticated and delivered
under this Indenture, exclusive, however, of Securities of any series as to which such Person is not Trustee.
“Security Register” and “Security
Registrar” have the respective meanings specified in Section 305.
“Senior Indebtedness” means Indebtedness
of the Company, whether outstanding on the date of this Indenture or thereafter created, incurred, assumed or guaranteed by the
Company, other than the following: (1) any Indebtedness as to which, in the instrument evidencing such Indebtedness or pursuant
to which such Indebtedness was issued, it is expressly provided that such Indebtedness is subordinate in right of payment to all
Indebtedness of the Company not expressly subordinated to such Indebtedness; (2) any Indebtedness which by its terms refers
explicitly to the Securities and states that such Indebtedness shall not be senior, shall be pari passu or shall be subordinated
in right of payment to the Securities; and (3) with respect to any series of Securities, any Indebtedness of the Company evidenced
by Securities of the same or of another series. Notwithstanding anything to the contrary in the foregoing, Senior Indebtedness
shall not include Indebtedness of or amounts owed by the Company for compensation to employees, or for goods, materials or services
purchased in the ordinary course of business.
A “Series” of Securities means all securities
denoted as part of the same series authorized by or pursuant to a particular Board Resolution.
“Short Term Rights” has the meaning specified
in Section 1704.
“Special Record Date” for the payment of
any Defaulted Interest on the Registered Securities of or within any series means a date fixed by the Company 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 or a coupon
representing such installment of interest as the fixed date on which the principal of such Security or such installment of principal
or interest is due and payable.
“Trading Day” means any day on which The
NASDAQ Global Select Market is open for business.
“Trigger Events” has the meaning specified
in Section 1704.
“Trust Indenture Act” or “TIA”
means the Trust Indenture Act of 1939, as amended and as in force at the date as of which this Indenture was executed, except as
provided in Section 905.
“Trustee” means the Person named as the “Trustee”
in the first paragraph of this Indenture 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; provided,
however, that if at any time there is more than one such Person, “Trustee” as used with respect to the Securities
of any series shall mean only the Trustee with respect to Securities of that series.
“Unadjusted Distribution” has the meaning
specified in Section 1704.
“United States” means, unless otherwise specified
with respect to any Securities pursuant to Section 301, the United States of America (including the states and the District
of Columbia), its territories, its possessions and other areas subject to its jurisdiction.
“United States Person” means, unless otherwise
specified with respect to any Securities pursuant to Section 301, an individual who is a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in or under the laws of the United States or an estate
or trust the income of which is subject to United States Federal income taxation regardless of its source.
“Yield to Maturity” means the yield to maturity,
computed at the time of issuance of a Security (or, if applicable, at the most recent redetermination of interest on such Security)
and as set forth in such Security in accordance with generally accepted United States bond yield computation principles.
Section 102 Compliance
Certificates and Opinions. 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, 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, 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 (including certificates delivered pursuant to Section 1008) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such condition or covenant 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 individual,
he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not
such condition or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 103 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 an Opinion of Counsel, or a certificate or representations by counsel, unless
such officer knows, or in the exercise of reasonable care should know, that the opinion, certificate or representations with respect
to the matters upon which his certificate or opinion is based are erroneous. Any such Opinion of Counsel or certificate or representations
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 as 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 104 Acts
of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture
to be given or taken by Holders of the Outstanding Securities of all series or one or more series, as the case may be, may be embodied
in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agents duly appointed
in writing. If Securities of a series are issuable as Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken by Holders of Securities of such series may, alternatively,
be embodied in and evidenced by the record of Holders of Securities of such series voting in favor thereof, either in person or
by proxies duly appointed in writing, at any meeting of Holders of Securities of such series duly called and held in accordance
with the provisions of Article Fifteen, or a combination of such instruments and any such record. 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 or so voting at any such meeting. Proof of execution of any such instrument or of a writing appointing any such
agent, or of the holding by any Person of a Security, shall be sufficient for any purpose of this Indenture and conclusive in favor
of the Trustee and the Company and any agent of the Trustee or 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 1506.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public
or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or
writing acknowledged to 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 reasonable
manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by
the Security Register. As to any matter relating to beneficial ownership interests in any Global Security, the appropriate depository’s
records shall be dispositive for purposes of this Indenture.
(d) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed, as depository, by any trust company, bank, banker or other depository,
wherever situated, if such certificate shall be deemed by the Trustee to be satisfactory, showing that at the date therein mentioned
such Person had on deposit with such depository, or exhibited to it, the Bearer Securities therein described; or such facts may
be proved by the certificate or affidavit of the Person holding such Bearer Securities, if such certificate or affidavit is deemed
by the Trustee to be satisfactory. The Trustee and the Company may assume that such ownership of any Bearer Security continues
until (1) another certificate or affidavit bearing a later date issued in respect of the same Bearer Security is produced,
or (2) such Bearer Security is produced to the Trustee by some other Person, or (3) such Bearer Security is surrendered
in exchange for a Registered Security, or (4) such Bearer Security is no longer Outstanding. The ownership of Bearer Securities
may also be proved in any other manner which the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company may, at its option,
in or pursuant to a Board Resolution, fix in advance a record date for the determination of Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have no obligation to do so. Notwithstanding
TIA Section 316(c), such record date shall be the record date specified in or pursuant to such Board Resolution, which shall
be a date not earlier than the date 30 days prior to the first solicitation of Holders generally in connection therewith and not
later than the date such solicitation is completed. If such a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of record at the close
of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction,
notice, consent, waiver or other Act, and for that purpose the Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not later than eleven months after the record date.
(f) 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 upon the conversion thereof or in exchange therefor or in lieu thereof in respect
of anything done, omitted or suffered to be done by the Trustee, any Security Registrar, any Paying Agent, any Authenticating Agent
or the Company in reliance thereon, whether or not notation of such action is made upon such Security.
Section 105 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 [ ]
or at any other address previously furnished in writing to the Company by the Trustee, Attention: [ ];
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: [ ];
or
(3) either the Trustee or the Company, by the other party or
by any Holder, shall be sufficient for every purpose hereunder if given by facsimile transmission, receipt confirmed by telephone
followed by an original copy delivered by guaranteed overnight courier; if to the Trustee at facsimile number [ ];
and if to the Company at facsimile number [ ].
Section 106 Notice
to Holders; Waiver. Where this Indenture provides for notice of any event to Holders of Registered Securities by the Company
or the Trustee, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each such Holder affected by such event, at his address as it appears in the Security Register,
not later than the latest date, if any, and not earlier than the earliest date, if any, prescribed for the giving of such notice.
In any case where 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 shall affect the sufficiency of such notice with respect to other Holders
of Registered Securities or the sufficiency of any notice to Holders of Bearer Securities given as provided herein. Any notice
mailed to a Holder in the manner herein prescribed shall be conclusively deemed to have been received by such Holder, whether or
not such Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification to Holders
of Registered Securities as shall be made with the approval of the Trustee shall constitute a sufficient notification to such Holders
for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified
with respect to any Securities pursuant to Section 301, where this Indenture provides for notice to Holders of Bearer Securities
of any event, such notice shall be sufficiently given if published in an Authorized Newspaper in The City of New York and in such
other city or cities as may be specified in such Securities on a Business Day, such publication to be not later than the latest
date, if any, and not earlier than the earliest date, if any, prescribed for the giving of such notice. Any such notice shall be
deemed to have been given on the date of such publication or, if published more than once, on the date of the first such publication.
If by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be impracticable to publish any notice to Holders of
Bearer Securities as provided above, then such notification to Holders of Bearer Securities as shall be given with the approval
of the Trustee shall constitute sufficient notice to such Holders for every purpose hereunder. Neither the failure to give notice
by publication to any particular Holder of Bearer Securities as provided above, nor any defect in any notice so published, shall
affect the sufficiency of such notice with respect to other Holders of Bearer Securities or the sufficiency of any notice to Holders
of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent
or waiver required or permitted under this Indenture shall be in the English language, except that any published notice may be
in an official language of the country of publication.
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 107 Counterparts;
Effect of Headings and Table of Contents. This Indenture 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 Indenture. The Article
and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 108 Successors
and Assigns. All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
Section 109 Severability
Clause. In case any provision in this Indenture or in any Security or coupon shall be held invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 110 Benefits
of Indenture. Nothing in this Indenture or in the Securities or coupons, if any, express or implied, shall give to any Person,
other than the parties hereto, any Security Registrar, any Paying Agent, any Authenticating Agent and their successors hereunder
and the Holders any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 111 Governing
Law. This Indenture and the Securities and coupons shall be governed by and construed in accordance with the laws of the State
of New York. This Indenture is subject to the provisions of the TIA that are required to be part of this Indenture and shall, to
the extent applicable, be governed by such provisions.
Section 112 Legal
Holidays. In any case where any Interest Payment Date, Redemption Date, Repayment Date, sinking fund payment date, Stated Maturity
or Maturity of any Security or the last date on which a Holder has the right to convert or exchange a Security shall not be a Business
Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or any Security or coupon other than a
provision in the Securities of any series which specifically states that such provision shall apply in lieu hereof), payment of
interest or principal (and premium or Make-Whole Amount, if any) or conversion or exchange of such Security need not be made at
such Place of Payment on such date, but (except as otherwise provided in the supplemental indenture with respect to such Security)
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, Redemption Date, Repayment Date or sinking fund payment date, or at the Stated Maturity or Maturity, or on such last
day for conversion or exchange, provided that no interest shall accrue on the amount so payable for the period from and after such
Interest Payment Date, Redemption Date, Repayment Date, sinking fund payment date, Stated Maturity or Maturity, as the case may
be.
Section 113 Limited
Liability; Immunity of Stockholders, Directors, Officers and Agents of the Company. Notwithstanding any other provision of
this Indenture or of the Securities of any series to the contrary, no recourse under or upon any obligation, covenant or agreement
contained in this Indenture or in any Security, or for the payment of any sums due on account of any indebtedness evidenced thereby,
including without limitation principal, premium or interest, if any, or for any claim based on this Indenture or any Security or
otherwise in respect of this Indenture or any Security, shall be had, whether by levy or execution or otherwise, against (i) the
Company, the Company’s assets or against any past, present or future stockholder, employee, officer, director or agent, as
such, of the Company or any successor, either directly or through the Company or any successor, under any rule of law, statute,
constitutional provision or by the enforcement of any assessment or penalty, or by any legal or equitable proceeding or otherwise,
nor shall any such parties be personally liable for any such amounts, obligations or claims, or liable for any deficiency judgment
based thereon or with respect thereto, it being expressly understood that the sole remedies hereunder or under any other document
with respect to the Securities against such parties with respect to such amounts, obligations or claims shall be against the Company
and that all such liability of and recourse against such parties is expressly waived and released by the acceptance of the Securities
by the Holders and as part of the consideration for the issue of the Securities.
Section 114 Conflict
with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with another provision hereof which is required
or deemed to be included in this Indenture by any of the provisions of the Trust Indenture Act, such required provision 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 latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.
Article
Two- SECURITIES FORMS
Section 201 Forms
of Securities. The Registered Securities, if any, of each series and the Bearer Securities, if any, of each series and related
coupons shall be substantially in the form of Exhibit A hereto or in such other form as shall be established in one or
more indentures supplemental hereto or approved from time to time by or pursuant to a Board Resolution in accordance with Section 301,
shall have such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture
or any indenture supplemental hereto, and may have such letters, numbers or other marks of identification or designation and such
legends or endorsements placed thereon as the Company may deem appropriate and as are not inconsistent with the provisions of
this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any
rule or regulation of any over-the-counter market or securities exchange, on which the Securities may be quoted or listed, or
to conform to usage.
Unless otherwise specified as contemplated by Section 301,
Bearer Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed
or engraved or produced by any combination of these methods on a steel engraved border or steel engraved borders or mechanically
reproduced on safety paper or may be produced in any other manner, all as determined by the officers executing such Securities
or coupons, as evidenced by their execution of such Securities or coupons.
Section 202 Form
of Trustee’s Certificate of Authentication. Subject to Section 611, 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.
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Authorized Signatory |
Section 203 Securities
Issuable in Global Form. If Securities of or within a series are issuable in the form of one or more Global Securities, then,
notwithstanding clause (8) of Section 301 and the provisions of Section 302, any such Global Security or Securities
may provide that it or they shall represent the aggregate amount of all Outstanding Securities of such series (or such lesser amount
as is permitted by the terms thereof) from time to time endorsed thereon and may also provide that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be increased or decreased to reflect exchanges. Any endorsement
of any Global Security to reflect the amount, or any increase or decrease in the amount, or changes in the rights of Holders thereof,
of Outstanding Securities represented thereby shall be made (or caused to be made) by the Trustee in such manner or by such Person
or Persons as shall be specified therein or in the Company Order to be delivered to the Trustee pursuant to Section 303 or
304. Subject to the provisions of Section 303 and, if applicable, Section 304, the Trustee shall deliver and redeliver
any Global Security in permanent global form in the manner and upon instructions given by the Person or Persons specified therein
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 Global Security shall be in writing
but need not comply with Section 102 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall
apply to any Security represented by a Global Security if such Security was never issued and sold by the Company and the Company
delivers to the Trustee the Global Security together with written instructions (which need not comply with Section 102 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 Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any premium or Make-Whole Amount, if any, and interest
on any Global Security in permanent global form shall be made to the registered Holder thereof.
Notwithstanding the provisions of Section 308 and except
as provided in the preceding paragraph, the Company, the Trustee and any agent of the Company and the Trustee shall treat as the
Holder of such principal amount of Outstanding Securities represented by a permanent Global Security (i) in the case of a
permanent Global Security in registered form, the Holder of such permanent Global Security in registered form, or (ii) in
the case of a permanent Global Security in bearer form, Euroclear or Clearstream.
Any Global Security authenticated and delivered hereunder shall
bear a legend in substantially the following form:
“This Security is a Global Security within the meaning
set forth in the Indenture hereinafter referred to and is registered in the name of a Depository or a nominee of a Depository.
This Security is exchangeable for Securities registered in the name of a person other than the Depository or its nominee only in
the limited circumstances described in the Indenture, and may not be transferred except as a whole by the Depository to a nominee
of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository
or its nominee to a successor Depository or its nominee.”
Article
Three- THE SECURITIES
Section 301 Amount
Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series, each of
which shall be authorized pursuant to Board Resolutions of the Company. There shall be established in one or more Board Resolutions
or pursuant to authority granted by one or more Board Resolutions and, subject to Section 303, 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, including “CUSIP”
numbers (which shall distinguish the Securities of such series from all other series of Securities);
(2) Any limit 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 of transfer of, or upon conversion of, or in exchange for, or in lieu of, other Securities of the series pursuant
to Section 304, 305, 306, 906, 1107 or 1305) and the minimum authorized denominations with respect to the Securities of such
series;
(3) The price (expressed as a percentage of the principal amount
thereof) at which such Securities will be issued and, if other than the principal amount thereof, the portion of the principal
amount thereof payable upon declaration of acceleration of the maturity thereof or (if applicable) the portion of the principal
amount of such Securities that is convertible into Common Stock or Preferred Stock or the method by which any such portion shall
be determined;
(4) If convertible, the terms on which such Securities are convertible,
including the initial conversion price or rate and the conversion period and any applicable limitations on the ownership or transferability
of Common Stock or Preferred Stock receivable on conversion;
(5) The date or dates, or the method for determining such date
or dates, on which the principal of such Securities will be payable;
(6) The rate or rates (which may be fixed or variable), or the
method by which such rate or rates shall be determined, at which such Securities will bear interest, if any;
(7) The date or dates, or the method for determining such date
or dates, from which any such interest will accrue, the Interest Payment Dates on which any such interest will be payable, the
Regular Record Dates for such Interest Payment Dates, or the method by which such dates shall be determined, the Persons to whom
such interest shall be payable, and the basis upon which interest shall be calculated if other than that of a 360-day year of twelve
30-day months;
(8) The Make-Whole Amount, if any, or method for determining
the Make-Whole Amount, if any, payable with respect to such Securities, and the terms upon which such amount, if any, will be payable;
(9) The place or places where the principal of (and premium
or Make-Whole Amount, if any) and interest, if any, on such Securities will be payable, where such Securities may be surrendered
for registration of transfer or conversion or exchange and where notices or demands to or upon the Company in respect of such Securities
and this Indenture may be served;
(10) The period or periods, if any, within which, the price
or prices at which and the other terms and conditions upon which such Securities may, pursuant to any optional or mandatory redemption
provisions, be redeemed, as a whole or in part, at the option of the Company;
(11) The obligation, if any, of the Company to redeem, repay
or purchase such Securities pursuant to any sinking fund or analogous provision or at the option of a Holder thereof, and the period
or periods within which, the price or prices at which and the other terms and conditions upon which such Securities will be redeemed,
repaid or purchased, as a whole or in part, pursuant to such obligation;
(12) If other than Dollars, the currency or currencies in which
such Securities are denominated and payable, which may be a foreign currency or units of two or more foreign currencies or a composite
currency or currencies, the manner of determining the equivalent thereof in Dollars for purposes of the definition of “Outstanding”
in Section 101, and the terms and conditions relating thereto;
(13) Whether the amount of payments of principal of (and premium
or Make-Whole Amount, if any, including any amount due upon redemption, if any) or interest on such Securities may be determined
with reference to an index, formula or other method (which index, formula or method may, but need not be, based on the yield on
or trading price of other securities, including United States Treasury securities or on a currency, currencies, currency unit or
units, or composite currency or currencies) and the manner in which such amounts shall be determined;
(14) Whether the principal of (and premium or Make-Whole Amount,
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, currency unit or units or composite currency or currencies other than that in which such Securities are
denominated or stated to be payable, the period or periods within which, and the terms and conditions upon which, such election
may be made, and the time and manner of, and identity of the exchange rate agent with responsibility for, determining the exchange
rate between the currency or currencies, currency unit or units or composite currency or currencies in which such Securities are
denominated or stated to be payable and the currency or currencies, currency unit or units or composite currency or currencies
in which such Securities are to be so payable;
(15) Provisions, if any, granting special rights to the Holders
of Securities of the series upon the occurrence of such events as may be specified;
(16) Any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to Securities of the series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set forth herein;
(17) Whether and under what circumstances the Company will pay
any additional amounts on such Securities in respect of any tax, assessment or governmental charge and, if so, whether the Company
will have the option to redeem such Securities in lieu of making such payment;
(18) Whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or both, any restrictions applicable to the offer, sale or delivery
of Bearer Securities and the terms upon which Bearer Securities of the series may be exchanged for Registered Securities of the
series and vice versa (if permitted by applicable laws and regulations), 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 with or
without coupons and, if so, whether beneficial owners of interests in any such permanent global Security may, or shall be required
to, 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, or shall be required to, occur, if other than in the manner provided in the Indenture, and,
if Registered Securities of the series are to be issuable as a Global Security, the identity of the depository for such series;
(19) The date as of which any Bearer Securities of the series
and any temporary Global Security representing outstanding Securities of the series shall be dated if other than the date of original
issuance of the first Security of the series to be issued;
(20) The Person to whom any interest on any Registered Security
of the series shall be payable, if other than 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 the manner in which, or the Person to whom, any
interest on any Bearer Security of the series shall be payable, if otherwise than upon presentation and surrender of the coupons
appertaining thereto as they severally mature, and the extent to which, or the manner in which, any interest payable on a temporary
Global Security on an Interest Payment Date will be paid if other than in the manner provided herein; provided, however,
in each case, that the manner of determining such Person or making such payment shall be acceptable to the Trustee (as not imposing
on it any undue administrative burden or risk of liability);
(21) The applicability, if any, of the Defeasance and Covenant
Defeasance provisions of Article Fourteen hereof to the Securities of the series;
(22) The obligation, if any, of the Company to permit the conversion
of the Securities of such series into Common Stock or Preferred Stock, as the case may be, and the terms and conditions upon which
such conversion shall be effected (including, without limitation, the initial conversion price or rate, the conversion period,
any adjustment of the applicable conversion price and any requirements relative to the reservation of such shares for purposes
of conversion);
(23) If the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, then the form and/or terms of such certificates, documents
or conditions;
(24) Designation of the Trustee, if different from the Trustee
under the Indenture, with respect to such series and the terms applicable to such Trustee (which shall be accepted by such Trustee
by its execution and delivery of a supplemental indenture as provided therein); and
(25) Any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining
to any Bearer Securities of such 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 such Board Resolution (subject to Section 303) and set forth in
such Officers’ Certificate 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, a series may be reopened, without the consent of the Holders, for issuances of
additional Securities of such series.
If any of the terms of the Securities of any series are established
by action taken pursuant to one or more Board Resolutions, a copy of an appropriate record of such action(s) 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 Securities of such series.
Section 302 Denominations.
The Securities of each series shall be issuable in such denominations as shall be specified as contemplated by Section 301.
With respect to Securities of any series denominated in Dollars, in the absence of any such provisions with respect to the Securities
of any series, the Securities of such series, other than Global Securities (which may be of any denomination), shall be issuable
in denominations of $1,000 and any integral multiple thereof or the equivalent amounts thereof in the case of Securities denominated
in the Foreign Currency or currency unit.
Section 303 Execution,
Authentication, Delivery and Dating. The Securities and any coupons appertaining thereto shall be executed on behalf of the
Company by its Chief Executive Officer, its President, or one of its Vice Presidents, under its corporate seal reproduced thereon,
and attested by its Secretary or one of its Assistant Secretaries. The signature of any of these officers on the Securities and
coupons may be manual or facsimile signatures of the present or any future such authorized officer and may be imprinted or otherwise
reproduced on the Securities.
Securities and coupons 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 or coupons.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series, together with any coupon appertaining thereto, executed by
the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities
(accompanied by a copy of the Board Resolution and the Officers’ Certificate or supplemental indenture contemplated by Section 301),
and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities; provided, however,
that, in connection with its original issuance, no Bearer Security shall be mailed or otherwise delivered to any location in the
United States; and provided further that, unless otherwise specified with respect to any series of Securities pursuant
to Section 301, a Bearer Security may be delivered in connection with its original issuance only if the Person entitled to
receive such Bearer Security shall have furnished a certificate to Euroclear or Clearstream, as the case may be, in the form set
forth in Exhibit B-1 to this Indenture or such other certificate as may be specified by the Company with respect to any
series of Securities pursuant to Section 301, dated no earlier than 15 days prior to the earlier of the date on which such
Bearer Security is delivered and the date on which any temporary Security first becomes exchangeable for such Bearer Security in
accordance with the terms of such temporary Security and this Indenture. If any Security shall be represented by a permanent Global
Security, then, for purposes of this Section and Section 304, the notation of a beneficial owner’s interest therein
upon original issuance of such Security or upon exchange of a portion of a temporary Global Security shall be deemed to be delivery
in connection with its original issuance of such beneficial owner’s interest in such permanent Global Security. Except as
permitted by Section 306, the Trustee shall not authenticate and deliver any Bearer Security unless all appurtenant coupons
for interest then matured have been detached and canceled.
If all the Securities of any series are not to be issued at
one time and if the Board Resolution or supplemental indenture establishing such series shall so permit, such Company Order may
set forth procedures acceptable to the Trustee for the issuance of such Securities and determining the terms of particular Securities
of such series, such as interest rate or formula, maturity date, date of issuance and date from which interest shall accrue. In
authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to TIA Section 315(a) through 315(d)) shall be fully protected in relying
upon,
(i) an Opinion of Counsel stating that
(a) the form or forms of such Securities and any coupons have
been established in conformity with the provisions of this Indenture;
(b) the terms of such Securities and any coupons have been established
in conformity with the provisions of this Indenture; and
(c) such Securities, together with any coupons appertaining
thereto, when completed by appropriate insertions and executed and delivered by the Company to the Trustee for authentication in
accordance with this Indenture, authenticated and delivered by the Trustee in accordance with this Indenture and issued by the
Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute legal, valid and legally
binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent
transfer, reorganization and other similar laws of general applicability relating to or affecting the enforcement of creditors’
rights generally and to general equitable principles; and
(ii) an Officers’ Certificate stating that all conditions
precedent provided for in this Indenture relating to the issuance of the Securities have been complied with and that, to the best
of the knowledge of the signers of such certificate, that no Event of Default with respect to any of the Securities shall have
occurred and be continuing.
If such form or terms have been so established, the Trustee
shall not be required to authenticate such Securities (or to enter into the related supplemental indenture, if applicable) if the
issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties, obligations or immunities
under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all the Securities of any series are not to be issued at one time, it shall not be necessary to deliver
an Officers’ Certificate otherwise required pursuant to Section 301 or a Company Order, or an Opinion of Counsel or
an Officers’ Certificate otherwise required pursuant to the preceding paragraph at the time of issuance of each Security
of such series, but such order, opinion and certificates, with appropriate modifications to cover such future issuances, shall
be delivered at or before the time of issuance of the first Security of such series.
Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified as contemplated by Section 301.
No Security or coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears on such Security or Security to which such coupon
appertains a certificate of authentication substantially in the form provided for herein duly executed by the Trustee (subject
to Section 611) by manual signature of an authorized signatory, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if any Security (including a Global 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 102 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
.
(a) 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 which
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, or, if authorized, in bearer form with
one or more coupons or without coupons, and with such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as conclusively evidenced by their execution of such Securities. In the case
of Securities of any series, such temporary Securities may be in global form.
Except in the case of temporary Global Securities (which shall
be exchanged as otherwise provided herein or as otherwise provided in or pursuant to a Board Resolution or supplemental indenture
pursuant to Section 301), 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 (accompanied by any non-matured coupons appertaining
thereto), the Company shall execute (in accordance with a Company Order delivered at or prior to the authentication of the first
definitive security to such series) and the Trustee shall authenticate and deliver in exchange therefor a like principal amount
of definitive Securities of the same series of authorized denominations; provided, however, that no definitive Bearer
Security shall be delivered in exchange for a temporary Registered Security; and provided further that a definitive
Bearer Security shall be delivered in exchange for a temporary Bearer Security only in compliance with the conditions set forth
in Section 303. 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.
(b) Unless otherwise provided in or pursuant to a Board Resolution
or supplemental indenture pursuant to Section 301, the following provisions of this Section 304(b) shall govern the exchange
of temporary Securities other than through the facilities of the DTC. If any such temporary Security is issued in global form,
then such temporary Global Security shall, unless otherwise provided therein, be delivered to the London office of a depository
or common depository upon and pursuant to written direction of the Company (the “Common Depository”), for the benefit
of Euroclear and Clearstream, for credit to the respective accounts of the beneficial owners of such Securities (or to such other
accounts as they may direct).
Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such temporary Global Security (the “Exchange Date”),
the Company shall deliver to the Trustee definitive Securities, in aggregate principal amount equal to the principal amount of
such temporary Global Security, executed by the Company. On or after the Exchange Date, such temporary Global Security shall be
surrendered by the Common Depository to the Trustee, as the Company’s agent for such purpose, to be exchanged, in whole or
from time to time in part, for definitive Securities without charge, and the Trustee shall authenticate and deliver, in exchange
for each portion of such temporary Global Security, an equal aggregate principal amount of definitive Securities of the same series
of authorized denominations and of like tenor as the portion of such temporary Global Security to be exchanged. The definitive
Securities to be delivered in exchange for any such temporary Global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination thereof, as specified as contemplated by Section 301,
and, if any combination thereof is so specified, as requested by the beneficial owner thereof (as directed by or pursuant to information
provided by the Common Depository); provided, however, that, unless otherwise specified in such temporary Global
Security, upon such presentation by the Common Depository, such temporary Global Security shall be accompanied by a certificate
dated the Exchange Date or a subsequent date and signed by Euroclear as to the portion of such temporary Global Security held for
its account then to be exchanged and a certificate dated the Exchange Date or a subsequent date and signed by Clearstream as to
the portion of such temporary Global Security held for its account then to be exchanged, each in the form set forth in Exhibit
B-2 to this Indenture or in such other form as may be established pursuant to Section 301; and provided further
that definitive Bearer Securities shall be delivered in exchange for a portion of a temporary Global Security only in compliance
with the requirements of Section 303.
Unless otherwise specified in such temporary Global Security,
the interest of a beneficial owner of Securities of a series in a temporary Global Security shall be exchanged for definitive Securities
of the same series and of like tenor following the Exchange Date when the account holder instructs Euroclear or Clearstream, as
the case may be, to request such exchange on his behalf and delivers to Euroclear or Clearstream, as the case may be, a certificate
in the form set forth in Exhibit B-1 to this Indenture (or in such other form as may be established pursuant to Section 301),
dated no earlier than 15 days prior to the Exchange Date, copies of which certificate shall be available from the offices of Euroclear
and Clearstream, the Trustee, any Authenticating Agent appointed for such series of Securities and each Paying Agent. Unless otherwise
specified in such temporary Global Security, any such exchange shall be made free of charge to the beneficial owners of such temporary
Global Security, except that a Person receiving definitive Securities must bear the cost of insurance, postage, transportation
and the like unless such Person takes delivery of such definitive Securities in person at the offices of Euroclear or Clearstream.
Definitive Securities in bearer form to be delivered in exchange for any portion of a temporary Global Security shall be delivered
only to an address located outside the United States.
Until exchanged in full as hereinabove provided, the 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, except that, unless otherwise specified as contemplated
by Section 301, interest payable on a temporary Global Security on an Interest Payment Date for Securities of such series
occurring prior to the applicable Exchange Date shall be payable to Euroclear and Clearstream on such Interest Payment Date upon
delivery by Euroclear and Clearstream to the Trustee of a certificate or certificates in the form set forth in Exhibit B-2
to this Indenture (or in such other forms as may be established pursuant to Section 301), for credit without further interest
on or after such Interest Payment Date to the respective accounts of Persons who are the beneficial owners of such temporary Global
Security on such Interest Payment Date and who have each delivered to Euroclear or Clearstream, as the case may be, a certificate
dated no earlier than 15 days prior to the Interest Payment Date occurring prior to such Exchange Date in the form set forth as
Exhibit B-1 to this Indenture (or in such other forms as may be established pursuant to Section 301). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to this paragraph shall satisfy the certification requirements
of the preceding two paragraphs of this Section 304(b) and of the third paragraph of Section 303 of this Indenture and
the interests of the Persons who are the beneficial owners of the temporary Global Security with respect to which such certification
was made will be exchanged for definitive Securities of the same series and of like tenor on the Exchange Date or the date of certification
if such date occurs after the Exchange Date, without further act or deed by such beneficial owners. Except as otherwise provided
in this paragraph, no payments of principal or interest owing with respect to a beneficial interest in a temporary Global Security
will be made unless and until such interest in such temporary Global Security shall have been exchanged for an interest in a definitive
Security. Any interest so received by Euroclear and Clearstream and not paid as herein provided shall be returned to the Trustee
prior to the expiration of two years after such Interest Payment Date in order to be repaid to the Company.
With respect to Exhibit B-1 or B-2 to this Indenture,
the Company may, in its discretion and if required or desirable under applicable law, substitute one or more other forms of such
exhibits for such exhibits, eliminate the requirement that any or all certificate be provided, or change the time that any certificate
may be required, provided that such substitute form or forms or notice of elimination or change of such certification
requirement have theretofore been delivered to the Trustee with a Company Request and such form or forms, elimination or change
is reasonably acceptable to the Trustee.
Section 305 Registration,
Registration of Transfer, Conversion and Exchange. The Company shall cause to be kept at the Corporate Trust Office of the
Trustee or in any office or agency of the Company in a Place of Payment a register for each series of Securities (the registers
maintained in such office or in any such office or agency of the Company in a Place of Payment being herein sometimes referred
to collectively 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. The Security Register
shall be in written form or any other form capable of being converted into written form within a reasonable time. The Trustee,
at its Corporate Trust Office, is hereby initially appointed “Security Registrar” for the purpose of registering Registered
Securities and transfers of Registered Securities on such Security Register as herein provided. In the event that the Trustee shall
cease to be Security Registrar, it shall have the right to examine, and be provided a copy of, the Security Register at all reasonable
times.
Subject to the provisions of this Section 305, upon surrender
for registration of transfer of any Registered Security of any series at any office or agency of the Company 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, of any authorized denominations and of a like aggregate
principal amount, bearing a number not contemporaneously outstanding, and containing identical terms and provisions.
Subject to the provisions of this Section 305, at the option
of the Holder, Registered Securities of any series may be exchanged for other Registered Securities of the same series, of any
authorized denomination or denominations and of a like aggregate principal amount, containing identical terms and provisions, upon
surrender of the Registered Securities to be exchanged at any such office or agency. Whenever any such Registered Securities are
so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Registered Securities
which the Holder making the exchange is entitled to receive. Unless otherwise specified with respect to any series of Securities
as contemplated by Section 301, Bearer Securities may not be issued in exchange for Registered Securities.
If (but only if) permitted by the applicable Board Resolution
and (subject to Section 303) set forth in the applicable Officers’ Certificate, or in any indenture supplemental hereto,
delivered as contemplated by Section 301, at the option of the Holder, Bearer Securities of any series may be exchanged for
Registered Securities of the same series of any authorized denominations and of a like aggregate principal amount and tenor, upon
surrender of the Bearer Securities to be exchanged at any such office or agency, with all unmatured coupons and all matured coupons
in default thereto appertaining. If the Holder of a Bearer Security is unable to produce any such unmatured coupon or coupons or
matured coupon or coupons in default, any such permitted exchange may be effected if the Bearer Securities are accompanied by payment
in funds acceptable to the Company (or to the Trustee for the Security in case of matured coupons in default) in an amount equal
to the face amount of such missing coupon or coupons, or the surrender of such missing coupon or coupons may be waived by the Company
and the Trustee if there is furnished to them such security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to any Paying Agent any such missing coupon in respect
of which such a payment shall have been made, such Holder shall be entitled to receive the amount of such payment; provided,
however, that, except as otherwise provided in Section 1002, interest represented by coupons shall be payable only
upon presentation and surrender of those coupons at an office or agency located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such office or agency in a permitted exchange for a Registered
Security of the same series and like tenor after the close of business at such office or agency 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,
such Bearer Security shall be surrendered without the coupon relating to such Interest Payment Date or proposed date for payment,
as the case may be, and 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 the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance with the provisions of this Indenture. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities
which 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 depository for any permanent Global Security is DTC, then, unless the terms of such Global Security expressly permit such Global
Security to be exchanged in whole or in part for definitive Securities, a Global Security may be transferred, in whole but not
in part, only to a nominee of DTC, or by a nominee of DTC to DTC, or to a successor to DTC for such Global Security selected or
approved by the Company or to a nominee of such successor to DTC. If at any time DTC notifies the Company that it is unwilling
or unable to continue as depository for the applicable Global Security or Securities or if at any time DTC ceases to be a clearing
agency registered under the Exchange Act if so required by applicable law or regulation, the Company shall appoint a successor
depository with respect to such Global Security or Securities. If (w) a successor depository for such Global Security or Securities
is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such unwillingness, inability
or ineligibility, (x) the Company delivers to the Trustee for Securities of such series in registered form a Company Order
stating that the Securities of such series shall be exchangeable, (y) an Event of Default has occurred and is continuing and
the beneficial owners representing a majority in principal amount of the applicable series of Securities represented by such Global
Security or Securities advise DTC to cease acting as depository for such Global Security or Securities or (z) the Company,
in its sole discretion, determines at any time that all Outstanding Securities (but not less than all) of any series issued or
issuable in the form of one or more Global Securities shall no longer be represented by such Global Security or Securities, then
the Company shall execute, and the Trustee shall authenticate and deliver definitive Securities of like series, rank, tenor and
terms in definitive form in an aggregate principal amount equal to the principal amount of such Global Security or Securities.
If any beneficial owner of an interest in a permanent global Security is otherwise 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 and provided that any applicable notice provided in the permanent Global Security shall have been given, then
without unnecessary delay but in any event not later than the earliest date on which such interest may be so exchanged, the Company
shall execute, and the Trustee shall authenticate and deliver definitive Securities in aggregate principal amount equal to the
principal amount of such beneficial owner’s interest in such permanent Global Security. On or after the earliest date on
which such interests may be so exchanged, such permanent Global Security shall be surrendered for exchange by DTC or such other
depository as shall be specified in the Company Order with respect thereto to the Trustee, as the Company’s agent for such
purpose; provided, however, that no such exchanges may occur during a period beginning at the opening of business
15 days before any selection of Securities to be redeemed and ending on the relevant Redemption Date if the Security for which
exchange is requested may be among those selected for redemption; and provided further that no Bearer Security delivered
in exchange for a portion of a permanent Global Security shall be mailed or otherwise delivered to any location in the United States.
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 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 conversion
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 conversion or exchange.
Every Registered Security presented or surrendered for registration
of transfer or for conversion, exchange or redemption shall (if so required by the Company or the Security Registrar) 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 to the Holder for any registration
of transfer or conversion 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 conversion or exchange of Securities,
other than exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any transfer.
The Company or the Trustee, as applicable, shall not be required
(i) to issue, register the transfer of or exchange any Security if such Security may be among those selected for redemption
during a period beginning at the opening of business 15 days before selection of the Securities to be redeemed under Section 1103
and ending at the close of business on (A) if such Securities are issuable only as Registered Securities, the day of the mailing
of the relevant notice of redemption and (B) if such Securities are issuable as Bearer Securities, the day of the first publication
of the relevant notice of redemption or, if such Securities are also issuable as Registered Securities and there is no publication,
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, in the case of any Registered Security to be redeemed in part, the portion
thereof not to be redeemed, or (iii) to exchange any Bearer Security so selected for redemption except that such a Bearer
Security may be exchanged for a Registered Security of that series and like tenor, provided that such Registered Security
shall be simultaneously surrendered for redemption, or (iv) to issue, register the transfer of or exchange any Security which
has been surrendered for repayment at the option of the Holder, except the portion, if any, of such Security not to be so repaid.
Furthermore, notwithstanding any other provision of this Section 305,
the Company will not be required to exchange any Securities if, as a result of the exchange, the Company would suffer adverse consequences
under any United States law or regulation.
Section 306 Mutilated,
Destroyed, Lost and Stolen Securities. If any mutilated Security or a Security with a mutilated coupon appertaining to it is
surrendered to the Trustee or the Company, together with, in proper cases, such security or indemnity as may be required by the
Company or the Trustee to save each of them or any agent of either of them harmless, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a new Security of the same series and principal amount, containing identical
terms and provisions and bearing a number not contemporaneously outstanding, with coupons corresponding to the coupons, if any,
appertaining to the surrendered Security.
If there shall be delivered to the Company and to the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any Security or coupon, 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 or coupon 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
or in exchange for the Security to which a destroyed, lost or stolen coupon appertains (with all appurtenant coupons not destroyed,
lost or stolen), a new Security of the same series and principal amount, containing identical terms and provisions and bearing
a number not contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining to such destroyed,
lost or stolen Security or to the Security to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs,
in case any such mutilated, destroyed, lost or stolen Security or coupon has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Security, with coupons corresponding to the coupons, if any, appertaining
to such destroyed, lost or stolen Security or to the Security to which such destroyed, lost or stolen coupon appertains, pay such
Security or coupon if the applicant for such payment shall furnish to the Company and the Trustee for such Security such security
or indemnity as may be required by them to save each of them harmless, and in the case of destruction, loss or theft, evidence
satisfactory to the Company and Trustee and any agent of any of them of the destruction, loss or theft of such Security and the
ownership thereof; provided, however, that payment of principal of (and premium or Make-Whole Amount, if any), and
interest, if any, on, Bearer Securities shall, except as otherwise provided in Section 1002, be payable only at an office
or agency located outside the United States and, unless otherwise specified as contemplated by Section 301, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or in exchange for a Security to which a destroyed,
lost or stolen coupon appertains, shall constitute an original additional contractual obligation of the Company, whether or not
the destroyed, lost or stolen Security and its coupons, if any, or the destroyed, lost or stolen coupon 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 and their coupons, if any, 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 or coupons.
Section 307 Payment
of Interest; Interest Rights Preserved. Except as otherwise specified with respect to a series of Securities in accordance
with the provisions of Section 301, interest on any Registered Security that 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 payment at the office or agency of the Company
maintained for such purpose pursuant to Section 1002; provided, however, that each installment of interest
on any Registered Security may at the Company’s option be paid by (i) mailing a check for such interest, payable to
or upon the written order of the Person entitled thereto pursuant to Section 308, to the address of such Person as it appears
on the Security Register or (ii) transfer to an account maintained by the payee located inside the United States.
Unless otherwise provided as contemplated by Section 301
with respect to the Securities of any series, payment of interest may be made, in the case of a Bearer Security, by transfer to
an account maintained by the payee with a bank located outside the United States.
Unless otherwise provided as contemplated by Section 301,
every permanent Global Security will provide that interest, if any, payable on any Interest Payment Date will be paid to DTC, Euroclear
and/or Clearstream, as the case may be, with respect to that portion of such permanent Global Security held for its account by
Cede & Co. or the Common Depository, as the case may be, for the purpose of permitting such party to credit the interest
received by it in respect of such permanent Global Security to the accounts of the beneficial owners thereof.
In case a Bearer Security of any series is surrendered in exchange
for a Registered Security of such series after the close of business (at an office or agency in a Place of Payment for such series)
on any Regular Record Date and before the opening of business (at such office or agency) on the next succeeding Interest Payment
Date, such Bearer Security shall be surrendered without the coupon relating to such Interest Payment Date and interest will not
be payable on such Interest Payment Date in respect of the Registered Security issued in exchange for such Bearer Security, but
will be payable only to the Holder of such coupon when due in accordance with the provisions of this Indenture.
Except as otherwise specified with respect to a series of Securities
in accordance with the provisions of Section 301, any interest on any Registered Security of any series that 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 registered Holder thereof 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 (which shall not be less than 20 days after such notice is received
by the Trustee), and at the same time the Company shall deposit with the Trustee an amount of money in the currency or currencies,
currency unit or units or composite currency or currencies in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series) 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 on or 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 in each Place of Payment, but such publications 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 mailed as aforesaid, 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). In case a Bearer Security of any series is surrendered at the office
or agency in a Place of Payment for such series in exchange for a Registered Security of such series after the close of business
at such office or agency on 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, such Bearer Security shall be surrendered without the coupon relating to such
proposed date of payment and Defaulted Interest will not be payable on such proposed date of payment in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
(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 over-the-counter
market or securities exchange on which such Securities may be quoted or listed, and upon such notice as may be required by such
market or 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 and Section 305,
each Security delivered under this Indenture upon registration of transfer of or upon conversion of or 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 Security for the purpose of receiving payment of principal of (and premium or Make-Whole Amount, if any), and (subject
to Sections 305 and 307) interest on, such Registered Security and for all other purposes whatsoever, whether or not such Registered
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. All such payments so made to any such Person, or upon such Person’s order, shall be valid, and, to the extent
of the sum or sums so paid, effectual to satisfy and discharge the liability for money payable upon any such Security.
Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the Company or the Trustee may treat the Holder of any Bearer
Security and the Holder of any coupon as the absolute owner of such Security or coupon for the purpose of receiving payment thereof
or on account thereof and for all other purposes whatsoever, whether or not such Security or coupon 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.
No holder of any beneficial interest in any Global Security
held on its behalf by a depository shall have any rights under this Indenture with respect to such Global Security and such depository
(which is the Holder of such security) shall be treated by the Company, the Trustee, and any agent of the Company or the Trustee
as the owner of such Global Security for all purposes whatsoever. None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial
ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership
interests.
Notwithstanding the foregoing, with respect to any Global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the Company or the Trustee, from giving effect to any written
certification, proxy or other authorization furnished by any depository, as a Holder, with respect to such Global Security or impair,
as between such depository and owners of beneficial interests in such Global Security, the operation of customary practices governing
the exercise of the rights of such depository (or its nominee) as Holder of such Global Security.
Section 309 Cancellation.
All Securities and coupons surrendered for payment, redemption, repayment at the option of the Holder, registration of transfer
or conversion 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, and any such Securities and coupons and Securities and coupons surrendered directly to the Trustee
for any such purpose, upon direction by the Company, shall be promptly cancelled by it. 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 may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation
any Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered shall
be promptly cancelled by the Trustee. If the Company shall so acquire any of the Securities, however, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are surrendered
to the Trustee for cancellation. 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. Cancelled Securities and coupons held by the Trustee
shall be disposed of by the Trustee in accordance with its customary practices (subject to the record retention requirements of
the Exchange Act).
Section 310 Computation
of Interest. Except as otherwise specified as contemplated by Section 301 with respect to Securities of any series, interest
on the Securities of each series shall be computed on the basis of a 360-day year consisting of 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, however,
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. The Company will
promptly notify the Trustee of any change in the “CUSIP” numbers.
Article
Four - SATISFACTION AND DISCHARGE
Section 401 Satisfaction
and Discharge of Indenture. This Indenture shall upon Company Request cease to be of further effect with respect to any series
of Securities specified in such Company Request (except as to any surviving rights of registration of transfer or conversion or
exchange of Securities of such series herein expressly provided for), and the Trustee, upon receipt of a Company Order, and at
the expense of the Company, shall execute instruments in form and substance satisfactory to the Trustee and the Company acknowledging
satisfaction and discharge of this Indenture as to such series when
(1) either
(A) all Securities of such series theretofore authenticated
and delivered and all coupons, if any, appertaining thereto (other than (i) coupons appertaining to Bearer Securities surrendered
for exchange for Registered Securities and maturing after such exchange, whose surrender is not required or has been waived as
provided in Section 305, (ii) Securities and coupons of such series which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306, (iii) coupons appertaining to Securities called for redemption
and maturing after the relevant Redemption Date, whose surrender has been waived as provided in Section 1106, and (iv) Securities
and coupons 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 Securities of such series and, in the case of (i) or
(ii) below, any coupons appertaining thereto 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) if redeemable at the option of the Company, 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 (i), (ii) or (iii) above,
has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose an amount in the currency
or currencies, currency unit or units or composite currency or currencies in which the Securities of such series are payable, sufficient
to pay and discharge the entire indebtedness on such Securities and such coupons not theretofore delivered to the Trustee for cancellation,
for principal (and premium or Make-Whole Amount, if any) 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 as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee and any predecessor Trustee under Section 606, the obligations of the Company
to any Authenticating Agent under Section 611 and, if money shall have been deposited with and held by the Trustee pursuant
to subclause (B) of clause (1) of this Section, the obligations of the Trustee under Section 402 and the last paragraph
of Section 1003 shall survive such satisfaction and discharge.
Section 402 Application
of Trust Funds. Subject to the provisions of the last paragraph of Section 1003, all money deposited with the Trustee
pursuant to Section 401 shall be held in trust and applied by it, in accordance with the provisions of the Securities, the
coupons and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium or Make-Whole Amount,
if any), and any interest for whose payment such money has been deposited with or received by the Trustee, but such money need
not be segregated from other funds except to the extent required by law.
Article
Five - REMEDIES
Section 501 Events
of Default. “Event of Default,” wherever used herein with respect to any particular series of Securities, means
any one of the following events (whatever the reason for such Event of Default and whether or not it shall be voluntary or involuntary
or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):
(1) default in the payment of any interest on any Security of
that series or of any coupon appertaining thereto, when such interest or coupon becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (or premium or
Make-Whole Amount, if any, on) any Security of that series when it becomes due and payable at its Maturity; or
(3) default in the deposit of any sinking fund payment, to the
extent applicable to such series of Securities, when and as due by the terms of any Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture with respect to any Security of that series (other than a covenant or warranty a default
in whose performance or whose breach is elsewhere in this Section specifically dealt with or which has expressly been included
in this Indenture solely for the benefit of a series of Securities other than that series), and continuance of such default or
breach for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of that series a written
notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default”
hereunder; or
(5) default under any bond, debenture, note, mortgage, indenture
or instrument under which there may be issued or by which there may be secured or evidenced any indebtedness for money borrowed
by the Company, having an aggregate principal amount outstanding of at least $75,000,000, whether such indebtedness now exists
or shall hereafter be created, which default shall have resulted in such indebtedness becoming or being declared due and payable
prior to the date on which it would otherwise have become due and payable, without such indebtedness having been discharged, or
such acceleration having been rescinded or annulled, within a period of 30 days after there shall have been given, by registered
or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 10% in principal
amount of the Outstanding Securities of that series a written notice specifying such default and requiring the Company to cause
such indebtedness to be discharged or cause such acceleration to be rescinded or annulled and stating that such notice is a “Notice
of Default” hereunder; provided, however, that, subject to the provisions of Sections 601 and 602, the
Trustee shall not be deemed to have knowledge of such default unless either (A) a Responsible Officer of the Trustee shall
have knowledge of such default or (B) the Trustee shall have received written notice thereof from the Company, from any Holder,
from the holder of any such indebtedness or from the trustee under any such mortgage, indenture or other instrument; or
(6) 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 its creditors;
or
(7) a court of competent jurisdiction enters 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 90 days; or
(8) any other Event of Default provided with respect to Securities
of that series.
As used in this Section 501, the term “Bankruptcy
Law” means title 11, U.S. Code or any similar Federal or state law for the relief of debtors and the term “Custodian”
means any receiver, trustee, assignee, liquidator or other similar official under any Bankruptcy Law.
Section 502 Acceleration
of Maturity; Rescission and Annulment. If an Event of Default with respect to Securities of any series at the time Outstanding
occurs and is continuing, then and in every such case the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if Securities of that Series are Original Issue Discount
Securities or Indexed Securities, such portion of the principal as may be specified in the terms thereof) of all the Securities
of that series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by the Holders),
and upon any such declaration such principal or specified portion thereof shall become immediately due and payable.
At any time after such a declaration of acceleration with respect
to Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities of
that series, by written notice to the Company and the Trustee, may rescind and annul such declaration of acceleration and its consequences
if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the currency, currency unit or composite currency in which the Securities of such series are payable (except
as otherwise specified pursuant to Section 301 for the Securities of such series):
(A) all overdue installments of interest on all Outstanding
Securities of that series and any related coupons,
(B) the principal of (and premium or Make-Whole Amount, if any,
on) any Outstanding Securities of that series which have become due otherwise than by such declaration of acceleration and interest
thereon at the rate or rates borne by or provided for in such Securities,
(C) to the extent that payment of such interest is lawful, interest
upon overdue installments of interest at the rate or rates borne by or provided for in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of (or premium or Make-Whole Amount, if any) or interest on Securities of that
series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair
any right consequent thereon.
Section 503 Collection
of Indebtedness and Suits for Enforcement by Trustee. The Company covenants that if:
(1) default is made in the payment of any installment of interest
on any Security of any series and any related coupon when such interest becomes due and payable and such default continues for
a period of 30 days, or
(2) default is made in the payment of the principal of (or premium
or Make-Whole Amount, if any, on) any Security of any series at its Maturity, then the Company will, upon demand of the Trustee,
pay to the Trustee, for the benefit of the Holders of such Securities of such series and coupons, the whole amount then due and
payable on such Securities and coupons for principal (and premium or Make-Whole Amount, if any) and interest, with interest upon
any overdue principal (and premium or Make-Whole Amount, if any) and, to the extent that payment of such interest shall be legally
enforceable, upon any overdue installments of interest at the rate or rates borne by or provided for in such Securities, and, in
addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection
of the sums so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may enforce the same against
the Company or any other obligor upon such Securities of such series and collect the moneys adjudged or decreed to be payable in
the manner provided by law out of the property of the Company or any other obligor upon such Securities of such series, wherever
situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders
of Securities of such series and any related coupons by such appropriate judicial proceedings as the Trustee shall deem necessary
to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or
in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 504 Trustee
May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities
or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal
of the Securities of any series shall then be due and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the Company for the payment of overdue principal, premium or Make-Whole Amount,
if any, or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of such series, of principal (and premium or Make-Whole Amount, if any)
and interest owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator (or other similar official) in any such judicial proceeding is hereby authorized by each Holder of Securities of such
series and coupons 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 and any predecessor Trustee, their agents and counsel, and any other amounts due the Trustee or any
predecessor Trustee under Section 606.
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 a Security or coupon any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or coupons or the rights of any Holder thereof, or to authorize the Trustee
to vote in respect of the claim of any Holder of a Security or coupon in any such proceeding.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the Trustee shall be a party) the Trustee shall be held
to represent all the Holders of the Securities, and it shall not be necessary to make any Holders of the Securities parties to
any such proceedings.
Section 505 Trustee
May Enforce Claims Without Possession of Securities or Coupons. All rights of action and claims under this Indenture or any
of the Securities or coupons may be prosecuted and enforced by the Trustee without the possession of any of the Securities or coupons
or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought
in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities and coupons in respect of which such judgment has been recovered.
Section 506 Application
of Money Collected. Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal (or premium or Make-Whole
Amount, if any) or interest, upon presentation of the Securities or coupons, or both, as the case may be, and the notation thereon
of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities and coupons for principal (and premium or Make-Whole Amount, if any) and interest, in respect of which or for the
benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the aggregate
amounts due and payable on such Securities and coupons for principal (and premium or Make-Whole Amount, if any) and interest, respectively;
and
THIRD: To the payment of the remainder, if any, to the Company.
Section 507 Limitation
on Suits. No Holder of any Security of any series or any related coupon shall have any right to institute any proceeding, judicial
or otherwise, with respect to this Indenture or the Securities or any related coupon, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities
of that series;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture or the Securities or any related coupon, except in the manner
herein provided and for the equal and ratable benefit of all such Holders.
Section 508 Unconditional
Right of Holders to Receive Principal, Premium or Make-Whole Amount, if any, and Interest. Notwithstanding any other provision
in this Indenture, the Holder of any Security or coupon shall have the right which is absolute and unconditional to receive payment
of the principal of (and premium or Make-Whole Amount, if any) and (subject to Sections 305 and 307) interest on such Security
or payment of such coupon on the respective due dates expressed in such Security or coupon (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the
consent of such Holder.
Section 509 Restoration
of Rights and Remedies. If the Trustee or any Holder of a Security or coupon has instituted any proceeding to enforce any right
or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely
to the Trustee or to such Holder, then and in every such case, the Company, the Trustee and the Holders of Securities and coupons
shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder
and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 510 Rights
and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities or coupons in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders of Securities or coupons is intended to be exclusive of any other right or remedy, and every right
and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder
or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 511 Delay
or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Security or coupon to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may
be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders of Securities or coupons,
as the case may be.
Section 512 Control
by Holders of Securities. The Holders of not less than a majority in principal amount of the Outstanding Securities of any
series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee with respect to the Securities of such series, provided
that:
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve
it in personal liability or be unduly prejudicial to the Holders of Securities of such series not joining therein.
Nothing in this Indenture shall impair the right of the Trustee
in its discretion to take any action deemed proper by the Trustee and which is not inconsistent with such direction by Holders.
Section 513 Waiver
of Past Defaults. The Holders of not less than a majority in principal amount of the Outstanding Securities of any series may
on behalf of the Holders of all the Securities of such series and any related coupons waive any past default hereunder with respect
to such series and its consequences, except a default
(1) in the payment of the principal of (or premium or Make-Whole
Amount, if any) or interest on any Security of such series or any related coupons, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected;
or
(3) in respect of a covenant or provision hereof for the benefit
or protection of the Trustee, without its express written consent.
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 Event of Default or impair any right consequent thereon.
Section 514 Waiver
of Usury, Stay or Extension Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension
law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture;
and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been enacted.
Section 515 Undertaking
for Costs. All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture,
or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit
of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable
attorneys’ fees and expenses, against any party litigant in such suit having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount
of the Outstanding Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium or Make-Whole Amount, if any) or interest on any Security on or after the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on or after the Redemption Date).
Article
Six - THE TRUSTEE
Section 601 Notice
of Defaults. Within 90 days after the occurrence of any default hereunder with respect to the Securities of any series, the
Trustee shall transmit in the manner and to the extent provided in TIA Section 313(c), notice of such default hereunder known
to the Trustee, unless such default shall have been cured or waived; provided, however, that, except in the case
of a default in the payment of the principal of (or premium or Make-Whole Amount, if any) or interest on any Security of such
series, or in the payment of any sinking or purchase fund installment with respect to the 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 determine that the withholding of such notice is in the
interests of the Holders of the Securities and coupons of such series; and provided further that in the case of
any default or breach of the character specified in Section 501(4) with respect to the Securities and coupons of such series,
no such notice to Holders shall be given until at least 60 days after the occurrence thereof. For the purpose of this Section,
the term “default” means any event which is, or after notice or lapse of time or both would become, an Event of Default
with respect to the Securities of such series.
Section 602 Certain
Rights of Trustee. Subject to the provisions of TIA Section 315(a) through 315(d):
(1) the Trustee may conclusively rely and shall be fully protected
in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon or other paper or document (whether in its original or facsimile form)
reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order (other than delivery of any Security, together with any coupons
appertaining thereto, to the Trustee for authentication and delivery pursuant to Section 303 which shall be sufficiently evidenced
as provided therein) and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(3) 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;
(4) the Trustee may consult with counsel of its own selection
and the written 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;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities of any series
or any related coupons pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity
reasonably satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(6) 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 or other paper or document, unless requested in writing so to do by the Holders of
not less than a majority in aggregate principal amount of the Outstanding Securities of any series; provided that, if the
payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making
of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Indenture, the Trustee may require reasonable indemnity against such expenses or liabilities as a condition to
proceeding; the reasonable expenses of every such examination shall be paid by the Holders or, if paid by the Trustee, shall be
repaid by the Holders upon demand. 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, relevant to the facts or matters that are the subject of its inquiry,
personally or by agent or attorney at the expense of the Company and shall incur no liability or additional liability of any kind
by reason of such inquiry or investigation;
(7) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(8) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred
upon it by this Indenture;
(9) any permissive right or power available to the Trustee under
this Indenture or any supplement hereto shall not be construed to be a mandatory duty or obligation;
(10) the Trustee shall not be charged with knowledge of any
matter (including any default, other than as described in Section 501(1), (2) or (3)) unless and except to the extent
actually known to a Responsible Officer of the Trustee or to the extent written notice thereof is received by the Trustee at the
Corporate Trust Office;
(11) the Trustee shall have no liability for any inaccuracy
in the books and records of, or for any actions or omissions of, DTC, Euroclear or Clearstream or any depository acting on behalf
of any of them;
(12) 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 by the Trustee to act hereunder;
and
(13) the Trustee may request that the Company deliver an Officers’
Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions
pursuant to this Indenture, which Officers’ Certificate may be signed by any person authorized to sign an Officers’
Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.
The Trustee shall not be required 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 adequate indemnity against
such risk or liability is not reasonably assured to it.
Except during the continuance of an Event of Default, the Trustee
undertakes to perform 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.
Section 603 Not
Responsible for Recitals or Issuance of Securities. The recitals contained herein and in the Securities, except the Trustee’s
certificate of authentication, and in any coupons shall be taken as the statements of the Company, and neither the Trustee nor
any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities or coupons, except that the Trustee represents that it is duly authorized
to execute and deliver this Indenture, authenticate the Securities and perform its obligations hereunder. Neither the Trustee nor
any Authenticating Agent shall be accountable for the use or application by the Company of Securities or the proceeds thereof.
The Trustee shall have no responsibility with respect to any information, statement or recital in any offering prospectus or other
disclosure materials prepared or distributed with respect to the Securities.
Section 604 May
Hold Securities. The Trustee, any Paying Agent, Security Registrar, Authenticating Agent or any other agent of the Company,
in its individual or any other capacity, may become the owner or pledgee of Securities and coupons and, subject to TIA Sections
310(b) and 311, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Paying Agent, Security
Registrar, Authenticating Agent or such other agent.
Section 605 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 in
writing with the Company.
Section 606 Compensation
and Reimbursement. The Company agrees:
(1) to pay to the Trustee as agreed upon in writing from time
to time reasonable 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
each of the Trustee and any predecessor Trustee upon its request for all reasonable expenses, and disbursements incurred by the
Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the reasonable expenses and
disbursements of its agents and counsel), except any such expense or disbursement as shall be determined to have been caused by
its own negligence, willful misconduct or bad faith; and
(3) to indemnify each of the Trustee and any predecessor Trustee
for, and to hold it harmless against, any loss, liability, claim, damage or expense incurred without negligence, willful misconduct
or bad faith on its 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 itself against any claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(7) or Section 501(8), the expenses (including the reasonable charges
and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under
any applicable Federal or state bankruptcy, insolvency or other similar law.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien for payment of the Trustee’s fees and expenses prior to the Securities
upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of
(or premium or Make-Whole Amount, if any) or interest on particular Securities or any coupons.
The provisions of this Section shall survive the termination
of this Indenture and the resignation or removal of the Trustee.
Section 607 Corporate
Trustee Required; Eligibility; Conflicting Interests. There shall at all times be a Trustee hereunder which shall be eligible
to act as Trustee under TIA Section 310(a)(1) and shall have at all times a combined capital and surplus of at least $50,000,000
(or which shall have a combined capital and surplus of at least $10,000,000 and whose ultimate parent holding company shall have
a combined capital and surplus of at least $50,000,000. If the Trustee publishes reports of condition at least annually, pursuant
to law or the requirements of Federal, state, territorial or District of Columbia supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of the Trustee 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. Neither the Company nor any Person directly or indirectly controlling, controlled by, or under common control with the
Company shall serve as Trustee.
Section 608 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 609.
(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 an instrument of acceptance by a successor Trustee shall
not have been delivered to the Trustee within 60 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.
(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 an instrument of acceptance by a successor Trustee shall not have been delivered
to the Trustee within 60 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.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
TIA Section 310(b) after written request therefor by the Company or by any Holder of a Security 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 607
and shall fail to resign after written request therefor by the Company or by any Holder of a Security who has been a bona fide
Holder of a Security for at least six months, 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 or pursuant
to a Board Resolution may remove the Trustee and appoint a successor Trustee with respect to all Securities, or (ii) subject
to TIA Section 315(e), any Holder of a Security 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 or pursuant to 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). If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee with respect to the Securities of such series and
to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities
of any series shall have been so appointed by the Company or the Holders of Securities and accepted appointment in the manner hereinafter
provided, any Holder of a Security 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 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 in the manner provided for notices to the Holders of Securities in Section 106. 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 609 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 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, subject nevertheless to its claim, if any, provided for in Section 606.
(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, pursuant to Article
Nine hereof, 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 609, 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 610 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 of 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. In case any Securities
or coupons 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 or coupons so authenticated
with the same effect as if such successor Trustee had itself authenticated such Securities or coupons. In case any Securities or
coupons shall not have been authenticated by such predecessor Trustee, any such successor Trustee may authenticate and deliver
such Securities or coupons, in either its own name or that of its predecessor Trustee, with the full force and effect which this
Indenture provides for the certificate of authentication of the Trustee.
Section
611 Appointment of Authenticating Agent. At any time when any of
the Securities remain Outstanding, the Trustee may appoint an Authenticating Agent or Agents with respect to one or more
series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series
issued upon conversion or exchange, registration of transfer or partial redemption or repayment thereof, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Any such appointment shall be evidenced by an instrument in writing signed by a
Responsible Officer of the Trustee, a copy of which instrument shall be promptly furnished to the Company. 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 bank or trust company or corporation
organized and doing business and in good standing under the laws of the United States of America or of any state or the
District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not
less than $50,000,000 and subject to supervision or examination by Federal or state authorities. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section, 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. In
case at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.
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, without the execution or filing of any paper or further act on the part of the Trustee or the Authenticating
Agent.
An Authenticating Agent for any series of Securities may at
any time resign by giving written notice of resignation to the Trustee for such series and to the Company. The Trustee for any
series of Securities may at any time terminate the agency of an Authenticating Agent by giving written notice of termination 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, the Trustee
for such series may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give notice of
such appointment to all Holders of Securities of the series with respect to which such Authenticating Agent will serve in the manner
set forth in Section 106. 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 herein. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation including reimbursement of its reasonable expenses for its services under this Section, subject
to Section 606.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to or in lieu of the Trustee’s
certificate of authentication, an alternate certificate of authentication substantially 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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Section 612 Certain
Duties and Responsibilities of the Trustee.
(a) With respect to the Securities of any series, except during
the continuance of an Event of Default with respect to the Securities of such 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 which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under
a duty to examine the same to determine whether or not they conform to the requirements of this Indenture, but shall not be under
any duty to verify the contents or accuracy thereof.
(b) In case an Event of Default with respect to the Securities
of any series has occurred and is continuing, the Trustee shall, with respect to Securities of such series, 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 man
would exercise or use under the circumstances in the conduct of his 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
taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount
of the Outstanding Securities of any series relating to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the
Securities of such series; 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 adequate indemnity against such risk or liability is not reasonably assured to it; and, the Trustee shall be under no obligation
to exercise any of its rights and powers under this Indenture at the request of any Holder, unless such Holder shall have offered
to the Trustee security and indemnity satisfactory to it against any loss, liability or expense.
(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 612.
(e) The Trustee shall not be liable for
interest on any money or assets held by it except to the extent the Trustee may agree in writing with the Company. Assets held
in trust by the Trustee need not be segregated from other assets except to the extent required by law.
Article
Seven - HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701 Disclosure
of Names and Addresses of Holders. Every Holder of Securities or coupons, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee nor any Authenticating Agent nor any Paying Agent nor any Security
Registrar shall be held accountable by reason of the disclosure of any information as to the names and addresses of the Holders
of Securities in accordance with TIA Section 312, regardless of the source from which such information was derived, and that
the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under TIA Section 312(b).
Section 702 Reports
by Trustee. The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture
as may be required by TIA Section 313 at the times and in the manner provided by the TIA, which shall initially be not less
than every twelve months commencing on ,
20 . A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee
with each over-the-counter market or securities exchange, if any, upon which any Securities are quoted or listed, with the Commission
and with the Company. The Company will notify the Trustee when any Securities are quoted or listed on any over-the-counter market
or securities exchange or delisted therefrom.
Section 703 Reports
by Company. The Company will:
(1) file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe)
which the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act; or, if the Company is not required to file information, documents or reports pursuant to either of such Sections, then it
will file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission,
such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of
the Exchange Act in respect of a security quoted or listed and registered on an over-the-counter market or national securities
exchange as may be prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants of this Indenture as may be required from time to time by
such rules and regulations;
(3) transmit by mail to the Holders of Securities, within 30
days after the filing thereof with the Trustee, in the manner and to the extent provided in TIA Section 313(c), such summaries
of any information, documents and reports required to be filed by the Company pursuant to paragraphs (1) and (2) of this
Section as may be required by rules and regulations prescribed from time to time by the Commission; and
(4) 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).
Section 704 Company
to Furnish Trustee Names and Addresses of Holders. The Company will furnish or cause to be furnished to the Trustee:
(a) semiannually, not later than 15 days after the Regular Record
Date for interest for each series of Securities, a list, in such form as the Trustee may reasonably require, of the names and addresses
of the Holders of Registered Securities of such series as of such Regular Record Date, or if there is no Regular Record Date for
interest for such series of Securities, semiannually, upon such dates as are set forth in the Board Resolution or indenture supplemental
hereto authorizing such series, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than
15 days prior to the time such list is furnished, provided, however, that, so long as the Trustee is the Security
Registrar, no such list shall be required to be furnished.
Article
Eight - CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
Section 801 Consolidations
and Mergers of Company and Sales, Leases and Conveyances Permitted Subject to Certain Conditions. The Company may consolidate
with, or sell, lease or convey all or substantially all of its assets to, or merge with or into any other corporation, provided
that in any such case, (1) either the Company shall be the continuing corporation, or the successor corporation shall be a
corporation organized and existing under the laws of the United States or a State thereof and such successor corporation shall
expressly assume the due and punctual payment of the principal of (and premium or Make-Whole Amount, if any) and any interest on
all of the Securities, according to their tenor, and the due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed by the Company by supplemental indenture, complying with Article Nine hereof, satisfactory
to the Trustee, executed and delivered to the Trustee by such corporation, (2) immediately after giving effect to such transaction
and treating any indebtedness which becomes an obligation of the Company as a result thereof as having been incurred by the Company
at the time of such transaction, no Event of Default, and no event which, after notice or the lapse of time, or both, would become
an Event of Default, shall have occurred and be continuing and (3) the Company shall have delivered to the Trustee the Officer’s
Certificate and Opinion of Counsel required pursuant to Section 803 below.
Section 802 Rights
and Duties of Successor Corporation. In case of any such consolidation, merger, sale, lease or conveyance and upon any such
assumption by the successor corporation, such successor corporation shall succeed to and be substituted for the Company, with the
same effect as if it had been named herein as the party of the first part, and the predecessor corporation, except in the event
of a lease, shall be relieved of any further obligation under this Indenture and the Securities. Such successor corporation thereupon
may cause to be signed, and may issue either in its own name or in the name of the Company, any or all of the Securities issuable
hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the order of such
successor corporation, instead of the Company, and subject to all the terms, conditions and limitations in this Indenture prescribed,
the Trustee shall authenticate and shall deliver any Securities which previously shall have been signed and delivered by the officers
of the Company to the Trustee for authentication, and any Securities which such successor corporation thereafter shall cause to
be signed and delivered to the Trustee for that purpose. All the Securities so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance,
such changes in phraseology and form (but not in substance) may be made in the Securities thereafter to be issued as may be appropriate.
Section 803 Officers’
Certificate and Opinion of Counsel. Any consolidation, merger, sale, lease or conveyance permitted under Section 801 is
also subject to the condition that the Trustee receive an Officers’ Certificate and an Opinion of Counsel to the effect that
any such consolidation, merger, sale, lease or conveyance, and the assumption by any successor corporation, complies with the provisions
of this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.
Article
Nine - SUPPLEMENTAL INDENTURES
Section 901 Supplemental
Indentures Without Consent of Holders. Without the consent of any Holders of Securities or coupons, the Company, when authorized
by or pursuant to a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the Company contained herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power
herein conferred upon the Company; or
(3) to add any additional Events of Default for the benefit
of the Holders of all or any series of Securities (and if such Events of Default are to be for the benefit of less than all series
of Securities, stating that such Events of Default are expressly being included solely for the benefit of such series); provided,
however, that in respect of any such additional Events of Default such supplemental indenture may provide for a particular
period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide
for an immediate enforcement upon such default or may limit the remedies available to the Trustee upon such default or may limit
the right of the Holders of a majority in aggregate principal amount of that or those series of Securities to which such additional
Events of Default apply to waive such default; or
(4) to add to or change any of the provisions of this Indenture
to provide that Bearer Securities may be registrable as to principal, to change or eliminate any restrictions on the payment of
principal of or premium or Make-Whole Amount, if any, or interest on Bearer Securities, to permit Bearer Securities to be issued
in exchange for Registered Securities, to permit Bearer Securities to be issued in exchange for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of Securities in uncertificated form, provided that any such action
shall not adversely affect the interests of the Holders of Securities of any series or any related coupons in any material respect;
or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series
and any related coupons as permitted or contemplated by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one
Trustee; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture which shall not be inconsistent with the provisions of this Indenture, provided
such provisions shall not adversely affect the interests of the Holders of Securities of any series or any related coupons in any
material respect; or
(10) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the Defeasance and discharge of any series of Securities pursuant to
Sections 401, 1402 and 1403; provided that any such action shall not adversely affect the interests of the Holders of Securities
of such series and any related coupons or any other series of Securities in any material respect; or
(11) to make provisions with respect to Holders’ rights
of conversion with respect to any series of Securities pursuant to Article Seventeen.
Section 902 Supplemental
Indentures with Consent of Holders. With the consent of the Holders of not less than a majority in principal amount of all
Outstanding Securities affected by such supplemental indenture, by Act of said Holders delivered to the Company and the Trustee,
the Company, when authorized by or pursuant to a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture
or of modifying in any manner the rights of the Holders of Securities and any related coupons under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected
thereby:
(1) change the Stated Maturity of the principal of (or premium
or Make-Whole Amount, if any, on) or any installment of principal of or interest on, any Security; or reduce the principal amount
thereof or the rate or amount of interest thereon, or any premium or Make-Whole Amount payable upon the redemption thereof, or
reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon a declaration of acceleration
of the Maturity thereof pursuant to Section 502 or the amount thereof provable in bankruptcy pursuant to Section 504,
or adversely affect any right of repayment at the option of the Holder of any Security, or change any Place of Payment where, or
the currency or currencies, currency unit or units or composite currency or currencies in which, any Security or any premium or
Make-Whole Amount or the interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof (or, in the case of redemption or repayment at the option of the Holder, on or after the
Redemption Date or the Repayment Date, as the case may be), or (if Securities of such series are convertible) adversely affect
the right of the Holder to convert any Security as provided in Article Seventeen, or modify the provisions of this Indenture with
respect to the subordination of the Securities in a manner materially adverse to the Holders; or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver with respect to such series (or compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or reduce the requirements of Section 1504 for
quorum or voting, or
(3) modify any of the provisions of this Section, Section 513
or Section 1009, except to increase the required percentage to effect such action or to provide that certain other provisions
of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby,
provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes
in the references to “the Trustee” and concomitant changes in this Section 902 and Section 1009, or the deletion
of this proviso, in accordance with the requirements of Sections 609(b) and 901(11).
It shall not be necessary for any Act of Holders under this
Section 902 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
Section 903 Execution
of Supplemental Indentures. In executing, or accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modification thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 612) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or
otherwise.
Section 904 Effect
of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder and of any coupon appertaining thereto shall be
bound thereby.
Section 905 Conformity
with Trust Indenture Act. Every supplemental indenture executed pursuant to this Article shall conform to the requirements
of the Trust Indenture Act as then in effect.
Section
906 Reference in Securities to Supplemental Indentures. Securities
of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall,
if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee
and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered
by the Trustee in exchange for Outstanding Securities of such series.
Article
Ten- COVENANTS
Section 1001 Payment
of Principal, Premium or Make-Whole Amount, if any; and Interest. The Company covenants and agrees for the benefit of the
Holders of each series of Securities that it will duly and punctually pay the principal of (and premium or Make-Whole Amount,
if any) and interest on the Securities of that series in accordance with the terms of such series of Securities, any coupons appertaining
thereto and this Indenture. Unless otherwise specified as contemplated by Section 301 with respect to any series of Securities,
any interest due on Bearer Securities on or before Maturity shall be payable only upon presentation and surrender of the several
coupons for such interest installments as are evidenced thereby as they severally mature. Unless otherwise specified with respect
to Securities of any series pursuant to Section 301, at the option of the Company (upon written notice to the Trustee), all
payments of principal may be paid by check to the registered Holder of the Registered Security or other Person entitled thereto
against surrender of such Security.
Section 1002 Maintenance
of Office or Agency. If Securities of a series are issuable only as Registered Securities, the Company shall 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 or conversion, where Securities of that series may be surrendered for registration of transfer or conversion 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.
If Securities of a series are issuable as Bearer Securities, the Company will maintain: (A) in the Borough of Manhattan, The
City of New York, an office or agency where any Registered Securities of that series may be presented or surrendered for payment
or conversion, where any Registered Securities of that series may be surrendered for registration of transfer, where Securities
of that series may be surrendered for conversion or exchange, where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served and where Bearer Securities of that series and related coupons may be
presented or surrendered for payment or conversion in the circumstances described in the following paragraph (and not otherwise);
(B) subject to any laws or regulations applicable thereto, in a Place of Payment for that series which is located outside
the United States, an office or agency where Securities of that series and related coupons may be presented and surrendered for
payment; provided, however, that if the Securities of that series are listed on any stock exchange located outside
the United States and such stock exchange shall so require, the Company will maintain a Paying Agent for the Securities of that
series in any required city located outside the United States, as the case may be, so long as the Securities of that series are
listed on such exchange; and (C) subject to any laws or regulations applicable thereto, in a Place of Payment for that series
located outside the United States an office or agency where any Registered Securities of that series may be surrendered for registration
of transfer, where Securities of that series may be surrendered for conversion 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 each 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, except that Bearer Securities
of that series and the related coupons may be presented and surrendered for payment or conversion at the offices specified in the
Security, in London, England, and the Company hereby appoints the same as its agent to receive such respective presentations, surrenders,
notices and demands, and the Company hereby appoints the Trustee its agent to receive all such presentations, surrenders, notices
and demands.
Unless otherwise specified with respect to any Securities pursuant
to Section 301, no payment of principal, premium or Make-Whole Amount or interest on Bearer Securities shall be made at any
office or agency of the Company in the United States or by check mailed to any address in the United States or by transfer to an
account maintained with a bank located in the United States; provided, however, that, if the Securities of a series
are payable in Dollars, payment of principal of and any premium or Make-Whole Amount and interest on any Bearer Security shall
be made at the office of the Company’s Paying Agent in the Borough of Manhattan, The City of New York, if (but only if) payment
in Dollars of the full amount of such principal, premium or Make-Whole Amount, or interest, as the case may be, at all offices
or agencies outside the United States maintained for the purpose by the Company in accordance with this Indenture, is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may from time to time designate one or more other
offices or agencies (in or outside the Place of Payment) where the Securities of one or more series may be presented or surrendered
for any or all of 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 accordance
with the requirements set forth above 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. Unless
otherwise specified with respect to any Securities pursuant to Section 301 with respect to a series of Securities, the Company
hereby designates as a Place of Payment for each series of Securities, each of (i) the office or agency of the Company in
the Borough of Manhattan, The City of New York, and (ii) the Corporate Trust Office of the Trustee (as Paying Agent); and
the Company hereby initially appoints the Trustee at its Corporate Trust Office as Paying Agent in such city; and the Company hereby
initially appoints as its agent to receive all such presentations, surrenders, notices and demands each of the Trustee, at its
Corporate Trust Office.
Unless otherwise specified with respect to any Securities pursuant
to Section 301, if and so long as the Securities of any series (i) are denominated in a Foreign Currency or (ii) may
be payable in a Foreign Currency, or so long as it is required under any other provision of the Indenture, then the Company will
maintain with respect to each such series of Securities, or as so required, at least one exchange rate agent (of which it shall
give written notice to the Trustee).
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 any Securities and any related coupons, it will, on or before each due date of the principal of (and premium or Make-Whole
Amount, if any), or interest on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum in the currency or currencies, currency unit or units or composite currency or currencies in which the Securities
of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series) sufficient
to pay the principal (and premium or Make-Whole Amount, 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 and any related coupons, it will, on or before each due date of the principal of (and premium or Make-Whole
Amount, if any), or interest on any Securities of that series, deposit with a Paying Agent a sum (in the currency or currencies,
currency unit or units or composite currency or currencies described in the preceding paragraph) sufficient to pay the principal
(and premium or Make-Whole Amount, 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 Make-Whole Amount, if any, 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 principal of
(and premium or Make-Whole Amount, if any) or interest on Securities 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) in the making of any such payment of principal (and premium or Make-Whole Amount, if any)
or interest on 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 such 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 sums.
Except as otherwise provided in the Securities of any series,
and subject to applicable laws, 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 or Make-Whole Amount, if any) or interest on any Security of any series and remaining
unclaimed for two years after such principal (and premium or Make-Whole Amount, if any) or interest has become due and payable
shall be paid to the Company upon 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 of such principal
of (and premium or Make-Whole Amount, if any) or interest on any Security, without interest thereon, 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, 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 publication, any unclaimed balance
of such money then remaining will be repaid to the Company.
Section 1004 Existence.
Subject to Article Eight, the Company will do or cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence, all material rights (by certificate of incorporation, bylaws and statute) and material franchises;
provided, however, that the Company shall not be required to preserve any such right or franchise if the Board of
Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company.
Section 1005 Maintenance
of Properties. The Company will cause all of its material properties used or useful in the conduct of its business to be maintained
and kept in good condition, repair and working order, normal wear and tear, casualty and condemnation excepted, and supplied with
all necessary equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and improvements
thereof (and the Company may take out of service for a period of time, any of its properties that have been condemned or suffered
any loss due to casualty in order to make such repairs, betterments and improvements), all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be properly and advantageously conducted at all times;
provided, however, that the Company shall not be prevented from (i) removing permanently any property that
has been condemned or suffered a loss due to casualty based on the Company’s reasonable judgment that such removal is in
the best interest of the Company, or (ii) selling or otherwise disposing of its properties for value in the ordinary course
of business.
Section
1006 Insurance. The Company will cause its insurable properties
to be insured against loss or damage in an amount deemed reasonable by the Board of Directors with insurers of recognized
responsibility.
Section 1007 Payment
of Taxes and Other Claims. The Company will pay or discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or imposed upon it or upon the income, profits or
property of the Company, and (2) all lawful claims for labor, materials and supplies which, if unpaid, might by law become
a lien upon the property of the Company; provided, however, that the Company shall not be required to pay or discharge
or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested
in good faith by appropriate proceedings.
Section 1008 Statement
as to Compliance. The Company will deliver to the Trustee, within 120 days after the end of each fiscal year, a brief certificate
from the principal executive officer, principal financial officer or principal accounting officer as to his or her knowledge of
the Company’s compliance with all conditions and covenants under this Indenture and, in the event of any noncompliance,
specifying such noncompliance and the nature and status thereof. For purposes of this Section 1008, such compliance shall
be determined without regard to any period of grace or requirement of notice under this Indenture.
Section
1009 Waiver of Certain Covenants. The Company may omit in any particular
instance to comply with any term, provision or condition set forth in Sections 1004 to 1008, inclusive, if before or after the
time for such compliance the Holders of at least a majority in principal amount of all outstanding Securities of such series, 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 term, provision
or condition shall remain in full force and effect.
Article
Eleven - 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 or pursuant to a
Board Resolution. In case of any redemption at the election of the Company of less than all of the Securities of any series, the
Company shall, at least 45 days prior to the giving of the notice of redemption in Section 1104 (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 issued on the same day with the same
terms 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 issued on such date with the same terms not previously called
for redemption, by such method as the Trustee shall deem fair and appropriate and which 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.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) 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 Security redeemed or to be redeemed
only in part, to the portion of the principal amount of such Security 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 106, not less than 30 days nor more
than 60 days prior to the Redemption Date, unless a shorter period is specified by the terms of such series established pursuant
to Section 301, to each Holder of Securities to be redeemed, but failure to give such notice in the manner herein provided
to the Holder of any Security designated for redemption as a whole or in part, or any defect in the notice to any such Holder,
shall not affect the validity of the proceedings for the redemption of any other such Security or portion thereof.
Any notice that is mailed to the Holders of Registered Securities
in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, accrued interest to the Redemption
Date payable as provided in Section 1106, if any,
(3) if less than all Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial redemption, the principal amount) of the particular Security or
Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the Redemption Date, upon surrender of such Security, the holder
will receive, without a charge, a new Security or Securities of authorized denominations for the principal amount thereof remaining
unredeemed,
(5) that on the Redemption Date the Redemption Price and accrued
interest to the Redemption Date payable as provided in Section 1106, if any, will become due and payable upon each such Security,
or the portion thereof, to be redeemed and, if applicable, that interest thereon shall cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities, together
in the case of Bearer Securities with all coupons appertaining thereto, if any, maturing after the Redemption Date, are to be surrendered
for payment of the Redemption Price and accrued interest, if any, or for conversion,
(7) that the redemption is for a sinking fund, if such is the
case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be accompanied by all coupons maturing subsequent to the date
fixed for redemption or the amount of any such missing coupon or coupons will be deducted from the Redemption Price, unless security
or indemnity satisfactory to the Company, the Trustee for such series and any Paying Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and
any Registered Securities of such series are not to be redeemed, and if such Bearer Securities may be exchanged for Registered
Securities not subject to redemption on this Redemption Date pursuant to Section 305 or otherwise, the last date, as determined
by the Company, on which such exchanges may be made,
(10) the CUSIP number of such Security, if any, and
(11) if applicable, that a Holder of Securities who desires
to convert Securities for redemption must satisfy the requirements for conversion contained in such Securities, the then existing
conversion price or rate, the place or places where such Securities may be surrendered for conversion, and the date and time when
the option to convert shall expire.
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, by the Trustee in the name and at the expense
of the Company.
Section 1105 Deposit
of Redemption Price. On or prior to 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, which it may not do in the case of a sinking fund payment under Article
Twelve, segregate and hold in trust as provided in Section 1003) an amount of money in the currency or currencies, currency
unit or units or composite currency or currencies in which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) sufficient to pay on the Redemption Date the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities or portions thereof
which are to be redeemed on that date.
If any Securities called for redemption are converted, any money
deposited with the Trustee or with any Paying Agent or so segregated and held in trust for the redemption of such Security shall
be paid to the Company upon Company Request or, if then held by the Company, shall be discharged from such trust.
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 in the currency or currencies, currency unit
or units or composite currency or currencies in which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) (together with accrued interest, if any, to the Redemption Date),
and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such
Securities shall, if the same were interest-bearing, cease to bear interest and the coupons for such interest appertaining to any
Bearer Securities so to be redeemed, except to the extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons, if any, appertaining thereto maturing after the Redemption
Date, such Security shall be paid by the Company at the Redemption Price, together with accrued interest, if any, to the Redemption
Date; provided, however, that installments of interest on Bearer Securities whose Stated Maturity is on or prior
to the Redemption Date shall be payable only at an office or agency located outside the United States (except as otherwise provided
in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon presentation and surrender
of coupons for such interest; and provided further that except as otherwise provided with respect to Securities convertible
into the Company’s Common Stock or Preferred Stock, installments of interest on Registered Securities 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 Bearer Security surrendered for redemption shall not
be accompanied by all appurtenant coupons maturing after the Redemption Date, such Security may be paid after deducting from the
Redemption Price an amount equal to the face amount of all such missing coupons, or the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee if there be furnished to them such security or indemnity as they may require to save
each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to the Trustee or any Paying
Agent any such missing coupon in respect of which a deduction shall have been made from the Redemption Price, such Holder shall
be entitled to receive the amount so deducted; provided, however, that interest represented by coupons shall be payable
only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise
specified as contemplated by Section 301, only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium or Make-Whole Amount, if any) shall, until paid, bear interest from
the Redemption Date at the rate borne by the Security.
Section
1107 Securities Redeemed in Part. Any Registered Security which is
to be redeemed only in part (pursuant to the provisions of this Article or of Article Twelve) 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 Security or Securities of the same series, 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. If a Global Security
is so surrendered, the Company shall execute and the Trustee shall authenticate and deliver to the depository, without service
charge, a new Global Security in a denomination equal to and in exchange for the unredeemed portion of the principal of the Global
Security so surrendered.
Article
Twelve- 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 such Securities of any series is herein referred to as an “optional
sinking fund payment.” If provided for by the terms of any Securities of any series, the cash amount of any mandatory 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 may, in satisfaction of all or any part of any mandatory sinking fund
payment with respect to the Securities of a series, (1) deliver Outstanding Securities of such series (other than any previously
called for redemption) together in the case of any Bearer Securities of such series with all unmatured coupons appertaining thereto
and (2) apply as a credit Securities of such 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, as provided for by the terms of such Securities, or which have otherwise been acquired by the Company; provided
that such Securities so delivered or applied as a credit have not been previously so credited. Such Securities shall be received
and credited for such purpose by the Trustee at the applicable Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such mandatory sinking fund payment shall be reduced accordingly.
Section 1203 Redemption
of Securities for Sinking Fund. Not less than 60 days prior to each sinking fund payment date for Securities of any series,
the Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing mandatory sinking
fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment
of cash in the currency or currencies, currency unit or units or composite currency or currencies in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series) and the portion
thereof, if any, which is to be satisfied by delivering and crediting Securities of that series pursuant to Section 1202,
and the optional amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and will also deliver
to the Trustee any Securities to be so delivered and credited. If such Officers’ Certificate shall specify an optional amount
to be added in cash to the next ensuing mandatory sinking fund payment, the Company shall thereupon be obligated to pay the amount
therein specified. 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
Thirteen - REPAYMENT AT THE OPTION OF HOLDERS
Section 1301 Applicability
of Article. Repayment of Securities of any series before their Stated Maturity at the option of Holders thereof shall be made
in accordance with the terms of such Securities, if any, and (except as otherwise specified by the terms of such series established
pursuant to Section 301) in accordance with this Article.
Section 1302 Repayment
of Securities. Securities of any series subject to repayment in whole or in part at the option of the Holders thereof will,
unless otherwise provided in the terms of such Securities, be repaid at a price equal to the principal amount thereof, together
with interest, if any, thereon accrued to the Repayment Date specified in or pursuant to the terms of such Securities. The Company
covenants that on or prior to the Repayment Date it will 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 in the currency
or currencies, currency unit or units or composite currency or currencies in which the Securities of such series are payable (except
as otherwise specified pursuant to Section 301 for the Securities of such series) sufficient to pay the principal (or, if
so provided by the terms of the Securities of any series, a percentage of the principal) of, and (except if the Repayment Date
shall be an Interest Payment Date) accrued interest on, all the Securities or portions thereof, as the case may be, to be repaid
on such date.
Section 1303 Exercise
of Option. Securities of any series subject to repayment at the option of the Holders thereof will contain an “Option
to Elect Repayment” form on the reverse of such Securities. In order for any Security to be repaid at the option of the
Holder, the Trustee must receive at the Place of Payment therefor specified in the terms of such Security (or at such other place
or places of which the Company shall from time to time notify the Holders of such Securities) not earlier than 60 days nor later
than 30 days prior to the Repayment Date (1) the Security so providing for such repayment together with the “Option
to Elect Repayment” form on the reverse thereof duly completed by the Holder (or by the Holder’s attorney duly authorized
in writing) or (2) a telegram, telex, facsimile transmission or a letter from a member of a national securities exchange,
or the FINRA, or a commercial bank or trust company in the United States setting forth the name of the Holder of the Security,
the principal amount of the Security, the principal amount of the Security to be repaid, the CUSIP number, if any, or a description
of the tenor and terms of the Security, a statement that the option to elect repayment is being exercised thereby and a guarantee
that the Security to be repaid, together with the duly completed form entitled “Option to Elect Repayment” on the
reverse of the Security, will be received by the Trustee not later than the fifth Business Day after the date of such telegram,
telex, facsimile transmission or letter; provided, however, that such telegram, telex, facsimile transmission or
letter shall only be effective if such Security and form duly completed are received by the Trustee by such fifth Business Day.
If less than the entire principal amount of such Security is to be repaid in accordance with the terms of such Security, the principal
amount of such Security to be repaid, in increments of the minimum denomination for Securities of such series, and the denomination
or denominations of the Security or Securities to be issued to the Holder for the portion of the principal amount of such Security
surrendered that is not to be repaid, must be specified. The principal amount of any Security providing for repayment at the option
of the Holder thereof may not be repaid in part if, following such repayment, the unpaid principal amount of such Security would
be less than the minimum authorized denomination of Securities of the series of which such Security to be repaid is a part. Except
as otherwise may be provided by the terms of any Security providing for repayment at the option of the Holder thereof, exercise
of the repayment option by the Holder shall be irrevocable unless waived by the Company.
Section
1304 When Securities Presented for Repayment Become Due and
Payable. If Securities of any series providing for repayment at the option of the Holders thereof shall have been
surrendered as provided in this Article and as provided by or pursuant to the terms of such Securities, such Securities or
the portions thereof, as the case may be, to be repaid shall become due and payable and shall be paid by the Company on the
Repayment Date therein specified, and on and after such Repayment Date (unless the Company shall default in the payment of
such Securities on such Repayment Date) such Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be repaid, except to the extent provided below,
shall be void. Upon surrender of any such Security for repayment in accordance with such provisions, together with all
coupons, if any, appertaining thereto maturing after the Repayment Date, the principal amount of such Security so to be
repaid shall be paid by the Company, together with accrued interest, if any, to the Repayment Date; provided, however,
that coupons whose Stated Maturity is on or prior to the Repayment Date shall be payable only at an office or agency located
outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified pursuant to
Section 301, only upon presentation and surrender of such coupons; and provided further that, in the case of Registered
Securities, installments of interest, if any, whose Stated Maturity is on or prior to the Repayment Date shall be payable
(but without interest thereon, unless the Company shall default in the payment thereof) 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 Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such Security may be paid after deducting from the amount
payable therefor as provided in Section 1302 an amount equal to the face amount of all such missing coupons, or the surrender
of such missing coupon or coupons may be waived by the Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to the Trustee or any Paying Agent any such missing coupon in respect of which a deduction shall have been made as provided in
the preceding sentence, such Holder shall be entitled to receive the amount so deducted; provided, however, that
interest represented by coupons shall be payable only at an office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon presentation and
surrender of those coupons.
If the principal amount of any Security surrendered for repayment
shall not be so repaid upon surrender thereof, such principal amount (together with interest, if any, thereon accrued to such Repayment
Date) shall, until paid, bear interest from the Repayment Date at the rate of interest or Yield to Maturity (in the case of Original
Issue Discount Securities) set forth in such Security.
Section 1305 Securities
Repaid in Part. Upon surrender of any Registered Security which is to be repaid in part only, the Company shall execute and
the Trustee shall authenticate and deliver to the Holder of such Security, without service charge and at the expense of the Company,
a new Registered Security or Securities of the same series, of any authorized denomination specified by the Holder, in an aggregate
principal amount equal to and in exchange for the portion of the principal of such Security so surrendered which is not to be repaid.
Article
Fourteen - DEFEASANCE AND COVENANT DEFEASANCE
Section 1401 Applicability
of Article; Company’s Option to Effect Defeasance or Covenant Defeasance. If, pursuant to Section 301, provision
is made for either or both of (a) Defeasance of the Securities of or within a series under Section 1402 or (b) Covenant
Defeasance of the Securities of or within a series under Section 1403, then the provisions of such Section or Sections, as
the case may be, together with the other provisions of this Article (with such modifications thereto as may be specified pursuant
to Section 301 with respect to any Securities), shall be applicable to such Securities and any coupons appertaining thereto,
and the Company may at its option by Board Resolution, at any time, with respect to such Securities and any coupons appertaining
thereto, elect to have Section 1402 (if applicable) or Section 1403 (if applicable) be applied to such Outstanding Securities
and any coupons appertaining thereto upon compliance with the conditions set forth below in this Article.
Section
1402 Defeasance and Discharge. Upon the Company’s exercise
of the above option applicable to this Section with respect to any Securities of or within a series, the Company shall be
deemed to have been discharged from its obligations with respect to such Outstanding Securities and any coupons appertaining
thereto on the date the conditions set forth in Section 1404 are satisfied (hereinafter, “Defeasance”). For
this purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness
represented by such Outstanding Securities and any coupons appertaining thereto, which shall thereafter be deemed to be
“Outstanding” only for the purposes of Section 1405 and the other Sections of this Indenture referred to in
clauses (A) and (B) below, and to have satisfied all of its other obligations under such Securities and any coupons
appertaining thereto and this Indenture insofar as such Securities and any coupons appertaining thereto are concerned (and
the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged hereunder: (A) the rights of Holders of such
Outstanding Securities and any coupons appertaining thereto to receive, solely from the trust fund described in
Section 1404 and as more fully set forth in such Section, payments in respect of the principal of (and premium or
Make-Whole Amount, if any) and interest, if any, on such Securities and any coupons appertaining thereto when such payments
are due, (B) the Company’s obligations with respect to such Securities under Sections 305, 306, 1002 and 1003, and
the Company’s obligations under Section 606 hereof (C) the rights, powers, trusts, duties and immunities of
the Trustee hereunder and (D) this Article. Subject to compliance with this Article Fourteen, the Company may exercise
its option under this Section notwithstanding the prior exercise of its option under Section 1403 with respect to such
Securities and any coupons appertaining thereto.
Section 1403 Covenant
Defeasance. Upon the Company’s exercise of the above option applicable to this Section with respect to any Securities
of or within a series, the Company shall be released from its obligations under Sections 1004 to 1009, inclusive, and, if specified
pursuant to Section 301, its obligations under any other covenant contained herein or in any indenture supplemental hereto,
with respect to such Outstanding Securities and any coupons appertaining thereto on and after the date the conditions set forth
in Section 1404 are satisfied (hereinafter, “Covenant Defeasance”), and such Securities and any coupons appertaining
thereto shall thereafter be deemed to be 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 Sections 1004 to 1009, inclusive, or such other covenant,
but shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance
means that, with respect to such Outstanding Securities and any coupons appertaining thereto, 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 Section or such other covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason
of reference in any such Section or such other 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(4) or 501(8) or otherwise, as the case
may be, but, except as specified above, the remainder of this Indenture and such Securities and any coupons appertaining thereto
shall be unaffected thereby.
Section 1404 Conditions
to Defeasance or Covenant Defeasance. The following shall be the conditions to application of Section 1402 or Section 1403
to any Outstanding Securities of or within a series and any coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the requirements of Section 607 who shall agree to comply with
the provisions of this Article Fourteen applicable to it) as trust funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities and any coupons appertaining
thereto, (1) an amount in such currency, currencies or currency unit in which such Securities and any coupons appertaining
thereto are then specified as payable at Stated Maturity, or (2) Government Obligations applicable to such Securities and
coupons appertaining thereto (determined on the basis of the currency, currencies or currency unit in which such Securities and
coupons appertaining thereto are then specified as payable at Stated Maturity) which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment of principal
of (and premium or Make-Whole Amount, if any) and interest, if any, on such Securities and any coupons appertaining thereto, money
in an amount, or (3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment
of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, (i) the principal of (and premium or Make-Whole Amount, if any) and interest, if
any, on such Outstanding Securities and any coupons appertaining thereto on the Stated Maturity of such principal or installment
of principal or interest and (ii) any mandatory sinking fund payments or analogous payments applicable to such Outstanding
Securities and any coupons appertaining thereto on the day on which such payments are due and payable in accordance with the terms
of this Indenture and of such Securities and any coupons appertaining thereto.
(b) Such Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which
the Company is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse
of time or both would become an Event of Default with respect to such Securities and any coupons appertaining thereto shall have
occurred and be continuing on the date of such deposit or, insofar as Sections 501(6) and 501(7) are concerned, at any time during
the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied
until the expiration of such period).
(d) In the case of an election under Section 1402, the
Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling, or (ii) since the date of execution of this Indenture, there
has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such opinion shall
confirm that, the Holders of such Outstanding Securities and any coupons appertaining thereto will not recognize income, gain or
loss for Federal income tax purposes as a result of such 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 Defeasance had not occurred.
(e) In the case of an election under Section 1403, the
Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding Securities
and any coupons appertaining thereto 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.
(f) The Company shall have delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that all conditions precedent to the Defeasance under Section 1402 or
the Covenant Defeasance under Section 1403 (as the case may be) have been complied with and an Opinion of Counsel to the effect
that either (i) as a result of a deposit pursuant to subsection (a) above and the related exercise of the Company’s
option under Section 1402 or Section 1403 (as the case may be), registration is not required under the Investment Company
Act of 1940, as amended, by the Company, with respect to the trust funds representing such deposit or by the Trustee for such trust
funds or (ii) all necessary registrations under said Act have been effected.
(g) Notwithstanding any other provisions of this Section, such
Defeasance or Covenant Defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations
which may be imposed on the Company in connection therewith pursuant to Section 301.
(h) The payment of amounts payable to the Trustee pursuant to
this Indenture shall be paid or provided for to the reasonable satisfaction of the Trustee.
Section 1405 Deposited
Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions. Subject to the provisions of the last
paragraph of Section 1003, all money and Government Obligations (or other property as may be provided pursuant to Section 301)
(including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 1405,
the “Trustee”) pursuant to Section 1404 in respect of any Outstanding Securities of any series and any coupons
appertaining thereto shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and
any coupons appertaining thereto and this Indenture, to the payment, either directly or through any Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities and any coupons appertaining
thereto of all sums due and to become due thereon in respect of principal (and premium or Make-Whole Amount, if any) and interest,
but such money need not be segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant
to Section 301, if, after a deposit referred to in Section 1404(a) has been made, (a) the Holder of a Security in
respect of which such deposit was made is entitled to, and does, elect pursuant to Section 301 or the terms of such Security
to receive payment in a currency or currency unit other than that in which the deposit pursuant to Section 1404(a) has been
made in respect of such Security, or (b) a Conversion Event occurs in respect of the currency or currency unit in which the
deposit pursuant to Section 1404(a) has been made, the indebtedness represented by such Security and any coupons appertaining
thereto shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and
premium or Make-Whole Amount, if any), and interest, if any, on such Security as the same becomes due out of the proceeds yielded
by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in
respect of such Security into the currency or currency unit in which such Security becomes payable as a result of such election
or Conversion Event based on the applicable market exchange rate for such currency or currency unit in effect on the second Business
Day prior to each payment date, except, with respect to a Conversion Event, for such currency or currency unit in effect (as nearly
as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Section 1404 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 such Outstanding Securities and any coupons appertaining thereto.
Anything in this Article to the contrary notwithstanding, subject
to Section 606, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or Government
Obligations (or other property and any proceeds therefrom) held by it as provided in Section 1404 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 which would then be required to be deposited to effect a Defeasance or Covenant Defeasance,
as applicable, in accordance with this Article.
Article
Fifteen- MEETINGS OF HOLDERS OF SECURITIES
Section 1501 Purposes
for Which Meetings May Be Called. A meeting of Holders of Securities of any 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 1502 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 1501, to be held at such time and at such place 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 106,
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 25% in principal amount of the Outstanding Securities of any series shall have requested the Trustee
to call a meeting of the Holders of Securities of such series for any purpose specified in Section 1501, 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 20 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 for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in subsection (a) of this Section.
Section 1503 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 1504 Quorum;
Action. The Persons entitled to vote a majority in principal amount of the Outstanding Securities of a series shall constitute
a quorum for a meeting of Holders of Securities of such series; provided, however, that if any action is to be taken
at such meeting with respect to a consent or waiver which this Indenture expressly provides may be given by the Holders of not
less than a specified percentage in principal amount of the Outstanding Securities of a series, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding Securities of such series shall constitute a quorum. In the absence
of a quorum within 30 minutes after 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 the reconvening
of any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 10 days; at the reconvening
of any meeting adjourned or further adjourned for lack of a quorum, the Persons entitled to vote 25% in aggregate principal amount
of the then Outstanding Securities shall constitute a quorum for the taking of any action set forth in the notice of the original
meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in Section 1502(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.
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 Persons entitled to vote a majority in aggregate principal amount of the Outstanding Securities represented at such
meeting; provided, however, that, except as limited by the proviso to Section 902, any resolution with respect
to any request, demand, authorization, direction, notice, consent, waiver or other action which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage, which is less than a majority, in 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 principal amount of the Outstanding
Securities of that series.
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 and the related coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504,
if any action is to be taken at a meeting of Holders of Securities of any series with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action that this Indenture expressly provides may be made, given or taken by the Holders
of a specified percentage in principal amount of all Outstanding Securities affected thereby, or of the Holders of such series
and one or more additional series:
(i) there shall be no minimum quorum requirement for such meeting;
and
(ii) the principal amount of the Outstanding Securities of such
series that vote in favor of such request, demand, authorization, direction, notice, consent, waiver or other action shall be taken
into account in determining whether such request, demand, authorization, direction, notice, consent, waiver or other action has
been made, given or taken under this Indenture.
Section 1505 Determination
of Voting Rights; Conduct and Adjournment of Meetings.
(a) Notwithstanding any provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of Holders of Securities of a series in regard to
proof of the holding of Securities of such series and of the appointment of proxies and in regard to the appointment and duties
of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such
other matters concerning the conduct of the meeting as it shall deem appropriate. Except as otherwise permitted or required by
any such regulations, the holding of Securities shall be proved in the manner specified in Section 104 and the appointment
of any proxy shall be proved in the manner specified in Section 104 or by having the signature of the Person executing the
proxy witnessed or guaranteed by any trust company, bank or banker authorized by Section 104 to certify to the holding of
Bearer Securities. 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 104 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 1502(b), in which case the Company or the Holders of Securities of the series calling the meeting, as the case
may be, shall in like manner 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 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
or proxy shall be entitled to one vote for each $1,000 principal amount 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 proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1502 at which a quorum is present may be adjourned from time to time by Persons entitled to vote
a majority in 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 1506 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 said 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 fact, setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 1502
and, if applicable, Section 1504. 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.
Article
Sixteen- SUBORDINATION OF SECURITIES
Section 1601 Agreement
to Subordinate. Notwithstanding anything in this Indenture to the contrary (other than Article Four of this Indenture),
the Company covenants and agrees, and each Holder of a Security, by his acceptance thereof, likewise covenants and agrees, that,
to the extent and in the manner hereinafter set forth in this Article, the Indebtedness represented by the Securities and the payment
of any Obligations with respect to each and all of the Securities are hereby expressly made subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness.
Section 1602 Payment
Over of Proceeds upon Dissolution, Etc. In the event of (a) any insolvency or bankruptcy case or Proceeding, or any receivership,
liquidation, reorganization or other similar case or Proceeding in connection therewith, relative to the Company or to its creditors,
as such, or to its assets, or (b) any liquidation, dissolution or other winding up of the Company, whether voluntary or involuntary
and whether or not involving insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or any other marshaling
of assets and liabilities of the Company, then and in any such event specified in (a), (b) or (c) above (each such event,
if any, herein sometimes referred to as a “Proceeding”)
(1) the holders of Senior Indebtedness shall first be entitled
to receive payment in full of all Obligations due or to become due on or in respect of all Senior Indebtedness, or provision shall
be made for such payment in cash or cash equivalents or otherwise in a manner satisfactory to the holders of Senior Indebtedness,
before the Holders of the Securities are entitled to receive any payment or distribution on account of principal of or premium,
if any, or interest on or other Obligations in respect of the Securities or on account of any purchase, redemption or other acquisition
of Securities by the Company (individually and collectively, a “Securities Payment”), and
(2) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities (other than Capital Stock or securities of the Company as reorganized
or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment,
the payment of which is subordinate, at least to the extent provided in this Article Sixteen with respect to the Securities,
to the payment in full, without diminution or modification by such plan, of all Senior Indebtedness), to which the Holders would
be entitled except for the provisions of this Article Sixteen, shall be paid by the liquidating trustee or agent or other
person making such a payment or distribution, directly to the holders of Senior Indebtedness) (or their representative(s) or trustee(s)
acting on their behalf), ratably according to the aggregate amounts remaining unpaid on account of the principal of or interest
on and other amounts due on the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full
of all Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such
Senior Indebtedness.
In the event that, notwithstanding the foregoing provisions
of this Section 1602, the Trustee or the Holder of any Security shall have received any payment or distribution of assets
of the Company of any kind or character, whether in cash, property or securities (other than Capital Stock or securities of the
Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization
or readjustment, the payment of which is subordinate, at least to the extent provided in this Article with respect to the Securities,
to the payment in full, without diminution or modification by such plan, of Senior Indebtedness), before all Senior Indebtedness
is paid in full or payment thereof provided for in cash or cash equivalents or otherwise in a manner satisfactory to the holders
of Senior Indebtedness, such payment or distribution shall be held in trust for the benefit of, and be paid over to, the holders
of the Senior Indebtedness remaining unpaid (or their representative(s) or trustee(s) acting on their behalf), ratably as aforesaid,
for application to the payment of such Senior Indebtedness until such Senior Indebtedness shall have been paid in full, after giving
effect to any concurrent payment or distribution to the holders of such Senior Indebtedness.
The consolidation of the Company with, or the merger of the
Company into, another Person or the liquidation or dissolution of the Company following the conveyance or transfer of all or substantially
all of its properties and assets as an entirety to another Person upon the terms and conditions set forth in Article Eight shall
not be deemed a Proceeding for the purposes of this Section 1602 if the Person formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or transfer such properties and assets as an entirety, as the
case may be, shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions set forth in Article
Eight.
Section 1603 No
Payment When Senior Indebtedness in Default. Anything in this Indenture to the contrary notwithstanding, no payment on account
of principal of or redemption of, interest on or other amounts due on the Securities, and no redemption, purchase, or other acquisition
of the Securities, shall be made by or on behalf of the Company (i) unless full payment of amounts then due for principal
and interest and of all other obligations then due on all Senior Indebtedness has been made or duly provided for pursuant to the
terms of the instrument governing such Senior Indebtedness, (ii) if, at the time of such payment, redemption, purchase or
other acquisition, or immediately after giving effect thereto, there shall exist under any Senior Indebtedness, or any agreement
pursuant to which any Senior Indebtedness is issued, any default, which default shall not have been cured or waived and which default
shall have resulted in the full amount of such Senior Indebtedness being declared due and payable or (iii) if, at the time
of such payment, redemption, purchase or other acquisition, the Trustee shall have received written notice from the holder or holders
of any Senior Indebtedness or their representative or representatives (a “Payment Blockage Notice”) that there exists
under such Senior Indebtedness, or any agreement pursuant to which such Senior Indebtedness is issued, any default, which default
shall not have been cured or waived, permitting the holders thereof to declare the full amount of such Senior Indebtedness due
and payable, but only for the period (the “Payment Blockage Period”) commencing on the date of receipt of the Payment
Blockage Notice and ending (unless earlier terminated by notice given to the Trustee by the Holders of such Senior Indebtedness)
on the earlier of (A) the date on which such event of default shall have been cured or waived or (B) 180 days from the
receipt of the Payment Blockage Notice. Upon termination of a Payment Blockage Period, payments on account of principal of or interest
on the Securities and redemptions, purchases or other acquisitions may be made by or on behalf of the Company. Notwithstanding
anything herein to the contrary, (A) only one Payment Blockage Notice may be given during any period of 360 consecutive days
with respect to the same event of default and any other events of default on the same issue of Senior Indebtedness existing and
known to the person giving such notice at the time of such notice and (B) no new Payment Blockage Period may be commenced
by the holder or holders of the same issue of Senior Indebtedness or their representative or representatives during any period
of 360 consecutive days unless all events of default which were the object of the immediately preceding Payment Blockage Notice,
and any other event of default on the same issue of Senior Indebtedness existing and known to the person giving such notice at
the time of such notice, have been cured or waived.
In the event that, notwithstanding the provisions of this Section 1603,
payments are made by or on behalf of the Company in contravention of the provisions of this Section 1603, such payments shall
be held by the Trustee, any Paying Agent or the Holders, as applicable, in trust for the benefit of, and shall be paid over to
and delivered to, the holders of Senior Indebtedness or their representative or the trustee under the indenture or other agreement
(if any), pursuant to which any instruments evidencing any Senior Indebtedness may have been issued, as their respective interests
may appear, for application to the payment of all Senior Indebtedness remaining unpaid to the extent necessary to pay all Senior
Indebtedness in full in accordance with the terms of such Senior Indebtedness, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
The provisions of this Section shall not apply to any payment
with respect to which Section 1602 would be applicable.
Section 1604 Reliance
by Senior Indebtedness on Subordination Provisions. Each Holder of any Security by his acceptance thereof acknowledges and
agrees that the foregoing subordination provisions are, and are intended to be, an inducement and a consideration for each holder
of any Senior Indebtedness, whether such Senior Indebtedness was created or acquired before or after the issuance of the Securities,
to acquire and continue to hold, or to continue to hold, such Senior Indebtedness, and such holder of Senior Indebtedness shall
be deemed conclusively to have relied on such subordination provisions in acquiring and continuing to hold or in continuing to
hold such Senior Indebtedness.
Section 1605 Subrogation
to Rights of Holders of Senior Indebtedness. Subject to the payment in full of all Obligations due or to become due on or in
respect of Senior Indebtedness, or the provision for such payment in cash or cash equivalents or otherwise in a manner satisfactory
to the holders of Senior Indebtedness, the Holders of the Securities shall be subrogated to the extent of the payments or distributions
made to the holders of such Senior Indebtedness pursuant to the provisions of this Article Sixteen to the rights of the holders
of such Senior Indebtedness to receive payments and distributions of cash, property and securities applicable to the Senior Indebtedness
until the principal of and premium, if any, and interest on the Securities shall be paid in full. For purposes of such subrogation,
no payments or distributions to the holders of the Senior Indebtedness of any cash, property or securities to which the Holders
of the Securities or the Trustee would be entitled except for the provisions of this Article Sixteen, and no payments over
pursuant to the provisions of this Article Sixteen to the holders of Senior Indebtedness by Holders of the Securities or the
Trustee, shall, as among the Company, its creditors other than holders of Senior Indebtedness and the Holders of the Securities,
be deemed to be a payment or distribution by the Company to or on account of the Senior Indebtedness.
Section 1606 Provisions
Solely to Define Relative Rights. The provisions of this Article Sixteen are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities on the one hand and the holders of Senior Indebtedness on the other
hand. Nothing contained in this Article or elsewhere in this Indenture or in the Securities is intended to or shall (a) impair,
as among the Company, its creditors other than holders of Senior Indebtedness and the Holders of the Securities, the obligation
of the Company, which is absolute and unconditional (and which, subject to the rights under this Article Sixteen of the holders
of Senior Indebtedness, is intended to rank equally with all other general obligations of the Company), to pay to the Holders of
the Securities the principal of and premium, if any, and interest on the Securities as and when the same shall become due and payable
in accordance with their terms; or (b) affect the relative rights against the Company of the Holders of the Securities and
creditors of the Company other than the holders of Senior Indebtedness; or (c) prevent the Trustee or the Holder of any Security
from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if
any, under this Article of the holders of Senior Indebtedness to receive cash, property and securities otherwise payable or deliverable
to the Trustee or such Holder.
Section 1607 Trustee
to Effectuate Subordination. Each Holder of a Security by his acceptance thereof authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate, as between the Holders of the Securities and the holders
of Senior Indebtedness, the subordination provided in this Article Sixteen and appoints the Trustee his attorney-in-fact for
any and all such purposes, including, in the event of any dissolution, winding up or liquidation or reorganization under any applicable
bankruptcy law of the Company (whether in bankruptcy, insolvency or receivership Proceedings or otherwise), the timely filing of
a claim for the unpaid balance of such Holder’s Securities in the form required in such Proceedings and the causing of such
claim to be approved. If the Trustee does not file a claim or proof of debt in the form required in such Proceedings prior to 30
days before the expiration of the time to file such claims or proofs, then the holders of Senior Indebtedness, jointly, or their
representatives shall have the right to file an appropriate claim for and on behalf of the Holders and to demand, sue for, collect,
receive and receipt for the payments and distributions in respect of the Securities which are required to be paid or delivered
to the holders of Senior Indebtedness as provided in this Article Sixteen and to take all such other action in the name of the
Holders or otherwise, as such holder of Senior Indebtedness or representative thereof may determine to be necessary or appropriate
for the enforcement of the provisions of this Article Sixteen.
Section 1608 No
Waiver of Subordination Provisions. No right of any present or future holder of any Senior Indebtedness to enforce subordination
as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder or any representative or trustee therefor, or by any non-compliance
by the Company with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof any such holder
may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time from time to time, without the consent of or notice to the Trustee
or the Holders of the Securities, without incurring responsibility to the Holders of the Securities and without impairing or releasing
the subordination provided in this Article Sixteen or the obligations hereunder of the Holders of the Securities to the holders
of Senior Indebtedness, do any one or more of the following: (i) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, Senior Indebtedness, or otherwise amend or supplement in any manner Senior Indebtedness
or any instrument evidencing the same or any agreement under which Senior Indebtedness is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise securing Senior Indebtedness; (iii) release any
Person liable in any manner for the collection of Senior Indebtedness and settle or compromise Senior Indebtedness (which, to the
extent so settled and compromised, shall be deemed to have been paid in full for all purposes hereof); (iv) apply any amounts
received to any liability of the Company owing to holders of Senior Indebtedness; and (v) exercise or refrain from exercising
any rights against the Company and any other Person.
Section 1609 Notice
to Trustee. The Company shall give prompt written notice to the Trustee of any default or event of default with respect to
any Senior Indebtedness or of any fact known to the Company which would prohibit the making of any payment to or by the Trustee
in respect of the Securities pursuant to the provisions of this Article Sixteen. Notwithstanding the provisions of this Article Sixteen
or any other provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts which
would prohibit the making of any payment to or by the Trustee in respect of the Securities, unless and until the Trustee shall
have received written notice thereof from the Company or a holder of Senior Indebtedness or from any representative or trustee
acting on their behalf; and, prior to the receipt of any such written notice, the Trustee, subject to the provisions of Section 612,
shall be entitled in all respects to assume that no such facts exist; provided, however, that if the Trustee shall
not have received the notice provided for in this Section at least three Business Days prior to the date upon which by the terms
hereof any money may become payable for any purpose (including, without limitation, the payment of the principal of and premium,
if any, or interest on any Security), then, anything herein contained to the contrary notwithstanding, the Trustee shall have
full power and authority to receive such money and to apply the same to the purpose for which such money was received and shall
not be affected by any notice to the contrary which may be received by it within three Business Days prior to such date. Nothing
contained in this Article Sixteen or any other Article of this Indenture or in any of the Securities shall prevent (a) the
Company, at any time except during the pendency of any Proceeding, or under the conditions described in Section 1603, from
making payments at any time in respect of the Securities, or (b) the application by the Trustee of any money deposited with
it hereunder to the payment of or on account of the Securities, or the retention thereof by any Holder, if the Trustee did not
have notice, as provided in this Section 1609, that such payment would have been prohibited by the provisions of this Article Sixteen.
Subject to the provisions of Section 612, the Trustee shall
be entitled to rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Indebtedness
(or a representative or trustee therefor) to establish that such notice has been given by a holder of Senior Indebtedness (or a
trustee therefor). In the event that the Trustee determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Article Sixteen,
the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and
any other facts pertinent to the rights of such Person under this Article Sixteen, and if such evidence is not furnished,
the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such
payment.
Section 1610 Reliance
on Judicial Order or Certificate of Liquidating Agent. Upon any payment or distribution of assets of the Company referred
to in this Article Sixteen, the Trustee, subject to the provisions of Section 612, and the Holders of the Securities
shall be entitled to rely upon any order or decree entered by any court of competent jurisdiction in which any Proceeding is pending,
or a certificate of the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit of creditors,
agent or other Person making such payment or distribution, delivered to the Trustee or to the Holders of Securities, for the purpose
of ascertaining the Persons entitled to participate in such payment or distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and
all other facts pertinent thereto or to this Article.
Section 1611 Trustee
Not Fiduciary for Holders of Senior Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the holders
of Senior Indebtedness. Nothing contained in this Article Sixteen or elsewhere in this Indenture, or in any of the Securities,
shall prevent the application by the Trustee of any moneys which were deposited with it hereunder, prior to its receipt of written
notice of facts which would prohibit such application, for the purpose of the payment of or on account of the principal of or
interest on, the Securities unless, prior to the date on which such application is made by the Trustee, the Trustee shall be charged
with notice under Section 1609 hereof of the facts which would prohibit the making of such application.
Section 1612 Rights
of Trustee as Holder of Senior Indebtedness; Preservation of Trustee’s Rights. The Trustee in its individual capacity
shall be entitled to all the rights set forth in this Article Sixteen with respect to any Senior Indebtedness which may at
any time be held by it, to the same extent as any other holder of Senior Indebtedness, and nothing in this Indenture shall deprive
the Trustee of any of its rights as such holder. Nothing in this Article shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 606.
Section 1613 Article
Applicable to Paying Agents. In case at any time any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term “Trustee” as used in this Article Sixteen shall in such case (unless
the context otherwise requires) be construed as extending to and including such Paying Agent within its meaning as fully for all
intents and purposes as if such Paying Agent were named in this Article in addition to or in place of the Trustee; provided,
however, that Section 1612 shall not apply to the Company or any Affiliate of the Company if it or such Affiliate
acts as Paying Agent.
Article
Seventeen- CONVERSION OF SECURITIES
Section 1701 Applicability
of Article; Conversion Privilege and Conversion Price. Securities of any series which are convertible shall be convertible
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 Seventeen. Subject to and upon compliance with the provisions of this Article Seventeen, at
any time during the period specified in the Securities, at the option of the Holder thereof, any Security or any portion of the
principal amount thereof which is $1,000 or an integral multiple of $1,000 may be converted at the principal amount thereof, or
of such portion thereof, into fully paid and nonassessable shares (calculated as to each conversion to the nearest 1/100 of a share)
of Common Stock of the Company, at the Conversion Price, determined as hereinafter provided, in effect at the time of conversion.
In case a Security or portion thereof is called for redemption, such conversion right in respect of the Security or portion so
called shall expire at the close of business on the Business Day immediately preceding the Redemption Date, unless the Company
defaults in making the payment due upon redemption, in which case such conversion right shall terminate on the date such default
is cured.
The price at which shares of Common Stock shall be delivered
upon conversion (herein called the “Conversion Price”) of Securities of any series shall be specified in such Securities.
The Conversion Price shall be adjusted in certain instances as provided in Section 1704.
In case the Company shall, by dividend or otherwise, declare
or make a distribution on its Common Stock referred to in paragraph (4) of Section 1704, the Holder of each Security,
upon the conversion thereof pursuant to this Article Seventeen subsequent to the close of business on the date fixed for the
determination of stockholders entitled to receive such distribution and prior to the effectiveness of the Conversion Price adjustment
in respect of such distribution pursuant to paragraph (4) of Section 1704, shall be entitled to receive for each share
of Common Stock into which such Security is converted, the portion of the evidence of indebtedness, shares of Capital Stock or
assets so distributed applicable to one share of Common Stock; provided, however, that, at the election of the Company
(whose election shall be evidenced by a Board Resolution filed with the Trustee) with respect to all Holders so converting, the
Company may, in lieu of distributing to such Holder any portion of such distribution not consisting of cash or securities of the
Company, pay such Holder an amount in cash equal to the fair market value thereof (as determined in good faith by the Board of
Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee). If any conversion
of a Security entitled to the benefits described in the immediately preceding sentence occurs prior to the payment date for a distribution
to holders of Common Stock which the Holder of the Security so converted is entitled to receive in accordance with the immediately
preceding sentence, the Company may elect (such election to be evidenced by a Board Resolution filed with the Trustee) to distribute
to such Holder a due bill for the evidences of indebtedness, shares of Capital Stock or assets to which such Holder is so entitled,
provided that such due bill (i) meets any applicable requirements of the principal over-the-counter market or national securities
exchange or other market on which the Common Stock is then traded, and (ii) requires payment or delivery of such evidences
of indebtedness or assets no later than the date of payment or delivery thereof to holders of Common Stock receiving such distribution.
Section 1702 Exercise
of Conversion Privilege. In order to exercise the conversion privilege, the Holder of any Security to be converted shall surrender
such Security, duly endorsed or assigned to the Company or in blank, at any office or agency maintained by the Company pursuant
to Section 1002, accompanied by written notice to the Company at such office or agency that the Holder elects to convert such
Security or, if less than the entire principal amount thereof is to be converted, the portion thereof to be converted and shall
comply with any additional requirements set forth in such Security. Securities surrendered for conversion during the period from
the close of business on any Regular Record Date next preceding any Interest Payment Date to the opening of business on such Interest
Payment Date shall (except for Securities the Maturity of which is prior to such Interest Payment Date) be accompanied by payment
in funds acceptable to the Company of an amount equal to the interest payable on such Interest Payment Date on the principal amount
of Securities being surrendered for conversion and such interest shall be paid on such Interest Payment Date as provided in Section 307.
Except as provided in the preceding sentence, no payment or adjustment shall be made upon any conversion on account of any interest
accrued on the Securities surrendered for conversion or on account of any dividends on the Common Stock issued upon conversion.
The Company’s delivery to the Holder of the fixed number
of shares of the Common Stock of the Company (and any cash in lieu of any fractional share of Common Stock) into which the Security
is convertible shall be deemed to satisfy the Company’s obligation to pay the principal amount of the Security and all accrued
interest and original issue discount that has not previously been paid. The shares of Common Stock of the Company so delivered
shall be treated as issued first in payment of accrued interest and original issue discount and then in payment of principal. Thus,
accrued interest and original issue discount shall be treated as paid, rather than canceled, extinguished or forfeited.
Securities shall be deemed to have been converted immediately
prior to the close of business on the day of surrender of such Securities for conversion in accordance with the foregoing provisions,
and at such time the rights of the Holders of such Securities as Holders shall cease, and the Person or Persons entitled to receive
the Common Stock issuable upon conversion shall be treated for all purposes as the record holder or holders of such Common Stock
at such time. As promptly as practicable on or after the conversion date, the Company shall issue and shall deliver at such office
or agency a certificate or certificates for the number of full shares of Common Stock issuable upon conversion, together with payment
in lieu of any fraction of a share, as provided in Section 1703.
In the case of any Security which is converted in part only,
as promptly as practicable on or after the conversion date the Company shall execute and the Trustee shall authenticate and make
available for delivery to the Holder thereof (or the Depositary in the case of a Global Security), at the expense of the Company,
a new Security or Securities, of authorized denominations in aggregate principal amount equal to the unconverted portion of the
principal amount of such Security.
Section 1703 Fractions
of Shares. No fractional shares of Common Stock shall be issued upon conversion of Securities. If more than one Security shall
be surrendered for conversion at one time by the same Holder, the number of full shares of Common Stock which shall be issuable
upon conversion thereof shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions
thereof) so surrendered. Instead of any fractional share of Common Stock which would otherwise be issuable upon conversion of any
Security or Securities (or specified portions thereof), the Company shall pay a cash adjustment (rounded to the nearest cent) in
respect of such fraction in an amount equal to the same fraction of the Closing Price per share of the Common Stock on the day
of conversion (or, if such day is not a Trading Day, on the Trading Day immediately preceding such day).
Section 1704 Adjustment
of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(1) If the Company pays or makes a dividend or other distribution
(a) on its Common Stock exclusively in Common Stock or (b) on any other class of Capital Stock of the Company, which
dividend or distribution includes Common Stock of the Company, the Conversion Price in effect at the opening of business on the
day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution (the
“Dividend Record Date”) shall be reduced by multiplying such Conversion Price by a fraction of which the numerator
shall be the number of shares of Common Stock of the Company outstanding at the close of business on the Dividend Record Date and
the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution.
Such reduction shall become effective immediately after the opening of business on the day following the date fixed for such determination.
For the purposes of this paragraph (1), the number of shares of Common Stock of the Company at any time outstanding shall not include
shares held in the treasury of the Company, but shall include shares issuable in respect of scrip certificates issued in lieu of
fractions of shares of Common Stock. The Company shall not pay any dividend or make any distribution on shares of Common Stock
held in the treasury of the Company.
(2) Subject to paragraph (6) of this Section, if the Company
pays or makes a dividend or other distribution on its Common Stock consisting exclusively of Short Term Rights (as defined below),
or otherwise issues Short Term Rights to all holders of its Common Stock, the Conversion Price in effect at the opening of business
on the day following the record date for the determination of holders of Common Stock entitled to receive such Short Term Rights
(the “Rights Record Date”) shall be reduced by multiplying such Conversion Price by a fraction of which the numerator
shall be the number of shares of Common Stock of the Company outstanding at the close of business on the Rights Record Date plus
the number of shares of Common Stock of the Company which the aggregate of the offering price of the total number of shares of
Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the
number of shares of Common Stock of the Company outstanding at the close of business on the Rights Record Date plus the number
of shares of Common Stock so offered for subscription or purchase. Such reduction shall become effective immediately after the
opening of business on the day following the Rights Record Date. For the purposes of this paragraph (2), the number of shares of
Common Stock of the Company at any time outstanding shall not include shares held in the treasury of the Company, but shall include
shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock of the Company. The Company
shall not issue any rights, options or warrants in respect of shares of its Common Stock held in the treasury of the Company. When
used in this Section 1704, the term “Short Term Rights” shall mean rights, warrants or options entitling the holders
thereof (for a period commencing no earlier than the Rights Record Date and expiring not more than 45 days after the Rights Record
Date) to subscribe for or purchase shares of Common Stock of the Company at a price per share less than the current market price
per share (determined as provided in paragraph (7) of this Section 1704) of the Common Stock of the Company on the Rights
Record Date.
(3) In case outstanding shares of Common Stock of the Company
shall be subdivided into a greater number of shares of Common Stock, the Conversion Price in effect at the opening of business
on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in
case outstanding shares of Common Stock of the Company shall be combined into a smaller number of shares of Common Stock, the Conversion
Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be
proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of
business on the day following the day upon which such subdivision or combination becomes effective.
(4) Subject to the last sentence of this paragraph (4) of
this Section, if the Company, by dividend or otherwise, (a) distributes to all holders of its Common Stock evidences of its
indebtedness, shares of any class of Capital Stock of the Company or other assets (other than cash dividends out of current or
retained earnings), or (b) distributes to substantially all holders of Common Stock rights or warrants to subscribe for securities
(other than Short Term Rights to which paragraph (2) of this Section 1704 applies), the Conversion Price shall be reduced
by multiplying such Conversion Price by a fraction of which the numerator shall be the current market price per share (determined
as provided in paragraph (7) of this Section 1704) of the Common Stock of the Company on the Reference Date (as defined
below) less the fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive
and described in a Board Resolution filed with the Trustee), on the Reference Date, of the portion of the evidences of indebtedness
and other assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock (collectively,
the “Market Value of the Distribution”) and the denominator shall be such current market price per share of the Common
Stock of the Company. Such reduction shall become effective immediately prior to the opening of business on the day (the “Reference
Date”) following the later of (a) the date fixed for the payment of such distribution and (b) the date 20 days
after notice relating to such distribution is required to be given pursuant to Section 1706(a). If the Board of Directors
determines the fair market value of any distribution for purposes of this paragraph (4) by reference to the actual or when
issued trading market for any securities comprising such distribution, it must in doing so consider the prices in such market over
the same period used in computing the current market price per share pursuant to paragraph (7) of this Section 1704.
In the event that, with respect to any distribution to which this paragraph (4) of Section 1704 would otherwise apply,
the Market Value of the Distribution is greater than the current market price per share of the Common Stock (such distribution
being referred to herein as an “Unadjusted Distribution”), then the adjustment provided by this paragraph (4) shall
not be made and in lieu thereof the provisions of Section 1711 shall apply with respect to such Unadjusted Distribution.
(5) The Company may, but shall not be required to, make such
reductions in the Conversion Price, in addition to those required by paragraphs (1), (2), (3), and (4) of this Section 1704,
as it considers to be advisable in order that any event treated for federal income tax purposes as a dividend of stock or stock
rights shall not be taxable to the recipients. In addition, the Company, from time to time, may decrease the Conversion Price by
any amount and for any reason, temporarily or otherwise, including situations where the Board of Directors determines such decrease
to be fair and appropriate with respect to transactions in which holders of Common Stock have the right to participate.
(6) Rights or warrants issued or distributed by the Company
to all holders of its Common Stock entitling the holders thereof to subscribe for or purchase shares of Common Stock or Preferred
Stock, which rights or warrants (i) are deemed to be transferred with such shares of Common Stock, (ii) are not exercisable
and (iii) are also issued or distributed in respect of future issuances of Common Stock, in each case in clauses (i) through
(iii) until the occurrence of a specified event or events (“Trigger Events”), shall for purposes of this Section 1704
not be deemed issued or distributed until the occurrence of the earliest Trigger Event. Each share of Common Stock issued upon
conversion of Securities pursuant to this Article Seventeen shall be entitled to receive the appropriate number of Common Stock
purchase rights (the “Rights”), if any, and the certificates representing the Common Stock issued upon conversion shall
bear such legends, if any. Notwithstanding anything to the contrary in this Article Seventeen, there shall not be any adjustment
to the Conversion Price as a result of (i) the distribution of separate certificates representing the Rights; (ii) the
occurrence of certain events entitling holders of Rights to receive, upon exercise thereof, Common Stock or other securities of
the Company or other securities of another corporation; or (iii) the exercise of such Rights. No adjustment in the Conversion
Price need be made for rights to purchase or the sale of Common Stock pursuant to a Company plan providing for reinvestment of
dividends or interest.
(7) For the purpose of any computation under paragraph (2),
(4) or (5) of this Section 1704, the “current market price” per share of Common Stock of the Company
on any date shall be deemed to be the average of the daily Closing Prices for the 15 consecutive Trading Days selected by the Company
commencing not more than 30 Trading Days before, and ending not later than, the date in question.
(8) No adjustment in the Conversion Price shall be required
unless such adjustment would require an increase or decrease of at least 1% in the Conversion Price; provided, however,
that any adjustments which by reason of this paragraph (8) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this Article Seventeen shall be made to the nearest cent or to
the nearest one-hundredth of a share of Common Stock, as the case may be.
(9) Anything herein to the contrary notwithstanding, in the
event the Company shall declare any dividend or distribution requiring an adjustment in the Conversion Price hereunder and shall,
thereafter and before the payment of such dividend or distribution to stockholders, legally abandon its plan to pay such dividend
or distribution, the Conversion Price then in effect hereunder, if changed to reflect such dividend or distribution, shall upon
the legal abandonment of such plan be changed to the Conversion Price which would have been in effect at the time of such abandonment
(after giving effect to all other adjustments not so legally abandoned pursuant to the provisions of this Article Seventeen) had
such dividend or distribution never been declared.
(10) Notwithstanding any other provision of this Section 1704,
no adjustment to the Conversion Price shall reduce the Conversion Price below the then par value per share of the Common Stock
of the Company, and any such purported adjustment shall instead reduce the Conversion Price to such par value. Notwithstanding
the foregoing sentence, the Company hereby covenants that it will from time to time take all such action as may be required to
assure that the par value per share of the Common Stock is at all times equal to or less than the Conversion Price.
(11) In the event that this Article Seventeen requires adjustments
to the Conversion Price under more than one of paragraphs (1), (2), (3) or (4) of this Section 1704, and the
record or effective dates for the transaction giving rise to such adjustments shall occur on the same date, then such adjustments
shall be made by applying (to the extent they are applicable), first, the provisions of paragraph (3) of this Section 1704,
second, the provisions of paragraph (1) of this Section 1704, third, the provisions of paragraph (4) of this Section 1704
and, fourth, the provisions of paragraph (2) of this Section 1704. Anything herein to the contrary notwithstanding, no
single event shall require or result in duplicative adjustments in the Conversion Price pursuant to this Section 1704. After
an adjustment to the Conversion Price under this Article Seventeen, any subsequent event requiring an adjustment under this
Article Seventeen shall cause an adjustment to the Conversion Price as so adjusted. If, after an adjustment, a Holder of a Security
upon conversion of such Security receives shares of two or more classes of Capital Stock of the Company, the Conversion Price shall
thereafter be subject to adjustment upon the occurrence of an action taken with respect to any such class of Capital Stock as is
contemplated by this Article Seventeen with respect to the Common Stock in this Article Seventeen.
Section 1705 Notice
of Adjustments of Conversion Price. Whenever the Conversion Price is adjusted as herein provided:
(1) the Company shall compute the adjusted Conversion Price
in accordance with Section 1704 or Section 1711 and shall prepare an Officer’s Certificate setting forth the adjusted
Conversion Price and showing in reasonable detail the facts upon which such adjustment is based, and such certificate shall forthwith
be filed (with a copy to the Trustee) at each office or agency maintained for the purpose of conversion of any Securities pursuant
to Section 1002; and
(2) a notice stating that the Conversion Price has been adjusted
and setting forth the adjusted Conversion Price shall forthwith be required, and as soon as practicable after it is required, such
notice shall be mailed by the Company to all Holders at their last addresses as they shall appear in the Security Register.
Section 1706 Notice
of Certain Corporate Action. In case:
(1) the Company shall take any action that would require a Conversion
Price adjustment pursuant to Section 1704 or Section 1711; or
(2) there shall occur any reclassification of the Common Stock
of the Company (other than a subdivision or combination of its outstanding shares of Common Stock), or any consolidation or merger
to which the Company is a party, or the sale, transfer or lease of all or substantially all of the assets of the Company and for
which approval of any stockholders of the Company is required; or
(3) there shall occur the voluntary or involuntary dissolution,
liquidation or winding up of the Company, then the Company shall cause to be filed at each office or agency maintained for the
purpose of conversion of Securities pursuant to Section 1002, and shall cause to be mailed to all Holders at their last addresses
as they shall appear in the Security Register, at least 10 days prior to the applicable record, effective or expiration date hereinafter
specified, a notice stating (x) the date on which a record is to be taken for the purpose of any dividend, distribution or
granting of rights, warrants or options, or, if a record is not to be taken, the date as of which the holders of Common Stock of
record to be entitled to such dividend, distribution, rights, options or warrants are to be determined, or (y) the date on
which such reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding up is expected to become
effective, and, if applicable, the date as of which it is expected that holders of Common Stock of record shall be entitled to
exchange their shares of Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up.
Section 1707 Company
to Reserve Common Stock. The Company shall at all times reserve and keep available, free from preemptive rights, out of its
authorized but unissued Common Stock, for the purpose of effecting the conversion of Securities, a number of shares of Common Stock
for the conversion of all outstanding Securities of any series which is convertible into Common Stock.
Section 1708 Taxes
on Conversion. The Company will pay any and all taxes that may be payable in respect of the issue or delivery of shares of
Common Stock on conversion of Securities pursuant hereto. The Company shall not, however, be required to pay any tax which may
be payable in respect of any transfer involved in the issue and delivery of shares of Common Stock in a name other than that of
the Holder of the Security or Securities to be converted, and no such issue or delivery shall be made unless and until the Person
requesting such issue has paid to the Company the amount of any such tax, or has established to the satisfaction of the Company
that such tax has been paid.
Section 1709 Covenants
as to Common Stock. The Company covenants that all shares of Common Stock which may be issued upon conversion of Securities
will upon issue be duly and validly issued, fully paid and nonassessable, free of preemptive or any similar rights, and, except
as provided in Section 1708, the Company will pay all taxes, liens and charges with respect to the issue thereof.
The Company will endeavor promptly to comply with all Federal
and state securities laws regulating the offer and delivery of shares of Common Stock upon conversion of Securities, if any, and
will list or cause to have quoted such shares of Common Stock on each national securities exchange or in the over-the-counter market
or such other market on which the Common Stock is then listed or quoted.
Section 1710 Cancellation
of Converted Securities. All Securities delivered for conversion shall be delivered to the Trustee to be cancelled by or at
the direction of the Trustee, which shall dispose of the same as provided in Section 309.
Section 1711 Provisions
in Case of Consolidation, Merger or Sale of Assets; Special Distributions. If any of the following shall occur, namely: (i) any
reclassification or change of outstanding shares of Common Stock issuable upon conversion of Securities (other than a change in
par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination),
(ii) any consolidation or merger to which the Company is a party other than a merger in which the Company is the continuing
corporation and which does not result in any reclassification of, or change (other than a change in name, or par value, or from
par value to no par value, or from no par value to par value or as a result of a subdivision or combination) in, outstanding shares
of Common Stock or (iii) any sale or conveyance of all or substantially all of the property or business of the Company as
an entirety, then the Person formed by such consolidation or resulting from such merger or which acquires such properties or assets,
as the case may be, shall as a condition precedent to such transaction execute and deliver to the Trustee a supplemental indenture
providing that the Holder of each Security then outstanding shall have the right thereafter, during the period such Security shall
be convertible as specified in Section 1701, to convert such Security only into the kind and amount of securities, cash and
other property receivable, if any, upon such consolidation, merger, sale, transfer or lease by a holder of the number of shares
of Common Stock of the Company into which such Security might have been converted immediately prior to such consolidation, merger,
sale, transfer or lease; provided that the kind and amount of securities, cash and other property so receivable shall be determined
on the basis of the following assumptions. The holder of Common Stock referred to in the foregoing sentence:
(1) is not (a) a Person with which the Company consolidated,
(b) a Person into which the Company merged or which merged into the Company, or (c) a Person to which such sale, transfer
or lease was made (any Person described in the foregoing clauses (a), (b), or (c), hereinafter referred to as a “Constituent
Person”), or (d) an Affiliate of a Constituent Person; and
(2) failed to exercise his rights of election, if any, as to
the kind or amount of securities, cash and other property receivable upon such consolidation, merger, sale, transfer or lease (provided
that if the kind or amount of securities, cash and other property receivable upon such consolidation, merger, sale transfer or
lease is not the same for each share of Common Stock of the Company in respect of which such rights of election shall not have
been exercised, then for the purpose of this Section 1711 the kind and amount of securities, cash and other property receivable
upon such consolidation, merger, sale, transfer or lease shall be deemed to be the kind and amount so receivable per share by a
plurality of such shares of Common Stock).
Such supplemental indenture shall provide for adjustments which,
for events subsequent to the effective date of such supplemental indenture, shall be as nearly equivalent as may be practicable
to the adjustments provided for in this Article Seventeen. If, in the case of any such consolidation, merger, sale transfer
or lease the stock or other securities and property (including cash) receivable thereupon by a holder of Common Stock includes
shares of stock or other securities and property of a corporation other than the successor or purchasing corporation, as the case
may be, in such consolidation, merger, sale, transfer or lease then such supplemental indenture shall also be executed by such
other corporation and shall contain such additional provisions to protect the interests of the Holders of the Securities as the
Board of Directors of the Company shall reasonably consider necessary by reason of the foregoing. The above provisions of this
Section 1711 shall similarly apply to successive consolidations, mergers, sales, transfers or leases.
In the event the Company shall execute a supplemental indenture
pursuant to this Section 1711, the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating
the reasons therefor, the kind or amount of shares of stock or securities or property (including cash) receivable by Holders of
the Securities upon the conversion of their Securities after any such reclassification, change, consolidation, merger, sale, transfer
or lease and any adjustment to be made with respect thereto.
If the Company makes a distribution to all holders of its Common
Stock that constitutes an Unadjusted Distribution pursuant to the last sentence of paragraph (4) of Section 1704, then,
from and after the record date for determining the holders of Common Stock entitled to receive such distribution (the “Distribution
Record Date”), a Holder of a Security who converts such Security in accordance with the provisions of this Indenture shall,
upon conversion, be entitled to receive, in addition to the shares of Common Stock into which the Security is convertible, the
kind and amount of evidences of indebtedness, shares of Capital Stock, or other assets or subscription rights or warrants, as the
case may be, comprising the distribution that such Holder would have received if such Holder had converted the Security immediately
prior to the Distribution Record Date.
Section 1712 Trustee
Adjustment Disclaimer; Company Determination Final. The Trustee has no duty to determine when an adjustment under this Article
Seventeen should be made, how it should be made or what it should be. The Trustee has no duty to determine whether a supplemental
indenture under Section 1711 need be entered into or whether any provisions of any supplemental indenture are correct. The
Trustee shall not be accountable for and makes no representation as to the validity or value of any securities or assets issued
upon conversion of Securities. The Trustee shall not be responsible for the Company’s failure to comply with this Article
Seventeen. Any determination that the Company or the Board of Directors must make pursuant to this Article Seventeen is conclusive,
absent manifest error.
Section 1713 When
No Adjustment Required. Except as expressly set forth in Section 1704, no adjustment in the Conversion Price shall be
made because the Company issues, in exchange for cash, property or services, shares of its Common Stock, or any securities convertible
into or exchangeable for shares of its Common Stock, or securities (including warrants, rights and options) carrying the right
to subscribe for or purchase shares of its Common Stock or such convertible or exchangeable securities.
(1) Notwithstanding anything herein to the contrary, no adjustment
in the Conversion Price shall be made pursuant to Section 1704 in respect of any dividend or distribution if the Holders may
participate therein (on a basis to be determined in good faith by the Board of Directors) and receive the same consideration they
would have received if they had converted the Securities immediately prior to the record date with respect to such dividend or
distribution.
Section 1714 Equivalent
Adjustments. In the event that, as a result of an adjustment made pursuant to Section 1704 above, the holder of any Security
thereafter surrendered for conversion shall become entitled to receive any shares of Capital Stock of the Company other than shares
of its Common Stock, thereafter the Conversion Price of such other shares so receivable upon conversion of any Securities shall
be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with
respect to Common Stock contained in this Article Seventeen.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed all as of the day and year first above written.
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ALBANY MOLECULAR RESEARCH, INC. |
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EXHIBIT A
FORM OF REDEEMABLE OR NON-REDEEMABLE SUBORDINATED
SECURITY
[Face of Security]
[If the Holder of this Security (as indicated below) is The
Depository Trust Company (“DTC”) or a nominee of DTC, this Security is a Global Security and the following two legends
apply:
Unless this Security is presented by an authorized representative
of The Depository Trust Company a New York corporation (“DTC”) to the Company or its agent for registration of transfer,
conversion, exchange or payment, and such Security issued is registered in the name of Cede & Co., or in such other name
as requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as
is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL, inasmuch as the registered owner hereof, Cede & Co., has an interest herein.
Unless and until this Security is exchanged in whole or in
part for Securities in certificated form, this Security may not be transferred except as a whole by DTC to a nominee thereof or
by a nominee thereof to DTC or another nominee of DTC or by DTC or any such nominee to a successor of DTC or a nominee of such
successor.]
[If this Security is an Original Issue
Discount Security, insert — FOR PURPOSES OF SECTION 1273 and 1275 OF THE UNITED STATES INTERNAL REVENUE CODE, THE AMOUNT
OF ORIGINAL ISSUE DISCOUNT ON THIS SECURITY IS % OF ITS PRINCIPAL AMOUNT, THE ISSUE DATE IS ,
20 , AND THE YIELD TO MATURITY IS %. THE METHOD USED TO DETERMINE THE AMOUNT OF
ORIGINAL ISSUE DISCOUNT APPLICABLE TO THE SHORT ACCRUAL PERIOD OF ,
20 TO ,
20 , IS % OF THE PRINCIPAL AMOUNT OF THIS SECURITY.]
ALBANY MOLECULAR RESEARCH, INC.
[Designation of Series]
Albany Molecular Research, Inc., a Delaware corporation (herein
referred to as the “Company,” which term includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to
or registered assigns the principal sum of Dollars on
(the “Stated Maturity Date”) [or insert date fixed for earlier redemption (the “Redemption Date,”
and together with the Stated Maturity Date with respect to principal repayable on such date, the “Maturity Date.”)]
[If the Security is to bear interest prior to Maturity, insert
— and to pay interest thereon from
or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on
and in
each year (each, an “Interest Payment Date”), commencing ,
at the rate of % per annum, until the principal hereof is paid or duly provided for. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Holder
in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record
Date for such interest, which shall be the
or (whether
or not a Business Day), as the case may be, next preceding such Interest Payment Date [at the office or agency of the Company maintained
for such purpose; provided, however, that such interest may be paid, at the Company’s option, by mailing a
check to such Holder at its registered address or by transfer of funds to an account maintained by such Holder within the United
States]. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date, and may be paid to the Holder in whose name this Security (or one or more Predecessor Securities) is registered
at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or may
be paid at any time in any other lawful manner not inconsistent with the requirements of any over-the-counter market or securities
exchange on which the Securities of this series may be quoted or listed, and upon such notice as may be required by such market
or exchange, all as more fully provided in the Indenture. Interest will be computed on the basis of a 360-day year of twelve 30-day
months.]
[If the Security is not to bear interest prior to Maturity,
insert — The principal of this Security shall not bear interest except in the case of a default in payment of principal
upon acceleration, upon redemption or at the [Stated] Maturity Date and in such case the overdue principal of this Security shall
bear interest at the rate of % per annum (to the extent that the payment of such interest shall be legally
enforceable), which shall accrue from the date of such default in payment to the date payment of such principal has been made or
duly provided for. Interest on any overdue principal shall be payable on demand. Any such interest on any overdue principal that
is not so paid on demand shall bear interest at the rate of % per annum (to the extent that the payment
of such interest shall be legally enforceable), which shall accrue from the date of such demand for payment to the date payment
of such interest has been made or duly provided for, and such interest shall also be payable on demand.]
The principal of this Security payable on the Stated Maturity
Date [or the principal of, premium or Make-Whole Amount, if any, and, if the Redemption Date is not an Interest Payment Date, interest
on this Security payable on the Redemption Date] will be paid against presentation of this Security at the office or agency of
the Company maintained for that purpose in ,
in such coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and
private debts.
Interest payable on this Security on any Interest Payment Date
and on the [Stated] Maturity Date [or Redemption Date, as the case may be,] will include interest accrued from and including the
next preceding Interest Payment Date in respect of which interest has been paid or duly provided for (or from and including ,
if no interest has been paid on this Security) to but excluding such Interest Payment Date or the [Stated] Maturity Date [or Redemption
Date, as the case may be.] If any Interest Payment Date or the [Stated] Maturity Date or [Redemption Date] falls on a day that
is not a Business Day, as defined below, principal, premium or Make-Whole Amount, if any, and/or interest payable with respect
to such Interest Payment Date or [Stated] Maturity Date [or Redemption Date, as the case may be,] will be paid on the next succeeding
Business Day with the same force and effect as if it were paid on the date such payment was due, and no interest shall accrue on
the amount so payable for the period from and after such Interest Payment Date or [Stated] Maturity Date [or Redemption Date, as
the case may be.] “Business Day” means any day, other than a Saturday or Sunday, that is neither a legal holiday nor
a day on which banking institutions in The City of New York are required or authorized by law, regulation or executive order to
close.
[If this Security is a Global Security, insert —
All payments of principal, premium or Make-Whole Amount, if any, and interest in respect of this Security will be made by the Company
in immediately available funds.]
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the Certificate of Authentication hereon has been executed
by the Trustee by manual signature of one of its authorized signatories, this Security shall not be entitled to any benefit under
the Indenture, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its facsimile corporate seal.
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ALBANY MOLECULAR RESEARCH, INC. |
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[Reverse of Security]
ALBANY MOLECULAR RESEARCH, INC.
This Security is one of a duly authorized issue of securities
of the Company (herein called the “Securities”), issued and to be issued in one or more series under an
Indenture, dated as of ,
20 (herein called the “Indenture”) between the Company and ,
as Trustee (herein called the “Trustee,” which term includes any successor trustee under the Indenture with respect
to the series of which this Security is a part), to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee
and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered.
This Security is one of the duly authorized series of Securities designated on the face hereof (collectively, the “Securities”),
[if applicable, insert — and the aggregate principal amount of the Securities to be issued under such series is limited
to $ (except for Securities authenticated and delivered upon transfer of, or in exchange for, or in lieu
of other Securities).] All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them
in the Indenture.
If an Event of Default, as defined in the Indenture, shall occur
and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect
provided in the Indenture.
[If applicable, insert — The Securities may not
be redeemed prior to the Stated Maturity Date.]
[If applicable, insert — The Securities are subject
to redemption [ (l) (If applicable, insert — on
in any year commencing with the year
and ending with the year
through operation of the sinking fund for this series at a Redemption Price equal to 100% of the principal amount, and (2) ]
[If applicable, insert — at any time [on or after ],
as a whole or in part, at the election of the Company, at the following Redemption Prices (expressed as percentages of the principal
amount):
If redeemed on or before ,
% and if redeemed during the 12-month period beginning
of the years indicated at the Redemption Prices indicated below.
| Year | |
Redemption Price | |
Year | |
Redemption Price |
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and thereafter at a Redemption Price equal to %
of the principal amount, together in the case of any such redemption [If applicable, insert — (whether through operation
of the sinking fund or otherwise)] with accrued interest to the Redemption Date; provided, however, that installments of
interest on this Security whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holder of this Security,
or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face
hereof, all as provided in the Indenture.]
[If applicable, insert — The Securities are subject
to redemption (1) on
in any year commencing with the year
and ending with the year
through operation of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking
fund (expressed as percentages of the principal amount) set forth in the table below, and (2) at any time [on or after ],
as a whole or in part, at the election of the Company, at the Redemption Prices for redemption otherwise than through operation
of the sinking fund (expressed as percentages of the principal amount) set forth in the table below: If redeemed during the 12-month
period beginning
of the years indicated,
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Redemption Price for
Redemption Through
Operation of the Sinking Fund |
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Redemption Price for
Redemption Otherwise Than
Through Operation of the
Sinking Fund |
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and thereafter at a Redemption Price equal to %
of the principal amount, together in the case of any such redemption (whether through operation of the sinking fund or otherwise)
with accrued interest to the Redemption Date; provided, however, that installments of interest on this Security whose
Stated Maturity is on or prior to such Redemption Date will be payable to the Holder of this Security, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in
the Indenture.]
[If applicable, insert — Notwithstanding the foregoing,
the Company may not, prior to ,
redeem any Securities as contemplated by [Clause (2) of] the preceding paragraph as a part of, or in anticipation of, any
refunding operation by the application, directly or indirectly, of moneys borrowed having an interest cost to the Company (calculated
in accordance with generally accepted financial practice) of less than % per annum.]
[If applicable, insert — The sinking fund for the
Securities provides for the redemption on
in each year, beginning with the year
and ending with the year ,
of [not less than] $ ] [(“mandatory sinking fund”) and not more than $ ]
aggregate principal amount of the Securities. [The Securities acquired or redeemed by the Company otherwise than through [mandatory]
sinking fund payments may be credited against subsequent [mandatory] sinking fund payments otherwise required to be made in the
[describe order] order in which they become due.]]
Notice of redemption will be given by mail to Holders of Securities,
not less than 30 nor more than 60 days prior to the Redemption Date, all as provided in the Indenture.
In the event of redemption of this Security in part only, a
new Security or Securities for the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation
hereof.
[If applicable, insert conversion provisions set forth in any
Board Resolution or indenture supplemental to the Indenture.]
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities
under the Indenture at any time by the Company and the Trustee with the consent of the Holders of not less than a majority of the
aggregate principal amount of all Securities issued under the Indenture at the time Outstanding and affected thereby. The Indenture
also contains provisions permitting the Holders of not less than a majority of the aggregate principal amount of the Outstanding
Securities, on behalf of the Holders of all such Securities, to waive compliance by the Company with certain provisions of the
Indenture. Furthermore, provisions in the Indenture permit the Holders of not less than a majority of the aggregate principal amount,
in certain instances, of the Outstanding Securities of any series to waive, on behalf of all of the Holders of Securities of such
series, certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of this Security and other Securities issued upon
the registration of transfer hereof or conversion or in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of (and premium or Make-Whole Amount, if any) and interest on this Security at the times, places and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein [and herein] set forth, the transfer of this Security is registrable in the Security Register of the Company upon surrender
of this Security for registration of transfer at the office or agency of the Company in any place where the principal of (and premium
or Make-Whole Amount, if any) and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or by his attorney
duly authorized in writing, and thereupon one or more new Securities, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations
therein [and herein] set forth, this Security is exchangeable for a like aggregate principal amount of Securities of different
authorized denominations but otherwise having the same terms and conditions, as requested by the Holder hereof surrendering the
same.
This Security is subordinated to the prior payment in full in
cash of Senior Indebtedness to the extent set forth in Article Sixteen of the Indenture.
The Securities of this series are issuable only in registered
form [without coupons] in denominations of $ and any integral multiple thereof.
No service charge shall be made for any such registration of
transfer or conversion or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith,
Prior to due presentment of this 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 this Security
is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of
or premium or Make-Whole Amount, if any, or the interest on this Security, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture or any indenture supplemental thereto, against any past, present or future stockholder,
employee, officer or director, as such, of the Company or of any successor, either directly or through the Company or any successor,
whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise,
all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and
released.
The Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely in such State.
EXHIBIT B
FORMS OF CERTIFICATION
EXHIBIT B-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON
ENTITLED TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be
delivered]
This is to certify that, as of the date hereof, and except as
set forth below, the above-captioned Securities held by you for our account (i) are owned by person(s) that are not citizens
or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject
to United States Federal income taxation regardless of its source (“United States person(s)”), (ii) are owned
by United States person(s) that are (a) foreign branches of United States financial institutions (financial institutions,
as defined in United States Treasury Regulations Section 2.165-12(c)(1)(v) are herein referred to as “financial institutions”)
purchasing for their own account or for resale, or (b) United States person(s) who acquired the Securities through foreign
branches of United States financial institutions and who hold the Securities through such United States financial institutions
on the date hereof (and in either case (a) or (b), each such United States financial institution hereby agrees, on its own
behalf or through its agent, that you may advise Albany Molecular Research, Inc. or its agent that such financial institution will
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986,
as amended, and the regulations thereunder), or (iii) are owned by United States or foreign financial institution(s) for purposes
of resale during the restricted period (as defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, in addition, if the owner is a United States or foreign financial institution described in clause (iii) above (whether
or not also described in clause (i) or (ii)), this is to further certify that such financial institution has not acquired
the Securities for purposes of resale directly or indirectly to a United States person or to a person within the United States
or its possessions.
As used herein, “United States” means the United
States of America (including the States and the District of Columbia); and its “possessions” include Puerto Rico, the
U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex or by telecopy
on or prior to the date on which you intend to submit your certification relating to the above-captioned Securities held by you
for our account in accordance with your operating procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this certification applies as of such date.
This certificate excepts and does not relate to [U.S.$] of such
interest in the above-captioned Securities in respect of which we are not able to certify and as to which we understand an exchange
for an interest in a permanent Global Security or an exchange for and delivery of definitive Securities (or, if relevant, collection
of any interest) cannot be made until we do so certify.
We understand that this certificate may be required in connection
with certain tax legislation in the United States. If administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof
to any interested party in such proceedings.
Dated:
[To be dated no earlier than the 15th day prior to (i) the
Exchange Date or (ii) the relevant Interest Payment Date occurring prior to the Exchange Date, as applicable]
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[Name of Person Making Certification] |
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(Authorized Signature) |
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Title: |
EXHIBIT B-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CLEARSTREAM S.A. IN CONNECTION
WITH THE EXCHANGE OF A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO OBTAIN
INTEREST PAYABLE
PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be
delivered]
This is to certify that, based solely on written certifications
that we have received in writing, by tested telex or by electronic transmission from each of the persons appearing in our records
as persons entitled to a portion of the principal amount set forth below (our “Member Organizations”) substantially
in the form attached hereto, as of the date hereof, [U.S.$] principal amount of the above-captioned Securities (i) is owned
by person(s) that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate
or trust the income of which is subject to United States Federal income taxation regardless of its source (“United States
person(s)”), (ii) is owned by United States person(s) that are (a) foreign branches of United States financial
institutions (financial institutions, as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v) are herein referred
to as “financial institutions”) purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States financial institutions and who hold the Securities through
such United States financial institutions on the date hereof (and in either case (a) or (b), each such financial institution
has agreed, on its own behalf or through its agent, that we may advise Albany Molecular Research, Inc. or its agent that such financial
institution will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) is owned by United States or foreign financial institution(s)
for purposes of resale during the restricted period (as defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, to the further effect, that financial institutions described in clause (iii) above (whether or not also described in
clause (i) or (ii)) have certified that they have not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its possessions.
As used herein, “United States” means the United
States of America (including the States and the District of Columbia); and its “Possessions” include Puerto Rico, the
U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We further certify that (i) we are not making available
herewith for exchange (or, if relevant, collection of any interest) any portion of the temporary Global Security representing the
above-captioned Securities excepted in the above-referenced certificates of Member Organizations and (ii) as of the date hereof
we have not received any notification from any of our Member Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for exchange (or, if relevant, collection of any interest)
are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in connection
with certain tax legislation in the United States. If administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof
to any interested party in such proceedings.
Dated:
[To be dated no earlier than the Exchange Date or the relevant
Interest Payment Date occurring prior to the Exchange Date, as applicable]
[ ,
as Operator of the Euroclear System] [Clearstream Banking Luxembourg]
Exhibit 5.1
October 2, 2015
Albany Molecular Research, Inc.
26 Corporate Circle
Albany, NY 12203
| Re: | Securities Being Registered under Registration Statement
on Form S-3 |
Ladies and Gentlemen:
We have acted as counsel to you in connection
with your filing of a Registration Statement on Form S-3 (as amended or supplemented, the “Registration Statement”)
pursuant to the Securities Act of 1933, as amended (the “Securities Act”). Pursuant to the Registration Statement,
Albany Molecular Research, Inc., a Delaware corporation (the “Company”), is registering under the Securities Act an
indeterminate amount of (i) common stock, par value $0.01 per share (the “Common Stock”), of the Company, (ii) preferred
stock, par value $0.01 per share, of the Company (the “Preferred Stock”), (iii) debt securities of the Company
(“Debt Securities”), (iv) warrants to purchase Common Stock, Preferred Stock, Debt Securities or Units (as defined
below ) (“Warrants”), and (v) units comprised of Common Stock, Preferred Stock, Debt Securities, Warrants and other
securities in any combination (“Units”). The Common Stock, Preferred Stock, Debt Securities, Warrants, and Units are
sometimes referred to collectively herein as the “Securities.” Securities may be issued in an unspecified number (with
respect to Common Stock, Preferred Stock, Warrants, and Units) or in an unspecified principal amount (with respect to Debt Securities).
The Registration Statement provides that the Securities may be offered separately or together, in separate series, in amounts,
at prices and on terms to be set forth in one or more prospectus supplements (each a “Prospectus Supplement”) to the
prospectus contained in the Registration Statement.
We have reviewed such documents and made
such examination of law as we have deemed appropriate to give the opinions set forth below. We have relied, without independent
verification, on certificates of public officials and, as to matters of fact material to the opinions set forth below, and on certificates
of officers of the Company.
The opinions set forth below are limited
to the Delaware General Corporation Law (which includes reported judicial decisions interpreting the Delaware General Corporation
Law), the law of New York, and the federal law of the United States. Without limiting the generality of the foregoing, we express
no opinion with respect to (i) state securities or “blue sky” laws, or (ii) state or federal antitrust laws.
Albany Molecular Research, Inc.
October 2, 2015
Page 2
For purposes of the opinions set forth below,
without limiting any other exceptions or qualifications set forth herein, we have assumed that after the issuance of any Securities
offered pursuant to the Registration Statement, the total number of issued shares of Common Stock or Preferred Stock, as applicable,
together with the total number of shares of such stock issuable upon the exercise, exchange, conversion or settlement, as the case
may be, of any exercisable, exchangeable or convertible security (including without limitation any Unit), as the case may be, then
outstanding, will not exceed the total number of authorized shares of Common Stock or Preferred Stock, as applicable, under the
Company’s certificate of incorporation as then in effect (the “Charter”).
For purposes of the opinions set forth below,
we refer to the following as the “Future Authorization and Issuance” of Securities:
| · | with respect to any of the Securities, (a) the authorization by the Company of the amount, terms and issuance of such
Securities (the “Authorization”) and (b) the issuance of such Securities in accordance with the Authorization
therefor upon the receipt by the Company of the consideration (which, in the case of shares of Common Stock or Preferred Stock,
is not less than the par value of such shares) to be paid therefor in accordance with the Authorization; |
| · | with respect to Preferred Stock, (a) the establishment of the terms of such Preferred Stock by the Company in conformity
with the Charter and applicable law and (b) the execution, acknowledgement and filing with the Delaware Secretary of State,
and the effectiveness of, a certificate of designations to the Charter setting forth the terms of such Preferred Stock in accordance
with the Charter and applicable law; |
| · | with respect to Debt Securities, (a) the authorization, execution and delivery of the indenture or a supplemental indenture
relating to such Securities by the Company and the trustee thereunder and/or (b) the establishment of the terms of such Securities
by the Company in conformity with the applicable indenture or supplemental indenture and applicable law, and (c) the execution,
authentication and issuance of such Securities in accordance with the applicable indenture or supplemental indenture and applicable
law; and |
Albany Molecular Research, Inc.
October 2, 2015
Page 3
| · | with respect to Warrants or Units, (a) the authorization, execution and delivery by the Company and the other parties
thereto of any agreement under which such Securities are to be issued and (b) the establishment of the terms of such Securities,
and the execution and delivery of such Securities, in conformity with any applicable agreement under which such Securities are
to be issued and applicable law. |
Based upon the foregoing, and subject to
the additional qualifications set forth below, we are of the opinion that:
1. Upon the Future Authorization and
Issuance of shares of Common Stock, such shares of Common Stock will be validly issued, fully paid and non-assessable.
2. Upon the Future Authorization and
Issuance of shares of Preferred Stock, such shares of Preferred Stock will be validly issued, fully paid and non-assessable.
3. Upon the Future Authorization and
Issuance of Debt Securities, such Debt Securities will be valid and binding obligations of the Company.
4. Upon the Future Authorization and
Issuance of Warrants, such Warrants will be valid and binding obligations of the Company.
5. Upon the Future Authorization and
Issuance of Units, such Units will be valid and binding obligations of the Company.
The opinions expressed above are subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general application affecting
the rights and remedies of creditors and to general principles of equity.
This opinion letter and the opinions it
contains shall be interpreted in accordance with the Legal Opinion Principles issued by the Committee on Legal Opinions of the
American Bar Association’s Business Law Section as published in 53 Business Lawyer 831 (May 1998).
Albany Molecular Research, Inc.
October 2, 2015
Page 4
We hereby consent to the inclusion of this
opinion as Exhibit 5.1 to the Registration Statement and to the references to our firm under the caption “Legal Matters”
in the Registration Statement. In giving our 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 thereunder.
| |
Very truly yours, |
| |
|
| |
/s/ GOODWIN PROCTER LLP |
Exhibit 12.1
| AMRI | |
| | |
| | |
| | |
| | |
| | |
| |
| Earnings to Fixed Charges Ratio | |
| | |
| | |
| | |
| | |
| | |
| |
| | |
6/30/2015 | | |
12/31/2014 | | |
12/31/2013 | | |
12/31/2012 | | |
12/31/2011 | | |
12/31/2010 | |
| | |
| | |
| | |
| | |
| | |
| | |
| |
| Total earnings available for fixed charges | |
$ | 2,287,000 | | |
$ | (5,468,000 | ) | |
$ | 19,703,000 | | |
$ | 119,000 | | |
$ | (36,638,000 | ) | |
$ | (72,842,000 | ) |
| | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| Interest expense on indebtedness | |
$ | 6,545,000 | | |
$ | 10,960,000 | | |
$ | 1,561,000 | | |
$ | 463,000 | | |
$ | 714,000 | | |
$ | 292,000 | |
| Portion of rental expense which represents interest factor | |
$ | 608,134 | | |
$ | 997,406 | | |
$ | 1,070,101 | | |
$ | 1,484,233 | | |
$ | 1,621,581 | | |
$ | 1,387,389 | |
| | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| Total fixed charges | |
$ | 7,153,134 | | |
$ | 11,957,406 | | |
$ | 2,631,101 | | |
$ | 1,947,233 | | |
$ | 2,335,581 | | |
$ | 1,679,389 | |
| | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| Earnings (loss) to fixed charges ratio | |
| 0.32 | | |
| (0.46 | ) | |
| 7.49 | | |
| 0.06 | | |
| (15.69 | ) | |
| (43.37 | ) |
| | |
| | | |
| * | | |
| | | |
| | | |
| * | | |
| * | |
| | |
| | | |
$ | 17,425,406 | | |
| | | |
| | | |
$ | 38,973,581 | | |
$ | 74,521,389 | |
* Earnings for the years ended
December 31, 2014, 2011 and 2010 were inadequate to cover fixed charges by $17,425,406, $38,973,581 and $74,521,389,
respectively.
Exhibit 23.1
Consent of Independent Registered Public
Accounting Firm
The Board of Directors
Albany Molecular Research, Inc.:
We consent to the use of our report dated
March 16, 2015, relating to the consolidated balance sheets of Albany Molecular Research, Inc. as of December 31, 2014 and 2013,
and the related consolidated statements of operations, comprehensive (loss) income, stockholders’ equity, and cash flows
for each of the years in the three-year period ended December 31, 2014, and the related financial statement schedule, and the effectiveness
of internal control over financial reporting as of December 31, 2014, incorporated herein by reference and to the reference to
our firm under the heading “Experts” in the registration statement.
Our report dated March 16, 2015, on the
effectiveness of internal control over financial reporting as of December 31, 2014, contains an explanatory paragraph that management
excluded from its assessment of the effectiveness of internal control over financial reporting as of December 31, 2014, Cedarburg
Pharmaceuticals, Inc.’s and Oso BioPharmaceuticals Manufacturing, LLC’s (collectively, the “Acquired Businesses”),
internal control over financial reporting associated with assets representing 13% of consolidated assets, and revenues representing
approximately 10% of consolidated revenues included in the consolidated financial statements of the Company as of and for the year
ended December 31, 2014. Our audit of internal control over financial reporting of Albany Molecular Research, Inc. also excluded
an evaluation of the internal control over financial reporting of the Acquired Businesses.
/s/ KPMG LLP
Albany, New York
October 2, 2015
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