As filed with the Securities and Exchange Commission on September 9, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HIMS & HERS HEALTH, INC.
(Exact name of registrant as specified in its charter)
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Delaware
(State or other jurisdiction of
incorporation or organization)
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98-1482650
(I.R.S. Employer
Identification Number)
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2269 Chestnut Street, #523
San Francisco, California 94123
(415) 851-0195
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Andrew Dudum
Chief Executive Officer
Hims & Hers Health, Inc.
2269 Chestnut Street, #523
San Francisco, CA 94123
Tel: (415) 851-0195
(Name, address, including zip code, and telephone number, including area code, of agent for service)
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Copies to:
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Alexa Belonick
Elena Vespoli
Gunderson Dettmer Stough Villeneuve
Franklin & Hachigian, LLP
550 Allerton Street
Redwood City, California 94063
Tel: (650) 321-2400
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Soleil Boughton
Chief Legal Officer
Hims & Hers Health, Inc.
2269 Chestnut Street, #523
San Francisco, CA 94123
Tel: (415) 851-0195
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Approximate date of commencement of proposed sale to the public: From time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☒
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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Smaller reporting company
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Emerging growth company
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
PROSPECTUS
Hims and Hers Health, Inc.
CLASS A COMMON STOCK
PREFERRED STOCK
DEBT SECURITIES
WARRANTS
RIGHTS
UNITS
We may offer and sell from time to time, in one or more offerings, in amounts, at prices and on terms determined at the time of any such offering, (1) shares of our Class A common stock, (2) shares of our preferred stock, which we may issue in one or more series, (3) debt securities, which may be senior debt securities or subordinated debt securities, (4) warrants, (5) rights, or (6) units.
In addition, this prospectus relates to the offer and sale from time to time of shares of our Class A common stock held by selling stockholders. We will not receive any of the proceeds from the sale of our Class A common stock by any of the selling stockholders. We will pay the fees and expenses incident to the registration of any shares of our Class A common stock for sale by the selling stockholders. The selling stockholders will bear all discounts, concessions, commissions and stock transfer taxes, if any, attributable to their sales of shares.
Each time we or any of the selling stockholders offer and sell securities, we or such selling stockholders will provide a supplement to this prospectus that contains specific information about the offering and, if applicable, the selling stockholders, as well as the amounts, prices and terms of the securities. The supplement may also add, update or change information contained in this prospectus with respect to that offering. You should carefully read this prospectus and the applicable prospectus supplement before you invest in any of our securities.
We or the selling stockholders may offer and sell the securities described in this prospectus and any prospectus supplement separately or together in any combination for sale directly to investors or through underwriters, dealers or agents. For additional information on the methods of sale, you should refer to the sections entitled “About this Prospectus” and “Plan of Distribution” in this prospectus. If any underwriters, dealers or agents are involved in the sale of these securities we will set forth their names and describe their compensation in the applicable prospectus supplement.
Our Class A common stock is listed on the New York Stock Exchange (“NYSE”) under the symbol “HIMS.” On September 6, 2024, the closing price of our Class A common stock was $13.65 per share.
INVESTING IN OUR SECURITIES INVOLVES SIGNIFICANT RISKS. SEE “RISK FACTORS” BEGINNING ON PAGE 4 OF THIS PROSPECTUS AS WELL AS THE APPLICABLE PROSPECTUS SUPPLEMENT AND IN THE OTHER DOCUMENTS INCORPORATED BY REFERENCE HEREIN BEFORE INVESTING IN ANY OF OUR SECURITIES.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of the securities to be issued under this prospectus or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
This prospectus may not be used to sell securities unless accompanied by a prospectus supplement.
The date of this prospectus is September 9, 2024.
TABLE OF CONTENTS
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Unless otherwise indicated or the context otherwise requires, all references in this prospectus to “Hims & Hers,” “the Company,” “we,” “our,” “us” or similar terms refer to Hims and Hers Health, Inc., a Delaware corporation, together with its consolidated subsidiaries.
ABOUT THIS PROSPECTUS
This prospectus is part of a “shelf” registration statement that we filed with the Securities and Exchange Commission (the “Commission” or “SEC”) as a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”), using a “shelf” registration process. By using a shelf registration statement, we may sell securities from time to time and in one or more offerings and the selling stockholders to be named in a supplement to this prospectus may, from time to time, sell shares of our Class A common stock from time to time in one or more offerings as described in this prospectus.
This prospectus provides you with a general description of the securities that may be offered by us and/or the selling stockholders. Each time that we or any selling stockholder offers and sells securities, we or the selling stockholders will provide a prospectus supplement that will contain specific information about the terms of that offering. The accompanying prospectus supplement may also add, update or change information contained in this prospectus. If there is any inconsistency between the information in this prospectus and the applicable prospectus supplement, you should rely on the prospectus supplement. References to the “applicable prospectus supplement” are to the prospectus supplement to this prospectus that describes the specific terms and conditions of the applicable security. You should read both this prospectus and the accompanying prospectus supplement together with additional information described under the heading “Where You Can Find More Information.”
We may include agreements as exhibits to the registration statement of which this prospectus forms a part. In reviewing such agreements, please remember that they are included to provide you with information regarding their terms and are not intended to provide any other factual or disclosure information about us or the other parties to the agreements. The agreements may contain representations and warranties by each of the parties to the applicable agreement. These representations and warranties have been made solely for the benefit of the other parties to the applicable agreement and:
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should not in any instance be treated as categorical statements of fact, but rather as a way of allocating the risk to one of the parties if those statements prove to be inaccurate;
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may have been qualified by disclosures that were made to the other party in connection with the negotiation of the applicable agreement, which disclosures would not necessarily be reflected in the agreement;
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may apply standards of materiality in ways that are different from what may be viewed as material to you or other investors; and
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were made only as of the date of the applicable agreement or such other date or dates as may be specified in the agreement and are subject to more recent developments.
Accordingly, these representations and warranties may not describe the actual state of affairs as of the date they were made or at any other time. Additional information about us may be found elsewhere in the registration statement of which this prospectus forms a part and our other public filings, which are available without charge through the SEC’s website at www.sec.gov.
Neither we nor the selling stockholders have authorized any other person, including any dealer, salesperson or other individual, to provide you with any information or to make any representations other than those contained or incorporated by reference in this prospectus or the applicable prospectus supplement. We and the selling stockholders take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. We and the selling stockholders will not make an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information in this prospectus, the applicable prospectus supplement and the documents incorporated by reference is accurate only as of their respective dates.
In this prospectus, “we,” “us,” “our,” the “Company,” and “Hims & Hers” refer to Hims & Hers Health, Inc. and its subsidiaries and variable interest entities, unless expressly indicated or the context otherwise requires. Additionally, “you” refers to the potential holders of the applicable series of securities.
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other information with the SEC. The SEC maintains a website that contains reports, proxy and information statements and other information about issuers, such as us, who file electronically with the SEC. The address of that website is www.sec.gov.
Our website addresses are www.hims.com, www.forhers.com, www.forhims.co.uk and www.apostrophe.com. The information on, or accessible through, our websites, however, is not, and should not be deemed to be, a part of this prospectus or any prospectus supplement. We have included our website addresses as inactive textual references only.
This prospectus and any prospectus supplement are part of a registration statement that we filed with the SEC and do not contain all of the information in the registration statement. The full registration statement may be obtained from the SEC or us, as provided above. Forms of the indenture and other documents establishing the terms of the offered securities are or may be filed as exhibits to the registration statement or documents incorporated by reference in the registration statement. Statements in this prospectus or any prospectus supplement about these documents are summaries and each statement is qualified in all respects by reference to the document to which it refers. You should refer to the actual documents for a more complete description of the relevant matters.
INCORPORATION BY REFERENCE
The SEC rules allow us to “incorporate by reference” information into this prospectus, which means that we can disclose important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference is deemed to be part of this prospectus, and subsequent information that we file with the SEC will automatically update and supersede that information. Any statement contained in this prospectus or a previously filed document incorporated by reference will be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or a subsequently filed document incorporated by reference modifies or replaces that statement.
This prospectus and any accompanying prospectus supplement incorporate by reference the documents set forth below that have previously been filed with the SEC:
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our Quarterly Reports on Form 10-Q for the quarter ended March 31, 2024, filed with the SEC on May 6, 2024 and for the quarter ended June 30, 2024, filed with the SEC on August 5, 2024;
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All reports and other documents that we subsequently file pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including all such documents that we may file with the SEC after the date of the initial registration statement and prior to the effectiveness of the registration statement, but excluding any information furnished to, rather than filed with, the SEC, will also be incorporated by reference into this prospectus and deemed to be part of this prospectus from the date of the filing of such reports and documents.
You may request a free copy of any documents incorporated by reference in this prospectus by writing or telephoning us at the following address or telephone number:
Hims & Hers Health, Inc.
2269 Chestnut Street, #523
San Francisco, CA 94123
(415) 851-0195
Exhibits to the filings will not be sent, however, unless those exhibits have been specifically incorporated by reference in this prospectus or any accompanying prospectus supplement.
Our reports and documents incorporated by reference herein may also be found in the “Investors” section of our websites at www.hims.com, www.forhers.com, www.forhims.co.uk and www.apostrophe.com. Except for the specific incorporated documents listed above, the information on, or that can be accessed through, our websites shall not be deemed to be incorporated by reference in this prospectus or the registration statement of which it forms a part.
RISK FACTORS
An investment in our securities involves a high degree of risk. You should carefully consider the risks incorporated by reference to our most recent Annual Report on Form 10-K, any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, and all other information contained or incorporated by reference into this prospectus and any applicable prospectus supplement as updated by our subsequent filings under the Exchange Act, and the risk factors and other information contained in any applicable prospectus supplement before acquiring any such securities. Our business, prospects, financial condition, or operating results could be harmed by any of these risks, as well as other risks not known to us or that we consider immaterial as of the date of this prospectus. The trading price of our securities could decline due to any of these risks, and, as a result, you may lose all or part of your investment. See “Incorporation by Reference.”
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, any applicable prospectus supplement and the documents incorporated by reference herein and therein, includes forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act. These forward-looking statements can be identified by the use of forward-looking terminology, including the words “believe,” “estimate,” “anticipate,” “expect,” “assume,” “imply,” “intend,” “plan,” “may,” “will,” “potential,” “project,” “predict,” “continue,” “could,” “confident,” “confidence,” or “should,” or, in each case, their plural, their negative or other variations or comparable terminology. There can be no assurance that actual results will not materially differ from expectations. Such statements include, but are not limited to, any statements relating to our financial and business performance, including with respect to the Hims & Hers platform, our marketing campaigns, investments in innovation, and our infrastructure, and the underlying assumptions with respect to the foregoing; statements relating to events and trends relevant to us, including with respect to our financial condition, results of operations, short- and long-term business operations, objectives, and financial needs; expectations regarding our mobile applications, market acceptance, user experience, customer retention, brand development, our ability to invest and generate a return on any such investment, customer acquisition costs, operating efficiencies and leverage (including our fulfillment capabilities), the effect of any pricing decisions, changes in our product and offering mix, the timing and market acceptance of any new products or offerings, the timing and anticipated effect of any pending acquisitions, the success of our business model, our market opportunity, our ability to scale our business, the growth of certain of our specialties, our ability to innovate on and expand the scope of our offerings and experiences, including through the use of data analytics and artificial intelligence, our ability to reinvest into the customer experience, our ability to comply with the extensive, complex, and evolving legal and regulatory requirements applicable to our business, including without limitation state and federal healthcare, privacy and consumer protection laws and regulations, and the effect or outcome of any litigation or governmental actions that may arise in relation to any such legal and regulatory requirements. These statements are based on management’s current expectations, but actual results may differ materially due to various factors.
The forward-looking statements contained in this prospectus, any applicable prospectus supplement and the documents incorporated by reference herein and therein, are based on our current expectations and beliefs concerning future developments and their potential effects on us. Future developments affecting us may not be those that we have anticipated. These forward-looking statements involve a number of risks, uncertainties (some of which are beyond our control), and other assumptions that may cause actual results or performance to be materially different from those expressed or implied by these forward-looking statements. These risks and uncertainties include, but are not limited to, those factors described under the heading “Risk Factors” and in our current and periodic reports, and other filings, filed from time to time with the SEC that are incorporated by reference into this prospectus and any applicable prospectus supplement. Should one or more of these risks or uncertainties materialize, or should any of our assumptions prove incorrect, actual results may vary in material respects from those projected in these forward-looking statements. We undertake no obligation (and expressly disclaim any obligation) to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as may be required under applicable securities laws. These risks and others described under the heading “Risk Factors” and in our current and periodic reports, and other filings, filed from time to time with the SEC that are incorporated by reference into this prospectus and any applicable prospectus supplement may not be exhaustive.
By their nature, forward-looking statements involve risks and uncertainties because they relate to events and depend on circumstances that may or may not occur in the future. We caution you that forward- looking statements are not guarantees of future performance and that our actual results of operations,financial condition and liquidity, and developments in the industry in which we operate may differ materially from those made in or suggested by the forward-looking statements contained in this prospectus, any applicable prospectus supplement and the documents incorporated by reference herein and therein. In addition, even if our results of operations, financial condition and liquidity, and developments in the industry in which we operate are consistent with the forward-looking statements contained in this prospectus, any applicable prospectus supplement and the documents incorporated by reference herein and therein, those results or developments may not be indicative of results or developments in subsequent periods.
PROSPECTUS SUMMARY
This summary description about us and our business highlights selected information contained elsewhere in this prospectus or incorporated by reference in this prospectus. This summary does not contain all of the information you should consider before buying our securities. You should carefully read this entire prospectus and any applicable prospectus supplement, including each of the documents incorporated by reference herein or therein, before making an investment decision. As used in this prospectus, “we,” “us,” “Hims & Hers,” the “Company,” and “our” refer to Hims & Hers Health, Inc., a Delaware corporation.
Hims & Hers Overview
Launched in 2017, Hims & Hers has built a consumer-first platform transforming the way customers fulfill their health and wellness needs. We believe that the Company has the technical platform, distributed provider network, and access to clinical capabilities to lead the migration of routine office visits to a digital format. The Hims & Hers platform includes access to a highly-qualified and technologically-capable provider network, a clinically-focused electronic medical record system, digital prescriptions, and cloud pharmacy fulfillment. Our digital platform enables access to treatments for a broad range of conditions, including those related to sexual health, hair loss, dermatology, mental health and weight loss. Hims & Hers connects patients to licensed healthcare professionals who can prescribe medications when appropriate. Prescriptions are fulfilled online through licensed pharmacies on a subscription basis.
In addition, we also offer access to a range of health and wellness products designed to meet individual needs, which can include curated prescription and non-prescription products. Through the Hims & Hers mobile apps, consumers can access a range of educational programs, wellness content, community support, and other services that promote lifelong health and wellness. Since our founding, we have facilitated nearly twenty million telehealth consultations, enabling greater access to high-quality, convenient, and affordable care for people in all 50 states and the United Kingdom. Hims & Hers products can also be found in tens of thousands of top retail locations in the United States.
Corporate Information
Oaktree Acquisition Corp., our predecessor company (“OAC”), was incorporated on April 9, 2019 as a special purpose acquisition company and a Cayman Islands exempted company. On July 22, 2019, OAC completed its initial public offering. On January 20, 2021, OAC consummated a business combination (the “Merger”) with Hims, Inc. In connection with the closing of the Merger, OAC changed its name to Hims & Hers Health, Inc.
Hims & Hers Health, Inc. is a Delaware corporation. Our principal executive offices are located at 2269 Chestnut Street, #523, San Francisco, CA 94123, and our telephone number is (415) 851-0195. Our Class A common stock is listed on the NYSE under the symbol “HIMS.” Our websites are located at www.hims.com, www.forhers.com, www.forhims.co.uk and www.apostrophe.com. Information contained on or accessible through our websites is not part of this prospectus and is not incorporated by reference herein.
The Securities We and Selling Stockholders May Offer
We may offer Class A common stock, preferred stock, debt securities, warrants, rights, and units in one or more offerings and in any combination, including in units from time to time. A general description of the securities we may offer is included in this prospectus under “Description of Securities.” Selling stockholders may sell Class A common stock in one or more offerings from time to time. A prospectus supplement, which we will provide each time we or any selling stockholders offer securities, will describe the specific amounts, prices and terms of these securities. The applicable prospectus supplement will also set forth the name of any selling stockholder and the number of securities beneficially owned by each such selling stockholder that are covered by such prospectus supplement and certain other information applicable to an offer and sale by such selling stockholder(s) pursuant to this prospectus and the applicable prospectus supplement.
USE OF PROCEEDS
We intend to use the net proceeds from the sale of the securities as set forth in the applicable prospectus supplement.
Unless the applicable prospectus supplement provides otherwise, we will not receive any of the proceeds from the sale of Class A common stock offered by selling stockholders.
DESCRIPTION OF SECURITIES
This prospectus contains a summary of our common stock, and the preferred stock, debt securities, warrants, rights and units that may be issued in the future. These summaries are not meant to be a complete description of each security. The particular terms of any security to be issued pursuant hereto will be set forth in a related prospectus supplement. This prospectus and the accompanying prospectus supplement will contain the material terms and conditions for each security.
DESCRIPTION OF CAPITAL STOCK
The following summary of the material terms of our capital stock is not intended to be a complete summary of the rights and preferences of such securities. We urge you to read our Certificate of Incorporation in its entirety for a complete description of the rights and preferences of our Class A common stock, our Class V common stock and our preferred stock.
The total amount of our authorized capital stock consists of 2,750,000,000 shares of Class A common stock, par value $0.0001 per share, 10,000,000 shares of Class V common stock, par value $0.0001 per share, and 275,000,000 shares of preferred stock, par value $0.0001 per share.
The following summary describes the material provisions of our capital stock. Because it is only a summary, it may not contain all the information that is important to an investor in our securities. Defined terms used and not defined herein shall have the meaning ascribed to such terms in our Annual Report on Form 10-K.
Common Stock
Class A Common Stock
Voting rights
Each holder of Class A common stock is entitled to one (1) vote for each share of Class A common stock held of record by such holder on all matters voted upon by our stockholders, provided, however, that, except as otherwise required in the Certificate of Incorporation, as provided by law or by the resolution(s) or any certificate of designation providing for the issue of any preferred stock, the holders of Class A common stock will not be entitled to vote on any amendment to our Certificate of Incorporation that relates solely to the terms of one or more outstanding series of preferred stock if the holders of such affected series are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to our Certificate of Incorporation (including any certificate of designation relating to any series of preferred stock) or pursuant to the Delaware General Corporation Law (the “DGCL”).
Dividend rights
Subject to the rights of holders of preferred stock, if any, holders of shares of Class A common stock and Class V common stock are entitled to receive ratably, on a per share basis, dividends and other distributions in cash, stock or property as may be declared and paid from time to time by our board of directors (our “Board”) out of any of our assets legally available therefor; provided that in the event a dividend is paid in the form of shares of Class A common stock or Class V common stock (or rights to acquire such shares), then the holders of Class A common stock will receive shares of Class A common stock (or rights to acquire such shares, as the case may be) and the holders of Class V common stock will receive shares of Class V common stock (or rights to acquire such shares, as the case may be), with the holders of shares
of Class A common stock and Class V common stock receiving, on a per share basis, the same number of shares of Class A common stock or Class V common stock, as applicable.
Rights upon liquidation
Subject to the rights of holders of preferred stock, if any, holders of shares of Class A common stock and Class V common stock are entitled to receive ratably the assets and funds available for distribution in the event of any liquidation, dissolution or winding up of the Company, whether voluntary or involuntary, unless disparate or different treatment of the shares of each such class with respect to distributions upon any such liquidation, dissolution or winding up is approved in advance by holders of a majority of the outstanding shares of Class A common stock and the holders of a majority of the outstanding shares of Class V common stock, each voting separately as a class.
Other rights
No holder of shares of Class A common stock is entitled to preemptive or subscription rights contained in the Certificate of Incorporation or in the Bylaws. There are no redemption or sinking fund provisions applicable to our Class A common stock. The rights, preferences and privileges of holders of our Class A common stock are subject to those of the holders of any shares of preferred stock that we may issue in the future.
Class V Common Stock
Issuance of Class V common stock
Shares of Class V common stock may be issued only to, and registered in the name of, Andrew Dudum, our Chief Executive Officer (“CEO”) and any entities wholly-owned (directly or indirectly) by our CEO, or any trust for the benefit of our CEO, or of which our CEO is a trustee or has sole or shared voting power such that our CEO has Voting Control (as defined in the Certificate of Incorporation) over the shares held therein; provided that, in each case, our CEO has sole dispositive power and the exclusive right to direct the voting of all of the shares of our Class V common stock held by such entity and the transfer does not involve any payment of cash, securities, property or other consideration (other than an interest in such entity) to our CEO (collectively, “Permitted Class V Owners”).
Voting rights
Each holder of Class V common stock is entitled to 175 votes for each share of Class V common stock held of record by such holder on all matters voted upon by our stockholders, provided, however, that, except as otherwise required in the Certificate of Incorporation, as provided by law or by the resolution(s) or any certificate of designation providing for the issue of any preferred stock, the holders of Class V common stock will not be entitled to vote on any amendment to our Certificate of Incorporation that relates solely to the terms of one or more outstanding series of our preferred stock if the holders of such affected series are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to our Certificate of Incorporation (including any certificate of designation relating to any series of our preferred stock) or pursuant to the DGCL.
Dividend rights
Subject to the rights of holders of preferred stock, if any, holders of shares of Class A common stock and Class V common stock are entitled to receive ratably, on a per share basis, dividends and other distributions in cash, stock or property as may be declared and paid from time to time by our Board out of any of our assets legally available therefor; provided that in the event a dividend is paid in the form of shares of our Class A common stock or Class V common stock (or rights to acquire such shares), then the holders of our Class A common stock will receive shares of Class A common stock (or rights to acquire such shares, as the case may be) and the holders of our Class V common stock will receive shares of Class V common stock (or rights to acquire such shares, as the case may be), with the holders of shares of Class A common stock and Class V common stock receiving, on a per share basis, the same number of shares of our Class A common stock or Class V common stock, as applicable.
Rights upon liquidation
Subject to the rights of holders of preferred stock, if any, holders of shares of Class A common stock and Class V common stock are entitled to receive ratably the assets and funds available for distribution in the event of any liquidation, dissolution or winding up, whether voluntary or involuntary, unless disparate or different treatment of the shares of each such class with respect to distributions upon any such liquidation, dissolution or winding up is approved in advance by holders of a majority of the outstanding shares of Class A common stock and the holders of a majority of the outstanding shares of Class V common stock, each voting separately as a class.
Transfers
Pursuant to the Certificate of Incorporation, holders of Class V common stock are generally restricted from transferring such shares, other than to a Permitted Class V Owner or in connection with a divorce or domestic relations order or decree.
Mandatory conversion
All shares of Class V common stock will be (1) automatically converted into an equal number of fully paid and nonassessable shares of Class A common stock upon any Transfer (as defined in the Certificate of Incorporation) of such shares of Class V common stock, except for a Permitted Transfer (as defined in the Certificate of Incorporation) and (2) subject to conversion into an equal number of fully paid and nonassessable shares of Class A common stock at the determination of our Board one year after the date (the “Termination Anniversary Date”) that both of the following conditions apply: (a) the earliest to occur of (i) our CEO’s employment as such being terminated for cause or due to death or permanent disability and (ii) our CEO resigns (other than for good reason) as such and (b) either (i) our CEO no longer serves as a member of our Board or (ii) our CEO serves as a member of our Board, but his service to our Board is not his primary business occupation. In the event that our CEO is reinstated as such or is reelected or reappointed to serve as a member of our Board prior to the Termination Anniversary Date (each, a “Reset Event”), then the shares of Class V common stock will not be converted pursuant to clause (2) unless and until the one-year anniversary of the date that both of the foregoing conditions are subsequently met; provided that in the event of a subsequent Reset Event, the next Termination Anniversary Date will extend until the one-year anniversary of the date that both of the foregoing conditions are subsequently met without a Reset Event occurring prior to such anniversary.
Other rights
No holder of shares of Class V common stock is entitled to preemptive or subscription rights contained in the Certificate of Incorporation or in the Bylaws. There are no redemption or sinking fund provisions applicable to our Class V common stock. The rights, preferences and privileges of holders of our Class V common stock are subject to those of the holders of any shares of our preferred stock that we may issue in the future.
Preferred Stock
Our Board has the authority to issue shares of preferred stock from time to time on terms it may determine, to divide shares of preferred stock into one or more series and to fix the designations, preferences, privileges, and restrictions of preferred stock, including dividend rights, conversion rights, voting rights, terms of redemption, liquidation preference, sinking fund terms, and the number of shares constituting any series or the designation of any series to the fullest extent permitted by the DGCL. The issuance of preferred stock could have the effect of decreasing the trading price of Class A common stock, restricting dividends on our capital stock, diluting the voting power of our Class A common stock and/or Class V common stock, impairing the liquidation rights of our capital stock, or delaying or preventing a change in control.
Election of directors and vacancies
Subject to the rights of the holders of any series of preferred stock to elect additional directors under specified circumstances, the number of directors of our Board may be fixed solely and exclusively by
resolution duly adopted from time to time by our Board. Under the Bylaws, at all meetings of stockholders called for the election of directors, a majority of the votes properly cast is sufficient to elect such directors to our Board.
Following the date on which shares of Class V common stock shall be converted into shares of Class A common stock in accordance with the “sunset” provision set forth in the Certificate of Incorporation, the directors on our Board shall become divided, with respect to the time for which they severally hold office, into three classes designated as Class I, Class II and Class III, respectively.
Except as the DGCL may otherwise require and subject to the rights, if any, of the holders of any series of preferred stock, in the interim between annual meetings of stockholders or special meetings of stockholders called for the election of directors and/or the removal of one or more directors and the filling of any vacancy in that connection, newly created directorships and any vacancies on our Board, including unfilled vacancies resulting from the removal of directors, may be filled only by the affirmative vote of a majority of the remaining directors then in office, although less than a quorum, or by the sole remaining director. All directors will hold office until the expiration of their respective terms of office and until their successors will have been elected and qualified. A director elected or appointed to fill a vacancy resulting from the death, resignation or removal of a director or a newly created directorship will serve for the remainder of the full term of the class of directors in which the new directorship was created or the vacancy occurred and until his or her successor will have been elected and qualified.
Subject to the rights, if any, of any series of preferred stock, any director may be removed from office only with cause and only by the affirmative vote of the holders of not less than two-thirds of our outstanding voting stock entitled to vote at an election of directors, voting together as a single class.
Notwithstanding the foregoing, any director elected pursuant to the right, if any, of the holders of preferred stock to elect additional directors under specified circumstances will serve for such term or terms and pursuant to such other provisions as specified in the relevant certificate of designations related to the preferred stock.
Quorum
The holders of a majority of the voting power of the capital stock issued and outstanding and entitled to vote at the meeting, present in person, present by means of remote communication in a manner, if any, authorized by our Board in its sole discretion, or represented by proxy, will constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise required by law or provided by the Certificate of Incorporation or Bylaws; provided, however, that where a separate vote by a class or classes or series of capital stock is required by law or the Certificate of Incorporation, the holders of a majority in voting power of the shares of such class or classes or series of our capital stock issued and outstanding and entitled to vote on such matter, present in person, present by means of remote communication in a manner, if any, authorized by our Board in its sole discretion, or represented by proxy, shall constitute a quorum entitled to take action with respect to the vote on such matter. If, however, such quorum will not be present or represented at any meeting of the stockholders, (i) the chairperson of the meeting, or (ii) the stockholders entitled to vote at the meeting, present in person or represented by proxy, will have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum will be present or represented. At such adjourned meeting at which a quorum will be present or represented, any business may be transacted which might have been transacted at the meeting as originally noticed. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting will be given to each stockholder entitled to vote at such adjourned meeting as of the record date fixed for notice of such adjourned meeting.
Anti-takeover Effects of the Certificate of Incorporation and the Bylaws
The Certificate of Incorporation and the Bylaws contain provisions that may delay, defer or discourage another party from acquiring control of us. We expect that these provisions, which are summarized below, will discourage coercive takeover practices or inadequate takeover bids. These provisions are also designed to encourage persons seeking to acquire control of us to first negotiate with the board of directors, which we
believe may result in an improvement of the terms of any such acquisition in favor of our stockholders. However, they also give the board of directors the power to discourage acquisitions that some stockholders may favor.
Authorized but Unissued Capital Stock
Delaware law does not require stockholder approval for any issuance of authorized shares. However, the listing requirements of NYSE, which apply so long as our Class A common stock remains listed on NYSE, require stockholder approval of certain issuances equal to or exceeding 20% of the then outstanding voting power or then outstanding number of shares of our Class A common stock. Additional shares that may be issued in the future may be used for a variety of corporate purposes, including future public offerings, to raise additional capital or to facilitate acquisitions.
One of the effects of the existence of unissued and unreserved common stock may be to enable our Board to issue shares to persons friendly to current management, which issuance could render more difficult or discourage an attempt to obtain control of us by means of a merger, tender offer, proxy contest or otherwise and thereby protect the continuity of management and possibly deprive stockholders of opportunities to sell their shares of Class A common stock at prices higher than prevailing market prices.
Dual Class Stock
As described above in “— Common Stock — Class A Common Stock-Voting Rights” and “— Common Stock — Class V Common Stock-Voting Rights,” our Certificate of Incorporation provides for a dual class common stock structure, which provides our CEO with the ability to control the outcome of matters requiring stockholder approval, even though he owns significantly less than a majority of the shares of outstanding Class A and Class V common stock, including the election of directors and significant corporate transactions, such as a merger or other sale of us or our assets.
Special Meeting, Action by Written Consent and Advance Notice Requirements for Stockholder Proposals
Unless otherwise required by law, and subject to the rights, if any, of the holders of any series of preferred stock, special meetings of our stockholders, for any purpose or purposes, may be called only by a majority of our Board, the Chairman of our Board or our CEO. Unless otherwise required by law, written notice of a special meeting of stockholders, stating the time, place and purpose or purposes thereof, shall be given to each stockholder entitled to vote at such meeting, not less than ten (10) or more than sixty (60) days before the date fixed for the meeting. Business transacted at any special meeting of stockholders will be limited to the purposes stated in the notice.
The Bylaws also provide that unless otherwise restricted by the Certificate of Incorporation or the Bylaws, any action required or permitted to be taken at any meeting of our Board or of any committee thereof may be taken without a meeting, if all members of our Board or of such committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of our Board or committee.
In addition, the Bylaws require advance notice procedures for stockholder proposals to be brought before an annual meeting of the stockholders, including the nomination of directors. Stockholders at an annual meeting may only consider the proposals specified in the notice of meeting or brought before the meeting by or at the direction of the board of directors, or by a stockholder of record on the record date for the meeting, who is entitled to vote at the meeting and who has delivered a timely written notice in proper form to our secretary, of the stockholder’s intention to bring such business before the meeting.
These provisions could have the effect of delaying until the next stockholder meeting any stockholder actions, even if they are favored by the holders of a majority of our outstanding voting securities.
Amendment to Certificate of Incorporation and Bylaws
The DGCL provides generally that the affirmative vote of a majority of the outstanding stock entitled to vote on amendments to a corporation’s certificate of incorporation or bylaws is required to approve such amendment, unless a corporation’s certificate of incorporation or bylaws, as the case may be, requires a
greater percentage. The Certificate of Incorporation provides that the following provisions therein may be amended, altered, repealed or rescinded only by the affirmative vote of the holders of at least 662∕3% in voting power of all the then outstanding shares of our stock entitled to vote thereon and the affirmative vote of at least 662∕3% of the outstanding shares of each class entitled to vote thereon as a class:
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the provisions prohibiting stockholder actions without a meeting, from and after the time that our CEO or his affiliates or permitted transferees beneficially own less than a majority of the voting power of all of the then-outstanding shares of our capital stock entitled to vote at an annual or special meeting duly noticed and called in accordance with the Certificate of Incorporation;
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the provisions regarding calling special meetings of stockholders;
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the provisions regarding removal of directors;
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the provisions regarding the limited liability and indemnification of our directors;
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the provisions regarding the selection of exclusive forum;
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the provisions regarding the waiver of corporate opportunity doctrine; and
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the provisions regarding the election not to be governed by Section 203 of the DGCL.
The Bylaws may be amended or repealed (A) by the affirmative vote of a majority of our Board or (B) without the approval of our Board, by the affirmative vote of the holders of 662∕3% of our outstanding voting stock entitled to vote on such amendment or repeal, voting as a single class, provided that if our Board recommends that stockholders approve such amendment or repeal at such meeting of stockholders, then such amendment or repeal shall only require the affirmative vote of the majority in voting power of our stock entitled to vote on such amendment, alteration or repeal.
Delaware Anti-Takeover Statute
Section 203 of the DGCL provides that if a person acquires 15% or more of the voting stock of a Delaware corporation, such person becomes an “interested stockholder” and may not engage in certain “business combinations” with the corporation for a period of three years from the time such person acquired 15% or more of the corporation’s voting stock, unless: (1) the board of directors approves the acquisition of stock or the merger transaction before the time that the person becomes an interested stockholder; (2) the interested stockholder owns at least 85% of the outstanding voting stock of the corporation at the time the merger transaction commences (excluding voting stock owned by directors who are also officers and certain employee stock plans); or (3) the merger transaction is approved by the board of directors and at a meeting of stockholders, not by written consent, by the affirmative vote of 2/3 of the outstanding voting stock which is not owned by the interested stockholder. A Delaware corporation may elect in its certificate of incorporation or bylaws not to be governed by this particular Delaware law.
Under the Certificate of Incorporation, we opted out of Section 203 of the DGCL and therefore are not subject to Section 203. However, the Certificate of Incorporation contains similar provisions providing that we may not engage in certain “business combinations” with any “interested stockholder” for a three- year period following the time that the stockholder became an interested stockholder, unless:
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prior to such time, our board of directors approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder;
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upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of our voting stock outstanding at the time the transaction commenced, excluding certain shares; or
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at or subsequent to that time, the business combination is approved by our board of directors and by the affirmative vote of holders of at least 662∕3% of the outstanding voting stock that is not owned by the interested stockholder.
Generally, a “business combination” includes a merger, asset or stock sale or other transaction resulting in a financial benefit to the interested stockholder. Subject to certain exceptions, an “interested stockholder”
is a person who, together with that person’s affiliates and associates, owns, or within the previous three years owned, 15% or more of our voting stock.
Under certain circumstances, this provision will make it more difficult for a person who would be an “interested stockholder” to effect various business combinations with a corporation for a three-year period. This provision may encourage companies interested in acquiring our company to negotiate in advance with our board of directors because the stockholder approval requirement would be avoided if our board of directors approves either the business combination or the transaction which results in the stockholder becoming an interested stockholder. These provisions also may have the effect of preventing changes in our board of directors and may make it more difficult to accomplish transactions which stockholders may otherwise deem to be in their best interests.
The Certificate of Incorporation provides that any person whose ownership of shares in excess of the 15% limitation set forth therein is the result of any action taken solely by us (provided, that such person shall be an “interested stockholder” if such thereafter such person acquires additional shares of voting stock, except as a result of further corporate actions not caused by such person) does not constitute an “interested stockholder” for purposes of this provision.
Classified Board and Stockholder Action by Written Consent
For so long as the shares of Class V common stock held by our CEO and his affiliates and permitted transferees continue to remain outstanding, the Certificate of Incorporation provides that our Board will not be classified into three classes of directors. Following the date on which all shares of Class V common stock “sunset” and convert into shares of Class A common stock on a one-for-one basis, our Board will be classified into three classes of directors, each of which will hold office for a three-year term. A third party may be discouraged from making a tender offer or otherwise attempting to obtain control of us at a time when there is a classified board as it is more difficult and time consuming for stockholders to replace a majority of the directors on a classified board of directors.
Under the Certificate of Incorporation, our stockholders are permitted to take action by written consent in lieu of a meeting for so long as our CEO and his affiliates and permitted transferees beneficially own a majority of the voting power of the then-outstanding shares of our capital stock. After the ownership of our CEO and his affiliates and permitted transferees fall below this threshold, stockholders will be required to take action at an annual or special meeting of our stockholders. Once in effect, this provision may have the effect of delaying or preventing hostile stockholder action designed to effect a change in control.
Limitations on Liability and Indemnification of Officers and Directors
The Certificate of Incorporation limits the liability of our directors to the fullest extent permitted by the DGCL, and the Bylaws provide that we will indemnify them to the fullest extent permitted by such law. We have entered and expect to continue to enter into agreements to indemnify our directors, executive officers and other employees as determined by our Board. Under the terms of such indemnification agreements, we are required to indemnify each of our directors, officers and other employees party to such an agreement, to the fullest extent permitted by the laws of the state of Delaware, if the basis of the indemnitee’s involvement was by reason of the fact that the indemnitee is or was a director, officer, employee or agent of ours or any of our subsidiaries or was serving at our request in an official capacity for another entity. We must indemnify our officers and directors against all reasonable fees, expenses, charges, judgments, fines, amounts paid in settlement and other costs of any type or nature whatsoever, including any and all expenses and obligations paid or incurred in connection with investigating, defending, being a witness in, participating in (including on appeal), or preparing to defend, be a witness or participate in any completed, actual, pending or threatened action, suit, claim or proceeding, whether civil, criminal, administrative or investigative, or establishing or enforcing a right to indemnification under the indemnification agreement. The indemnification agreements also require us, if so requested, to advance within 30 days (or 10 days in any action brought by the indemnitee for indemnification under the indemnification agreement) of such request all reasonable fees, expenses, charges and other costs that such director, officer or other employee party to such an agreement incurred, provided that such person will return any such advance if it is ultimately determined that such person is not entitled to indemnification by us. Any claims for indemnification by
our directors, officers or other employees may reduce our available funds to satisfy successful third-party claims against us and may reduce the amount of money available to us.
Exclusive Jurisdiction of Certain Actions
The Certificate of Incorporation requires, to the fullest extent permitted by law, unless we consent in writing to the selection of an alternative forum, that derivative actions brought in our name, actions against current or former directors, officers, employees and agents for breach of fiduciary duty, actions asserting a claim arising pursuant to any provision of the DGCL or the Certificate of Incorporation or the Bylaws and actions asserting a claim against us governed by the internal affairs doctrine may be brought only in the Court of Chancery in the State of Delaware and any stockholder will be deemed to have consented to such provision. Although we believe this provision benefits us by providing increased consistency in the application of Delaware law in the types of lawsuits to which it applies, the provision may have the effect of discouraging lawsuits against our directors and officers.
In addition, the Certificate of Incorporation requires that, unless we consent in writing to the selection of an alternative forum, the federal district courts of the United States shall be the sole and exclusive forum for resolving any action asserting a claim arising under the Securities Act. Notwithstanding the foregoing, the provisions of Article XII of the Certificate of Incorporation will not apply to suits brought to enforce any liability or duty created by the Exchange Act, or any other claim for which the federal district courts of the United States of America shall be the sole and exclusive forum.
Transfer Agent and Registrar
The transfer agent for our Class A common stock is Broadridge Corporate Issuer Solutions, Inc.
Listing
Our Class A common stock is listed on the New York Stock Exchange under the symbol “HIMS.”
DESCRIPTION OF DEBT SECURITIES
We have summarized below general terms and conditions of the debt securities that we will offer and sell pursuant to this prospectus. When we offer to sell a particular series of debt securities, we will describe the specific terms and conditions of the series in a prospectus supplement to this prospectus. We will also indicate in the applicable prospectus supplement whether the general terms and conditions described in this prospectus apply to the series of debt securities. The terms and conditions of the debt securities of a series may be different in one or more respects from the terms and conditions described below. If so, those differences will be described in the applicable prospectus supplement.
We will issue the debt securities in one or more series under an indenture between us and a trustee to be selected by us. The following description of provisions of the indenture does not purport to be complete and is subject to, and qualified in its entirety by reference to, the indenture, which has been filed with the SEC as an exhibit to the registration statement of which this prospectus forms a part. A form of each debt security, any future supplemental indenture or similar document also will be so filed. You should read the indenture and any supplemental indenture or similar document because they, and not this description, define your rights as holder of our debt securities. All capitalized terms have the meanings specified in the indenture.
For purposes of this section of this prospectus, references to “we,” “us” and “our” are to Hims & Hers Health, Inc. and not to any of its subsidiaries.
General
We may issue, from time to time, debt securities, in one or more series, that will consist of either senior debt (“Senior Debt Securities”), senior subordinated debt (“Senior Subordinated Debt Securities”), subordinated debt (“Subordinated Debt Securities”) or junior subordinated debt (“Junior Subordinated Debt Securities” and, together with the Senior Subordinated Debt Securities and the Subordinated Debt Securities, the “Subordinated Securities”). Debt securities, whether senior, senior subordinated, subordinated or junior subordinated, may be issued as convertible debt securities or exchangeable debt securities.
The indenture does not limit the amount of debt securities that we may issue. We may, without the consent of the holders of the debt securities of any series, issue additional debt securities ranking equally with, and otherwise similar in all respects to, the debt securities of the series (except for any differences in the issue price and, if applicable, the initial interest accrual date and interest payment date) so that those additional debt securities will be consolidated and form a single series with the debt securities of the series previously offered and sold; provided that if the additional debt securities are not fungible with the debt securities of the series previously offered or sold for U.S. federal income tax purposes, the additional debt securities will have a separate CUSIP or other identifying number.
The indenture provides that we may issue debt securities up to the principal amount that we may authorize and may be in any currency or currency unit designated by us. Except for the limitations on consolidation, merger and sale of all or substantially all of our assets contained in the indenture, the terms of the indenture do not contain any covenants or other provisions designed to afford holders of any debt securities protection with respect to our operations, financial condition or transactions involving us.
We may issue the debt securities issued under the indenture as “discount securities,” which means they may be sold at a discount below their stated principal amount. These debt securities, as well as other debt securities that are not issued at a discount, may, for U.S. federal income tax purposes, be treated as if they were issued with “original issue discount,” because of interest payment and other characteristics. Special U.S. federal income tax considerations applicable to debt securities issued with original issue discount will be described in more detail in any applicable prospectus supplement.
Provisions of the Indenture
The applicable prospectus supplement for a series of debt securities that we issue will describe, among other things, the following terms of the offered debt securities:
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the title;
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the price or prices at which the debt securities will be issued;
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any limit on the aggregate principal amount of debt securities of such series;
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the currency or currencies of payment of principal or interest;
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the date or dates on which principal is payable;
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interest rates, and the date or dates from which interest, if any, will accrue, and the date or dates when interest is payable;
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the right, if any, to extend the interest payment periods and the duration of the extensions;
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the record date or record dates for determining to whom interest is payable;
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the place or places where and the manner in which principal, premium or interest will be payable and the place or places where the debt securities may be presented for transfer and, if applicable, conversion or exchange;
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our rights or obligations to redeem or purchase the debt securities, including sinking fund or partial redemption payments;
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the terms, if any, pursuant to which any debt securities will be subordinate to any of our other debt;
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the denominations in which the debt securities will be issued;
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if other than the entire principal amount of the debt securities when issued, the portion of the principal amount payable upon acceleration of maturity as a result of an Event of Default (as defined herein);
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if the amount of payments of principal or interest is to be determined by reference to an index or formula, or based on a coin or currency other than that in which the debt securities are stated to be payable, the manner in which these amounts are determined and the calculation agent, if any, with respect thereto;
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the terms applicable to any debt securities issued at a discount from their stated principal amount;
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any provisions for the remarketing of the debt securities;
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any additional Events of Default applicable to any debt securities;
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if applicable, covenants affording holders of debt protection with respect to our operations, financial condition or transactions involving us;
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conversion or exchange provisions, if any, including conversion or exchange prices or rates and adjustments thereto; and
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any other specific terms of any debt securities.
The applicable prospectus supplement will set forth certain U.S. federal income tax considerations for holders of any debt securities and the securities exchange or quotation system on which any debt securities are listed or quoted, if any.
Debt securities issued by us will be structurally subordinated to all indebtedness and other liabilities of our subsidiaries, except to the extent any such subsidiary guarantees or is otherwise obligated to make payment on such debt securities.
Senior Debt Securities
Payment of the principal of, and premium, if any, and interest on, Senior Debt Securities will rank on a parity basis with all of our other unsecured and unsubordinated debt.
Senior Subordinated Debt Securities
Payment of the principal of, and premium, if any, and interest on, Senior Subordinated Debt Securities will be junior in right of payment to the prior payment in full of all of our unsubordinated debt. We will set forth in the applicable prospectus supplement relating to any Senior Subordinated Debt Securities the subordination terms of such securities as well as the aggregate amount of outstanding debt, as of the most recent practicable date, that by its terms would be senior to the Senior Subordinated Debt Securities. We will also set forth in such applicable prospectus supplement limitations, if any, on issuance of additional debt ranking senior to the Senior Subordinated Debt Securities.
Subordinated Debt Securities
Payment of the principal of, and premium, if any, and interest on, Subordinated Debt Securities will be subordinated and junior in right of payment to the prior payment in full of all of our unsubordinated and senior subordinated debt. We will set forth in the applicable prospectus supplement relating to any Subordinated Debt Securities the subordination terms of such securities as well as the aggregate amount of outstanding indebtedness, as of the most recent practicable date, that by its terms would be senior to the Subordinated Debt Securities. We will also set forth in such prospectus supplement limitations, if any, on issuance of additional debt ranking senior to the Subordinated Debt Securities.
Junior Subordinated Debt Securities
Payment of the principal of, and premium, if any, and interest on, Junior Subordinated Debt Securities will be subordinated and junior in right of payment to the prior payment in full of all of our unsubordinated, senior subordinated and subordinated debt. We will set forth in the applicable prospectus supplement relating to any Junior Subordinated Debt Securities the subordination terms of such securities as well as the aggregate amount of outstanding debt, as of the most recent practicable date, that by its terms would be senior to the Junior Subordinated Debt Securities. We will also set forth in such prospectus supplement limitations, if any, on issuance of additional debt ranking senior to the Junior Subordinated Debt Securities.
Conversion or Exchange Rights
Debt securities may be convertible into or exchangeable for other securities or property of us. The terms and conditions of conversion or exchange will be set forth in the applicable prospectus supplement. The terms will include, among others, the following:
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the conversion or exchange price;
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the conversion or exchange period;
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provisions regarding the ability of us or the holder to convert or exchange the debt securities;
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events requiring adjustment to the conversion or exchange price; and
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provisions affecting conversion or exchange in the event of our redemption of the debt securities.
Consolidation, Merger or Sale
We cannot consolidate or merge with or into, or transfer or lease our properties and assets substantially as an entirety to, any person, and we shall not permit any other person to consolidate with or merge into us, unless:
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(a) we will be the continuing corporation or (b) the successor corporation or person formed by such consolidation or into which we are merged or to which our properties and assets substantially as an entirety are transferred or leased is a person organized or formed under the laws of the United States, any state of the United States or the District of Columbia and, if such entity is not a corporation, a co-obligor of the debt securities is a corporation organized or existing under any such laws, and such successor corporation or person, including such co-obligor, if any, expressly assumes our obligations under the debt securities and the indenture; and
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immediately after giving effect to such transaction, no Event of Default or event, which after notice or lapse of time or both would become an Event of Default, shall have occurred and be continuing.
Subject to certain exceptions, when the person to whom our assets are transferred or leased has assumed our obligations under the debt securities and the indenture, we shall be discharged from all our obligations under the debt securities and the indenture.
This covenant would not apply to any recapitalization transaction, a change of control of us or a highly leveraged transaction, unless the transaction or change of control were structured to include a merger or consolidation or transfer or lease of our properties and assets substantially as an entirety.
Events of Default
Unless otherwise indicated, the term “Event of Default,” when used in the indenture with respect to the debt securities of any series, means any of the following:
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failure to pay interest for 30 days after the date payment on any debt security of such series is due and payable; provided that an extension of an interest payment period by us in accordance with the terms of the debt securities shall not constitute a failure to pay interest;
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failure to pay principal or premium, if any, on any debt security of such series when due, either at maturity, upon any redemption, by declaration or otherwise;
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failure to perform any other covenant in the indenture or the debt securities of such series for a specified period of time after written notice that performance was required, which notice must be sent by either the trustee or holders of not less than a specified percentage of the principal amount of the outstanding debt securities of such series;
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certain events of bankruptcy, insolvency or reorganization of us; or
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any other Event of Default provided in the applicable resolution of the Board or the officers’ certificate or supplemental indenture under which we issue such series of debt securities.
An Event of Default for a particular series of debt securities does not necessarily constitute an Event of Default for any other series of debt securities issued under the indenture. The occurrence of certain Events of Default or an acceleration under the indenture may constitute an event of default under certain indebtedness of ours or our subsidiaries outstanding from time to time.
If an Event of Default (other than an Event of Default relating to events of bankruptcy, insolvency or reorganization of us) involving any series of debt securities has occurred and is continuing, the trustee or
the holders of a specified aggregate principal amount of the debt securities of each affected series may declare the entire principal amount of all the debt securities of such affected series, and the interest accrued thereon, if any, to be due and payable immediately. The holders of not less than a majority in aggregate principal amount of the debt securities of an affected series may, after satisfying conditions, rescind and annul any of the above-described declarations and consequences involving such series.
If an Event of Default relating to events of bankruptcy, insolvency or reorganization of us occurs and is continuing, then the entire principal amount of all of the debt securities outstanding, and the interest accrued thereon, if any, will automatically become due and payable immediately, without any declaration or other act by the trustee or any holder.
The indenture imposes limitations on suits brought by holders of debt securities against us with respect to an Event of Default. Except as provided below, no holder of debt securities of any series may institute any action against us under the indenture unless:
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an Event of Default has occurred and is continuing and such holder has previously given to the trustee written notice of such continuing Event of Default;
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the holders of a specified percentage in principal amount of the outstanding debt securities of the affected series have requested that the trustee institute the action in respect of such Event of Default;
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the requesting holders have offered the trustee security or indemnity reasonably satisfactory to it for expenses and liabilities that may be incurred by bringing the action;
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the trustee has not instituted the action within a specified number of days of the request; and
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the trustee has not received inconsistent direction by the holders of a majority in principal amount of the outstanding debt securities of the affected series.
Notwithstanding the foregoing, each holder of debt securities of any series has the right, which is absolute and unconditional, to receive payment of the principal of, and premium and interest, if any, on, such debt securities when due and to institute suit for the enforcement of any such payment, and such rights may not be impaired without the consent of that holder of debt securities.
We will be required to file annually with the trustee a certificate, signed by one of our officers, stating whether or not the officer knows of any default by us in the performance, observance or fulfillment of any condition or covenant of the indenture.
Registered Global Securities
We may issue the debt securities of a series in whole or in part in the form of one or more fully registered global securities that we will deposit with a depositary or with a nominee for a depositary identified in the applicable prospectus supplement and registered in the name of such depositary or nominee. In such case, we will issue one or more registered global securities denominated in an amount equal to the aggregate principal amount of all of the debt securities of the series to be issued and represented by such registered global security or securities.
Unless and until it is exchanged in whole or in part for debt securities in definitive registered form, a registered global security may not be transferred except as a whole:
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by the depositary for such registered global security to its nominee;
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by a nominee of the depositary to the depositary or another nominee of the depositary; or
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by the depositary or its nominee to a successor of the depositary or a nominee of the successor.
The applicable prospectus supplement relating to a series of debt securities will describe the specific terms of the depositary arrangement with respect to any portion of such series represented by a registered global security. We anticipate that the following provisions will apply to all depositary arrangements for debt securities:
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ownership of beneficial interests in a registered global security will be limited to persons that have accounts with the depositary for the registered global security, those persons being referred to as “participants,” or persons that may hold interests through participants;
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upon the issuance of a registered global security, the depositary for the registered global security will credit, on its book-entry registration and transfer system, the participants’ accounts with the respective principal amounts of the debt securities represented by the registered global security beneficially owned by the participants;
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any dealers, underwriters, or agents participating in the distribution of the debt securities will designate the accounts to be credited; and
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ownership of any beneficial interest in the registered global security will be shown on, and the transfer of any ownership interest will be effected only through, records maintained by the depositary for the registered global security (with respect to interests of participants) and on the records of participants (with respect to interests of persons holding through participants).
The laws of some states may require that certain purchasers of securities take physical delivery of the securities in definitive form. These laws may limit the ability of those persons to own, transfer or pledge beneficial interests in registered global securities.
So long as the depositary for a registered global security, or its nominee, is the registered owner of the registered global security, the depositary or the nominee, as the case may be, will be considered the sole owner or holder of the debt securities represented by the registered global security for all purposes under the indenture. Except as set forth below, owners of beneficial interests in a registered global security:
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will not be entitled to have the debt securities represented by a registered global security registered in their names;
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will not receive or be entitled to receive physical delivery of the debt securities in the definitive form; and
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will not be considered the owners or holders of the debt securities under the indenture.
Accordingly, each person owning a beneficial interest in a registered global security must rely on the procedures of the depositary for the registered global security and, if the person is not a participant, on the procedures of a participant through which the person owns its interest, to exercise any rights of a holder under the indenture.
We understand that under existing industry practices, if we request any action of holders or if an owner of a beneficial interest in a registered global security desires to give or take any action that a holder is entitled to give or take under the indenture, the depositary for the registered global security would authorize the participants holding the relevant beneficial interests to give or take the action, and those participants would authorize beneficial owners owning through those participants to give or take the action or would otherwise act upon the instructions of beneficial owners holding through them.
We will make payments of principal and premium, if any, and interest, if any, on debt securities represented by a registered global security registered in the name of a depositary or its nominee to the depositary or its nominee, as the case may be, as the registered owners of the registered global security. None of us, the trustee or any other agent of us or the trustee will be responsible or liable for any aspect of the records relating to, or payments made on account of, beneficial ownership interests in the registered global security or for maintaining, supervising or reviewing any records relating to the beneficial ownership interests.
We expect that the depositary for any debt securities represented by a registered global security, upon receipt of any payments of principal and premium, if any, and interest, if any, in respect of the registered global security, will immediately credit participants’ accounts with payments in amounts proportionate to their respective beneficial interests in the registered global security as shown on the records of the depositary. We also expect that standing customer instructions and customary practices will govern payments by participants to owners of beneficial interests in the registered global security held through the participants, as is now the case with the securities held for the accounts of customers in bearer form or registered in “street name.” We also expect that any of these payments will be the responsibility of the participants.
If the depositary for any debt securities represented by a registered global security is at any time unwilling or unable to continue as depositary or ceases to be a clearing agency registered under the Exchange Act, we will appoint an eligible successor depositary. If we fail to appoint an eligible successor depositary within 90 days, we will issue the debt securities in definitive form in exchange for the registered global security. In addition, we may at any time and in our sole discretion decide not to have any of the debt securities of a series represented by one or more registered global securities. In such event, we will issue debt securities of that series in a definitive form in exchange for all of the registered global securities representing the debt securities. The trustee will register any debt securities issued in definitive form in exchange for a registered global security in such name or names as the depositary, based upon instructions from its participants, shall instruct the trustee.
Discharge, Defeasance and Covenant Defeasance
We can discharge or defease our obligations under the indenture as set forth below. Unless otherwise set forth in the applicable prospectus supplement, the subordination provisions applicable to any Subordinated Securities will be expressly made subject to the discharge and defeasance provisions of the indenture.
We may discharge our obligations to holders of any series of debt securities that have not already been delivered to the trustee for cancellation and that have either become due and payable or are by their terms to become due and payable within one year (or to be called for redemption within one year). We may effect a discharge by irrevocably depositing with the trustee cash or U.S. government obligations, as trust funds, in an amount certified to be sufficient to pay when due, whether at maturity, upon redemption or otherwise, the principal of, and premium, if any, and interest on, the debt securities and any mandatory sinking fund payments.
Unless otherwise provided in the applicable prospectus supplement, we may also discharge any and all of our obligations to holders of any series of debt securities at any time (“legal defeasance”). We also may be released from the obligations imposed by any covenants of any outstanding series of debt securities and provisions of the indenture, and we may omit to comply with those covenants without creating an Event of Default (“covenant defeasance”). We may effect legal defeasance and covenant defeasance only if, among other things:
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we irrevocably deposit with the trustee cash or U.S. government obligations, as trust funds, in an amount certified to be sufficient to pay when due (whether at maturity, upon redemption, or otherwise) the principal of, and premium, if any, and interest on all outstanding debt securities of the series; and
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we deliver to the trustee an opinion of counsel from a nationally recognized law firm to the effect that the beneficial owners of the series of debt securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the legal defeasance or covenant defeasance, as applicable, and that legal defeasance or covenant defeasance, as applicable, will not otherwise alter the beneficial owners’ U.S. federal income tax treatment of principal, premium, if any, and interest payments on the series of debt securities, which opinion, in the case of legal defeasance, must be based on a ruling of the Internal Revenue Service, or a change in U.S. federal income tax law.
Although we may discharge or defease our obligations under the indenture as described in the two preceding paragraphs, we may not avoid, among other things, our duty to register the transfer or exchange of any series of debt securities, to replace any temporary, mutilated, destroyed, lost or stolen series of debt securities or to maintain an office or agency in respect of any series of debt securities.
We may exercise our legal defeasance option notwithstanding our prior exercise of our covenant defeasance option.
Modifications of the Indenture
The indenture provides that we and the trustee may enter into supplemental indentures without the consent of the holders of debt securities to:
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secure any debt securities;
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evidence the assumption by another person of our obligations, as permitted by the indenture;
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add covenants for the protection of the holders of debt securities of all or any series or to surrender any right or power conferred upon us;
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add any additional events of default for the benefit of holders of the debt securities of all or any series;
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add one or more guarantees for the benefit of holders of the debt securities;
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provide for the issuance of additional debt securities of any series;
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comply with the rules of any applicable securities depository;
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provide for uncertificated debt securities in addition to or in place of certificated debt securities;
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add to, change or eliminate any of the provisions of the indenture in respect of one or more series of debt securities; provided that any such addition, change or elimination (a) shall neither (1) apply to any debt security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (2) modify the rights of the holder of any such debt security with respect to such provision or (b) shall become effective only when there is no debt security described in clause (a)(1) outstanding;
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supplement any of the provisions of the indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of any series of debt securities pursuant to the indenture; provided that any such action shall not adversely affect the interests of the holders of debt securities of such series or any other series of debt securities in any material respect;
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comply with the rules or regulations of any securities exchange or automated quotation system on which any of the debt securities may be listed or traded;
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add to, change or eliminate any of the provisions of the indenture as shall be necessary or desirable in accordance with any amendments to the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), provided that such action does not adversely affect the rights or interests of any holder of debt securities in any material respect;
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cure or correct any ambiguity, defect, omission or inconsistency in the indenture; provided that such action does not adversely affect the interests of the holders of debt securities of any series in any material respect;
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establish the forms or terms of debt securities of any series;
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evidence and provide for the acceptance of appointment by a successor trustee; and
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add to, change or eliminate any other provision of the indenture; provided that such addition, change or elimination does not adversely affect the interests of the holders of debt securities of any series in any material respect.
The indenture also provides that we and the trustee may, with the consent of the holders of not less than a majority in aggregate principal amount of the outstanding debt securities of all series of Senior Debt Securities or Subordinated Securities, as the case may be, then outstanding and affected thereby (voting as one class), add any provisions to, or change in any manner, eliminate or modify in any way the provisions of, the indenture or modify in any manner the rights of the holders of the debt securities. We and the trustee may not, however, without the consent of the holder of each outstanding debt security affected thereby:
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extend the final maturity of any debt security;
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reduce the principal amount of, or premium, if any, on any debt security;
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reduce the rate or extend the time of payment of interest on any debt security;
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reduce any amount payable on redemption of any debt security;
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change the currency in which the principal (other than as may be provided otherwise with respect to a series), premium, if any, or interest is payable on any debt security;
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reduce the amount of the principal of any debt security issued with an original issue discount that is payable upon acceleration or provable in bankruptcy;
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modify any of the subordination provisions or the definition of senior indebtedness applicable to any Subordinated Securities in a manner adverse to the holders of those securities;
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alter provisions of the indenture relating to the debt securities not denominated in U.S. dollars;
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impair the right to institute suit for the enforcement of any payment on any debt security when due; or
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reduce the percentage of holders of debt securities of any series whose consent is required for any modification of the indenture.
Concerning the Trustee
The indenture provides that there may be more than one trustee under the indenture, each with respect to one or more series of debt securities. If there are different trustees for different series of debt securities, each trustee will be a trustee of a trust under the indenture separate and apart from the trust administered by any other trustee under the indenture. Except as otherwise indicated in this prospectus or any accompanying prospectus supplement, any action permitted to be taken by a trustee may be taken by such trustee only with respect to the one or more series of debt securities for which it is the trustee under the indenture. Any trustee under the indenture may resign or be removed with respect to one or more series of debt securities. All payments of principal of, and premium, if any, and interest on, and all registration, transfer, exchange, authentication and delivery (including authentication and delivery on original issuance of the debt securities) of, the debt securities of a series will be effected by the trustee with respect to such series at an office designated by the trustee.
The indenture contains limitations on the right of the trustee, should it become a creditor of us, to obtain payment of claims in some cases or to realize on certain property received in respect of any such claim as security or otherwise. The trustee may engage in other transactions. If it acquires any conflicting interest relating to any duties with respect to the debt securities, however, it must eliminate the conflict or resign as trustee.
The holders of a majority in aggregate principal amount of any series of debt securities then outstanding will have the right to direct the time, method and place of conducting any proceeding for exercising any remedy available to the trustee with respect to such series of debt securities, provided that the direction would not conflict with any rule of law or with the indenture, would not be unduly prejudicial to the rights of another holder of the debt securities, and would not involve any trustee in personal liability. The indenture provides that in case an Event of Default shall occur and be known to any trustee and not be cured, the trustee must use the same degree of care as a prudent person would use in the conduct of his or her own affairs in the exercise of the trustee’s power. Subject to these provisions, the trustee will be under no obligation to exercise any of its rights or powers under the indenture at the request of any of the holders of the debt securities, unless they shall have offered to the trustee security and indemnity satisfactory to the trustee.
No Individual Liability of Incorporators, Stockholders, Officers or Directors
The indenture provides that no incorporator and no past, present or future stockholder, officer or director of us or any successor corporation in their capacity as such shall have any individual liability for any of our obligations, covenants or agreements under the debt securities or the indenture. By accepting a debt security, each holder waives and releases all such liability. This waiver and release is part of the consideration for the issue of the debt securities. However, this waiver and release may not be effective to waive liabilities under U.S. federal securities laws, and it is the view of the SEC that such waiver is against public policy.
Governing Law
The indenture and the debt securities, including any claims or controversy arising out of or relating to the indenture or the securities, will be governed by, and construed in accordance with, the laws of the State of New York.
DESCRIPTION OF WARRANTS
General
We may issue debt warrants for the purchase of debt securities or stock warrants for the purchase of preferred stock or Class A common stock.
The warrants will be issued under warrant agreements to be entered into between us and the purchasers or between us and a bank or trust company, as warrant agent, all to be set forth in the applicable prospectus supplement relating to any or all warrants in respect of which this prospectus is being delivered. We will file a copy of the warrant and warrant agreement with the SEC each time we issue a series of warrants, and these warrants and warrant agreements will be incorporated by reference into the registration statement of which this prospectus forms a part.
The following description sets forth certain general terms and provisions of the warrants to which any applicable prospectus supplement may relate. The particular terms of the warrants to which any applicable prospectus supplement may relate and the extent, if any, to which such general provisions may apply to the warrants so offered will be described in the applicable prospectus supplement. The following summary of certain provisions of the warrants, warrant agreements and warrant certificates does not purport to be complete and is subject to, and is qualified in its entirety by express reference to, all the provisions of the warrant agreements and warrant certificates, including the definitions therein of certain terms.
Debt Warrants
General. Reference is made to the applicable prospectus supplement for the terms of debt warrants in respect of which this prospectus is being delivered, the debt securities warrant agreement relating to such debt warrants and the debt warrant certificates representing such debt warrants, including the following:
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the designation, aggregate principal amount and terms of the debt securities purchasable upon exercise of such debt warrants and the procedures and conditions relating to the exercise of such debt warrants;
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the designation and terms of any related debt securities with which such debt warrants are issued and the number of such debt warrants issued with each such debt security;
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the date, if any, on and after which such debt warrants and any related offered securities will be separately transferable;
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the principal amount of debt securities purchasable upon exercise of each debt warrant and the price at which such principal amount of debt securities may be purchased upon such exercise;
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the date on which the right to exercise such debt warrants shall commence and the date on which such right shall expire;
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a discussion of the material U.S. federal income tax considerations applicable to the ownership or exercise of debt warrants;
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whether the debt warrants represented by the debt warrant certificates will be issued in registered or bearer form, and, if registered, where they may be transferred and registered;
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call provisions of such debt warrants, if any; and
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any other terms of the debt warrants.
The debt warrant certificates will be exchangeable for new debt warrant certificates of different denominations and debt warrants may be exercised at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement. Prior to the exercise of their debt warrants, holders of debt warrants will not have any of the rights of holders of the debt securities purchasable upon such exercise and will not be entitled to any payments of principal and premium, if any, and interest, if any, on the debt securities purchasable upon such exercise.
Exercise of Debt Warrants. Each debt warrant will entitle the holder to purchase for cash such principal amount of debt securities at such exercise price as shall in each case be set forth in, or be determinable as set forth in, the applicable prospectus supplement relating to the debt warrants offered thereby. Unless otherwise specified in the applicable prospectus supplement, debt warrants may be exercised at any time up to 5:00 p.m., New York City time, on the expiration date set forth in the applicable prospectus supplement. After 5:00 p.m., New York City time, on the expiration date, unexercised debt warrants will become void.
Debt warrants may be exercised as set forth in the applicable prospectus supplement relating to the debt warrants. Upon receipt of payment and the debt 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, as soon as practicable, forward the debt securities purchasable upon such exercise. If less than all of the debt warrants represented by such debt warrant certificate are exercised, a new debt warrant certificate will be issued for the remaining amount of debt warrants.
Stock Warrants
General. Reference is made to the applicable prospectus supplement for the terms of stock warrants in respect of which this prospectus is being delivered, the stock warrant agreement relating to such stock warrants and the stock warrant certificates representing such stock warrants, including the following:
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the type and number of shares of preferred stock or Class A common stock purchasable upon exercise of such stock warrants and the procedures and conditions relating to the exercise of such stock warrants;
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the date, if any, on and after which such stock warrants and related offered securities will be separately tradeable;
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the offering price of such stock warrants, if any;
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the initial price at which such shares may be purchased upon exercise of stock warrants and any provision with respect to the adjustment thereof;
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the date on which the right to exercise such stock warrants shall commence and the date on which such right shall expire;
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a discussion of the material U.S. federal income tax considerations applicable to the ownership or exercise of stock warrants;
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call provisions of such stock warrants, if any;
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anti-dilution provisions of the stock warrants, if any;
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any other terms of the stock warrants; and
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information relating to any preferred stock purchasable upon exercise of such stock warrants.
The stock warrant certificates will be exchangeable for new stock warrant certificates of different denominations and stock warrants may be exercised at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement. Prior to the exercise of their stock warrants, holders of stock warrants will not have any of the rights of holders of shares of capital stock purchasable upon such exercise, and will not be entitled to any dividend payments on such capital stock purchasable upon such exercise.
Exercise of Stock Warrants. Each stock warrant will entitle the holder to purchase for cash such number of shares of preferred stock or Class A common stock, as the case may be, at such exercise price as shall in each case be set forth in, or be determinable as set forth in, the applicable prospectus supplement relating to the stock warrants offered thereby. Unless otherwise specified in the applicable prospectus supplement, stock warrants may be exercised at any time up to 5:00 p.m., California time, on the expiration date set forth in the applicable prospectus supplement. After 5:00 p.m., California time, on the expiration date, unexercised stock warrants will become void.
Stock warrants may be exercised as set forth in the applicable prospectus supplement relating thereto. Upon receipt of payment and the stock warrant certificates 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, as soon as practicable, forward a certificate representing the number of shares of capital stock purchasable upon such exercise. If less than all of the stock warrants represented by such stock warrant certificate are exercised, a new stock warrant certificate will be issued for the remaining amount of stock warrants.
DESCRIPTION OF RIGHTS
We may issue rights to purchase Class A common stock or preferred stock. This prospectus and any accompanying prospectus supplement will contain the material terms and conditions for each right. The accompanying prospectus supplement may add, update or change the terms and conditions of the rights as described in this prospectus.
We will describe in the applicable prospectus supplement the terms and conditions of the issue of rights being offered, the rights agreement relating to the rights and the rights certificates representing the rights, including, as applicable:
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the title of the rights;
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the date of determining the stockholders entitled to the rights distribution;
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the title, aggregate number of shares of Class A common stock or preferred stock purchasable upon exercise of the rights;
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the exercise price;
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the aggregate number of rights issued;
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the date, if any, on and after which the rights will be separately transferable;
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the date on which the right to exercise the rights will commence and the date on which the right will expire; and
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any other terms of the rights, including terms, procedures and limitations relating to the distribution, exchange and exercise of the rights.
Each right will entitle the holder of rights to purchase for cash the principal amount of shares of Class A common stock or preferred stock at the exercise price provided in the applicable prospectus supplement. Rights may be exercised at any time up to the close of business on the expiration date for the rights provided in the applicable prospectus supplement. After the close of business on the expiration date, all unexercised rights will be void.
Holders may exercise rights as described in the applicable prospectus supplement. Upon receipt of payment and the rights certificate properly completed and duly executed at the corporate trust office of the rights agent or any other office indicated in the applicable prospectus supplement, we will, as soon as practicable, forward the shares of Class A common stock or preferred stock purchasable upon exercise of the rights. If less than all of the rights issued in any rights offering are exercised, we may offer any unsubscribed securities directly to persons other than stockholders, to or through agents, underwriters or dealers or through a combination of such methods, including pursuant to standby underwriting arrangements, as described in the applicable prospectus supplement.
DESCRIPTION OF UNITS
We may issue units consisting of any combination of the other types of securities offered under this prospectus in one or more series. We may evidence each series of units by unit certificates that we will issue under a separate agreement. We may enter into unit agreements with a unit agent. Each unit agent will be a bank or trust company that we select. We will indicate the name and address of the unit agent in the applicable prospectus supplement relating to a particular series of units.
The following description, together with the additional information included in any applicable prospectus supplement, summarizes the general features of the units that we may offer under this prospectus. You should read the applicable prospectus supplement that we may authorize to be provided to you related to the series of units being offered, as well as the complete unit agreements that contain the terms of the units. Specific unit agreements will contain additional important terms and provisions and we will file as an exhibit to the registration statement of which this prospectus forms a part, or will incorporate by reference from another report that we file with the SEC, the form of each unit agreement relating to units offered under this prospectus.
If we offer any units, certain terms of that series of units will be described in the applicable prospectus supplement, including, without limitation, the following, as applicable:
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the title of the series of units;
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identification and description of the separate constituent securities comprising the units;
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the price or prices at which the units will be issued;
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the date, if any, on and after which the constituent securities comprising the units will be separately transferable;
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a discussion of certain United States federal income tax considerations applicable to the units; and
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any other terms of the units and their constituent securities.
SELLING STOCKHOLDERS
Selling stockholders are persons or entities that, directly or indirectly, have acquired, or will from time to time acquire from us, our securities. Such selling stockholders may be parties to registration rights agreements with us, or we otherwise may have agreed or agree to register their securities for resale. The term “selling stockholders” includes donees, pledgees, transferees, distributees or other successors-in-interest selling shares of our Class A common stock or interests in our Class A common stock received after the date of this prospectus from a selling stockholder as a gift, pledge, partnership distribution or other transfer.
Unless otherwise set forth in the applicable prospectus supplement, we will not receive any proceeds from the sale of the securities by the selling stockholders, but in certain cases we may pay fees and expenses relating to the registration or an offering of such securities, such as registration and filing fees, fees and expenses for complying with federal and state securities laws and NYSE rules and regulations, and fees and expenses incurred in connection with a listing, if any, of any of the securities on any securities exchange or association.
The applicable prospectus supplement will set forth the name of each selling stockholder and the number of securities beneficially owned by each such selling stockholder that are covered by such prospectus supplement and certain other information applicable to an offer and sale by such selling stockholder(s) pursuant to this prospectus and the applicable prospectus supplement.
PLAN OF DISTRIBUTION
We may, from time to time, sell the securities offered through this prospectus in primary offerings on any stock exchange, market or trading facility on which our securities are traded or quoted or in private transactions. Selling stockholders may, from time to time, sell, transfer, distribute or otherwise dispose of certain of their shares of Class A common stock or interests in our Class A common stock on any stock exchange, market or trading facility on which shares of our Class A common stock are traded or in private transactions. The securities may be distributed at a fixed price or prices, which may be changed, market prices prevailing at the time of sale, prices related to the prevailing market prices, or negotiated prices.
We or selling stockholders may use any one or more of the following methods when selling or otherwise disposing of the securities offered by this prospectus:
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ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
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one or more underwritten offerings;
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block trades in which the broker-dealer will attempt to sell the shares of Class A common stock as agent, but may position and resell a portion of the block as principal to facilitate the transaction;
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purchases by a broker-dealer as principal and resale by the broker-dealer for its accounts;
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an exchange distribution in accordance with the rules of the applicable exchange;
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privately negotiated transactions;
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distributions to their members, partners or shareholders;
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short sales effected after the date of the registration statement of which this prospectus is a part;
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through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise;
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in market transactions, including transactions on a national securities exchange or quotations service or over-the-counter market;
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directly to one or more purchasers;
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through agents;
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broker-dealers may agree with the selling stockholders to sell a specified number of shares of Class A common stock at a stipulated price per share; and
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a combination of any such methods of sale.
Each time that we or any selling stockholders sell securities covered by this prospectus, we or such selling stockholders will provide a prospectus supplement or supplements that will describe the method of distribution and set forth the terms and conditions of the offering of such securities, including:
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the terms of the offering;
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the names of any underwriters or agents;
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the name or names of any managing underwriter or underwriters;
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the purchase price of the securities;
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the net proceeds from the sale of the securities;
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any delayed delivery arrangements;
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any underwriting discounts, commissions and other items constituting underwriters’ compensation;
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any initial public offering price;
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any discounts or concessions allowed or reallowed or paid to dealers; and
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any commissions paid to agents.
Sale through underwriters or dealers
If underwriters are used in a sale by us or any selling stockholder, the underwriters will acquire the securities for their own account, including through underwriting, purchase, security lending or repurchase agreements with us. The underwriters may resell the securities from time to time in one or more transactions, including negotiated transactions. Underwriters may sell the securities in order to facilitate transactions in any of our other securities (described in this prospectus or otherwise), including other public or private transactions and short sales. Underwriters may offer securities to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more firms acting as underwriters. Unless otherwise indicated in the applicable prospectus supplement, the obligations of the underwriters to purchase the securities will be subject to certain conditions, and the underwriters will be obligated to purchase all the offered securities if they purchase any of them. The underwriters may change from time to time any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers. The applicable prospectus supplement will include the names of the principal underwriters, the respective amount of securities underwritten, the nature of the obligation of the underwriters to take the securities and the nature of any material relationship between an underwriter, us and any selling stockholder.
If dealers are used in the sale of securities offered through this prospectus, we or any selling stockholder will sell the securities to them as principals. They may then resell those securities to the public at varying prices determined by the dealers at the time of resale. The applicable prospectus supplement will include the names of the dealers and the terms of the transaction.
Selling stockholders and any underwriters, broker-dealers or agents that participate in the sale of shares of our Class A common stock or interests therein may be “underwriters” within the meaning of Section 2(11) of the Securities Act. Any discounts, commissions, concessions or profit they earn on any resale of shares of our Class A common stock may be underwriting discounts and commissions under the Securities Act. If any selling stockholder is an “underwriter” within the meaning of Section 2(11) of the Securities Act, then the selling stockholder will be subject to the prospectus delivery requirements of the Securities Act. Underwriters and their controlling persons, dealers and agents may be entitled, under agreements entered into with us and the selling stockholders, to indemnification against and contribution toward specific civil liabilities, including liabilities under the Securities Act.
Direct sales and sales through agents
We or any selling stockholder may sell the securities offered through this prospectus directly. In this case, no underwriters or agents would be involved. Such securities may also be sold through agents designated from time to time. The applicable prospectus supplement will name any agent involved in the offer or sale of the offered securities and will describe any commissions payable to the agent by us. Unless otherwise indicated in the applicable prospectus supplement, any agent will agree to use its reasonable best efforts to solicit purchases for the period of its appointment.
We or any selling stockholder may sell the securities directly to institutional investors or others who may be deemed to be underwriters within the meaning of the Securities Act with respect to any sale of those securities. The terms of any such sales will be described in the applicable prospectus supplement.
Selling stockholders also may resell a portion of our Class A common stock in open market transactions in reliance upon Rule 144 under the Securities Act, provided that they meet the criteria and we and they conform to the requirements of that rule, or pursuant to other available exemptions from the registration requirements of the Securities Act.
Selling stockholders may, from time to time, pledge or grant a security interest in some shares of our Class A common stock owned by them and, if a selling stockholder defaults in the performance of its secured obligations, the pledgees or secured parties may offer and sell such shares of Class A common stock from time to time, under this prospectus, or under an amendment or supplement to this prospectus amending the list of the selling stockholders to include the pledgee, transferee or other successors in interest as the selling stockholders under this prospectus. The selling stockholders also may transfer shares of our Class A common stock in other circumstances, in which case the transferees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.
Delayed delivery contracts
If the applicable prospectus supplement indicates, we or any selling stockholder may authorize agents, underwriters or dealers to solicit offers from certain types of institutions to purchase securities at the public offering price under delayed delivery contracts. These contracts would provide for payment and delivery on a specified date in the future. The contracts would be subject only to those conditions described in the applicable prospectus supplement. The applicable prospectus supplement will describe the commission payable for solicitation of those contracts.
Market making, stabilization and other transactions
Unless the applicable prospectus supplement states otherwise, each series of offered securities will be a new issue and will have no established trading market. We may elect to list any series of offered securities on an exchange. Any underwriters that we use in the sale of offered securities may make a market in such securities, but may discontinue such market making at any time without notice. Therefore, we cannot assure you that the securities will have a liquid trading market.
Any underwriter may also engage in stabilizing transactions, syndicate covering transactions and penalty bids in accordance with Rule 104 under the Exchange Act. Stabilizing transactions involve bids to purchase the underlying security in the open market for the purpose of pegging, fixing or maintaining the price of the securities. Syndicate covering transactions involve purchases of the securities in the open market after the distribution has been completed in order to cover syndicate short positions.
Penalty bids permit the underwriters to reclaim a selling concession from a syndicate member when the securities originally sold by the syndicate member are purchased in a syndicate covering transaction to cover syndicate short positions. Stabilizing transactions, syndicate covering transactions and penalty bids may cause the price of the securities to be higher than it would be in the absence of the transactions. The underwriters may, if they commence these transactions, discontinue them at any time.
Derivative transactions and hedging
We, any selling stockholder, the underwriters or other agents may engage in derivative transactions involving the securities. These derivatives may consist of short sale transactions and other hedging activities. The underwriters or agents may acquire a long or short position in the securities, hold or resell securities acquired and purchase options or futures on the securities and other derivative instruments with returns linked to or related to changes in the price of the securities. In order to facilitate these derivative transactions, we may enter into security lending or repurchase agreements with the underwriters or agents. The underwriters or agents may effect the derivative transactions through sales of the securities to the public, including short sales, or by lending the securities in order to facilitate short sale transactions by others. The underwriters or agents may also use the securities purchased or borrowed from us or others (or, in the case of derivatives, securities received from us in settlement of those derivatives) to directly or indirectly settle sales of the securities or close out any related open borrowings of the securities.
Electronic auctions
We may also make sales through the Internet or through other electronic means. Since we may from time to time elect to offer securities directly to the public, with or without the involvement of agents, underwriters or dealers, utilizing the Internet or other forms of electronic bidding or ordering systems for the pricing and allocation of such securities, you should pay particular attention to the description of that system we will provide in a prospectus supplement.
Such electronic system may allow bidders to directly participate, through electronic access to an auction site, by submitting conditional offers to buy that are subject to acceptance by us, and which may directly affect the price or other terms and conditions at which such securities are sold. These bidding or ordering systems may present to each bidder, on a so-called “real-time” basis, relevant information to assist in making a bid, such as the clearing spread at which the offering would be sold, based on the bids submitted, and whether a bidder’s individual bids would be accepted, prorated or rejected.
Upon completion of such an electronic auction process, securities will be allocated based on prices bid, terms of bid or other factors. The final offering price at which securities would be sold and the allocation of
securities among bidders would be based in whole or in part on the results of the Internet or other electronic bidding process or auction.
General information
Agents, underwriters, and dealers may be entitled, under agreements entered into with us and/or selling stockholders, to indemnification against certain liabilities, including liabilities under the Securities Act.
Selling stockholders may use this prospectus in connection with resales of shares of our Class A common stock. Any accompanying prospectus supplement will identify the selling stockholders, the terms of the offering and any material relationships between us and the selling stockholders. Selling stockholders may be deemed to be underwriters under the Securities Act in connection with shares of our Class A common stock they resell and any profits on the sales may be deemed to be underwriting discounts and commissions under the Securities Act. Unless otherwise set forth in a prospectus supplement, the selling stockholders will receive all the net proceeds from the resale of shares of our Class A common stock.
To the extent required, our Class A common stock to be sold, the respective purchase prices and public offering prices, the names of any agent, dealer or underwriter, and any applicable discounts, commissions, concessions or other compensation with respect to a particular offer will be set forth in an accompanying prospectus supplement or, if appropriate, a post-effective amendment to the registration statement that includes this prospectus.
LEGAL MATTERS
The validity of the securities being offered hereby is being passed upon for us by Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP, San Francisco, California. Additional legal matters may be passed upon for any selling stockholders or any underwriters, dealers or agents by their own counsel, which will be named in the applicable prospectus supplement.
EXPERTS
The consolidated financial statements of Hims & Hers Health, Inc. as of December 31, 2023 and 2022, and for each of the years in the three-year period ended December 31, 2023, and management’s assessment of the effectiveness of internal control over financial reporting as of December 31, 2023 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.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated expenses payable to be borne by Hims & Hers Health, Inc. (“Hims & Hers” or the “Company”) in connection with the offerings described in this Registration Statement.
| |
SEC Registration Fee
|
|
|
|
$ |
(1)
|
|
|
| |
Transfer Agent and Registrar Fees and Expenses
|
|
|
|
|
*
|
|
|
| |
Printing Expenses
|
|
|
|
|
*
|
|
|
| |
Legal Fees and Expenses
|
|
|
|
|
*
|
|
|
| |
Accounting Fees and Expenses
|
|
|
|
|
*
|
|
|
| |
Miscellaneous
|
|
|
|
|
*
|
|
|
| |
Total
|
|
|
|
|
*
|
|
|
(1)
Pursuant to Rules 456(b) and 457(r) under the Securities Act, the SEC registration fee will be paid at the time of any particular offering of securities under the registration statement, and is therefore not currently determinable.
*
These fees cannot be estimated at this time as they are calculated based on the securities offered and the number of issuances. An estimate of the aggregate expenses in connection with the sale and distribution of the securities being offered will be included in the applicable prospectus supplement.
ITEM 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and officers under certain circumstances and subject to certain limitations. The terms of Section 145 of the Delaware General Corporation Law are sufficiently broad to permit indemnification under certain circumstances for liabilities, including reimbursement of expenses incurred, arising under the Securities Act of 1933, as amended, or Securities Act.
As permitted by the Delaware General Corporation Law, the Registrant’s amended and restated certificate of incorporation contains provisions that eliminate the personal liability of its directors for monetary damages for any breach of fiduciary duties as a director, except liability for the following:
•
any breach of the director’s duty of loyalty to the Registrant or its stockholders;
•
acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law;
•
under Section 174 of the Delaware General Corporation Law (regarding unlawful dividends and stock purchases); or
•
any transaction from which the director derived an improper personal benefit.
As permitted by the Delaware General Corporation Law, the Registrant’s amended and restated bylaws provide that:
•
the Registrant is required to indemnify its directors and officers to the fullest extent permitted by the Delaware General Corporation Law, subject to very limited exceptions;
•
the Registrant may indemnify its other employees and agents as set forth in the Delaware General Corporation Law;
•
the Registrant is required to advance expenses, as incurred, to its directors and officers in connection with a legal proceeding to the fullest extent permitted by the Delaware General Corporation Law, subject to limited exceptions; and
•
the rights conferred in the bylaws are not exclusive.
The Registrant has entered, and intends to continue to enter, into separate indemnification agreements with its current directors and executive officers to provide these directors and executive officers additional contractual assurances regarding the scope of the indemnification set forth in the Registrant’s amended and restated certificate of incorporation and amended and restated bylaws and to provide additional procedural protections. At present, there is no pending litigation or proceeding involving a director, executive officer or employee of the Registrant for which indemnification is sought. The indemnification provisions in the Registrant’s amended and restated certificate of incorporation, amended and restated bylaws and the indemnification agreements entered into or to be entered into between the Registrant and each of its directors and executive officers may be sufficiently broad to permit indemnification of the Registrant’s directors and executive officers for liabilities arising under the Securities Act.
The Registrant has directors’ and officers’ liability insurance for securities matters. See also the undertakings set out in response to Item 17 herein.
ITEM 16. Exhibits.
*
To be filed by amendment or incorporated by reference prior to the offering of securities.
**
To be filed in accordance with the requirements of Section 305(b)(2) of the Trust Indenture Act of 1939, as amended.
†
Schedules and exhibits to this agreement have been omitted pursuant to Item 601(a)(2) of Regulation S-K. A copy of any omitted schedule and/or exhibit will be furnished to the SEC upon request.
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 a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (1)(i), (1)(ii) and (1)(iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, 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 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, 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 Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
(8) To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Francisco, State of California, on the 9th day of September, 2024.
HIMS & HERS HEALTH, INC.
By:
/s/ Andrew Dudum
Andrew Dudum
Chief Executive Officer and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each person whose signature appears below constitutes and appoints Andrew Dudum and Soleil Boughton and each of them, his or her true and lawful attorneys-in-fact and agents, each 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 any registration statement relating to the offering covered by this registration statement and filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to file the same, with 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, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents or their substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
| |
Name
|
|
|
Title
|
|
|
Date
|
|
| |
/s/ Andrew Dudum
Andrew Dudum
|
|
|
Chief Executive Officer and Director
(Principal Executive Officer)
|
|
|
September 9, 2024
|
|
| |
/s/ Oluyemi Okupe
Oluyemi Okupe
|
|
|
Chief Financial Officer
(Principal Financial Officer)
|
|
|
September 9, 2024
|
|
| |
/s/ Irene Becklund
Irene Becklund
|
|
|
Senior Vice President, Controller
(Principal Accounting Officer)
|
|
|
September 9, 2024
|
|
| |
/s/ Patrick H. Carroll, M.D.
Patrick H. Carroll, M.D.
|
|
|
Director
|
|
|
September 9, 2024
|
|
| |
/s/ Toby Cosgrove, M.D.
Toby Cosgrove, M.D.
|
|
|
Director
|
|
|
September 9, 2024
|
|
| |
/s/ Anja Manuel
Anja Manuel
|
|
|
Director
|
|
|
September 9, 2024
|
|
| |
/s/ Christopher Payne
Christopher Payne
|
|
|
Director
|
|
|
September 9, 2024
|
|
| |
Name
|
|
|
Title
|
|
|
Date
|
|
| |
/s/ Christiane Pendarvis
Christiane Pendarvis
|
|
|
Director
|
|
|
September 9, 2024
|
|
| |
/s/ Andrea Perez
Andrea Perez
|
|
|
Director
|
|
|
September 9, 2024
|
|
| |
/s/ Kåre Schultz
Kåre Schultz
|
|
|
Director
|
|
|
September 9, 2024
|
|
| |
/s/ David Wells
David Wells
|
|
|
Director
|
|
|
September 9, 2024
|
|
Exhibit 4.3
HIMS & HERS HEALTH, INC.
and
[ ], as Trustee
Indenture
Dated as of [ ]
Debt Securities
CROSS REFERENCE SHEET*
Between
Provisions of Trust Indenture
Act (as defined herein) and Indenture, dated as of [___________], between HIMS & HERS HEALTH, INC. and [___________], as
Trustee:
| SECTION OF THE ACT |
SECTION OF INDENTURE |
| 310(a)(1) and (2) |
6.9 |
| 310(a)(3) and (4) |
Inapplicable |
| 310(b) |
6.8 and 6.10(a), (b) and (d) |
| 310(c) |
Inapplicable |
| 311(a) |
6.14 |
| 311(b) |
6.14 |
| 311(c) |
Inapplicable |
| 312(a) |
4.1 and 4.2 |
| 312(b) |
4.2 |
| 312(c) |
4.2 |
| 313(a) |
4.3 |
| 313(b)(1) |
Inapplicable |
| 313(b)(2) |
4.3 |
| 313(c) |
4.3, 5.11, 6.10, 6.11, 8.2 and 12.2 |
| 313(d) |
4.3 |
| 314(a) |
3.5 and 4.2 |
| 314(b) |
Inapplicable |
| 314(c)(1) and (2) |
11.5 |
| 314(c)(3) |
Inapplicable |
| 314(d) |
Inapplicable |
| 314(e) |
11.5 |
| 314(f) |
Inapplicable |
| 315(a), (c) and (d) |
6.1 |
| 315(b) |
5.11 |
| 315(e) |
5.12 |
| 316(a)(1) |
5.9 and 5.10 |
| 316(a)(2) |
Not required |
| 316(a) (last sentence) |
7.4 |
| 316(b) |
5.7 |
| 317(a) |
5.2 |
| 317(b) |
3.4(a) and (b) |
| 318(a) |
11.7 |
*This Cross Reference Sheet is not part of the Indenture.
TABLE OF CONTENTS
| | |
| PAGE |
| ARTICLE I DEFINITIONS | |
| 1 |
| SECTION 1.1 CERTAIN TERMS DEFINED | |
| 1 |
| ARTICLE II SECURITIES | |
| 6 |
| SECTION 2.1 FORMS GENERALLY | |
| 6 |
| SECTION 2.2 FORM OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION | |
| 7 |
| SECTION 2.3 AMOUNT UNLIMITED; ISSUABLE IN SERIES | |
| 7 |
| SECTION 2.4 AUTHENTICATION AND DELIVERY OF SECURITIES | |
| 10 |
| SECTION 2.5 EXECUTION OF SECURITIES | |
| 12 |
| SECTION 2.6 CERTIFICATE OF AUTHENTICATION | |
| 12 |
| SECTION 2.7 DENOMINATION AND DATE OF SECURITIES; PAYMENT OF INTEREST | |
| 13 |
| SECTION 2.8 REGISTRATION, TRANSFER AND EXCHANGE | |
| 13 |
| SECTION 2.9 MUTILATED, DEFACED, DESTROYED, LOST AND STOLEN SECURITIES | |
| 16 |
| SECTION 2.10 CANCELLATION OF SECURITIES; DISPOSAL THEREOF | |
| 17 |
| SECTION 2.11 TEMPORARY SECURITIES | |
| 17 |
| SECTION 2.12 CUSIP NUMBERS | |
| 18 |
| ARTICLE III COVENANTS OF THE ISSUER | |
| 18 |
| SECTION 3.1 PAYMENT OF PRINCIPAL AND INTEREST | |
| 18 |
| SECTION 3.2 OFFICES FOR PAYMENTS, ETC. | |
| 18 |
| SECTION 3.3 APPOINTMENT TO FILL A VACANCY IN OFFICE OF TRUSTEE | |
| 19 |
| SECTION 3.4 PAYING AGENTS | |
| 19 |
| SECTION 3.5 COMPLIANCE CERTIFICATES | |
| 20 |
| SECTION 3.6 CORPORATE EXISTENCE | |
| 20 |
| SECTION 3.7 CALCULATION OF ORIGINAL ISSUE DISCOUNT | |
| 20 |
| ARTICLE IV SECURITYHOLDER LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE | |
| 21 |
| SECTION 4.1 ISSUER TO FURNISH TRUSTEE INFORMATION AS TO NAMES AND ADDRESSES OF SECURITYHOLDERS | |
| 21 |
| SECTION 4.2 REPORTS BY THE ISSUER | |
| 21 |
| SECTION 4.3 REPORTS BY THE TRUSTEE | |
| 21 |
| ARTICLE V REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT | |
| 22 |
| SECTION 5.1 EVENT OF DEFAULT DEFINED, ACCELERATION OF MATURITY; WAIVER OF DEFAULT | |
| 22 |
| SECTION 5.2 COLLECTION OF INDEBTEDNESS BY TRUSTEE; TRUSTEE MAY PROVE DEBT | |
| 24 |
| SECTION 5.3 APPLICATION OF PROCEEDS | |
| 26 |
| SECTION 5.4 SUITS FOR ENFORCEMENT | |
| 27 |
| SECTION 5.5 RESTORATION OF RIGHTS ON ABANDONMENT OF PROCEEDINGS | |
| 27 |
| SECTION 5.6 LIMITATIONS ON SUITS BY SECURITY HOLDERS | |
| 27 |
| SECTION 5.7 UNCONDITIONAL RIGHT OF SECURITYHOLDERS TO INSTITUTE CERTAIN SUITS | |
| 28 |
| SECTION 5.8 POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT WAIVER OF DEFAULT | |
| 28 |
| SECTION 5.9 CONTROL BY HOLDERS OF SECURITIES | |
| 28 |
| SECTION 5.10 WAIVER OF PAST DEFAULTS | |
| 29 |
| SECTION 5.11 TRUSTEE TO GIVE NOTICE OF DEFAULT, BUT MAY WITHHOLD IN CERTAIN CIRCUMSTANCES | |
| 29 |
| SECTION 5.12 RIGHT OF COURT TO REQUIRE FILING OF UNDERTAKING TO PAY COSTS | |
| 29 |
| ARTICLE VI CONCERNING THE TRUSTEE | |
| 30 |
| SECTION 6.1 DUTIES AND RESPONSIBILITIES OF THE TRUSTEE; DURING DEFAULT; PRIOR TO DEFAULT | |
| 30 |
| SECTION 6.2 CERTAIN RIGHTS OF THE TRUSTEE | |
| 31 |
| SECTION 6.3 TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITION OF SECURITIES OR APPLICATION OF PROCEEDS THEREOF | |
| 32 |
| SECTION 6.4 TRUSTEE AND AGENTS MAY HOLD SECURITIES; COLLECTIONS, ETC. | |
| 33 |
| SECTION 6.5 MONEYS HELD BY TRUSTEE | |
| 33 |
| SECTION 6.6 COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND ITS PRIOR CLAIM | |
| 33 |
| SECTION 6.7 RIGHT OF TRUSTEE TO RELY ON OFFICERS’ CERTIFICATE, ETC. | |
| 34 |
| SECTION 6.8 INDENTURES NOT CREATING POTENTIAL CONFLICTING INTERESTS FOR THE TRUSTEE | |
| 34 |
| SECTION 6.9 QUALIFICATION OF TRUSTEE: CONFLICTING INTERESTS | |
| 34 |
| SECTION 6.10 PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE | |
| 34 |
| SECTION 6.11 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR TRUSTEE | |
| 35 |
| SECTION 6.12 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE | |
| 36 |
| SECTION 6.13 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS OF TRUSTEE | |
| 37 |
| SECTION 6.14 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE ISSUER | |
| 37 |
| SECTION 6.15 APPOINTMENT OF AUTHENTICATING AGENT | |
| 37 |
| ARTICLE VII CONCERNING THE SECURITYHOLDERS |
38 |
| SECTION 7.1 EVIDENCE OF ACTION TAKEN BY SECURITYHOLDERS |
38 |
| SECTION 7.2 PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF SECURITIES |
39 |
| SECTION 7.3 HOLDERS TO BE TREATED AS OWNERS |
39 |
| SECTION 7.4 SECURITIES OWNED BY ISSUER DEEMED NOT OUTSTANDING |
39 |
| SECTION 7.5 RIGHT OF REVOCATION OF ACTION TAKEN |
40 |
| ARTICLE VIII SUPPLEMENTAL INDENTURES |
40 |
| SECTION 8.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF SECURITYHOLDERS |
40 |
| SECTION 8.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITYHOLDERS |
42 |
| SECTION 8.3 EFFECT OF SUPPLEMENTAL INDENTURE |
44 |
| SECTION 8.4 DOCUMENTS TO BE GIVEN TO TRUSTEE |
44 |
| SECTION 8.5 NOTATION ON SECURITIES IN RESPECT OF SUPPLEMENTAL INDENTURES |
44 |
| ARTICLE IX CONSOLIDATION, MERGER, SALE OR CONVEYANCE |
44 |
| SECTION 9.1 ISSUER MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS |
44 |
| SECTION 9.2 SUCCESSOR PERSON SUBSTITUTED |
45 |
| SECTION 9.3 OPINION OF COUNSEL TO BE GIVEN TO TRUSTEE |
45 |
| ARTICLE X SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS |
45 |
| SECTION 10.1 SATISFACTION AND DISCHARGE OF INDENTURE |
45 |
| SECTION 10.2 APPLICATION BY TRUSTEE OF FUNDS DEPOSITED FOR PAYMENT OF SECURITIES |
49 |
| SECTION 10.3 REPAYMENT OF MONEYS HELD BY PAYING AGENT |
49 |
| SECTION 10.4 RETURN OF MONEYS HELD BY TRUSTEE AND PAYING AGENT UNCLAIMED FOR TWO YEARS |
49 |
| SECTION 10.5 INDEMNITY FOR U.S. GOVERNMENT OBLIGATIONS |
50 |
| SECTION 10.6 EFFECT ON SUBORDINATION PROVISIONS |
50 |
| ARTICLE XI MISCELLANEOUS PROVISIONS |
50 |
| SECTION 11.1 INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS OF ISSUER EXEMPT FROM INDIVIDUAL LIABILITY |
50 |
| SECTION 11.2 PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF PARTIES AND HOLDERS OF SECURITIES |
51 |
| SECTION 11.3 SUCCESSORS AND ASSIGNS OF ISSUER BOUND BY INDENTURE |
51 |
| SECTION 11.4 NOTICES AND DEMANDS ON ISSUER, TRUSTEE AND HOLDERS OF SECURITIES |
51 |
| SECTION 11.5 OFFICERS’ CERTIFICATES AND OPINIONS OF COUNSEL; STATEMENTS TO BE CONTAINED THEREIN |
52 |
| SECTION 11.6 PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS |
53 |
| SECTION 11.7 CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST INDENTURE ACT |
53 |
| SECTION 11.8 NEW YORK LAW TO GOVERN; WAIVER OF JURY TRIAL |
54 |
| SECTION 11.9 COUNTERPARTS |
54 |
| SECTION 11.10 EFFECT OF HEADINGS |
54 |
| SECTION 11.11 SECURITIES IN A FOREIGN CURRENCY |
54 |
| SECTION 11.12 JUDGMENT CURRENCY |
55 |
| SECTION 11.13 AGREEMENT TO SUBORDINATE |
55 |
| SECTION 11.14 FORCE MAJEURE |
55 |
| SECTION 11.15 U.S.A. PATRIOT ACT |
56 |
| ARTICLE XII REDEMPTION OF SECURITIES AND SINKING FUNDS |
56 |
| SECTION 12.1 APPLICABILITY OF ARTICLE |
56 |
| SECTION 12.2 NOTICE OF REDEMPTION; PARTIAL REDEMPTIONS |
56 |
| SECTION 12.3 PAYMENT OF SECURITIES CALLED FOR REDEMPTION |
57 |
| SECTION 12.4 EXCLUSION OF CERTAIN SECURITIES FROM ELIGIBILITY FOR SELECTION FOR REDEMPTION |
58 |
| SECTION 12.5 MANDATORY AND OPTIONAL SINKING FUNDS |
58 |
THIS INDENTURE, dated as of
[ ], by and between HIMS & HERS HEALTH, INC., a Delaware corporation (the “Issuer”), and [ ], as trustee (the
“Trustee”).
W I T N E S S E T H:
WHEREAS, the Issuer has duly
authorized the issue from time to time of its unsecured debentures, notes or other evidences of indebtedness to be issued in one or more
series (the “Securities”) up to such principal amount or amounts as may from time to time be authorized in accordance with
the terms of this Indenture;
WHEREAS, the Issuer has duly
authorized the execution and delivery of this Indenture to provide, among other things, for the authentication, delivery and administration
of the Securities; and
WHEREAS, all things necessary
to make this Indenture a valid and legally binding indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises
and the purchases of the Securities by the holders thereof, the Issuer and the Trustee mutually covenant and agree for the equal and proportionate
benefit of the holders from time to time of the Securities as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 CERTAIN TERMS DEFINED
The following terms (except
as otherwise expressly provided or unless the context otherwise clearly requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in this Section. All other terms used in this Indenture that are defined
in the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), or the definitions of which in the Securities
Act of 1933, as amended (the “Securities Act”), are referred to in the Trust Indenture Act, including terms defined therein
by reference to the Securities Act (except as herein otherwise expressly provided or unless the context otherwise requires), shall have
the meaning assigned to such terms in the Trust Indenture Act and in the Securities Act as in effect from time to time. All accounting
terms used herein and not expressly defined shall have the meanings assigned to such terms in accordance with generally accepted accounting
principles, and the term “generally accepted accounting principles” means such accounting principles as are generally accepted
at the time of any computation unless a different time shall be specified with respect to such series of Securities as provided for in
Section 2.3. The words “herein,” “hereof” and “hereunder” and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section or other subdivision. The terms defined in this Article have
the meanings assigned to them in this Article and include the plural as well as the singular.
“Affiliate” has
the same meaning as given to that term in Rule 405 of the Securities Act or any successor provision.
“Applicable Procedures”
means, with respect to any matter at any time, the policies and procedures of a Depositary, if any, that are applicable to such matter
at such time.
“Authenticating Agent”
shall have the meaning set forth in Section 6.15.
“Board of Directors”
means either the Board of Directors of the Issuer or any committee of such Board duly authorized to act on its behalf.
“Board Resolution”
means a copy of one or more resolutions, certified by the secretary or an assistant secretary of the Issuer to have been duly adopted
or consented to by the Board of Directors and to be in full force and effect, and delivered to the Trustee.
“Business Day”
means, with respect to any Security, a day that is not a day on which banking institutions in the city (or in any of the cities, if more
than one) in which amounts are payable, as specified in the form of such Security, are authorized or required by any applicable law or
regulation to be closed.
“Capital Stock”
means, with respect to any corporation, any and all shares, interests, rights to purchase (other than convertible or exchangeable indebtedness
that is not itself otherwise capital stock), warrants, options, participations or other equivalents of or interests (however designated)
in stock issued by that corporation.
“Commission” means
the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or if at any time after the
execution and delivery of this Indenture 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.
“Corporate Trust Office”
means the office of the Trustee at which the corporate trust business of the Trustee shall, at any particular time, be principally administered,
which office is, as of the date of this Indenture, located at [ ].
“covenant defeasance”
shall have the meaning set forth in Section 10.1(C).
“Depositary” means,
with respect to the Securities of any series issuable or issued in the form of one or more Registered Global Securities, the Person designated
as Depositary by the Issuer pursuant to Section 2.3 until a successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter “Depositary” shall mean or include each Person who is then a Depositary hereunder,
and if at any time there is more than one such Person, “Depositary” as used with respect to the Securities of any such series
shall mean the Depositary with respect to the Registered Global Securities of that series.
“Dollar” or “$”
means the 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.
“Equity Interests”
means Capital Stock or partnership, participation or membership interests and all warrants, options or other rights to acquire Capital
Stock or partnership, participation or membership interests (but excluding any debt security that is convertible into, or exchangeable
for, Capital Stock or partnership, participation or membership interests).
“Event of Default”
means any event or condition specified as such in Section 5.1.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended.
“Fair Value” when
used with respect to any Voting Equity Interests of the Issuer means the fair value as determined in good faith by the Board of Directors
of the Issuer.
“Foreign Currency”
means any coin, currency, currency unit or composite currency, including, without limitation, the euro, issued by the government of one
or more countries, other than the United States of America or by any internationally recognized union, confederation or association of
such governments.
“Holder,” “Holder
of Securities,” “Securityholder” or any other similar terms mean the person in whose name a Security is registered in
the security register kept by the Issuer for that purpose in accordance with the terms hereof.
“Indenture” means
this instrument as originally executed and delivered or, if amended or supplemented as herein provided, as so amended or supplemented
or both, and shall include the forms and terms of particular series of Securities established as contemplated hereunder, provided,
that, if at any time more than one Person is acting as Trustee under this instrument, “Indenture” shall mean, with respect
to one or more series of Securities for which such person is trustee, this instrument as originally executed and delivered or, if amended
or supplemented as herein provided, as so amended or supplemented or both, and shall include the forms and terms of those particular series
of Securities for which such Person is Trustee established as contemplated hereunder, exclusive, however, of any provisions or terms which
relate solely to other series of Securities for which such person is not Trustee, regardless of when such terms or provisions were adopted.
“IRS” means the
Internal Revenue Service of the United States Department of the Treasury, or any successor entity.
“Issuer” means
(except as otherwise provided in Article IX) Hims & Hers Health, Inc., a Delaware corporation, and, subject to Article IX,
its successors and assigns.
“Issuer Order”
means a written statement, request or order of the Issuer signed in its name by the president, any vice president or the treasurer of
the Issuer.
“Judgment Currency”
has the meaning set forth in Section 11.12.
“Non-U.S. Person”
means any person that is not a “U.S. person” as such term is defined in Rule 902 of the Securities Act.
“Officers’ Certificate”
means a certificate signed by the chief executive officer and the chief financial officer of the Issuer and delivered to the Trustee.
“Opinion of Counsel”
means an opinion in writing signed by legal counsel who is reasonably acceptable to the Trustee and who may be an employee of or counsel
to the Issuer.
“Original Issue Date”
of any Security (or portion thereof) means the earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on registration of transfer, exchange or substitution.
“Original Issue Discount
Security” means any Security that provides for an amount less than the principal amount thereof to be due and payable upon a declaration
of acceleration of the maturity thereof pursuant to Section 5.1.
“Outstanding”
(except as otherwise provided in Section 7.4), when used with reference to Securities, means, subject to the provisions of Section 7.4,
as of any particular time, all Securities authenticated and delivered by the Trustee under this Indenture, except:
(a) Securities
theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(b) Securities,
or portions thereof, for the payment or redemption of which moneys or U.S. Government Obligations (as provided for in Section 10.1)
in the necessary amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Issuer) or shall
have been set aside, segregated and held in trust by the Issuer for the Holders of such Securities (if the Issuer shall act as its own
paying agent), provided, that if such Securities, or portions thereof, are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as herein provided, or provisions reasonably satisfactory to the Trustee shall have been made for giving
such notice; and
(c) Securities
which shall have been paid or in substitution for which other Securities shall have been authenticated and delivered pursuant to the terms
of Section 2.9 (except with respect to any such Security as to which proof reasonably satisfactory to the Trustee is presented that
such Security is held by a person in whose hands such Security is a legal, valid and binding obligation of the Issuer).
In determining whether the
Holders of the requisite principal amount of Outstanding Securities of any or all series have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination
upon a declaration of acceleration of the maturity thereof pursuant to Section 5.1.
“Periodic Offering”
means an offering of Securities of a series from time to time, the specific terms of which Securities, including, without limitation,
the rate or rates of interest, if any, thereon, the stated maturity or maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Issuer or its agents upon the issuance of such Securities.
“Person” means
any individual, corporation, business trust, partnership, limited liability company, joint venture, association, joint stock company,
trust, unincorporated organization or government or any agency or political subdivision thereof.
“principal,” whenever
used with reference to the Securities or any Security or any portion thereof, shall be deemed to include “and premium, if any,”
provided, however, that such inclusion of premium, if any, shall under no circumstances result in the double counting of such premium
for the purpose of any calculation required hereunder.
“record date”
shall have the meaning set forth in Section 2.7.
“Registered Global Security”
means a Security evidencing all or a part of a series of Registered Securities, issued to the Depositary or a nominee thereof for such
series in accordance with Section 2.4, and bearing the legend prescribed in Section 2.4 and any other legend required by the
Depositary for such series.
“Registered Security”
means any Security registered on the books of the Registrar.
“Registrar” means
the Person designated by the Issuer as “Registrar” for the purpose of registering Securities and transfers of Securities as
herein provided, who shall initially be the Trustee. “Registrar” shall also mean or include each Person who is then a registrar
hereunder, and, if at any time there is more than one such Person, “Registrar” as used with respect to the Securities of any
series shall mean the registrar with respect to the Securities of such series.
“Required Currency”
shall have the meaning set forth in Section 11.12.
“Responsible Officer”
when used with respect to the Trustee means any vice president (whether or not designated by numbers or words added before or after the
title “Vice President”), any assistant vice president, any trust officer, or assistant trust officer, or any other officer
of the Trustee customarily performing functions similar to those performed by the persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of his or her knowledge of and familiarity with the particular subject and,
in each case, who shall have direct responsibility for the administration of this Indenture.
“Security” or
“Securities” (except as otherwise provided in Section 7.4) has the meaning stated in the first recital of this Indenture,
or, as the case may be, Securities that have been authenticated and delivered under this Indenture.
“Securities Act”
means the Securities Act of 1933, as amended.
“Senior Indebtedness,”
when used with respect to the Subordinated Securities of any series, shall have the meaning established pursuant to Subsection 2.3(9) with
respect to the Subordinated Securities of such series.
“Senior Securities”
means Securities other than Subordinated Securities.
“Subordinated Securities”
means Securities that by the terms established pursuant to Subsection 2.3(9) are subordinated in right of payment to Senior Indebtedness
of the Issuer.
“Subordination Provisions,”
when used with respect to the Subordinated Securities of any series, shall have the meaning established pursuant to Subsection 2.3(9) with
respect to the Subordinated Securities of such series.
“Subsidiary,”
with respect to any Person, means (i) a corporation a majority of whose Voting Equity Interests is at the time, directly or indirectly,
owned by such Person, by such Person and one or more Subsidiaries of such Person or by one or more Subsidiaries of such Person, (ii) any
other Person (other than a corporation) in which such Person, one or more Subsidiaries of such Person, or such Person and one or more
Subsidiaries of such Person, directly or indirectly, at the date of determination thereof has at least majority ownership interest, or
(iii) a partnership in which such Person or a Subsidiary of such Person is, at the time, a general partner.
“Trustee” means
the Person identified as “Trustee” in the first paragraph hereof and, subject to the provisions of Article VI, shall
also include any successor trustee. “Trustee” shall also mean or include each Person who is then a trustee hereunder, and,
if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any series shall mean
the trustee with respect to the Securities of such series.
“U.S. Government Obligations”
shall have the meaning set forth in Section 10.1(A).
“Voting Equity Interests”
means Equity Interests which at the time are entitled to vote in the election of, as applicable, directors, members or partners generally;
provided, that, for the purposes hereof, Equity Interests that carry only the right to vote conditionally on the happening of an event
shall not be considered Voting Equity Interests whether or not such event shall have happened.
“Yield to Maturity”
means the yield to maturity on a series of securities, calculated at the time of issuance of such series, or, if applicable, at the most
recent redetermination of interest on such series, and calculated in accordance with accepted financial practice.
ARTICLE II SECURITIES
SECTION 2.1 FORMS GENERALLY
The Securities of each series
shall be substantially in such form (not inconsistent with this Indenture) as shall be established by or pursuant to one or more Board
Resolutions (as set forth in a Board Resolution or, to the extent established pursuant to but not set forth in a Board Resolution, an
Officers’ Certificate detailing such establishment) or in one or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or permitted by this Indenture and may have imprinted or otherwise
reproduced thereon such legend or legends or endorsements, not inconsistent with the provisions of this Indenture, as may be required
to comply with any law or with any rules or regulations pursuant thereto, or with any rules of any securities exchange or to
conform to general usage, all as may be determined by the officers executing such Securities, as evidenced by their execution of such
Securities.
The definitive Securities
shall be printed or produced in any other manner, all as determined by the officers executing such Securities, as evidenced by their execution
of such Securities.
SECTION 2.2 FORM OF TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
The Trustee’s certificate
of authentication on all Securities shall be in substantially the following form:
“This is one of the
Securities referred to in the within-mentioned Indenture.
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[ ], as Trustee |
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By |
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Authorized Signatory |
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Dated: ” |
If at any time there shall
be an Authenticating Agent appointed with respect to any series of Securities, then the Trustee’s Certificate of Authentication
to be borne by the Securities of each such series shall be substantially as follows:
“This is one of the
Securities referred to in the within-mentioned Indenture.
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as
Authenticating Agent |
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By: |
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Authorized
Signatory |
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Dated: ” |
SECTION 2.3 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. There shall be established in or pursuant to one or more Board Resolutions (and to the extent established pursuant
to but not set forth in a Board Resolution, in an Officers’ Certificate detailing such establishment) or established in one or more
indentures supplemental hereto, prior to the initial issuance of Securities of any series,
(1)the designation of the
Securities of the series, including CUSIP numbers, which shall distinguish the Securities of the series from the Securities of all other
series, and which may be part of a series of Securities previously issued;
(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 in exchange for, or in lieu of, other Securities of the series pursuant to Section 2.8,
2.9, 2.11, 8.5 or 12.3);
(3)if other than Dollars,
the Foreign Currency or Foreign Currencies in which the Securities of the series are denominated;
(4)the date or dates on which
the principal of the Securities of the series is payable or the method of determination thereof;
(5)the rate or rates at which
the Securities of the series shall bear interest, if any, the date or dates from which such interest shall accrue, on which such interest
shall be payable, the terms and conditions of any deferral of interest and the additional interest, if any, thereon, the right, if any,
of the Issuer to extend the interest payment periods and the duration of the extensions and the date or dates on which a record shall
be taken for the determination of Holders to whom interest is payable and/or the method by which such rate or rates or date or dates shall
be determined;
(6)the place or places where
and the manner in which, the principal of and any interest on Securities of the series shall be payable, if other than as provided in
Section 3.2;
(7)the right, if any, of the
Issuer to redeem Securities, in whole or in part, at its option and the period or periods within which, or the date or dates on which,
the price or prices at which and any terms and conditions upon which Securities of the series may be so redeemed, pursuant to any sinking
fund or otherwise;
(8)the obligation, if any,
of the Issuer to redeem, purchase or repay Securities of the series pursuant to any mandatory redemption, sinking fund or analogous provisions
or at the option of a Holder thereof and the price or prices at which and the period or periods within which or the date or dates on which,
and any terms and conditions upon which Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant
to such obligation;
(9)if the Securities of such
series are Subordinated Securities, the terms pursuant to which the Securities of such series will be made subordinate in right of payment
to Senior Indebtedness and the definition of such Senior Indebtedness with respect to such series (in the absence of an express statement
to the effect that the Securities of such series are subordinate in right of payment to all such Senior Indebtedness, the Securities of
such series shall not be subordinate to Senior Indebtedness and shall not constitute Subordinated Securities); and, in the event that
the Securities of such series are Subordinated Securities, such Board Resolution, Officers’ Certificate or supplemental indenture,
as the case may be, establishing the terms of such series shall expressly state which articles, sections or other provisions thereof constitute
the “Subordination Provisions” with respect to the Securities of such series;
(10)if other than denominations
of $2,000 and any integral multiple of $1,000 in excess thereof, the denominations in which Securities of the series shall be issuable;
(11)the percentage of the
principal amount at which the Securities will be issued, and, if other than the principal amount thereof, the portion of the principal
amount of Securities of the series which shall be payable upon declaration of acceleration of the maturity thereof and the terms and conditions
of any acceleration;
(12)if other than the coin,
currency or currencies in which the Securities of the series are denominated, the coin, currency or currencies in which payment of the
principal of or interest on the Securities of such series shall be payable, including composite currencies or currency units;
(13)if the principal of or
interest on the Securities of the series are to be payable, at the election of the Issuer or a Holder thereof, in a coin or currency other
than that in which the Securities are denominated, the period or periods within which, and the terms and conditions upon which, such election
may be made;
(14)if the amount of payments
of principal of and interest on the Securities of the series may be determined with reference to an index or formula based on a coin,
currency, composite currency or currency unit other than that in which the Securities of the series are denominated, the manner in which
such amounts shall be determined;
(15)whether and under what
circumstances the Issuer will pay additional amounts on the Securities of the series held by a person who is not a U.S. person in respect
of any tax, assessment or governmental charge withheld or deducted and, if so, whether the Issuer will have the option to redeem the Securities
of the series rather than pay such additional amounts;
(16)if the Securities of the
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, the form and terms of such certificates,
documents or conditions;
(17)any trustees, depositaries,
authenticating or paying agents, transfer agents or registrars of any other agents with respect to the Securities of such series;
(18)any deletion from, modification
of or addition to the Events of Default or covenants with respect to the Securities of such series;
(19)if the Securities of the
series are to be convertible into or exchangeable for any other security or property of the Issuer, including, without limitation, securities
of another Person held by the Issuer or its Affiliates and, if so, the terms thereof; and
(20)any other terms of the
series.
All Securities of any one
series shall be substantially identical, except as to denomination and except as may otherwise be provided by or pursuant to the Board
Resolution or Officers’ Certificate referred to above or as set forth in any indenture supplemental hereto. The Issuer may, without
the consent of the Holders, issue additional Securities of the same series in the future ranking equally with, and otherwise similar in
all respects to, the Securities of such series, except for any differences in the issue price and, if applicable, the initial interest
accrual date and interest payment date; provided that if the additional debt Securities are not fungible with the debt securities of the
series previously offered or sold for U.S. federal income tax purposes, the additional debt securities will have a separate CUSIP or other
identifying number as the Securities of the applicable series.
All Securities of any one
series need not be issued at the same time and may be issued from time to time without consent of any Holder, consistent with the terms
of this Indenture, if so provided by or pursuant to such Board Resolution, such Officers’ Certificate or in any indenture supplemental
hereto.
Under the Indenture, the Securities
of any series and any additional Securities of such series the Issuer may issue in the future will be treated as a single series for all
purposes under the Indenture, including for purposes of determining whether the required percentage of the Holders of record of the Securities
of such series has given approval or consent to an amendment or waiver or joined in directing the Trustee to take certain actions on behalf
of all Holders of the Securities of such series.
SECTION 2.4 AUTHENTICATION AND DELIVERY
OF SECURITIES
The Issuer may deliver Securities
of any series executed by the Issuer to the Trustee for authentication together with the applicable documents referred to below in this
Section 2.4, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the written order of the Issuer
(contained in the Issuer Order referred to below in this Section) or deliver pursuant to such procedures acceptable to the Trustee and
to such recipients as may be specified from time to time by an Issuer Order. The maturity date, original issue date, interest rate and
any other terms of the Securities of such series shall be determined by or pursuant to such Issuer Order and Sections 2.1, 2.3 and this
Section 2.4. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be provided with (in the case of subparagraphs (2), (3) and (4) below only at or before the
time of the first request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to Section 6.1) shall
be fully protected in conclusively relying upon, the following enumerated documents unless and until such documents have been superseded
or revoked:
(1)an Issuer Order requesting
such authentication and setting forth delivery instructions if the Securities are not to be delivered to the Issuer, provided that, with
respect to Securities of a series subject to a Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to the Trustee
prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the Trustee shall authenticate and deliver
Securities of such series for original issue from time to time, in an aggregate principal amount not exceeding the aggregate principal
amount established for such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee as may be specified
from time to time by an Issuer Order and (c) the maturity date or dates, original issue date or dates, interest rate or rates and
any other terms of Securities of such series shall be determined by an Issuer Order or pursuant to such procedures;
(2)any Board Resolution, Officers’
Certificate and/or executed supplemental indenture referred to in Sections 2.1 and 2.3 by or pursuant to which the forms and terms of
the Securities were established;
(3)an Officers’ Certificate
setting forth the form or forms and terms of the Securities, stating that the form or forms and terms of the Securities have been established
pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and covering such other matters as the Trustee may reasonably request;
and
(4)Either one or more Opinions
of Counsel, or, at the option of the Issuer, a letter addressed to the Trustee permitting it to rely on one or more Opinions of Counsel,
substantially to the effect that:
(a)the form or forms of the
Securities have been duly authorized and established in conformity with the provisions of this Indenture;
(b)in the case of an underwritten
offering, the terms of the Securities have been duly authorized and established in conformity with the provisions of this Indenture, and,
in the case of an offering that is not underwritten, certain terms of the Securities have been established pursuant to a Board Resolution,
an Officers’ Certificate or a supplemental indenture in accordance with this Indenture, and when such other terms as are to be established
pursuant to procedures set forth in an Issuer Order shall have been established, all such terms will have been duly authorized by the
Issuer and will have been established in conformity with the provisions of this Indenture;
(c)if the terms of the Securities
have been established pursuant to a supplemental indenture, such supplemental indenture, when executed by the Issuer and the Trustee in
accordance with the provisions of this Indenture, and subject to any exemptions, assumptions and qualifications specified in such Opinion
of Counsel, will be a valid and binding obligation of the Issuer, enforceable in accordance with its terms except as the enforceability
thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer or similar laws
affecting creditors’ rights generally, (ii) rights of acceleration, if any, and (iii) the availability of equitable remedies
may be limited by equitable principles of general applicability, and such counsel need express no opinion with regard to the enforceability
of Section 6.6 or of a judgment denominated in a currency other than Dollars;
(d)such Securities, when executed
by the Issuer and authenticated by the Trustee in accordance with the provisions of this Indenture and delivered to and duly paid for
by the purchasers thereof, and subject to any exemptions, assumptions and qualifications specified in such Opinion of Counsel, will be
entitled to the benefits of this Indenture, and will be valid and binding obligations of the Issuer, enforceable in accordance with their
respective terms except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, liquidation,
moratorium, fraudulent transfer or similar laws affecting creditors’ rights generally, (ii) rights of acceleration, if any,
and (iii) the availability of equitable remedies may be limited by equitable principles of general applicability, and such counsel
need express no opinion with regard to the enforceability of Section 6.6 or of a judgment denominated in a currency other than Dollars;
and
(e)all conditions precedent
to the issuance and authorization of the Securities have been complied with.
Any counsel may state that
such opinions are limited to matters arising under the laws of the State of New York and the General Corporation Law of the State of Delaware.
Such counsel may rely upon opinions of other counsel (copies of which shall be delivered to the Trustee) reasonably satisfactory to the
Trustee, in which case the opinion shall state that such counsel believes it and the Trustee are entitled so to rely. Such counsel may
also state that, insofar as such opinion involves factual matters, it has relied, to the extent he deems proper, upon certificates of
officers of the Issuer and its subsidiaries and certificates of public officials.
The Trustee shall have the
right to decline to authenticate and deliver any Securities under this section if the Trustee, being advised by counsel, determines that
such action may not lawfully be taken by the Issuer or if the Trustee in good faith shall determine that such action would expose the
Trustee to personal liability to existing Holders or would affect the Trustee’s own rights, duties or immunities under the Securities,
this Indenture or otherwise.
If the Issuer shall establish
pursuant to Section 2.3 that the Securities of a series are to be issued in the form of one or more Registered Global Securities,
then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series,
authenticate and deliver one or more Registered Global Securities that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of all of the Securities of such series issued and not yet cancelled, (ii) shall be registered
in the name of the Depositary for such Registered Global Security or Securities or the nominee of such Depositary, (iii) shall be
delivered by the Trustee to such Depositary or delivered or held pursuant to such Depositary’s instructions and (iv) shall
bear a legend substantially to the following effect: “UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES
IN DEFINITIVE REGISTERED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO THE NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.”
Each Depositary designated
pursuant to Section 2.3 must, at the time of its designation and at all times while it serves as Depositary, be a clearing agency
registered under the Exchange Act and any other applicable statute or regulation.
SECTION 2.5 EXECUTION OF SECURITIES
The Securities shall be signed
on behalf of the Issuer by the chief executive officer or the chief financial officer of the Issuer, which may, but need not, be attested.
Such signatures may be the manual or facsimile signatures of the present or any future such officers. Typographical and other minor errors
or defects in any such signature shall not affect the validity or enforceability of any Security that has been duly authenticated and
delivered by the Trustee.
In case any officer of the
Issuer who shall have signed any of the Securities shall cease to be such officer before the Security so signed shall be authenticated
and delivered by the Trustee or disposed of by the Issuer, such Security nevertheless may be authenticated and delivered or disposed of
as though the person who signed such Security had not ceased to be such officer of the Issuer; and any Security may be signed on behalf
of the Issuer by such persons as, at the actual date of the execution of such Security, shall be the proper officers of the Issuer, although
at the date of the execution and delivery of this Indenture any such person was not such an officer.
SECTION 2.6 CERTIFICATE OF AUTHENTICATION
Only such Securities as shall
bear thereon a certificate of authentication substantially in the form hereinbefore recited, executed by the Trustee by the manual signature
of one of its authorized signatories, shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. The
execution of such certificate by the Trustee upon any Security executed by the Issuer shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this Indenture.
SECTION 2.7 DENOMINATION AND DATE OF SECURITIES;
PAYMENT OF INTEREST
The Securities of each series
shall be issuable as Registered Securities in denominations established as contemplated by Section 2.3 or, with respect to the Registered
Securities of any series, if not so established, in denominations of $2,000 and any integral multiple of $1,000 in excess thereof. The
Securities of each series shall be numbered, lettered or otherwise distinguished in such manner or in accordance with such plan as the
officers of the Issuer executing the same may determine with the approval of the Trustee, as evidenced by the execution and authentication
thereof.
Each Security shall be dated
the date of its authentication. The Securities of each series shall bear interest, if any, from the date, and such interest shall be payable
on the dates, established as contemplated by Section 2.3.
The person in whose name any
Registered Security of any series is registered at the close of business on any record date applicable to a particular series with respect
to any interest payment date for such series shall be entitled to receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Registered Security subsequent to the record date and prior to such interest payment
date, except if and to the extent the Issuer shall default in the payment of the interest due on such interest payment date for such series,
in which case such defaulted interest shall be paid to the persons in whose names Outstanding Registered Securities for such series are
registered at the close of business on a subsequent record date (which shall be not less than five Business Days prior to the date of
payment of such defaulted interest) established by notice sent by or on behalf of the Issuer to the Holders of Registered Securities not
less than 15 days preceding such subsequent record date. The term “record date” as used with respect to any interest payment
date (except a date for payment of defaulted interest) for the Securities of any series shall mean the date specified as such in the terms
of the Registered Securities of such series established as contemplated by Section 2.3, or, if no such date is so established, if
such interest payment date is the first day of a calendar month, the fifteenth day of the preceding calendar month or, if such interest
payment date is the fifteenth day of a calendar month, the first day of such calendar month, whether or not such record date is a Business
Day.
SECTION 2.8 REGISTRATION, TRANSFER AND
EXCHANGE
The Issuer will keep at each
office or agency to be maintained for the purpose as provided in Section 3.2 for each series of Securities a register or registers
in which, subject to such reasonable regulations as the Issuer may prescribe, it will provide for the registration of Registered Securities
of such series and the registration of transfer of Registered Securities of such series. Such register shall be in written form in the
English language or in any other form capable of being converted into such form within a reasonable time. At all reasonable times such
register or registers shall be open for inspection by the Trustee.
Upon due presentation for
registration of transfer of any Registered Security of any series at any such office or agency to be maintained for the purpose as provided
in Section 3.2, the Issuer shall execute and the Trustee shall authenticate and deliver in the name of the transferee or transferees
a new Registered Security or Registered Securities of the same series, maturity date, interest rate and original issue date in authorized
denominations for a like aggregate principal amount.
At the option of the Holder
thereof, Registered Securities of any series (other than a Registered Global Security, except as set forth below) may be exchanged for
a Registered Security or Registered Securities of such series having authorized denominations and an equal aggregate principal amount,
upon surrender of such Registered Securities to be exchanged at the agency of the Issuer that shall be maintained for such purpose in
accordance with Section 3.2 and upon payment, if the Issuer shall so require, of the charges hereinafter provided. Whenever any Securities
are so surrendered for exchange, the Issuer shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive. All Securities surrendered upon any exchange or transfer provided for in this Indenture shall
be promptly cancelled and disposed of by the Trustee in accordance with its regular procedures, and, upon the written request of any officer
of the Issuer, the Trustee shall deliver a certificate of cancellation and disposition thereof to the Issuer.
All Registered Securities
presented for registration of transfer, exchange, redemption or payment shall (if so required by the Issuer or the Trustee) be duly endorsed,
or be accompanied by a written instrument or instruments of transfer in form reasonably satisfactory to the Issuer and the Trustee duly
executed, by the Holder or his attorney duly authorized in writing.
The Issuer or the Registrar
may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any exchange
or registration of transfer of Securities. No service charge shall be made for any such transaction.
Neither the Issuer nor the
Registrar shall be required to exchange or register a transfer of (a) any Securities of any series for a period of 15 days preceding
the first sending of notice of redemption of Securities of such series to be redeemed and ending at the close of business on the day such
notice of redemption is sent or (b) any Securities selected, called or being called for redemption, in whole or in part, except,
in the case of any Security to be redeemed in part, the portion thereof not so to be redeemed.
Notwithstanding any other
provision of this Section 2.8, except for exchanges in whole or in part for Securities in definitive registered form, a Registered
Global Security representing all or a portion of the Securities of a series may not be transferred except as a whole by the Depositary
for such series to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary
or by such Depositary or any such nominee to a successor Depositary for such series or a nominee of such successor Depositary.
If at any time the Depositary
for any Registered Securities of a series represented by one or more Registered Global Securities notifies the Issuer that it is unwilling
or unable to continue as Depositary for such Registered Securities or if at any time the Depositary for such Registered Securities shall
no longer be eligible under Section 2.4, the Issuer shall appoint a successor Depositary eligible under Section 2.4 with respect
to such Registered Securities. If a successor Depositary eligible under Section 2.4 for such Registered Securities is not appointed
by the Issuer within 90 days after the Issuer receives such notice or becomes aware of such ineligibility, the Issuer’s election
pursuant to Section 2.3 that such Registered Securities be represented by one or more Registered Global Securities shall no longer
be effective and the Issuer will execute, and the Trustee, upon receipt of an Officers’ Certificate for the authentication and delivery
of definitive Securities of such series, will authenticate and deliver, Securities of such series in definitive registered form without
coupons, in any authorized denominations, in an aggregate principal amount equal to the principal amount of the Registered Global Security
or Securities representing such Registered Securities in exchange for such Registered Global Security or Securities.
The Issuer may at any time
and in its sole discretion determine that the Registered Securities of any series issued in the form of one or more Registered Global
Securities shall no longer be represented by a Registered Global Security or Securities. In such event the Issuer will execute, and the
Trustee, upon receipt of any Officers’ Certificate for the authentication and delivery of definitive Securities of such series,
will authenticate and deliver, Securities of such series in definitive registered form without coupons, in any authorized denominations,
in an aggregate principal amount equal to the principal amount of the Registered Global Security or Securities representing such Registered
Securities, in exchange for such Registered Global Security or Securities.
If specified by the Issuer
pursuant to Section 2.3 with respect to Securities represented by a Registered Global Security, the Depositary for such Registered
Global Security may surrender such Registered Global Security in exchange in whole or in part for Securities of the same series in definitive
registered form on such terms as are acceptable to the Issuer and such Depositary. Thereupon, the Issuer shall execute, and the Trustee
shall authenticate and deliver, without service charge,
(i)to the Person specified by
such Depositary a new Registered Security or Securities of the same series, of any authorized denominations as requested by such Person,
in an aggregate principal amount equal to and in exchange for such Person’s beneficial interest in the Registered Global Security;
and
(ii)to such Depositary a new
Registered Global Security in a denomination equal to the difference, if any, between the principal amount of the surrendered Registered
Global Security and the aggregate principal amount of Registered Securities authenticated and delivered pursuant to clause (i) above.
Upon the exchange of a Registered
Global Security for Securities in definitive registered form without coupons, in authorized denominations, such Registered Global Security
shall be cancelled by the Trustee or an agent of the Issuer or the Trustee. Securities in definitive registered form without coupons issued
in exchange for a Registered Global Security pursuant to this Section 2.8 shall be registered in such names and in such authorized
denominations as the Depositary for such Registered Global Security, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee or an agent of the Issuer or the Trustee. The Trustee or such agent shall deliver such Securities
to or as directed by the Persons in whose names such Securities are so registered.
All Securities issued upon
any transfer or exchange of Securities shall be valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits
under this Indenture, as the Securities surrendered upon such transfer or exchange.
Neither the Issuer nor the
Trustee shall have any responsibility for any actions taken or not taken by the Depositary. All Securities issued in definitive registered
form, as described herein, shall be in “registered form” for purposes of Section 163(f) of the Internal Revenue
Code of 1986, as amended.
The Trustee shall have no
obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or
under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among Depositary
participants or beneficial owners of interests in any Registered Global Security) other than to require delivery of such certificates
and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture,
and to examine the same to determine substantial compliance as to form with the express requirements hereof.
Neither the Trustee nor any
Agent shall have any responsibility for any actions taken or not taken by the Depository.
SECTION 2.9 MUTILATED, DEFACED, DESTROYED,
LOST AND STOLEN SECURITIES
In case any temporary or definitive
Security shall be mutilated, defaced, destroyed, lost or stolen, the Issuer in its discretion may execute and, upon the written request
of any officer of the Issuer, the Trustee shall authenticate and deliver, a new Security of the same series, maturity date, interest rate
and original issue date, bearing a number or other distinguishing symbol not contemporaneously outstanding, in exchange and substitution
for the mutilated or defaced Security, or in lieu of and in substitution for the Security so destroyed, lost or stolen. In every case,
the applicant for a substitute Security shall furnish to the Issuer and to the Trustee and any agent of the Issuer or the Trustee such
security or indemnity as required by them to indemnify and defend and to save each of them harmless and, in every case of destruction,
loss or theft, evidence to their reasonable satisfaction of the destruction, loss or theft of such Security and of the ownership thereof,
and in the case of mutilation or defacement shall surrender the Security to the Trustee or such agent.
Upon the issuance of any substitute
Security, the Issuer or the Registrar 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) or its agent connected therewith.
In case any Security which has matured or is about to mature or has been called for redemption in full shall become mutilated or defaced
or be destroyed, lost or stolen, the Issuer may, instead of issuing a substitute Security, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated or defaced Security ), if the applicant for such payment shall furnish to the Issuer
and to the Trustee and any agent of the Issuer or the Trustee such security or indemnity as any of them may require to save each of them
harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Issuer and the Trustee and any agent
of the Issuer or the Trustee evidence to their reasonable satisfaction of the destruction, loss or theft of such Security and of the ownership
thereof.
Every substitute Security
of any series issued pursuant to the provisions of this Section by virtue of the fact that any such Security is destroyed, lost or
stolen shall constitute an additional contractual obligation of the Issuer, whether or not the destroyed, lost or stolen Security shall
be at any time enforceable by anyone and shall be entitled to all the benefits of (but shall be subject to all the limitations of rights
set forth in) this Indenture equally and proportionately with any and all other Securities of such series duly authenticated and delivered
hereunder. All Securities shall be held and owned upon the express condition that, to the extent permitted by law, the foregoing provisions
are exclusive with respect to the replacement or payment of mutilated, defaced or destroyed, lost or stolen Securities and shall preclude
any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to
the replacement or payment of negotiable instruments or other securities without their surrender.
SECTION 2.10 CANCELLATION OF SECURITIES;
DISPOSAL THEREOF
All Securities surrendered
for payment, redemption, registration of transfer or exchange, or for credit against any payment in respect of a sinking or analogous
fund, if any, if surrendered to the Issuer or any agent of the Issuer or the Trustee or any agent of the Trustee, shall be delivered to
the Trustee or its agent for cancellation or, if surrendered to the Trustee, shall be cancelled by it; and no Securities shall be issued
in lieu thereof except as expressly permitted by any of the provisions of this Indenture. The Trustee or its agent shall dispose of cancelled
Securities held by it in accordance with its regular procedures and deliver a certificate of disposition to the Issuer upon the Issuer’s
request in writing. If the Issuer or its agent shall acquire any of the Securities, such acquisition shall not operate as a redemption
or satisfaction of the indebtedness represented by such Securities unless and until the same are delivered to the Trustee or its agent
for cancellation.
SECTION 2.11 TEMPORARY SECURITIES
Pending the preparation of
definitive Securities for any series, the Issuer may execute and the Trustee shall authenticate and deliver temporary Securities for such
series (printed, lithographed, typewritten or otherwise reproduced, in each case in form reasonably satisfactory to the Trustee). Temporary
Securities of any series shall be issuable as Registered Securities without coupons of any authorized denomination, and substantially
in the form of the definitive Securities of such series but with such omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Issuer with the concurrence of the Trustee as evidenced by the execution and authentication
thereof. Temporary Securities may contain such references to any provisions of this Indenture as may be appropriate. Every temporary Security
shall be executed by the Issuer and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and
with like effect, as the definitive Securities. Without unreasonable delay the Issuer shall execute and shall furnish definitive Securities
of such series and thereupon temporary Registered Securities of such series may be surrendered in exchange therefor without charge at
each office or agency to be maintained by the Issuer for that purpose pursuant to Section 3.2 and the Trustee shall authenticate
and deliver in exchange for such temporary Securities of such series an equal aggregate principal amount of definitive Securities of the
same series having authorized denominations. Until so exchanged, the temporary Securities of any series shall be entitled to the same
benefits under this Indenture as definitive Securities of such series, unless otherwise established pursuant to Section 2.3.
SECTION 2.12 CUSIP NUMBERS
The Issuer in issuing the
Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers
in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be
placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect
in or omission of such numbers. The Issuer will promptly notify the Trustee in writing of any change in the “CUSIP” numbers.
ARTICLE III
COVENANTS OF THE ISSUER
SECTION 3.1 PAYMENT OF PRINCIPAL AND INTEREST
The Issuer covenants and agrees
for the benefit of each series of Securities that it will duly and punctually pay or cause to be paid the principal of, and interest on,
if any, each of the Securities of such series (together with any additional amounts payable pursuant to the terms of such Securities)
at the place or places, at the respective time or times and in the manner provided in such Securities and in this Indenture. The interest,
if any, on Registered Securities (together with any additional amounts payable pursuant to the terms of such Securities) shall be payable
only to or upon the written order of the Holders thereof and, at the option of the Issuer, may be paid by wire transfer or by mailing
checks for such interest payable to or upon the written order of such Holders at their last addresses as they appear on the Securities
register of the Issuer.
SECTION 3.2 OFFICES FOR PAYMENTS, ETC
So long as any Registered
Securities are authorized for issuance pursuant to this Indenture or are outstanding hereunder, the Issuer will maintain in [ ] an office
or agency where the Registered Securities of each series may be presented for payment, where the Securities of each series may be presented
for exchange as is provided in this Indenture and, if applicable, pursuant to Section 2.3 and where the Registered Securities of
each series may be presented for registration of transfer as in this Indenture provided.
The Issuer will give to the
Trustee written notice of the location of each such office or agency and of any change of location thereof. In case the Issuer shall fail
to maintain any agency required by this Section to be located in [ ], or shall fail to give such notice of the location or for any
change in the location of any of the above agencies, presentations and demands may be made and notices may be served at the designated
office of the Trustee.
The Issuer may from time to
time designate one or more additional offices or agencies in the continental United States where the Securities of a series may be presented
for payment, where the Securities of that series may be presented for exchange as provided in this Indenture and pursuant to Section 2.3
and where the Registered Securities of that series may be presented for registration of transfer as in this Indenture provided, and the
Issuer may from time to time rescind any such designation, as the Issuer may deem desirable or expedient; provided, that no such designation
or rescission shall in any manner relieve the Issuer of its obligations to maintain the agencies provided for in this Section. The Issuer
shall give to the Trustee prompt written notice of any such designation or rescission thereof.
SECTION 3.3 APPOINTMENT TO FILL A VACANCY
IN OFFICE OF TRUSTEE
The Issuer, whenever necessary
to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so that there
shall at all times be a Trustee with respect to each series of Securities hereunder.
SECTION 3.4 PAYING AGENTS
Whenever the Issuer shall
appoint a paying agent other than the Trustee with respect to the Securities of any series, it will cause such paying agent to execute
and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section,
(a)that it will hold all sums
received by it as such agent for the payment of the principal of or interest on the Securities of such series (whether such sums have
been paid to it by the Issuer or by any other obligor on the Securities of such series) in trust for the benefit of the Holders of the
Securities of such series or of the Trustee;
(b)that it will give the Trustee
written notice of any failure by the Issuer (or by any other obligor on the Securities of such series) to make any payment of the principal
of or interest on the Securities of such series when the same shall be due and payable; and
(c)that it will pay any such
sums so held in trust by it to the Trustee upon the Trustee’s written request at any time during the continuance of the failure
referred to in the foregoing clause (b).
The Issuer will, on or prior
to each due date of the principal of or interest on the Securities of such series, deposit with the paying agent a sum sufficient to pay
such principal or interest so becoming due, and (unless such paying agent is the Trustee) the Issuer will promptly notify the Trustee
of any failure to take such action.
If the Issuer shall act as
its own paying agent with respect to the Securities of any series, it will, on or before each due date of the principal of or interest
on the Securities of such series, set aside, segregate and hold in trust for the benefit of the Holders of the Securities of such series
a sum sufficient to pay such principal or interest so becoming due. The Issuer will promptly notify the Trustee in writing of any failure
to take such action.
Anything in this Section to
the contrary notwithstanding, but subject to Section 10.1, the Issuer may at any time, for the purpose of obtaining a satisfaction
and discharge with respect to one or more or all series of Securities hereunder, or for any other reason, pay or cause to be paid to the
Trustee all sums held in trust for any such series by the Issuer or any paying agent hereunder, as required by this Section, such sums
to be held by the Trustee upon the trusts herein contained.
Anything in this Section to
the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section is subject to the provisions of Sections
10.3 and 10.4.
SECTION 3.5 COMPLIANCE CERTIFICATES
The Issuer will furnish to
the Trustee on or before the date that is 120 days following the end of each fiscal year (beginning with the fiscal year ended [ ]) an
officer’s certificate (which need not comply with Section 11.5) from the principal executive, financial or accounting officer
of the Issuer stating that in the course of the performance by the signer of his or her duties as an officer of the Issuer he or she would
normally have knowledge of any default or non-compliance by the Issuer in the performance of any covenants or conditions contained in
this Indenture, stating whether or not he or she has knowledge of any such default or non-compliance (without regard to notice requirements
or grace periods) and, if so, describing each such default or non-compliance of which the signer has knowledge and the nature thereof.
The Issuer shall deliver to
the Trustee, as soon as possible and in any event within five days after the Issuer becomes aware of the occurrence of any Event of Default
or an event which, with notice or the lapse of time or both, would constitute an Event of Default, an Officers’ Certificate setting
forth the details of such Event of Default or default and the action which the Issuer proposes to take with respect thereto.
SECTION 3.6 CORPORATE EXISTENCE
Subject to Article IX,
the Issuer will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and
the rights (charter and statutory), licenses and franchises of the Issuer and its Subsidiaries; provided, that the Issuer shall not be
required to preserve any such right, license or franchise, if, in the judgment of the Issuer, the preservation thereof is no longer desirable
in the conduct of the business of the Issuer and its Subsidiaries taken as a whole and the loss thereof is not disadvantageous in any
material respect to the Securityholders.
SECTION 3.7 CALCULATION OF ORIGINAL ISSUE
DISCOUNT
The Issuer shall file with
the Trustee promptly at the end of each calendar year (i) a written notice specifying the amount of original issue discount (including
daily rates and accrual periods) accrued on Outstanding Securities as of the end of such year and (ii) such other specific information
relating to such original issue discount as may then be relevant under the Internal Revenue Code of 1986, as amended from time to time.
ARTICLE IV
SECURITYHOLDER LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 ISSUER TO FURNISH TRUSTEE INFORMATION
AS TO NAMES AND ADDRESSES OF SECURITYHOLDERS
If and so long as the Trustee
shall not be the Registrar for the Securities of any series, the Issuer and any other obligor on the Securities will furnish or cause
to be furnished to the Trustee a list in such form as the Trustee may reasonably require of the names and addresses of the Holders of
the Registered Securities of such series pursuant to Section 312 of the Trust Indenture Act:
(a)semi-annually not more
than 5 days after each record date for the payment of interest on such Registered Securities, as hereinabove specified, as of such record
date and on dates to be determined pursuant to Section 2.3 for non-interest bearing Registered Securities in each year; and
(b)at such other times as
the Trustee may reasonably request in writing, within 30 days after receipt by the Issuer of any such request as of a date not more than
15 days prior to the time such information is furnished.
SECTION 4.2 REPORTS BY THE ISSUER
The Issuer covenants to file
with the Trustee, within 15 days after the Issuer is required to file the same with the Commission, copies of the annual reports and of
the information, documents, and other reports that the Issuer may be required to file with the Commission pursuant to Section 13
or Section 15(d) of the Exchange Act or pursuant to Section 314 of the Trust Indenture Act.
Delivery of such reports,
information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute
constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s
compliance with any covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
SECTION 4.3 REPORTS BY THE TRUSTEE
(a)The Trustee shall transmit
to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant thereto. If required by Section 313(a) of the Trust Indenture Act, the
Trustee shall, within 60 days after each May 15 following the date of the initial issuance of Securities under this Indenture deliver
to Holders a brief report, dated as of such May 15, which complies with the provisions of such Section 313(a).
(b)A copy of each such report
shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange, if any, upon which the Securities
are listed, with the Commission and with the Issuer. The Issuer will promptly notify the Trustee in writing when the Securities are listed
on any stock exchange and of any delisting thereof.
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 5.1 EVENT OF DEFAULT DEFINED, ACCELERATION
OF MATURITY; WAIVER OF DEFAULT
“Event of Default”
with respect to Securities of any series, wherever used herein, means any one of the following events which shall have occurred and be
continuing (whatever the reason for such Event of Default and whether 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):
(a)default in the payment
of any installment of interest upon any of the Securities of such series as and when the same shall become due and payable, and continuance
of such default for a period of 30 days; provided that, a valid extension of an interest payment period by the Issuer in accordance with
the terms of such Securities shall not constitute a failure to pay interest;
(b)default in the payment
of all or any part of the principal or premium (if any) on any of the Securities of such series as and when the same shall become due
and payable either at maturity, upon any redemption, by declaration or otherwise;
(c)failure on the part of
the Issuer duly to observe or perform any other of the covenants or agreements on the part of the Issuer in the Securities of such series
or contained in this Indenture (other than a covenant or agreement included in this Indenture solely for the benefit of a series of Securities
other than such series) for a period of [ ] days after the date on which written notice specifying such failure, stating that such notice
is a “Notice of Default” hereunder and demanding that the Issuer remedy the same, shall have been given by registered or certified
mail, return receipt requested, to the Issuer by the Trustee, or to the Issuer and the Trustee by the holders of at least [ ]% in aggregate
principal amount of the Outstanding Securities of the series to which such covenant or agreement relates;
(d)a court having jurisdiction
in the premises shall enter a decree or order for relief in respect of the Issuer in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of the Issuer for any substantial part of its property or ordering the winding up or liquidation of its affairs,
and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days;
(e)the Issuer shall commence
a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consent to the entry
of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of the Issuer or for any substantial part of its or their property, or
make any general assignment for the benefit of creditors; or
(f)any other Event of Default
provided in the supplemental indenture, Board Resolution or Officers’ Certificate under which such series of Securities is established.
If an Event of Default described
in clause (a), (b), (c) or (f) occurs with respect to a series of Securities and is continuing, then, and in each and every
such case, except for any series of Securities the principal of which shall have already become due and payable, either the Trustee or
the Holders of not less than [ ]% in aggregate principal amount of the Securities of each such affected series then Outstanding hereunder
(each such series voting as a separate class) by notice in writing to the Issuer (and to the Trustee if given by Securityholders), may
declare the entire principal (or, if the Securities of such series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) of all Securities of such series, and the interest accrued thereon, if any, to
be due and payable immediately, and upon any such declaration, the same shall become immediately due and payable.
If an Event of Default described
in clause (d) or (e) above occurs and is continuing, then the principal amount of all the Securities then Outstanding, and the
interest accrued thereon, if any, shall become and be immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.
The foregoing provisions are
subject to the condition that if, at any time after the principal (or, if the Securities are Original Issue Discount Securities, such
portion of the principal as may be specified in the terms thereof) of the Securities of any series (or of all the Securities, as the case
may be) shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided,
(A)the Issuer shall pay or
shall deposit with the Trustee a sum sufficient to pay
(i)all matured installments
of interest upon all the Securities of such series (or all the Securities, as the case may be);
(ii)the principal of any and
all Securities of such series (or of all the Securities, as the case may be) which shall have become due otherwise than by acceleration;
(iii)interest upon such principal
and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments of interest, at the same
rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of such
series (or at the respective rates of interest or Yields to Maturity of all the Securities, as the case may be) to the date of such payment
or deposit;
(iv)all amounts payable to the
Trustee pursuant to Section 6.6; and
(B)all Events of Default under
the Indenture, other than the non-payment of the principal of Securities which shall have become due by acceleration, shall have been
cured, waived or otherwise remedied as provided herein, then and in every such case the Holders of a majority in aggregate principal amount
of all the Securities of such series voting as a separate class (or of all the Securities, as the case may be, voting as a single class),
then Outstanding, by written notice to the Issuer and to the Trustee, may waive all defaults with respect to such series (or with respect
to all the Securities, as the case may be) and rescind and annul such declaration and its consequences, but no such waiver or rescission
and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
For all purposes under this
Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated and declared due and payable
pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal
thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be
due and payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall
constitute payment in full of such Original Issue Discount Securities.
SECTION 5.2 COLLECTION OF INDEBTEDNESS
BY TRUSTEE; TRUSTEE MAY PROVE DEBT
The Issuer covenants that
(a) in case default shall be made in the payment of any installment of interest on any of the Securities of any series when such
interest shall have become due and payable, and such default shall have continued for a period of 30 days, or (b) in case default
shall be made in the payment of all or any part of the principal of any of the Securities of any series when the same shall have become
due and payable, whether upon maturity of the Securities of such series or upon any redemption or by declaration or otherwise, then upon
demand of the Trustee, the Issuer will pay to the Trustee for the benefit of the Holders of the Securities of such series the whole amount
that then shall have become due and payable on all Securities of such series, for principal and interest, as the case may be (with interest
to the date of such payment upon the overdue principal and, to the extent that payment of such interest is enforceable under applicable
law, on overdue installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of such series); and in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, and such other amount due the Trustee under Section 6.6 in respect of Securities of
such series.
Until such demand is made
by the Trustee, the Issuer may pay the principal of and interest on the Securities of any series to the registered Holders, whether or
not the Securities of such series be overdue.
In case the Issuer shall fail
forthwith to pay such amounts upon such demand, the Trustee, in its own name as trustee of an express trust, shall be entitled and empowered
to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such
action or proceedings to judgment or final decree, and may enforce any such judgment or final decree against the Issuer or other obligor
upon the Securities and collect in the manner provided by law out of the property of the Issuer or other obligor upon the Securities,
wherever situated, all the moneys adjudged or decreed to be payable.
In case there shall be pending
proceedings relative to the Issuer or any other obligor upon the Securities under Title 11 of the United States Code or any other applicable
Federal or state bankruptcy, insolvency or other similar law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or taken possession of the Issuer or its property or such other
obligor, or in case of any other comparable judicial proceedings relative to the Issuer or other obligor upon the Securities, or to the
creditors or property of the Issuer or such other obligor, the Trustee, irrespective of whether the principal of the Securities shall
then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any
demand pursuant to the provisions of this Section, shall be entitled and empowered, by intervention in such proceedings or otherwise:
(a)to file and prove a claim
or claims for the whole amount of principal and interest (or, if the Securities of any series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms of such series) owing and unpaid in respect of the Securities of
any series, 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 amounts payable to the Trustee under Section 6.6) and of the Securityholders allowed in any judicial proceedings relative
to the Issuer or other obligor upon the Securities, or to the creditors or property of the Issuer or such other obligor; and
(b)unless prohibited by applicable
law and regulations, to vote on behalf of the holders of the Securities of any series in any election of a receiver, assignee, trustee
or a standby trustee in arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings, custodian or other person
performing similar functions in respect of any such proceedings; and
(c)to collect and receive
any moneys or other property payable or deliverable on any such claims, and to distribute all amounts received with respect to the claims
of the Securityholders and of the Trustee on their behalf; and any trustee, receiver, or liquidator, custodian or other similar official
performing similar functions in respect of any such proceedings is hereby authorized by each of the Securityholders to make payments to
the Trustee, and, in the event that the Trustee shall consent to the making of payments directly to the Securityholders, to pay to the
Trustee its costs and expenses of collection and all other amounts due to it pursuant to Section 6.6.
Nothing herein contained shall
be deemed to authorize the Trustee to authorize or consent to or vote for or accept or adopt on behalf of any Securityholder any plan
of reorganization, arrangement, adjustment or composition affecting the Securities of any series or the rights of any Holder thereof,
or to authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding, except as aforesaid in clause
(b).
All rights of action and of
asserting claims under this Indenture, or under any of the Securities of any series, may be enforced by the Trustee without the possession
of any of the Securities of such series or the production thereof in any trial or other proceedings relative thereto, and any such action
or proceedings instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment
shall be awarded to the Trustee for ratable distribution to the Holders of the Securities in respect of which such action was taken, after
payment of all sums due to the Trustee under Section 6.6 in respect of such Securities.
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 in respect to which such action was taken, and it shall
not be necessary to make any Holders of such Securities parties to any such proceedings.
SECTION 5.3 APPLICATION OF PROCEEDS
Any moneys collected by the
Trustee pursuant to this Article in respect of any series shall be applied in the following order at the date or dates fixed by the
Trustee and, in case of the distribution of such moneys on account of principal or interest, upon presentation of the several Securities
in respect of which monies have been collected and stamping (or otherwise noting) thereon the payment, or issuing Securities of such series
in reduced principal amounts in exchange for the presented Securities of like series if only partially paid, or upon surrender thereof
if fully paid:
FIRST: To the payment of
costs and expenses applicable to such series of Securities in respect of which monies have been collected, including all amounts due to
the Trustee and each predecessor Trustee pursuant to this Indenture in respect to such series of Securities;
SECOND: If the Securities
of such series are Subordinated Securities, to the payment of amounts then due and unpaid to the holders of Senior Indebtedness with respect
to such series, to the extent required pursuant to the Subordination Provisions established with respect to the Securities of such series
pursuant to Section 2.3(9).
THIRD: In case the principal
of the Securities of such series in respect of which moneys have been collected shall not have become and be then due and payable, to
the payment of interest on the Securities of such series in default in the order of the maturity of the installments on such interest,
with interest (to the extent that such interest has been collected by the Trustee and is permitted by applicable law) upon the overdue
installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities)
specified in such Securities, such payments to be made ratably to the persons entitled thereto, without discrimination or preference;
FOURTH: In case the principal
of the Securities of such series in respect of which moneys have been collected shall have become and shall be then due and payable, to
the payment of the whole amount then owing and unpaid upon all the Securities of such series for principal and interest, with interest
upon the overdue principal, and (to the extent that such interest has been collected by the Trustee and is permitted by applicable law)
upon the overdue installations of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of such series; and in case such moneys shall be insufficient to pay in full the whole
amount so due and unpaid upon the Securities of such series, then to the payment of such principal and interest or Yield to Maturity,
without preference or priority of principal over interest or Yield to Maturity, or of interest or Yield to Maturity over principal, or
of any installment of interest over any other installment of interest or of any Security of such series over any other Security of such
series, ratably to the aggregate of such principal and accrued and unpaid interest or Yield to Maturity; and
FIFTH: To the payment of
the remainder, if any, to the Issuer or to such party as a court of competent jurisdiction shall direct.
SECTION 5.4 SUITS FOR ENFORCEMENT
In case an Event of Default
has occurred, has not been waived and is continuing, the Trustee may in its discretion proceed to protect and enforce the rights vested
in it by this Indenture by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of
such rights, either at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement
contained in this Indenture or in aid of the exercise of any power granted in this Indenture or to enforce any other legal or equitable
right vested in the Trustee by this Indenture or by law.
SECTION 5.5 RESTORATION OF RIGHTS ON ABANDONMENT
OF PROCEEDINGS
In case the Trustee shall
have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned for any reason,
or shall have been determined adversely to the Trustee, then and in every such case the Issuer and the Trustee shall be restored respectively
to their former positions and rights hereunder, and all rights, remedies and powers of the Issuer, the Trustee and the Securityholders
shall continue as though no such proceedings had been taken.
SECTION 5.6 LIMITATIONS ON SUITS BY SECURITY
HOLDERS
No Holder of any Security
of any series shall have any right by virtue or by availing of any provision of this Indenture to institute any action or proceeding at
law or in equity or in bankruptcy or otherwise upon or under or with respect to this Indenture or such Security, or for the appointment
of a trustee, receiver, liquidator, custodian or other similar official or for any other remedy hereunder or thereunder, unless (a) an
Event of Default has occurred and is continuing and such Holder previously shall have given to a Responsible Officer of the Trustee written
notice of an Event of Default with respect to Securities of such series and of the continuance thereof, as hereinbefore provided, (b) the
Holders of not less than [ ]% in aggregate principal amount of the Securities of such affected series then Outstanding (treated as a single
class) shall have made written request upon the Trustee to institute such action or proceedings in its own name as Trustee hereunder and
shall have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities to be
incurred therein or thereby, (c) the Trustee for [ ] days after its receipt of such notice, request and offer of indemnity shall
have failed to institute any such action or proceeding, and (d) no direction inconsistent with such written request shall have been
given to the Trustee pursuant to Section 5.9; it being understood and intended, and being expressly covenanted by the taker and Holder
of every Security with every other taker and Holder and the Trustee, that no one or more Holders of Securities of any series shall have
any right in any manner whatever by virtue or by availing of any provision of this Indenture or any Security to affect, disturb or prejudice
the rights of any other such taker or Holder of Securities, or to obtain or seek to obtain priority over or preference to any other such
taker or Holder or to enforce any right under this Indenture or any Security, except in the manner herein provided and for the equal,
ratable and common benefit of all Holders of Securities of the applicable series. For the protection and enforcement of the provisions
of this Section, each and every Securityholder and the Trustee shall be entitled to such relief as can be given either at law or in equity.
SECTION 5.7 UNCONDITIONAL RIGHT OF SECURITYHOLDERS
TO INSTITUTE CERTAIN SUITS
Notwithstanding any other
provision in this Indenture and any provision of any Security, the right of any Holder of any Security to receive payment of the principal
of and interest on such Security on or after the respective due dates expressed in such Security or the applicable redemption dates provided
for in such Security, or to institute suit for the enforcement of any such payment on or after such respective dates, shall not be impaired
or affected without the consent of such Holder.
SECTION 5.8 POWERS AND REMEDIES CUMULATIVE;
DELAY OR OMISSION NOT WAIVER OF DEFAULT
Except as provided in Section 5.6,
no right or remedy herein conferred upon or reserved to the Trustee or to the Holders of Securities 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.
No delay or omission of the
Trustee or of any Holder of Securities to exercise any right or power accruing upon any Event of Default occurring and continuing as aforesaid
shall impair any such right or power or shall be construed to be a waiver of any such Event of Default or an acquiescence therein. Every
power and remedy given by this Indenture, any Security or law to the Trustee or to the Holders of Securities may be exercised from time
to time, and as often as shall be deemed expedient, by the Trustee or, subject to Section 5.6, by the Holders of Securities.
SECTION 5.9 CONTROL BY HOLDERS OF SECURITIES
The Holders of a majority
in aggregate principal amount of the Securities of each series affected (with each such series voting as a separate class) at the time
Outstanding 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 by this Indenture; provided, that
such direction shall not be otherwise than in accordance with law and the provisions of this Indenture; and provided, further, that (subject
to the provisions of Section 6.1) the Trustee shall have the right to decline to follow any such direction if (a) the Trustee,
being advised by counsel, shall determine that the action or proceeding so directed may not lawfully be taken; (b) if the Trustee
shall determine in good faith that the action or proceedings so directed would involve the Trustee in personal liability; or (c) if
the Trustee in good faith shall so determine that the actions or forbearances specified in or pursuant to such direction would be unduly
prejudicial to the interests of Holders of the Securities of all affected series not joining in the giving of said direction, it being
understood that (subject to Section 6.1) the Trustee shall have no duty to ascertain whether or not such actions or forbearances
are unduly prejudicial to such Holders.
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 or directions by Securityholders.
SECTION 5.10 WAIVER OF PAST DEFAULTS
Prior to the declaration of
acceleration of the maturity of the Securities of any series as provided in Section 5.1, the Holders of a majority in aggregate principal
amount of the Securities of such series at the time Outstanding (voting as a single class) may on behalf of the Holders of all such Securities
waive any past default or Event of Default described in Section 5.1 and its consequences, except a default in respect of a covenant
or provision hereof which cannot be modified or amended without the consent of the Holder of each Security affected. In the case of any
such waiver, the Issuer, the Trustee and the Holders of all such Securities shall be restored to their former positions and rights hereunder,
respectively, and such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for
every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
SECTION 5.11 TRUSTEE TO GIVE NOTICE OF
DEFAULT, BUT MAY WITHHOLD IN CERTAIN CIRCUMSTANCES
The Trustee shall, within
ninety (90) days after the occurrence of a default with respect to the Securities of any series, give written notice of all defaults with
respect to that series known to a Responsible Officer to all Holders of Securities of such series in the manner and to the extent provided
in Section 313(c) of the Trust Indenture Act, unless such defaults shall have been cured before the sending of such notice (the
term “default” for the purpose of this Section being hereby defined to mean any event or condition which is, or with
notice or lapse of time or both would become, an Event of Default); provided, that, except in the case of default in the payment of the
principal of or interest on any of the Securities of such series the Trustee shall be protected in withholding such notice if and so long
as it in good faith determines that the withholding of such notice is in the interests of the Securityholders of such series.
SECTION 5.12 RIGHT OF COURT TO REQUIRE
FILING OF UNDERTAKING TO PAY COSTS
All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against
any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder
or group of Securityholders of any series holding in the aggregate more than 10% in aggregate principal amount of the Securities of such
series, or, in the case of any suit relating to or arising under clause (c) or (f) of Section 5.1 (if the suit relates
to Securities of more than one but less than all series), 10% in aggregate principal amount of Securities then Outstanding and affected
thereby, or in the case of any suit relating to or arising under clause (c) or (f) (if the suit under clause (c) or (f) relates
to all the Securities then Outstanding), or (d) or (e) of Section 5.1, 10% in aggregate principal amount of all Securities
then Outstanding, or to any suit instituted by any Securityholder for the enforcement of the payment of the principal of or interest on
any Security on or after the due date expressed in such Security or any date fixed for redemption.
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.1 DUTIES AND RESPONSIBILITIES
OF THE TRUSTEE; DURING DEFAULT; PRIOR TO DEFAULT
Prior to the occurrence of
an Event of Default with respect to the Securities of a particular series and after the curing or waiving of all Events of Default which
may have occurred with respect to such series, the Trustee undertakes to perform such duties and only such duties as are specifically
set forth in this Indenture with respect to such series of Securities. In case an Event of Default with respect to the Securities of a
series has occurred and has not been cured or waived and is known to a Responsible Officer, the Trustee shall exercise with respect to
such series of Securities such of the rights and powers vested in it by this Indenture with respect to such series of Securities, and
use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct
of his or her own affairs.
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
(a)prior to the occurrence
of an Event of Default known to a Responsible Officer with respect to the Securities of any series and after the curing or waiving of
all such Events of Default with respect to such series which may have occurred:
(i)the duties and obligations
of the Trustee with respect to the Securities of any series shall be determined solely by the express provisions of this Indenture, and
the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture,
and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii)in the absence of negligence
and willful misconduct on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such statements, 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 need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein);
(b)the Trustee shall not be
liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts; and
(c)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 pursuant
to Section 5.9 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.
None of the provisions contained
in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance
of any of its duties or in the exercise of any of its rights or powers, if there shall be reasonable ground for believing that the repayment
of such funds or adequate indemnity against such liability is not reasonably assured to it.
The provisions of this Section 6.1
are in furtherance of and subject to Section 315 of the Trust Indenture Act.
SECTION 6.2 CERTAIN RIGHTS OF THE TRUSTEE
In furtherance of and subject
to the Trust Indenture Act, and subject to Section 6.1:
(a)the Trustee may conclusively
rely and shall be fully protected in acting or refraining from acting upon any resolution, Officers’ Certificate or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, note, coupon, security or other paper or document
believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b)any request, direction,
order or demand of the Issuer mentioned herein shall be sufficiently evidenced by an Officers’ Certificate or Issuer Order (unless
other evidence in respect thereof is specifically prescribed herein or in the terms established in respect of any series); and any resolution
of the Board of Directors may be evidenced to the Trustee by a copy thereof certified by the secretary or an assistant secretary of the
Issuer;
(c)the Trustee may consult
with counsel of its selection, and any advice or any Opinion of Counsel shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted to be taken by it hereunder in good faith and in reliance thereon in accordance with such advice
or Opinion of Counsel;
(d)the Trustee shall be under
no obligation to exercise any of the trusts or powers vested in it by this Indenture at the request, order or direction of any of the
Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee security or
indemnity reasonably satisfactory to it against the costs, expenses and liabilities which might be incurred therein or thereby;
(e)the Trustee shall not be
liable for any action taken or omitted by it in good faith and believed by it to be authorized or within the discretion, rights or powers
conferred upon it by this Indenture;
(f)prior to the occurrence
of an Event of Default hereunder and after the curing or waiving of all Events of Default, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, appraisal, bond, debenture, note, coupon, security, or other paper or document unless (i) requested in
writing so to do by the Holders of not less than a majority in aggregate principal amount of the Securities of all series affected then
Outstanding (treated as one class) or (ii) otherwise provided in the terms of any series of Securities pursuant to Section 2.3;
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 security or indemnity reasonably satisfactory to it against such expenses
or liabilities as a condition to proceeding; the reasonable expenses of every such investigation shall be paid by the Issuer or, if paid
by the Trustee or any predecessor trustee, shall be repaid by the Issuer upon demand;
(g)the Trustee may execute
any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys not regularly
in its employ and the Trustee shall not be responsible for any negligence or willful misconduct on the part of any such agent or attorney
appointed with due care by it hereunder;
(h)the Trustee shall not be
deemed to have notice of any Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact an Event of Default is received by the Trustee at the Corporate Trust Office and such notice references
the Securities, the Issuer or this Indenture;
(i)the rights, privileges,
protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to,
and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act
hereunder;
(j)the Trustee may request
that the Issuer deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take
specified actions pursuant to this Indenture, which 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;
(k)in no event shall the Trustee
be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited
to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the
form of action;
(l)the Trustee shall not be
required to give any bond or surety in respect of the performance of its powers and duties hereunder;
(m) the Trustee shall
not have any duty to calculate or verify any calculations; and
(n)the permissive rights or
powers of the Trustee to take or refrain from taking any actions enumerated in this Indenture shall not be construed as a duty of the
Trustee.
SECTION 6.3 TRUSTEE NOT RESPONSIBLE FOR
RECITALS, DISPOSITION OF SECURITIES OR APPLICATION OF PROCEEDS THEREOF
The recitals contained herein
and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements of the Issuer, and
the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representation as to the validity or sufficiency
of this Indenture or of the Securities. The Trustee shall not be accountable for the use or application by the Issuer of any of the Securities
or of the proceeds thereof.
SECTION 6.4 TRUSTEE AND AGENTS MAY HOLD
SECURITIES; COLLECTIONS, ETC.
The Trustee or any agent of
the Issuer or of the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights
it would have if it were not the Trustee or such agent and may otherwise deal with the Issuer and receive, collect, hold and retain collections
from the Issuer with the same rights it would have if it were not the Trustee or such agent.
SECTION 6.5 MONEYS HELD BY TRUSTEE
Subject to the provisions
of Section 10.4 hereof, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for
the purposes for which they were received, but need not be segregated from other funds except to the extent required by mandatory provisions
of law. Neither the Trustee nor any agent of the Issuer or the Trustee shall be under any liability for interest on any moneys received
by it hereunder.
SECTION 6.6 COMPENSATION AND INDEMNIFICATION
OF TRUSTEE AND ITS PRIOR CLAIM
The Issuer covenants and agrees
to pay to the Trustee from time to time, and the Trustee shall be entitled to, such compensation as the Issuer and the Trustee shall agree
in writing (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust), and the
Issuer covenants and agrees to pay or reimburse the Trustee and each predecessor trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by or on behalf of it in accordance with any of the provisions of this Indenture (including
the reasonable compensation and the expenses and disbursements of its counsel and of all agents and other persons not regularly in its
employ) except any such expense, disbursement or advance as may arise from its own negligence or willful misconduct. The Issuer also covenants
to indemnify each of the Trustee or any predecessor Trustee and their agents for, and to hold them harmless against, any and all loss,
damage, claims, liability or expense, including taxes (other than taxes based upon, measured by or determined by the income of the Trustee),
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 (whether asserted by the Issuer, or any Holder or any other Person) or liability in connection with
the exercise or performance of any of its powers or duties hereunder, or in connection with enforcing the provisions of this Section,
except to the extent that such loss, damage, claim, liability or expense is determined to have been caused by its own negligence or willful
misconduct. When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 5.1(d) or
Section 5.1(e), 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 bankruptcy, insolvency or other similar law. The obligations
of the Issuer under this Section to compensate and indemnify the Trustee and each predecessor trustee and to pay or reimburse the
Trustee and each predecessor trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture and the resignation or removal of the Trustee. Such additional indebtedness shall
be a senior claim to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in
trust for the benefit of the Holders of particular Securities, and the Securities are hereby subordinated to such senior claim.
SECTION 6.7 RIGHT OF TRUSTEE TO RELY ON
OFFICERS’ CERTIFICATE, ETC.
Subject to Sections 6.1 and
6.2, whenever in the administration of the trusts of this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof
be herein specifically prescribed) may, in the absence of negligence or willful misconduct on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers’ Certificate delivered to the Trustee, and such certificate, in the absence of
negligence or willful misconduct on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted
by it under the provisions of this Indenture upon the faith thereof.
SECTION 6.8 INDENTURES NOT CREATING POTENTIAL
CONFLICTING INTERESTS FOR THE TRUSTEE
The following indentures are
hereby specifically described for the purposes of Section 310(b)(1) of the Trust Indenture Act: this Indenture with respect
to series of Securities that are of an equal priority.
SECTION 6.9 QUALIFICATION OF TRUSTEE: CONFLICTING
INTERESTS
The Trustee shall comply with
Section 310(b) of the Trust Indenture Act.
SECTION 6.10 PERSONS ELIGIBLE FOR APPOINTMENT
AS TRUSTEE
The Trustee for each series
of Securities hereunder shall at all times be a corporation or banking association organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia, having a combined capital and surplus of at least $50,000,000,
and which is authorized under such laws to exercise corporate trust powers and is subject to supervision or examination by Federal, state
or District of Columbia authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation
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 the Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign immediately in
the manner and with the effect specified in Section 6.11.
The provisions of this Section 6.10
are in furtherance of and subject to Section 310(a) of the Trust Indenture Act.
SECTION 6.11 RESIGNATION AND REMOVAL; APPOINTMENT
OF SUCCESSOR TRUSTEE
(a)The Trustee, or any trustee
or trustees hereafter appointed, may at any time resign with respect to one or more or all series of Securities by giving written notice
of resignation to the Issuer and by sending notice of such resignation to the Holders of then Outstanding Registered Securities of each
series affected in accordance with Applicable Procedures. Upon receiving such notice of resignation, the Issuer shall promptly appoint
a successor trustee or trustees with respect to the applicable series by written instrument in duplicate, executed by authority of the
Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee or
trustees. If no successor trustee shall have been so appointed with respect to any series and have accepted appointment within 30 days
after the sending of such notice of resignation, the resigning trustee may petition any court of competent jurisdiction at the expense
of the Issuer for the appointment of a successor trustee, or any Securityholder who has been a bona fide Holder of a Security or Securities
of the applicable series for at least six months may, subject to the provisions of Section 5.12, on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor trustee. Such court may thereupon, after such notice, if
any, as it may deem proper and prescribe, appoint a successor trustee.
(b)In case at any time any
of the following shall occur:
(i)the Trustee shall fail to
comply with the provisions of Section 310(b) of the Trust Indenture Act with respect to any series of Securities after written
request therefor by the Issuer or by any Securityholder;
(ii)the Trustee shall cease
to be eligible in accordance with the provisions of Section 6.10 and Section 310(a) of the Trust Indenture Act and shall
fail to resign after written request therefor by the Issuer or by any Securityholder who has been a bona fide Holder of a Security or
Securities of such series for at least six months; or
(iii)the Trustee shall become
incapable of acting with respect to any series of Securities, or shall be adjudged bankrupt or insolvent, or a receiver or liquidator
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, the Issuer may remove the Trustee with
respect to the applicable series of Securities and appoint a successor trustee for such series by written instrument, in duplicate, executed
by order of the Board of Directors of the Issuer, one copy of which instrument shall be delivered to the Trustee so removed and one copy
to the successor trustee, or, subject to the provisions of Section 315(e) of the Trust Indenture Act, any Securityholder who
has been a bona fide Holder of a Security or Securities 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 removal of the Trustee and the appointment of a successor trustee
with respect to such series. Such court may thereupon, after such notice, if any, as it may deem proper and so prescribe, remove the Trustee
and appoint a successor trustee.
(c)The Holders of a majority
in aggregate principal amount of the Securities of each series at the time outstanding may at any time remove the Trustee with respect
to Securities of such series and appoint a successor trustee with respect to the Securities of such series by delivering to the Trustee
so removed, to the successor trustee so appointed and to the Issuer the evidence provided for in Section 7.1 of the action in that
regard taken by the Securityholders by notice in writing not less than 30 days prior to the effective date of such removal.
(d)Any resignation or removal
of the Trustee with respect to any series and any appointment of a successor trustee with respect to such series pursuant to any of the
provisions of this Section 6.11 shall become effective upon acceptance of appointment by the successor trustee as provided in Section 6.12.
SECTION 6.12 ACCEPTANCE OF APPOINTMENT
BY SUCCESSOR TRUSTEE
Any successor trustee appointed
as provided in Section 6.11 shall execute and deliver to the Issuer and to its predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all rights, powers, duties
and obligations with respect to such series of its predecessor hereunder, with like effect as if originally named as trustee for such
series hereunder; but, nevertheless, on the written request of the Issuer or of the successor trustee, upon payment of its charges then
unpaid, the trustee ceasing to act shall, subject to Section 10.4, pay over to the successor trustee all moneys at the time held
by it hereunder and shall execute and deliver an instrument transferring to such successor trustee all such rights, powers, duties and
obligations. Upon request of any such successor trustee, the Issuer shall execute any and all instruments in writing for more fully and
certainly vesting in and confirming to such successor trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless,
retain a prior claim upon all property or funds held or collected by such trustee to secure any amounts then due it pursuant to the provisions
of Section 6.6.
If a successor trustee is
appointed with respect to the Securities of one or more (but not all) series, the Issuer, the predecessor trustee and each successor trustee
with respect to the Securities of any applicable series shall execute and deliver an indenture supplemental hereto which shall contain
such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor
trustee with respect to the Securities of any series as to which the predecessor trustee is not retiring shall continue to be vested in
the predecessor trustee, and 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 under separate
indentures.
No successor trustee with
respect to any series of Securities shall accept appointment as provided in this Section 6.12 unless at the time of such acceptance
such successor trustee shall be qualified under Section 310(b) of the Trust Indenture Act and eligible under the provisions
of Section 6.10.
Upon acceptance of appointment
by any successor trustee as provided in this Section 6.12, the Issuer shall give notice thereof to the Holders by sending such notice
to such Holders in accordance with Applicable Procedures. If the acceptance of appointment is substantially contemporaneous with the resignation,
then the notice called for by the preceding sentence may be combined with the notice called for by Section 6.11. If the Issuer fails
to give such notice within ten days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice
to be given at the expense of the Issuer. The resigning Trustee shall have no responsibility or liability for any action or inaction of
a successor Trustee.
SECTION 6.13 MERGER, CONVERSION, CONSOLIDATION
OR SUCCESSION TO BUSINESS OF TRUSTEE
Any corporation or banking
association into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation or banking association
resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation or banking association
succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided, that such corporation or banking association shall be qualified under Section 310(b) of the Trust Indenture Act and
eligible under the provisions of Section 6.10, without the execution or filing of any paper or any further act on the part of any
of the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor
to the Trustee shall succeed to the trusts created by this Indenture any of the Securities of any series shall have been authenticated
but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee and deliver
such Securities so authenticated; and, in case at that time any of the Securities of any series shall not have been authenticated, any
such successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor
Trustee; and in all such cases such certificate of authentication shall have the full force which under this Indenture or the Securities
of such series it is provided that the certificate of authentication of the Trustee shall have; provided, that the right to adopt the
certificate of authentication of any predecessor trustee or to authenticate Securities of any series in the name of any predecessor trustee
shall apply only to its successor or successors by merger, conversion or consolidation.
SECTION 6.14 PREFERENTIAL COLLECTION OF
CLAIMS AGAINST THE ISSUER
The Trustee shall comply with
Section 311(a) of the Trust Indenture Act, excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the
extent indicated.
SECTION 6.15 APPOINTMENT OF AUTHENTICATING
AGENT
As long as any Securities
of a series remain Outstanding, the Trustee may, by an instrument in writing, appoint with the approval of the Issuer an authenticating
agent (the “Authenticating Agent”) which shall be authorized to act on behalf of the Trustee to authenticate Securities, including
Securities issued upon exchange, registration of transfer, partial redemption or pursuant to Section 2.9. Securities of each such
series authenticated by such Authenticating Agent shall be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee. Whenever reference is made in this Indenture to the authentication and delivery of
Securities of any series by the Trustee or to 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 for such series and a Certificate of Authentication executed
on behalf of the Trustee by such Authenticating Agent. Such Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any State, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $45,000,000 (determined as provided in Section 6.10 with respect to the Trustee)
and subject to supervision or examination by Federal or state authority.
Any corporation into which
any 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 any Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency
business of any Authenticating Agent, shall continue to be the Authenticating Agent with respect to all series of Securities for which
it served as Authenticating Agent without the execution or filing of any paper or any further act on the part of the Trustee or such Authenticating
Agent. Any Authenticating Agent may at any time, and if it shall cease to be eligible shall, resign by giving written notice of resignation
to the Trustee and to the Issuer.
Upon receiving such a notice
of resignation or upon such a termination, or in case at any time any Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section 6.15 with respect to one or more series of Securities, the Trustee shall upon receipt of an Issuer
Order appoint a successor Authenticating Agent, and the Issuer shall provide notice of such appointment to all Holders of Securities of
such series in the manner and to the extent provided in Section 11.4. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all rights, powers, duties and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent. The Issuer agrees to pay to the Authenticating Agent for such series from time to time reasonable
compensation. The Authenticating Agent for the Securities of any series shall have no responsibility or liability for any action taken
by it as such at the direction of the Trustee.
Sections 6.2, 6.3, 6.4, 6.6
and 7.3 shall be applicable to any Authenticating Agent.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 EVIDENCE OF ACTION TAKEN BY
SECURITYHOLDERS
Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by a specified percentage in principal
amount of the Securityholders of any or all series may be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such specified percentage of Securityholders in person or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee. Proof of execution
of any instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Sections
6.1 and 6.2) conclusive in favor of the Trustee and the Issuer, if made in the manner provided in this Article.
SECTION 7.2 PROOF OF EXECUTION OF INSTRUMENTS
AND OF HOLDING OF SECURITIES
Subject to Sections 6.1 and
6.2, the execution of any instrument by a Securityholder or his agent or proxy may be proved in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in such manner as shall be reasonably satisfactory to the Trustee. The holding of Registered
Securities shall be proved by the Security register or by a certificate of the Registrar thereof.
SECTION 7.3 HOLDERS TO BE TREATED AS OWNERS
The Issuer, the Trustee and
any agent of the Issuer or the Trustee shall deem and treat the person in whose name any Security shall be registered upon the Security
register and books of the Registrar for such series as the absolute owner of such Security (whether or not such Security shall be overdue
and notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving payment of or on account of the principal
of and, subject to the provisions of this Indenture, interest on such Security and for all other purposes; and neither the Issuer nor
the Trustee nor any agent of the Issuer or the Trustee shall be affected by any notice to the contrary.
SECTION 7.4 SECURITIES OWNED BY ISSUER
DEEMED NOT OUTSTANDING
In determining whether the
Holders of the requisite aggregate principal amount of Outstanding Securities of any or all series have concurred in any request, demand,
authorization, direction, notice, consent, waiver or other action by Securityholders under this Indenture, Securities which are owned
by the Issuer or any other obligor on the Securities with respect to which such determination is being made or by any person directly
or indirectly controlling or controlled by or under direct or indirect common control with the Issuer or any other obligor on the Securities
with respect to which such determination is being made shall be disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such action only Securities
which a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the reasonable satisfaction of the Trustee the pledgee’s
right so to act with respect to such Securities and that the pledgee is not the Issuer or any other obligor upon the Securities or any
person directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer or any other obligor
on the Securities. 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. Upon request of the Trustee, the Issuer shall furnish to the Trustee promptly an Officers’
Certificate listing and identifying all Securities, if any, known by the Issuer to be owned or held by or for the account of any of the
above-described persons; and, subject to Sections 6.1 and 6.2, the Trustee shall be entitled to accept such Officers’ Certificate
as conclusive evidence of the facts therein set forth and of the fact that all Securities not listed therein are Outstanding for the purpose
of any such determination.
SECTION 7.5 RIGHT OF REVOCATION OF ACTION
TAKEN
At any time prior to (but
not after) the evidencing to the Trustee, as provided in Section 7.1, of the taking of any action by the Holders of the percentage
in aggregate principal amount of the Securities of any or all series, as the case may be, specified in this Indenture in connection with
such action, any Holder of a Security the serial number of which is shown by the evidence to be included among the serial numbers of the
Securities the Holders of which have consented to such action may, by filing written notice at the Corporate Trust Office and upon proof
of holding as provided in this Article, revoke such action so far as concerns such Security. Except as aforesaid, any such action taken
by the Holder of any Security shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Security
and of any Securities issued in exchange or substitution therefor or on registration of transfer thereof, irrespective of whether or not
any notation in regard thereto is made upon any such Security. Any action taken by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in this Indenture in connection with such action shall be
conclusively binding upon the Issuer, the Trustee and the Holders of all the Securities affected by such action.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
SECTION 8.1 SUPPLEMENTAL INDENTURES WITHOUT
CONSENT OF SECURITYHOLDERS
The Issuer, when authorized
by a Board Resolution (which resolution may provide general terms or parameters for such action and may provide that the specific terms
of such action may be determined in accordance with or pursuant to an Issuer Order), and the Trustee may from time to time and at any
time enter into an indenture or indentures supplemental hereto for one or more of the following purposes:
(a)to convey, transfer, assign,
mortgage or pledge to the Trustee as security for the Securities of one or more series any property or assets;
(b)to evidence the succession
of another corporation to the Issuer, or successive successions, and the assumption by the successor corporation of the covenants, agreements
and obligations of the Issuer pursuant to Article IX;
(c)to add to the covenants
of the Issuer such further covenants, restrictions, conditions or provisions as the Issuer and the Trustee shall consider to be for the
protection of the Holders of Securities, and to make the occurrence, or the occurrence and continuance, of a default in any such additional
covenants, restrictions, conditions or provisions an Event of Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, that in respect of any such additional covenant, restriction, condition or provision
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 an Event of Default or may limit the remedies
available to the Trustee upon such an Event of Default or may limit the right of the Holders of a majority in aggregate principal amount
of the Securities of such series to waive such an Event of Default;
(d)to add any additional Events
of Default for the benefit of the Holders of all or any series of Securities (and if such additional Events of Default are to be for the
benefit of less than all series of Securities, stating that such additional Events of Default are expressly being included solely for
the benefit of such series);
(e)to add one or more guarantees
for the benefit of Holders of the Securities;
(f)subject to any limitations
established pursuant to Section 2.3, to provide for the issuance of additional Securities of any series;
(g)to comply with the rules of
any applicable Depositary;
(h)to add to or change any
of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Securities in uncertificated
form;
(i)to add to, change or eliminate
any of the provisions of this Indenture in respect of one or more series of Securities; provided that any such addition, change or elimination
(A) shall neither (i) apply to any Security of any series created prior to the execution of such supplemental indenture and
entitled to the benefit of such provision nor (ii) modify the rights of the Holder of any such Security with respect to such provision
or (B) shall become effective only when there is no Security described in clause (A)(i) Outstanding;
(j)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 Section 10.1; provided that any such action shall not adversely affect the interests of the Holders of Securities
of such series or any other series of Securities in any material respect;
(k)to comply with the rules or
regulations of any securities exchange or automated quotation system on which any of the Securities may be listed or traded;
(l)to add to, change or eliminate
any of the provisions of this Indenture as shall be necessary or desirable in accordance with any amendments to the Trust Indenture Act,
provided that such action does not adversely affect the rights or interests of the Holders of Securities of any series in any material
respect;
(m)to cure any ambiguity,
defect, omission or inconsistency or to correct or supplement any provision contained herein or in any supplemental indenture which may
be ambiguous, defective or inconsistent with any other provision contained herein or in any supplemental indenture, or to make any other
provisions as the Issuer may deem necessary or desirable, provided, that no such action shall adversely affect the interests of the Holders
of Securities of any series in any material respect;
(n)to establish the forms
or terms of Securities of any series as permitted by Sections 2.1 and 2.3;
(o)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, pursuant to the requirements of Section 6.12; and
(p)to add to, change or eliminate
any other provision under this Indenture; provided that such addition, change or elimination pursuant to this clause (p) shall not
adversely affect the interests of the Holders of Securities of any series in any material respect.
The Trustee is hereby authorized
to join with the Issuer in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations
which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but
the Trustee shall not be obligated to enter into any such supplemental indenture which adversely affects the Trustee’s own rights,
duties or immunities under this Indenture or otherwise.
Any supplemental indenture
authorized by the provisions of this Section may be executed without the consent of the Holders of any of the Securities at the time
Outstanding, notwithstanding any of the provisions of Section 8.2.
SECTION 8.2 SUPPLEMENTAL INDENTURES WITH
CONSENT OF SECURITYHOLDERS
(A)Except as set forth in
paragraph (C) below, with the consent (evidenced as provided in Article VII) of the Holders of not less than a majority in aggregate
principal amount of the Securities at the time Outstanding of all series of Senior Securities affected by such supplemental indenture
(voting as one class), the Issuer, when authorized by a Board Resolution (which resolution may provide general terms or parameters for
such action and may provide that the specific terms of such action may be determined in accordance with or pursuant to an Issuer Order),
and the Trustee may, from time to time and at any time, enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as in force and effect at the date of execution thereof) for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in
any manner the rights of the Holders of the Securities of each such series.
(B)Except as set forth in
paragraph (C) below, with the consent (evidenced as provided in Article VII) of the Holders of not less than a majority in aggregate
principal amount of the Securities at the time Outstanding of all series of Subordinated Securities affected by such supplemental indenture
(voting as one class), the Issuer, when authorized by a Board Resolution (which resolution may provide general terms or parameters for
such action and may provide that the specific terms of such action may be determined in accordance with or pursuant to an Issuer Order),
and the Trustee may, from time to time and at any time, enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as in force and effect at the date of execution thereof) for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in
any manner the rights of the Holders of the Securities of each such series.
(C)No such supplemental indenture
shall (i) extend the final maturity of any Security, or reduce the principal amount thereof, or premium thereon, if any, or reduce
the rate or extend the time of payment of interest thereon, or reduce any amount payable on redemption thereof, or make the principal
thereof (including any amount in respect of original issue discount), or premium thereon, if any, or interest thereon payable in any coin
or currency other than that provided in the Securities or in accordance with the terms thereof, or reduce the amount of the principal
of an Original Issue Discount Security that would be due and payable upon an acceleration of the maturity thereof pursuant to Section 5.1
or the amount thereof provable in bankruptcy pursuant to Section 5.2, or in the case of Subordinated Securities of any series, modify
any of the Subordination Provisions or the definition of “Senior Indebtedness” relating to such series in a manner adverse
to the holders of such Subordinated Securities, or alter the provisions of Section 11.11 or 11.12 or impair or affect the right of
any Securityholder to institute suit for the payment thereof when due or, if the Securities provide therefor, any right of repayment at
the option of the Securityholder, or modify any provision of this Section 8.2(C), except to provide that certain provisions of this
Indenture cannot be modified or waived, in each case without the consent of the Holder of each Security so affected, or (ii) reduce
the aforesaid percentage of Securities of any series, the consent of the Holders of which is required for any such supplemental indenture,
without the consent of the Holders of each Security so affected.
(D)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 Holders of Securities of such series with respect to such
covenant or provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
Upon the request of the Issuer,
accompanied by a copy of a resolution of the Board of Directors (which resolution may provide general terms or parameters for such action
and may provide that the specific terms of such action may be determined in accordance with or pursuant to an Issuer Order) certified
by the secretary or an assistant secretary of the Issuer authorizing the execution of any such supplemental indenture, and upon the filing
with the Trustee of evidence of the consent of the Holders of the Securities as aforesaid and other documents, if any, required by Section 8.4,
the Trustee shall join with the Issuer in the execution of such supplemental indenture unless such supplemental indenture affects the
Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary
for the consent of the Securityholders under this Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution
by the Issuer and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Issuer or, at the Issuer’s
written request and expense, the Trustee shall send the Issuer’s notice thereof to the Holders of then Outstanding Registered Securities
in accordance with Applicable Procedures. Any failure of the Issuer to give such notice or cause such notice to be given, or any defect
therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
SECTION 8.3 EFFECT OF SUPPLEMENTAL INDENTURE
Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the Trustee, the
Issuer and the Holders of Securities of each series affected thereby shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall
be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
SECTION 8.4 DOCUMENTS TO BE GIVEN TO TRUSTEE
The Trustee, subject to the
provisions of Sections 6.1 and 6.2, shall be provided with an Officers’ Certificate and an Opinion of Counsel as conclusive evidence
that any supplemental indenture executed pursuant to this Article VIII complies with the applicable provisions of this Indenture
and is the valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, subject to customary
exceptions.
SECTION 8.5 NOTATION ON SECURITIES IN RESPECT
OF SUPPLEMENTAL INDENTURES
Securities of any series authenticated
and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article may bear a notation in
form approved by the Trustee for such series as to any matter provided for by such supplemental indenture or as to any action taken by
Securityholders. If the Issuer shall so determine, subject to compliance with Section 2.4, new Securities of any series so modified
as to conform to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Issuer, authenticated
by the Trustee and delivered in exchange for the Securities of such series then Outstanding. Failure to make the appropriate notation
or issue such new Securities shall not affect the validity and effect of such supplemental indenture.
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 ISSUER MAY CONSOLIDATE, ETC.,
ONLY ON CERTAIN TERMS
The Issuer shall not consolidate
with or merge into any other Person or transfer or lease its properties and assets substantially as an entirety to any Person, and the
Issuer shall not permit any other Person to consolidate with or merge into the Issuer, unless:
(a)either the Issuer shall
be the continuing corporation, or the successor corporation or Person (if other than the Issuer) formed by such consolidation or into
which the Issuer is merged or to which the properties and assets of the Issuer substantially as an entirety are transferred or leased
is a Person organized or formed under the laws of the United States, any state of the United States or the District of Columbia, and if
such entity is not a corporation, a co-obligor of the Securities is a corporation organized or existing under any such laws, and such
successor corporation or Person, including such co-obligor, if any, shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all the obligations of the Issuer under the Securities and
this Indenture; and
(b)immediately after giving
effect to such transaction and treating any indebtedness which becomes an obligation of the Issuer or a Subsidiary as a result of such
transaction as having been incurred by the Issuer or such Subsidiary at the time of such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing.
SECTION 9.2 SUCCESSOR PERSON SUBSTITUTED
The successor Person formed
by such consolidation or into which the Issuer is merged or to which such transfer or lease is made shall succeed to and be substituted
for, and may exercise every right and power of, the Issuer under this Indenture with the same effect as if such successor Person had been
named as the Issuer herein, and thereafter (except in the case of a lease or transfer to another Person) the predecessor shall be relieved
of all obligations and covenants under the Indenture and the Securities and, in the event of such lease or transfer, any such predecessor
may be dissolved and liquidated.
SECTION 9.3 OPINION OF COUNSEL TO BE GIVEN
TO TRUSTEE
The Trustee, subject to the
provisions of Sections 6.1 and 6.2, shall be provided with an Opinion of Counsel as conclusive evidence that any such consolidation, merger,
lease or transfer, and any such assumption, complies with the provisions of this Article IX.
ARTICLE X
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 10.1 SATISFACTION AND DISCHARGE
OF INDENTURE
(A)If at any time (i) the
Issuer shall have paid or caused to be paid the principal of and interest on all the Securities of any series Outstanding hereunder (other
than Securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.9)
as and when the same shall have become due and payable, or (ii) the Issuer shall have delivered to the Trustee for cancellation all
Securities of any series theretofore authenticated (other than any Securities of such series which shall have been destroyed, lost or
stolen and which shall have been replaced or paid as provided in Section 2.9) or (iii) in the case of any series of Securities
where the exact amount (including the currency of payment) of principal of and interest due on which can be determined at the time of
making the deposit referred to in clause (b) below, (a) all the Securities of such series not theretofore delivered to the Trustee
for cancellation shall have become due and payable, or are by their terms to become due and payable within one year or are to be called
for redemption within one year under arrangements reasonably satisfactory to the Trustee for the giving of notice of redemption, and (b) the
Issuer shall have irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust the entire amount in (i) cash
(other than moneys repaid by the Trustee or any paying agent to the Issuer in accordance with Section 10.4), (ii) in the case
of any series of Securities the payments on which may only be made in Dollars, direct obligations of the United States of America, backed
by its full faith and credit (“U.S. Government Obligations”), maturing as to principal and interest at such times and in such
amounts as will insure the availability of cash sufficient in the opinion or based on the report of a nationally recognized firm of independent
public accountants, investment bank or appraisal firm to pay at such maturity or upon such redemption, as the case may be, or (iii) a
combination thereof, sufficient, in the opinion or based on the report of a nationally recognized firm of independent public accountants,
investment bank or appraisal firm expressed in a written certification thereof delivered to the Trustee, to pay (x) the principal
and interest on all Securities of such series on each date that such principal or interest is due and payable and (y) any mandatory
sinking fund payments on the dates on which such payments are due and payable in accordance with the terms of the Indenture and the Securities
of such series; provided, that in the case of any redemption at a price or premium to be calculated based off the Treasury rate or similar
rate, the amount deposited with the Trustee shall be sufficient for purposes of this Indenture to the extent that such amount is equal
to the price or premium calculated as of the date of the notice of redemption, with any deficit on the date of redemption only required
to be deposited with the Trustee on or prior to the date of redemption; and if, in any such case, the Issuer shall also pay or cause to
be paid all other sums payable hereunder by the Issuer with respect to the Securities of such series, then this Indenture shall cease
to be of further effect (except as to (i) rights of registration of transfer and exchange of Securities of such Series pursuant
to Section 2.8, (ii) substitution of mutilated, defaced, destroyed, lost or stolen Securities, (iii) rights of holders
of Securities to receive payments of principal thereof and interest thereon, upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the Holders to receive mandatory sinking fund payments, if any, (iv) any optional redemption
rights of such series of Securities to the extent to be exercised to make such call for redemption within one year, (v) the rights,
obligations, duties and immunities of the Trustee hereunder, including those under Section 6.6, (vi) the rights of the Holders
of Securities of such series as beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or any
of them, and (vii) the obligations of the Issuer under Section 3.2) and the Trustee, on demand of the Issuer accompanied by
an Officers’ Certificate and an Opinion of Counsel and at the cost and expense of the Issuer, shall execute proper instruments acknowledging
such satisfaction of and discharging this Indenture; provided, that the rights of Holders of the Securities to receive amounts in respect
of principal of and interest on the Securities held by them shall not be delayed longer than required by then-applicable mandatory rules or
policies of any securities exchange upon which the Securities are listed. The Issuer agrees to reimburse the Trustee for any costs or
expenses thereafter reasonably and properly incurred and to compensate the Trustee for any services thereafter reasonably and properly
rendered by the Trustee in connection with this Indenture or the Securities of such series.
(B)The following provisions
shall apply to the Securities of each series unless specifically otherwise provided in a Board Resolution, Officers’ Certificate
or indenture supplemental hereto provided pursuant to Section 2.3. In addition to discharge of the Indenture pursuant to the next
preceding paragraph, in the case of any series of Securities the exact amounts (including the currency of payment) of principal of and
interest due on which can be determined at the time of making the deposit referred to in clause (a) below, the Issuer shall be deemed
to have paid and discharged the entire indebtedness on all the Securities of such a series on the date of the deposit referred to in subparagraph
(a) below, and the provisions of this Indenture with respect to the Securities of such series shall no longer be in effect (except
as to (i) rights of registration of transfer and exchange of Securities of such series pursuant to Section 2.8 (ii) substitution
of mutilated, defaced, destroyed, lost or stolen Securities, (iii) rights of Holders of Securities to receive payments of principal
thereof and interest thereon, upon the original stated due dates therefor (but not upon acceleration), and remaining rights of the Holders
to receive mandatory sinking fund payments, if any, (iv) any optional redemption rights of such series of Securities, (v) the
rights, obligations, duties and immunities of the Trustee hereunder, (vi) the rights of the Holders of Securities of such series
as beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or any of them and (vii) the obligations
of the Issuer under Section 3.2) and the Trustee, at the expense of the Issuer, shall at the Issuer’s request, execute proper
instruments acknowledging the same, if
(a)with reference to this provision
the Issuer has irrevocably deposited or caused to be irrevocably deposited with the Trustee as trust funds in trust, specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of the Securities of such series (i) cash in an amount, or (ii) in
the case of any series of Securities the payments on which may only be made in Dollars, U.S. Government Obligations (without reinvestement),
maturing as to principal and interest at such times and in such amounts as will insure the availability of cash or (iii) a combination
thereof, sufficient, in the opinion or based on the report of a nationally recognized firm of independent public accountants, investment
bank or appraisal firm expressed in a written certification thereof delivered to the Trustee, to pay (A) the principal and interest
on all Securities of such series on each date that such principal or interest is due and payable and (B) any mandatory sinking fund
payments on the dates on which such payments are due and payable in accordance with the terms of the Indenture and the Securities of such
series; provided, that before such a deposit the Issuer may make arrangements reasonably satisfactory to the Trustee for the redemption
of Securities at a future date or dates in accordance with Article XII, which shall be given effect in applying the foregoing; and
provided, further, that in the case of any redemption at a price or premium to be calculated based off the Treasury rate or similar rate,
the amount deposited with the Trustee shall be sufficient for purposes of this Indenture to the extent that such amount is equal to the
price or premium calculated as of the date of the notice of redemption, with any deficit on the date of redemption only required to be
deposited with the Trustee on or prior to the date of redemption;
(b)no Event of Default or event
which with notice or lapse of time or both would become an Event of Default with respect to the Securities shall have occurred and be
continuing on the date of such deposit;
(c)such deposit will not result
in a breach or violation of, or constitute a default under, any agreement or instrument to which the Issuer is a party or by which it
is bound;
(d)the Issuer has delivered
to the Trustee an Opinion of Counsel based on the fact that (x) the Issuer has received from, or there has been published by, the
IRS a ruling or (y) since the date hereof, there has been a change in the applicable United States Federal income tax law, in either
case to the effect that, and such opinion shall confirm that, the beneficial owners of the Securities of such series will not recognize
income, gain or loss for United States Federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject
to United States Federal income tax on the same amount and in the same manner and at the same times, as would have been the case if such
deposit, defeasance and discharge had not occurred; and
(e)the Issuer has delivered
to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating
to the defeasance contemplated by this provision have been complied with.
(C)The Issuer shall be released
from its obligations under Sections 3.6 and 9.1 and unless otherwise provided for in the Board Resolution, Officers’ Certificate
or Indenture supplemental hereto establishing such series of Securities, from all covenants and other obligations referred to in Section 2.3(19)
or 2.3(21) with respect to such series of Securities outstanding on and after the date the conditions set forth below are satisfied (hereinafter,
“covenant defeasance”). For this purpose, such covenant defeasance means that, with respect to the Outstanding Securities
of any series, the Issuer may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth
in such Section, whether directly or indirectly by reason of any reference elsewhere herein to such Section or by reason of any reference
in such Section to any other provision herein or in any other document and such omission to comply shall not constitute an Event
of Default under Section 5.1, but the remainder of this Indenture and such Securities shall be unaffected thereby. The following
shall be the conditions to application of this subsection C of this Section 10.1:
(a)The Issuer has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the holders of the Securities of such series, (i) cash in an amount,
or (ii) in the case of any series of Securities the payments on which may only be made in Dollars, U.S. Government Obligations maturing
as to principal and interest at such times and in such amounts as will insure the availability of cash or (iii) a combination thereof,
sufficient, in the opinion or based on the report of a nationally recognized firm of independent public accountants, investment bank or
appraisal firm expressed in a written certification thereof delivered to the Trustee, to pay (A) the principal and interest on all
Securities of such series and (B) any mandatory sinking fund payments on the day on which such payments are due and payable in accordance
with the terms of the Indenture and the Securities of such series; provided, that before such a deposit the Issuer may make arrangements
reasonably satisfactory to the Trustee for the redemption of Securities at a future date or dates in accordance with Article XII,
which shall be given effect in applying the foregoing; and provided, further, that in the case of any redemption at a price or premium
to be calculated based off the Treasury rate or similar rate, the amount deposited with the Trustee shall be sufficient for purposes of
this Indenture to the extent that such amount is equal to the price or premium calculated as of the date of the notice of redemption,
with any deficit on the date of redemption only required to be deposited with the Trustee on or prior to the date of redemption;
(b)No Event of Default or event
which with notice or lapse of time or both would become an Event of Default with respect to the Securities shall have occurred and be
continuing on the date of such deposit;
(c)Such covenant defeasance
shall not cause the Trustee to have a conflicting interest as defined in Section 6.9 and for purposes of the Trust Indenture Act
with respect to any securities of the Issuer;
(d)Such covenant defeasance
shall not result in a breach or violation of, or constitute a default under any agreement or instrument to which the Issuer is a party
or by which it is bound;
(e)Such covenant defeasance
shall not cause any Securities then listed on any registered national securities exchange under the Exchange Act to be delisted;
(f)The Issuer shall have delivered
to the Trustee an Officers’ Certificate and Opinion of Counsel to the effect that the beneficial owners of the Securities of such
series will not recognize income, gain or loss for United States Federal income tax purposes as a result of such 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 covenant defeasance had not occurred; and
(g)The Issuer shall have delivered
to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating
to the covenant defeasance contemplated by this provision have been complied with.
SECTION 10.2 APPLICATION BY TRUSTEE OF
FUNDS DEPOSITED FOR PAYMENT OF SECURITIES
Subject to Section 10.4,
all moneys deposited with the Trustee (or other trustee) pursuant to Section 10.1 shall be held in trust and applied by it to the
payment, either directly or through any paying agent (including the Issuer acting as its own paying agent), to the Holders of the particular
Securities of such series for the payment or redemption of which such moneys have been deposited with the Trustee, of all sums due and
to become due thereon for principal and interest; but such money need not be segregated from other funds except to the extent required
by law.
SECTION 10.3 REPAYMENT OF MONEYS HELD BY
PAYING AGENT
In connection with the satisfaction
and discharge of this Indenture with respect to Securities of any series, all moneys then held by any paying agent under the provisions
of this Indenture with respect to such series of Securities shall, upon demand of the Issuer, be repaid to it or paid to the Trustee and
thereupon such paying agent shall be released from all further liability with respect to such moneys.
SECTION 10.4 RETURN OF MONEYS HELD BY TRUSTEE
AND PAYING AGENT UNCLAIMED FOR TWO YEARS
Any moneys deposited with
or paid to the Trustee or any paying agent for the payment of the principal of or interest on any Security of any series and not applied
but remaining unclaimed for two years after the date upon which such principal or interest shall have become due and payable, shall, upon
the written request of the Issuer and unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed
property law, be repaid to the Issuer by the Trustee for such series or such paying agent, and the Holder of the Securities of such series
shall, unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property laws, thereafter look
only to the Issuer for any payment which such Holder may be entitled to collect, and all liability of the Trustee or any paying agent
with respect to such moneys shall thereupon cease; provided, that the Trustee or such paying agent, before being required to make any
such repayment with respect to moneys deposited with it for any payment in respect of Registered Securities of any series, shall at the
cost and expense of the Issuer, send to Holders of such Securities in accordance with Applicable Procedures notice, that such moneys remain
and that, after a date specified therein, which shall not be less than 30 days from the date of such mailing, any unclaimed balance of
such money then remaining will be repaid to the Issuer.
SECTION 10.5 INDEMNITY FOR U.S. GOVERNMENT
OBLIGATIONS
The Issuer shall pay and indemnify
the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to
Section 10.1 or the principal or interest received in respect of such obligations.
SECTION 10.6 EFFECT ON SUBORDINATION PROVISIONS
Unless otherwise expressly
established pursuant to Section 2.3 with respect to the Subordinated Securities of any series, the provisions of Section 11.13
hereof, insofar as they pertain to the Subordinated Securities of such series, and the Subordination Provisions established pursuant to
Section 2.3(9) with respect to such series, are hereby expressly made subject to the provisions for satisfaction and discharge
and defeasance and covenant defeasance set forth in Section 10.1 hereof and, anything herein to the contrary notwithstanding, upon
the effectiveness of such satisfaction and discharge and defeasance and covenant defeasance pursuant to Section 10.1 with respect
to the Securities of such series, such Securities shall thereupon cease to be so subordinated and shall no longer be subject to the provisions
of Section 11.13 or the Subordination Provisions established pursuant to Section 2.3(9) with respect to such series and,
without limitation to the foregoing, all moneys, U.S. Government Obligations and other securities or property deposited with the Trustee
(or other qualifying trustee) in trust in connection with such satisfaction and discharge, defeasance or covenant defeasance, as the case
may be, and all proceeds therefrom may be applied to pay the principal of, premium, if any, and interest, if any, on, and mandatory sinking
fund payments, if any, with respect to the Securities of such series as and when the same shall become due and payable notwithstanding
the provisions of Section 11.13 or such Subordination Provisions.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1 INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS OF ISSUER EXEMPT FROM INDIVIDUAL LIABILITY
No recourse under or upon
any obligation, covenant or agreement contained in this Indenture, or in any Security, or because of any indebtedness evidenced thereby,
shall be had against any incorporator, as such, or against any past, present or future stockholder, officer or director, as such, of the
Issuer or of any successor, either directly or through the Issuer or any successor, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly
waived and released by the acceptance of the Securities by the Holders thereof and as part of the consideration for the issue of the Securities.
SECTION 11.2 PROVISIONS OF INDENTURE FOR
THE SOLE BENEFIT OF PARTIES AND HOLDERS OF SECURITIES
Nothing in this Indenture
or in the Securities, expressed or implied, shall give or be construed to give to any person, firm or corporation, other than the parties
thereto and their successors and the Holders of the Securities and, in the case of the Subordinated Securities of any series, the holders
of Senior Indebtedness with respect to such series, any legal or equitable right, remedy or claim under this Indenture or under any covenant
or provision herein contained, all such covenants and provisions being for the sole benefit of the parties hereto and their successors
and of the Holders of the Securities and, in the case of the Subordinated Securities of any series, the holders of Senior Indebtedness
with respect to such series.
SECTION 11.3 SUCCESSORS AND ASSIGNS OF
ISSUER BOUND BY INDENTURE
All the covenants, stipulations,
promises and agreements in this Indenture contained by or in behalf of the Issuer shall bind its successors and assigns, whether so expressed
or not.
SECTION 11.4 NOTICES AND DEMANDS ON ISSUER,
TRUSTEE AND HOLDERS OF SECURITIES
Any notice, request, direction,
consent or communication made pursuant to the provisions of this Indenture or the Notes shall be in writing and delivered in person, sent
by facsimile, sent by electronic mail in pdf format, delivered by commercial courier service or mailed by first-class mail, postage prepaid,
addressed (until another address of the Issuer is filed by the Issuer with the Trustee) to: Hims & Hers Health, Inc., 2269
Chestnut Street, #523, San Francisco, CA 94123, Attention: Corporate Secretary, or by being e-mailed to [ ] or faxed to[ ] and to the
Trustee at [ ] or by being e-mailed to [ ] or faxed to [ ].
Where this Indenture provides
for notice to Holders of Registered Securities, such notice shall be sufficiently given (unless otherwise herein expressly provided) if
in writing and mailed, first-class mail, postage prepaid, to each Holder entitled thereto, at his last address as it appears in the Security
register.
The Trustee agrees to accept
and act upon instructions or directions pursuant to this Indenture sent by e-mail, pdf, facsimile transmission or other similar electronic
methods; provided, however, that the Trustee shall have received an Officers’ Certificate (which need not comply with Section 314
of the Trust Indenture Act or Section 11.5 hereof) listing the names and titles of the persons designated to give such instructions
or directions and containing specimen signatures of such designated persons, which certificate shall be amended and replaced whenever
a person is to be added or deleted from the listing. If the Issuer elects to give the Trustee e-mail or facsimile instructions (or instructions
by a similar electronic method) and the Trustee acts upon such instructions, the Trustee’s understanding of such instructions shall
be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s
reliance upon and compliance with such instructions that the Trustee believes, in the absence of negligence and willful misconduct, to
be genuine and to have been sent by one of the persons named on the then most recent certificate referred to above notwithstanding that
such instructions conflict or are inconsistent with a subsequent written instruction. The Issuer agrees to assume all risks arising out
of the use of such electronic methods to submit the instructions and directions to the Trustee, including without limitation the risk
of the Trustee acting on unauthorized instructions, and the risk of interception and misuse of electronic communications by third parties.
Notwithstanding any other
provision of this Indenture or any Security of any series other than a provision that expressly states that this paragraph is not applicable
to the Securities of such series, when this Indenture or any Security provides for notice of any event (including any notice of redemption)
to a Holder of Securities in global form (whether by mail or otherwise), such notice shall be sufficiently given if given to the Depositary
for such Security (or its designee) pursuant to the customary procedures of such Depositary.
In any case where notice to
such Holders 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. 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.
In case, by reason of the
suspension of or irregularities in regular mail service, it shall be impracticable to mail notice to the Issuer when such notice is required
to the given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be reasonably satisfactory to
the Trustee shall be deemed to be a sufficient giving of such notice.
SECTION 11.5 OFFICERS’ CERTIFICATES
AND OPINIONS OF COUNSEL; STATEMENTS TO BE CONTAINED THEREIN
Upon any application or demand
by the Issuer to the Trustee to take any action under any of the provisions of this Indenture, the Issuer shall furnish to the Trustee
an Officers’ Certificate stating that all conditions precedent provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied
with, except that in the case of any such application or demand as to which the furnishing of such documents is specifically required
by any provision of this Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished.
Each certificate or opinion
provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this
Indenture shall include (a) a statement that the person making such certificate or opinion has read such covenant or condition, (b) a
brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such
certificate or opinion are based, (c) a statement that, in the opinion of such person, he has made such examination or investigation
as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with and
(d) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
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, statement
or opinion of an officer of the Issuer may be based, insofar as it relates to legal matters, upon a certificate or opinion of or representations
by counsel, unless such officer knows that the certificate or opinion or representations with respect to the matters upon which his certificate,
statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of counsel may be based, insofar as it relates to factual matters or information with respect to
which is in the possession of the Issuer, upon the certificate, statement or opinion of or representations by an officer or officers of
the Issuer, unless such counsel knows that the certificate, statement or opinion or representations with respect to the matters upon which
his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate, statement
or opinion of an officer of the Issuer or of counsel may be based upon a certificate, report or opinion of or representations by an accountant,
firm of accountants, investment bank or appraisal firm, unless such officer or counsel, as the case may be, knows that the certificate,
report or opinion of or representations with respect to the matters upon which his certificate, statement or opinion may be based as aforesaid
are erroneous, or in the exercise of reasonable care should know that the same 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.
Any certificate, report or
opinion of any independent firm of public accountants filed with and directed to the Trustee shall contain a statement that such firm
is independent.
SECTION 11.6 PAYMENTS DUE ON SATURDAYS,
SUNDAYS AND HOLIDAYS
If the date of maturity of
interest on or principal of the Securities of any series or the date fixed for redemption or repayment of any such Security shall not
be a Business Day, then payment of interest or principal need not be made on such date, but may be made on the next succeeding Business
Day with the same force and effect as if made on the date of maturity or the date fixed for redemption, and no additional interest shall
accrue for the period after such date.
SECTION 11.7 CONFLICT OF ANY PROVISION
OF INDENTURE WITH TRUST INDENTURE ACT
If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with duties imposed by, or with another provision (an “incorporated
provision”) included in this Indenture by operation of Sections 310 to 318, inclusive, of the Trust Indenture Act, such imposed
duties or incorporated provision shall control.
SECTION 11.8 NEW YORK LAW TO GOVERN; WAIVER
OF JURY TRIAL
THIS INDENTURE AND EACH SECURITY
SHALL BE DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF SUCH STATE.
EACH OF THE ISSUER AND THE
TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 11.9 COUNTERPARTS
This Indenture may be executed
in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same
instrument. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective
execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes.
Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
SECTION 11.10 EFFECT OF HEADINGS
The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
SECTION 11.11 SECURITIES IN A FOREIGN CURRENCY
Unless otherwise specified
in an Officers’ Certificate delivered pursuant to Section 2.3 of this Indenture with respect to a particular series of Securities,
whenever for purposes of this Indenture any action may be taken by the Holders of a specified percentage in aggregate principal amount
of Securities of all series or all series affected by a particular action at the time Outstanding and, at such time, there are Outstanding
Securities of any series which are denominated in a Foreign Currency, then the principal amount of Securities of such series which shall
be deemed to be Outstanding for the purpose of taking such action shall be that amount of Dollars that could be obtained for such amount
at the “Market Exchange Rate”. For purposes of this Section 11.11, Market Exchange Rate shall mean the noon Dollar buying
rate in The City of New York for cable transfers of such currency or currencies as published by the Federal Reserve Bank of New York as
of the most recent available date. If such Market Exchange Rate is not available for any reason with respect to such currency, the paying
agent shall use, in its sole discretion and without liability on its part, such quotation of the Federal Reserve Bank of New York or quotations
from one or more major banks in The City of New York or in the country of issue of the currency in question, which for purposes of the
euro shall be any member state of the European Union that has adopted the euro, as the paying agent shall deem appropriate. The provisions
of this paragraph shall apply in determining the equivalent principal amount in respect of Securities of a series denominated in a currency
other than Dollars in connection with any action taken by Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations
of the paying agent regarding the Market Exchange Rate or any alternative determination provided for in the preceding paragraph shall
be in its sole discretion and shall, in the absence of manifest error, be conclusive to the extent permitted by law for all purposes and
irrevocably binding upon the Issuer and all Holders.
SECTION 11.12 JUDGMENT CURRENCY
The Issuer agrees, to the
fullest extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court
it is necessary to convert the sum due in respect of the principal of or interest on the Securities of any series (the “Required
Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”), the rate of exchange used
shall be the rate at which in accordance with normal banking procedures the paying agent could purchase in The City of New York the Required
Currency with the Judgment Currency on the day on which final unappealable judgment is entered, unless such day is not a New York Banking
Day, then, to the extent permitted by applicable law, the rate of exchange used shall be the rate at which in accordance with normal banking
procedures the paying agent could purchase in The City of New York the Required Currency with the Judgment Currency on the New York Banking
Day preceding the day on which final unappealable judgment is entered and (b) its obligations under this Indenture to make payments
in the Required Currency (i) shall not be discharged or satisfied by any tender, or any recovery pursuant to any judgment (whether
or not entered in accordance with subsection (a)), in any currency other than the Required Currency, except to the extent that such tender
or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect
of such payments, (ii) shall be enforceable as an alternative or additional cause of action for the purpose of recovering in the
Required Currency the amount, if any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed
to be payable and (iii) shall not be affected by judgment being obtained for any other sum due under this Indenture. For purposes
of the foregoing, “New York Banking Day” means any day except a Saturday, Sunday or a legal holiday in The City of New York
or a day on which banking institutions in The City of New York are authorized or required by law or executive order to close.
SECTION 11.13 AGREEMENT TO SUBORDINATE
The Issuer, for itself, its
successors and assigns, covenants and agrees, and each Holder of Subordinated Securities of any series by his acceptance thereof, likewise
covenants and agrees, that the payment of the principal of (and premium, if any) and interest, if any, on, and mandatory sinking fund
payments, if any, in respect of each and all of the Subordinated Securities of such series shall be expressly subordinated, to the extent
and in the manner provided in the Subordination Provisions established with respect to the Subordinated Securities of such series pursuant
to Section 2.3(9) hereof, in right of payment to the prior payment in full of all Senior Indebtedness with respect to such series.
SECTION 11.14 FORCE MAJEURE
In no event shall the Trustee
be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly
or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism,
civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities,
communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
SECTION 11.15 U.S.A. PATRIOT ACT
The parties hereto acknowledge
that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and in order to help
fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person
or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will
provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot
Act.
ARTICLE XII
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 APPLICABILITY OF ARTICLE
The provisions of this Article shall
be applicable to the Securities of any series which are redeemable before their maturity or to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by Section 2.3 for Securities of such series.
SECTION 12.2 NOTICE OF REDEMPTION; PARTIAL
REDEMPTIONS
Notice of redemption to the
Holders of Registered Securities of any series to be redeemed as a whole or in part at the option of the Issuer shall be given by sending
notice of such redemption, at least 30 days and not more than 60 days prior to the date fixed for redemption, to such Holders of Securities
of such series in accordance with Applicable Procedures, except that redemption notices may be delivered more than 60 days prior to a
redemption if the notice is issued in connection with defeasance, covenant defeasance or discharge of any series of Securities pursuant
to Section 10.1. Any notice which is sent in accordance with Applicable Procedures shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice. Any defect in the notice to the Holder of any Security of a series designated for
redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of such Security of such series.
The notice of redemption to
each such Holder shall identify the Securities to be redeemed (including CUSIP number(s)) and specify the aggregate principal amount of
Securities of such series to be redeemed, the date fixed for redemption, the redemption price, the place or places of payment, that payment
will be made upon presentation and surrender of such Securities, that such redemption is pursuant to the mandatory or optional sinking
fund, or both, if such be the case, that interest accrued to, but not including, the date fixed for redemption will be paid as specified
in such notice and that on and after said date interest thereon or on the portions thereof to be redeemed will cease to accrue. In case
any Security of a series is to be redeemed in part only, the notice of redemption to Holders of Securities of the series shall state the
portion of the principal amount thereof to be redeemed and shall state that on and after the date fixed for redemption, upon surrender
of such Security, a new Security or Securities of such series in principal amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of
Securities of any series to be redeemed at the option of the Issuer shall be given by the Issuer or, at the Issuer’s request at
least five (5) Business Days prior to the date the notice must be mailed to Holders (unless the Trustee otherwise agrees to a shorter
period), by the Trustee in the name and at the expense of the Issuer.
On or before 11:00 a.m., New
York City time, on the redemption date specified in the notice of redemption given as provided in this Section, the Issuer will deposit
with the Trustee or with one or more paying agents (or, if the Issuer is acting as its own paying agent, set aside, segregate and hold
in trust as provided in Section 3.4) an amount of money sufficient to redeem on the redemption date all the Securities of such series
so called for redemption at the appropriate redemption price, together with accrued interest to the date fixed for redemption. The Issuer
will deliver to the Trustee at least 70 days prior to the date fixed for redemption, or such shorter period as shall be acceptable to
the Trustee, an Officers’ Certificate stating the aggregate principal amount of Securities to be redeemed. In case of a redemption
at the election of the Issuer prior to the expiration of any restriction on such redemption, the Issuer shall deliver to the Trustee,
prior to the giving of any notice of redemption to Holders pursuant to this Section, an Officers’ Certificate stating that such
restriction has been complied with.
If less than all the Securities
of a series are to be redeemed, the Trustee shall select, in such manner as it shall deemed appropriate and fair in accordance with the
procedures of the Depositary, in its sole discretion, Securities of such series to be redeemed in whole or in part. Securities may be
redeemed in part in multiples equal to the minimum authorized denomination for Securities of such series or any multiple thereof. The
Trustee shall promptly notify the Issuer in writing of the Securities of such series selected for redemption and, in the case of any Securities
of such series 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 of any series 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 12.3 PAYMENT OF SECURITIES CALLED
FOR REDEMPTION
If notice of redemption has
been given as above provided, the Securities or portions of Securities specified in such notice shall become due and payable on the date
and at the place stated in such notice at the applicable redemption price, together with interest accrued to, but not including, the date
fixed for redemption, and on and after said date (unless the Issuer shall default in the payment of such Securities at the redemption
price, together with interest accrued to said date) interest on the Securities or portions of Securities so called for redemption shall
cease to accrue, and, except as provided in Sections 6.5 and 10.4, such Securities shall cease from and after the date fixed for redemption
to be entitled to any benefit or security under this Indenture, and the Holders thereof shall have no right in respect of such Securities
except the right to receive the redemption price thereof and unpaid interest to the date fixed for redemption. On presentation and surrender
of such Securities at a place of payment specified in said notice, said Securities or the specified portions thereof shall be paid and
redeemed by the Issuer at the applicable redemption price, together with interest accrued thereon to the date fixed for redemption; provided,
that payment of interest becoming due on or prior to, but not including, the date fixed for redemption shall be payable to the Holder
of such Registered Securities registered as such on the relevant record date, subject to the terms and provisions of Section 2.3
and 2.7 hereof.
If any Security called for
redemption shall not be so paid upon surrender thereof for redemption, the principal shall, until paid or duly provided for, bear interest
from the date fixed for redemption at the rate of interest or Yield to Maturity (in the case of an Original Issue Discount Security) borne
by such Security.
Upon presentation of any Security
redeemed in part only, the Issuer shall execute and the Trustee shall authenticate and deliver to or on the order of the Holder thereof,
at the expense of the Issuer, a new Security or Securities of such series, of authorized denominations, in principal amount equal to the
unredeemed portion of the Security so presented.
SECTION 12.4 EXCLUSION OF CERTAIN SECURITIES
FROM ELIGIBILITY FOR SELECTION FOR REDEMPTION
Securities shall be excluded
from eligibility for selection for redemption if they are identified by registration and certificate number in an Officers’ Certificate
delivered to the Trustee at least 40 days prior to the last date on which notice of redemption may be given as being owned of record and
beneficially by, and not pledged or hypothecated by, either (a) the Issuer or (b) an entity specifically identified in such
written statement as directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer.
SECTION 12.5 MANDATORY AND OPTIONAL SINKING
FUNDS
The minimum amount of any
sinking fund payment provided for by the terms of the Securities of any series is herein referred to as a “mandatory sinking fund
payment,” and any payment in excess of such minimum amount provided for by the terms of the Securities of any series is herein referred
to as an “optional sinking fund payment.” The date on which a sinking fund payment is to be made is herein referred to as
the “sinking fund payment date.”
In lieu of making all or any
part of any mandatory sinking fund payment with respect to any series of Securities in cash, the Issuer may at its option (a) deliver
to the Trustee Securities of such series theretofore purchased or otherwise acquired (except upon redemption pursuant to the mandatory
sinking fund) by the Issuer or receive credit for Securities of such series (not previously so credited) theretofore purchased or otherwise
acquired (except as aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant to Section 2.10, (b) receive
credit for optional sinking fund payments (not previously so credited) made pursuant to this Section, or (c) receive credit for Securities
of such series (not previously so credited) redeemed by the Issuer through any optional redemption provision contained in the terms of
such series. Securities so delivered or credited shall be received or credited by the Trustee at the sinking fund redemption price specified
in such Securities.
On or before the 60th day
next preceding each sinking fund payment date for any series, the Issuer will deliver to the Trustee an Officers’ Certificate (which
need not contain the statements required by Section 11.5) (a) specifying the portion of the mandatory sinking fund payment to
be satisfied by payment of cash and the portion to be satisfied by credit of Securities of such series and the basis for such credit,
(b) stating that none of the Securities of such series has theretofore been so credited, (c) stating that no defaults in the
payment of interest or Events of Default with respect to such series have occurred (which have not been waived or cured) and are continuing
and (d) stating whether or not the Issuer intends to exercise its right to make an optional sinking fund payment with respect to
such series and, if so, specifying the amount of such optional sinking fund payment which the Issuer intends to pay on or before the next
succeeding sinking fund payment date. Any Securities of such series to be credited and required to be delivered to the Trustee in order
for the Issuer to be entitled to credit therefor as aforesaid which have not theretofore been delivered to the Trustee shall be delivered
for cancellation pursuant to Section 2.10 to the Trustee with such Officers’ Certificate (or reasonably promptly thereafter
if acceptable to the Trustee). Such Officers’ Certificate shall be irrevocable and upon its receipt by the Trustee, the Issuer shall
become unconditionally obligated to make all the cash payments or payments therein referred to, if any, on or before the next succeeding
sinking fund payment date. Failure of the Issuer, on or before any such 60th day, to deliver such Officers’ Certificate and Securities
specified in this paragraph, if any, shall not constitute a default but shall constitute, on and as of such date, the irrevocable election
of the Issuer (i) that the mandatory sinking fund payment for such series due on the next succeeding sinking fund payment date shall
be paid entirely in cash without the option to deliver or credit Securities of such series in respect thereof and (ii) that the Issuer
will make no optional sinking fund payment with respect to such series as provided in this Section.
If the sinking fund payment
or payments (mandatory or optional or both) to be made in cash on the next succeeding sinking fund payment date plus any unused balance
of any preceding sinking fund payments made in cash shall exceed $50,000 (or the equivalent thereof in any Foreign Currency) or a lesser
sum in Dollars (or the equivalent thereof in any Foreign Currency) if the Issuer shall so request with respect to the Securities of any
particular series, such cash shall be applied on the next succeeding sinking fund payment date to the redemption of Securities of such
series at the sinking fund redemption price together with accrued interest to the date fixed for redemption. If such amount shall be $50,000
(or the equivalent thereof in any Foreign Currency) or less and the Issuer makes no such request then it shall be carried over until a
sum in excess of $50,000 (or the equivalent thereof in any Foreign Currency) is available. The Trustee shall select, in the manner provided
in Section 12.2, for redemption on such sinking fund payment date a sufficient principal amount of Securities of such series to absorb
said cash, as nearly as may be, and shall (if requested in writing by the Issuer) inform the Issuer of the serial numbers of the Securities
of such series (or portions thereof) so selected. Securities shall be excluded from eligibility for redemption under this Section if
they are identified by registration and certificate number in an Officers’ Certificate delivered to the Trustee at least 60 days
prior to the sinking fund payment date as being owned of record and beneficially by, and not pledged or hypothecated by, either (a) the
Issuer or (b) an entity specifically identified in such Officers’ Certificate as directly or indirectly controlling or controlled
by or under direct or indirect common control with the Issuer. The Trustee, in the name and at the expense of the Issuer (or the Issuer,
if it shall so request the Trustee in writing) shall cause notice of redemption of the Securities of such series to be given in substantially
the manner provided in Section 12.2 (and with the effect provided in Section 12.3) for the redemption of Securities of such
series in part at the option of the Issuer. The amount of any sinking fund payments not so applied or allocated to the redemption of Securities
of such series shall be added to the next cash sinking fund payment for such series and, together with such payment, shall be applied
in accordance with the provisions of this Section. Any and all sinking fund moneys held on the stated maturity date of the Securities
of any particular series (or earlier, if such maturity is accelerated), which are not held for the payment or redemption of particular
Securities of such series shall be applied, together with other moneys, if necessary, sufficient for the purpose, to the payment of the
principal of, and interest on, the Securities of such series at maturity.
On or before each sinking
fund payment date, the Issuer shall pay to the Trustee in cash or shall otherwise provide for the payment of all interest accrued to the
date fixed for redemption on Securities to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem
or cause to be redeemed any Securities of a series with sinking fund moneys or give any notice of redemption of Securities for such series
by operation of the sinking fund during the continuance of a default in payment of interest on such Securities or of any Event of Default
except that, where the giving of notice of redemption of any Securities shall theretofore have been made, the Trustee shall redeem or
cause to be redeemed such Securities, provided that it shall have received from the Issuer a sum sufficient for such redemption. Except
as aforesaid, any moneys in the sinking fund for such series at the time when any such default or Event of Default shall occur, and any
moneys thereafter paid into the sinking fund, shall, during the continuance of such default or Event of Default be deemed to have been
collected under Article V and held for the payment of all such Securities. In case such Event of Default shall have been waived as
provided in Section 5.10 or the default cured on or before the sixtieth day preceding the sinking fund payment date in any year,
such moneys shall thereafter be applied on the next succeeding sinking fund payment date in accordance with this Section to the redemption
of such Securities.
IN WITNESS WHEREOF, the parties
hereto have caused this Indenture to be duly executed as of the date first written above.
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HIMS & HERS HEALTH, INC. |
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By: |
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Name: |
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Title: |
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[________________________], as
Trustee |
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By: |
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Name: |
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Title: |
[Signature Page to Indenture]
Exhibit 5.1
September 9, 2024
Hims & Hers Health, Inc.
2269 Chestnut Street, #523
San Francisco, CA 94123
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to Hims & Hers Health, Inc.,
a Delaware corporation (the “Company”), in connection with its filing on the date hereof with the Securities and Exchange
Commission (the “Commission”) of a Registration Statement on Form S-3 (the “Registration Statement”)
in connection with the registration pursuant to the Securities Act of 1933, as amended (the “Act”), of the Securities
(as defined below).
The Registration Statement relates to the proposed offering by the
Company, or one or more selling stockholders, from time to time, pursuant to Rule 415 under the Act, as set forth in the Registration
Statement, the base prospectus contained therein (the “Prospectus”) and any future supplements to the Prospectus (each,
a “Prospectus Supplement”), of one or more series of the following securities: shares of the Company’s Class A
common stock, $0.0001 par value per share (the “Class A Common Stock”), shares of the Company’s preferred
stock, $0.0001 par value per share (the “Preferred Stock”), debt securities (the “Debt Securities”),
warrants to purchase any of the securities described above (the “Warrants”), rights to purchase Class A Common
Stock or Preferred Stock (the “Rights”) and units consisting of any combination of Class A Common Stock, Preferred
Stock, Debt Securities, Warrants and Rights (the “Units”). The Class A Common Stock, the Preferred Stock, the
Debt Securities, the Warrants, the Rights and the Units are hereinafter referred to, collectively, as the “Securities.”
The Securities are to be sold from time to time as set forth in the
Registration Statement, the Prospectus contained therein and the Prospectus Supplements. The Debt Securities are to be issued in one or
more series pursuant to an indenture (including any officer’s certificate or supplemental indenture used to issue the Debt Securities,
the “Indenture”) and any supplemental indentures thereto, to be entered into between the Company and a bank or trust
company to be named in the Indenture and duly qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture
Act”), as trustee (the “Trustee”), the form of which is filed as an exhibit to the Registration Statement.
The Warrants will be issued pursuant to a warrant agreement (each, a “Warrant Agreement”) to be entered into between
the Company and a bank or trust company, as warrant agent (each, a “Warrant Agent”), which will be in a form to be
filed as an exhibit to a post-effective amendment to the Registration Statement or a Current Report on Form 8-K incorporated in such
Registration Statement by reference. The Preferred Stock will be issued in one or more series and the relative powers, designations, preferences,
rights and qualifications, limitations or restrictions of such Preferred Stock will be set forth in one or more certificates of designation
(each, a “Certificate of Designation”), which will be in a form to be filed as an exhibit to a post-effective amendment
to the Registration Statement or a Current Report on Form 8-K incorporated in such Registration Statement by reference.
GUNDERSON DETTMER STOUGH VILLENEUVE FRANKLIN &
HACHIGIAN, LLP
One Bush Plaza, Suite 1200 San Francisco,
CA 94104 gunder.com
We have examined instruments, documents, certificates and records that
we have deemed relevant and necessary for the basis of our opinions hereinafter expressed. In such examination, we have assumed: (i) the
authenticity of original documents and the genuineness of all signatures; (ii) the conformity to the originals of all documents submitted
to us as copies; (iii) the truth, accuracy and completeness of the information, representations and warranties contained in the instruments,
documents, certificates and records we have reviewed; (iv) that the Registration Statement, and any amendments thereto (including
post-effective amendments), will have become effective under the Act; (v) that a Prospectus Supplement will have been filed with
the Commission describing the Securities offered thereby; (vi) that the Securities will be issued and sold in compliance with applicable
U.S. federal and state securities laws and in the manner stated in the Registration Statement and the applicable Prospectus Supplement;
(vii) that a definitive purchase, underwriting or similar agreement with respect to any Securities offered will have been duly authorized
and validly executed and delivered by the Company and the other parties thereto; (viii) that any Securities issuable upon conversion,
exchange, redemption or exercise of any Securities being offered will be duly authorized, created and, if appropriate, reserved for issuance
upon such conversion, exchange, redemption or exercise; (ix) that the Indenture, and any supplemental indentures thereto, will be
the legal, valid and binding obligation of each party thereto, other than the Company, enforceable against each such party in accordance
with its terms, and will be duly qualified under the Trust Indenture Act, and that the applicable Trustee will be duly eligible to serve
as trustee; (x) with respect to shares of Class A Common Stock or Preferred Stock offered, that there will be sufficient shares
of Class A Common Stock or Preferred Stock authorized under the Company’s organizational documents that are not otherwise reserved
for issuance; and (xi) the legal capacity of all natural persons. As to any facts material to the opinions expressed herein that
were not independently established or verified, we have relied upon oral or written statements and representations of officers and other
representatives of the Company.
Based on such examination, we are of the opinion that:
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With respect to shares of Class A Common Stock, when both: (a) the Board of Directors of the Company or a duly constituted and acting committee thereof (such Board of Directors or committee being hereinafter referred to as the “Board”) has taken all necessary corporate action to approve the issuance and the terms of the offering of the shares of Class A Common Stock and related matters; and (b) the shares of Class A Common Stock have been duly delivered either (i) in accordance with the applicable definitive purchase, underwriting or similar agreement approved by the Board, or upon the exercise of Warrants to purchase Class A Common Stock, upon payment of the consideration therefor (not less than the par value of the Class A Common Stock) provided for therein or (ii) upon conversion or exercise of any other Security, in accordance with the terms of such Security or the instrument governing such Security providing for such conversion or exercise as approved by the Board, for the consideration approved by the Board, then the shares of Class A Common Stock will be validly issued, fully paid and nonassessable. In rendering the foregoing opinion, we have assumed that the Company will comply with all applicable notice requirements regarding uncertificated shares provided in the Delaware General Corporation Law. |
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With respect to any particular series of shares of Preferred Stock, when both: (a) the Board has taken all necessary corporate action to approve the issuance and terms of the shares of Preferred Stock, the terms of the offering thereof, and related matters, including the adoption of a Certificate of Designation relating to such Preferred Stock conforming to the Delaware General Corporation Law and the filing of the Certificate of Designation with the Secretary of State of the State of Delaware; and (b) certificates representing the shares of Preferred Stock have been duly executed, countersigned, registered and delivered either (i) in accordance with the applicable definitive purchase, underwriting or similar agreement approved by the Board, or upon the exercise of Warrants to purchase Preferred Stock, upon payment of the consideration therefor (not less than the par value of the Preferred Stock) provided for therein or (ii) upon conversion or exercise of such Security or the instrument governing such Security providing for such conversion or exercise as approved by the Board, for the consideration approved by the Board, then the shares of Preferred Stock will be validly issued, fully paid and nonassessable. In rendering the foregoing opinion, we have assumed that the Company will comply with all applicable notice requirements regarding uncertificated shares provided in the Delaware General Corporation Law. |
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With respect to the Indenture, when the Indenture has been duly authorized, executed and delivered by the Company, the Indenture will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. |
GUNDERSON DETTMER STOUGH
VILLENEUVE FRANKLIN & HACHIGIAN, LLP
One Bush Plaza, Suite 1200 San Francisco,
CA 94104 gunder.com
| 4. |
With respect to the Debt Securities to be issued under the Indenture, when (a)(i) the terms of the Debt Securities have been duly established and authorized by the Company, (ii) the Indenture has been duly executed and delivered by the Company, (iii) the issuance and sale of the Debt Securities has been duly authorized by all necessary action (corporate or otherwise) and (iv) the Debt Securities have been duly executed by the Company and duly authenticated by the Trustee in accordance with the terms of the Indenture and any applicable supplemental indenture, and delivered to the purchasers thereof against payment of the consideration therefor duly approved by the Company, the Debt Securities will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms and (b) when the Debt Securities to be offered and issued by the Company upon exercise of the Warrants have been issued by the Company against payment in full of the consideration and in accordance with the applicable Warrant, the Indenture and any applicable supplemental indenture, the Debt Securities will be duly authorized and legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms. |
| |
|
| 5. |
With respect to the Warrants, when both: (a) the Board has taken all necessary corporate action to approve the issuance and terms of the Warrants and related matters; and (b) the Warrants have been duly executed and delivered against payment therefor, pursuant to the applicable definitive purchase, underwriting, warrant or similar agreement duly authorized, executed and delivered by the Company and the purchasers or warrant agent, and the certificates for the Warrants have been duly executed and delivered by the Company and such purchasers or warrant agent, then the Warrants will be validly issued and will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms. |
| |
|
| 6. |
With respect to the Rights, when both: (a) the Board has taken all necessary corporate action to approve the issuance and terms of the Rights, the terms of the offering thereof, and related matters, including the adoption of a rights agreement, as applicable; and (b) the Rights have been duly executed, authenticated, issued and delivered against payment therefor in accordance with the terms of the applicable rights agreement and by such corporate action (assuming the shares of Class A Common Stock or Preferred Stock relating to such Rights, as applicable, have been duly authorized and reserved for issuance by all necessary corporate action of the Company and in accordance with the terms of the Rights and the rights agreement), then the Rights will be legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms. |
| |
|
| 7. |
With respect to the Units, when both: (a) the Board has taken all necessary corporate action to approve the issuance and terms of the Units, the terms of the offering thereof, and related matters, including the adoption of a unit agreement, as applicable; and (b) the Units have been duly executed, authenticated, issued and delivered against payment therefor in accordance with the terms of the applicable unit agreement and by such corporate action (assuming the securities issuable upon exercise of such Units have been duly authorized and reserved for issuance by all necessary corporate action and the applicable Indenture and Debt Securities have been duly executed by the Company and such Debt Securities have been authenticated by the applicable Trustee in accordance with the Indenture), then the Units will be legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms. |
Our opinion that any document is legal, valid and binding is qualified
as to:
| |
(a) |
limitations imposed by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium or other laws relating to or affecting the rights of creditors generally; |
| |
|
|
| |
(b) |
rights to indemnification and contribution, which may be limited by applicable law or equitable principles; and |
| |
|
|
| |
(c) |
general principles of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing, and the possible unavailability of specific performance or injunctive relief and limitation of rights of acceleration, regardless of whether such enforceability is considered in a proceeding in equity or at law. |
We express no opinion as to the laws of any other jurisdiction, other
than the Federal laws of the United States of America, the laws of the State of California (including in each case the rules or regulations
promulgated thereunder or pursuant thereto), the Delaware General Corporation Law and, with respect
to the Indenture, also the substantive laws of the State of New York, as in effect on the date hereof. We
express no opinion as to enforceability of the New York choice-of-law provision contained in the Indenture.
GUNDERSON DETTMER STOUGH VILLENEUVE FRANKLIN &
HACHIGIAN, LLP
One Bush Plaza, Suite 1200 San Francisco,
CA 94104 gunder.com
We hereby consent to the filing of this opinion as an exhibit to the
above-referenced Registration Statement and to the use of our name wherever it appears in the Registration Statement, the Prospectus,
any Prospectus Supplement and in any amendment or supplement thereto. In giving such consent, we do not thereby admit that we are in the
category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder
with respect to any part of the Registration Statement, including this opinion as an exhibit.
Very truly yours,
/s/ Gunderson Dettmer Stough Villeneuve Franklin & Hachigian,
LLP
GUNDERSON DETTMER STOUGH VILLENEUVE FRANKLIN & HACHIGIAN,
LLP
GUNDERSON DETTMER STOUGH VILLENEUVE FRANKLIN &
HACHIGIAN, LLP
One Bush Plaza, Suite 1200 San Francisco,
CA 94104 gunder.com
Exhibit 23.2
Consent of
Independent Registered Public Accounting Firm
We consent to
the use of our report dated February 26, 2024, with respect to the consolidated financial statements of Hims & Hers Health,
Inc., and the effectiveness of internal control over financial reporting, incorporated herein by reference, and to the reference to our
firm under the heading "Experts" in the prospectus.
/s/ KPMG LLP
San Francisco,
California
September 9, 2024
S-3
S-3ASR
EX-FILING FEES
0001773751
Hims & Hers Health, Inc.
0001773751
2024-08-30
2024-08-30
0001773751
1
2024-08-30
2024-08-30
0001773751
2
2024-08-30
2024-08-30
0001773751
3
2024-08-30
2024-08-30
0001773751
4
2024-08-30
2024-08-30
0001773751
5
2024-08-30
2024-08-30
0001773751
6
2024-08-30
2024-08-30
iso4217:USD
xbrli:pure
xbrli:shares
|
Calculation of Filing Fee Tables
|
|
S-3
|
|
Hims & Hers Health, Inc.
|
|
Table 1: Newly Registered and Carry Forward Securities
|
|
|
|
Security Type
|
Security Class Title
|
Fee Calculation or Carry Forward Rule
|
Amount Registered
|
Proposed Maximum Offering Price Per Unit
|
Maximum Aggregate Offering Price
|
Fee Rate
|
Amount of Registration Fee
|
Carry Forward Form Type
|
Carry Forward File Number
|
Carry Forward Initial Effective Date
|
Filing Fee Previously Paid in Connection with Unsold Securities to be Carried Forward
|
|
Newly Registered Securities
|
|
Fees to be Paid
|
1
|
Equity
|
Class A Common Stock, $0.0001 par value per share
|
457(r)
|
|
|
|
0.0001476
|
|
|
|
|
|
|
Fees to be Paid
|
2
|
Equity
|
Preferred Stock, $0.0001 par value per share
|
457(r)
|
|
|
|
0.0001476
|
|
|
|
|
|
|
Fees to be Paid
|
3
|
Debt
|
Debt Securities
|
457(r)
|
|
|
|
0.0001476
|
|
|
|
|
|
|
Fees to be Paid
|
4
|
Other
|
Warrants
|
457(r)
|
|
|
|
0.0001476
|
|
|
|
|
|
|
Fees to be Paid
|
5
|
Other
|
Rights
|
457(r)
|
|
|
|
0.0001476
|
|
|
|
|
|
|
Fees to be Paid
|
6
|
Other
|
Units
|
457(r)
|
|
|
|
0.0001476
|
|
|
|
|
|
|
Fees Previously Paid
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Carry Forward Securities
|
|
Carry Forward Securities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Offering Amounts:
|
|
$
0.00
|
|
$
0.00
|
|
|
|
|
|
|
|
|
Total Fees Previously Paid:
|
|
|
|
$
0.00
|
|
|
|
|
|
|
|
|
Total Fee Offsets:
|
|
|
|
$
0.00
|
|
|
|
|
|
|
|
|
Net Fee Due:
|
|
|
|
$
0.00
|
|
|
|
|
|
1
|
The registrant is relying on Rule 456(b) and Rule 457(r) under the Securities Act of 1933, as amended, to defer payment of all of the registration fee. In connection with the securities offered hereby, the registrant will pay "pay-as-you-go registration fees" in accordance with Rule 456(b). The registrant will calculate the registration fee applicable to an offer of securities pursuant to this registration statement based on the fee payment rate in effect on the date of such fee payment.
An indeterminate number of the securities of each identified class are being registered as may from time to time be offered at indeterminate prices, including an indeterminate number or amount of securities that may be issued upon settlement, exercise, conversion or exchange of securities offered hereunder, or pursuant to anti-dilution provisions. Separate consideration may or may not be received for securities that are issuable upon settlement, exercise, conversion or exchange of other securities or that are issued in units.
|
|
|
|
2
|
See Offering Note 1 above.
|
|
|
|
3
|
See Offering Note 1 above.
|
|
|
|
4
|
See Offering Note 1 above.
In addition, the warrants covered by this registration statement may be warrants to purchase Class A common stock, preferred stock or debt securities of the registrant.
|
|
|
|
5
|
See Offering Note 1 above.
|
|
|
|
6
|
See Offering Note 1 above.
In addition, the Units may be issued under a unit agreement and will represent an interest in one or more securities registered under this registration statement including shares of Class A common stock or preferred stock, debt securities, rights or warrants, in any combination, which may or may not be separable from one another.
|
|
|
v3.24.2.u1
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v3.24.2.u1
Offerings
|
Aug. 30, 2024 |
| Offering: 1 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Equity
|
| Security Class Title |
Class A Common Stock, $0.0001 par value per share
|
| Fee Rate |
0.01476%
|
| Offering Note |
The registrant is relying on Rule 456(b) and Rule 457(r) under the Securities Act of 1933, as amended, to defer payment of all of the registration fee. In connection with the securities offered hereby, the registrant will pay "pay-as-you-go registration fees" in accordance with Rule 456(b). The registrant will calculate the registration fee applicable to an offer of securities pursuant to this registration statement based on the fee payment rate in effect on the date of such fee payment.
An indeterminate number of the securities of each identified class are being registered as may from time to time be offered at indeterminate prices, including an indeterminate number or amount of securities that may be issued upon settlement, exercise, conversion or exchange of securities offered hereunder, or pursuant to anti-dilution provisions. Separate consideration may or may not be received for securities that are issuable upon settlement, exercise, conversion or exchange of other securities or that are issued in units.
|
| Offering: 2 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Equity
|
| Security Class Title |
Preferred Stock, $0.0001 par value per share
|
| Fee Rate |
0.01476%
|
| Offering Note |
See Offering Note 1 above.
|
| Offering: 3 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Debt
|
| Security Class Title |
Debt Securities
|
| Fee Rate |
0.01476%
|
| Offering Note |
See Offering Note 1 above.
|
| Offering: 4 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Other
|
| Security Class Title |
Warrants
|
| Fee Rate |
0.01476%
|
| Offering Note |
See Offering Note 1 above.
In addition, the warrants covered by this registration statement may be warrants to purchase Class A common stock, preferred stock or debt securities of the registrant.
|
| Offering: 5 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Other
|
| Security Class Title |
Rights
|
| Fee Rate |
0.01476%
|
| Offering Note |
See Offering Note 1 above.
|
| Offering: 6 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Other
|
| Security Class Title |
Units
|
| Fee Rate |
0.01476%
|
| Offering Note |
See Offering Note 1 above.
In addition, the Units may be issued under a unit agreement and will represent an interest in one or more securities registered under this registration statement including shares of Class A common stock or preferred stock, debt securities, rights or warrants, in any combination, which may or may not be separable from one another.
|
| X |
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