If the only securities being registered
on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered
on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment
filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement
pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box. ☒
If this Form is a post-effective amendment
to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes
of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth
company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting
company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
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. ☐
Description
of Debt Securities
Any debt securities that we may issue will
constitute either senior or subordinated debt of the Company. Any debt securities that are sold may be exchangeable for and/or
convertible into Class A common stock or any other
securities that may be sold under this prospectus.
Any debt securities will be issued under an indenture dated as of June 1, 1995, as supplemented (the “Indenture”),
between the Company and The Bank of New York Mellon Trust Company, N.A. (as successor to JPMorgan Chase Bank, N.A. (formerly The
Chase Manhattan Bank, N.A.)), as Trustee (the “Trustee”), or one or more separate indentures between the Company and
a designated trustee. We will include a prospectus supplement on the specific terms of each series of senior or subordinated debt
securities being offered, including the terms, if any, on which a series of senior or subordinated debt securities may be convertible
into or exchangeable for other securities.
The following is a summary of the Indenture
under which senior debt securities may be issued. The following statements are subject to the detailed provisions of the Indenture.
We have filed a copy of the Indenture as an exhibit to the registration statement of which this prospectus is a part. The Indenture
is also available for inspection at the office of the Trustee. Section references are to the Indenture. The following summarizes
the material terms of the Indenture; however, the following summaries of certain provisions of the Indenture are not complete.
Wherever particular provisions of the Indenture are referred to, such provisions, including definitions of certain terms, are incorporated
by reference as part of such summaries or terms, which are qualified in their entirety by such reference to the provisions of the
Indenture. Definitions of certain terms used in this “Description of Debt Securities” may be found below under “—Certain
Definitions.” In this “Description of Debt Securities,” unless otherwise indicated, “we,” “us,”
“our,” “the Company” and similar words refer to Tyson Foods, Inc. and not any of its subsidiaries.
General
The Indenture does not limit the aggregate
principal amount of debt securities which may be issued under the Indenture and provides that the debt securities may be issued
from time to time in one or more series, as authorized from time to time by our Board of Directors, any committee of our Board
of Directors or any duly authorized officer. The debt securities will be direct, unsecured and unsubordinated obligations of the
Company and will rank on a parity with our other unsecured and unsubordinated indebtedness. The debt securities will be effectively
subordinated to our senior secured indebtedness to the extent of the value of the collateral securing such indebtedness. Except
as described under “Certain Covenants,” the Indenture does not limit other indebtedness or securities which may be
incurred or issued by the Company or any of its subsidiaries or contain financial or similar restrictions on the Company or any
of its subsidiaries. The Company’s rights and the rights of its creditors, including holders of debt securities, to participate
in any distribution of assets of any subsidiary upon the latter’s liquidation or reorganization or otherwise are effectively
subordinated to the claims of the subsidiary’s creditors, except to the extent that the Company or any of its creditors may
itself be a creditor of that subsidiary.
The particular terms of a series of debt
securities will be set forth in an officers’ certificate or supplemental indenture, and described in the applicable prospectus
supplement. We urge you to read the Indenture as supplemented by any officers’ certificate or supplemental indenture because
the Indenture, as supplemented, and not this section, defines your rights as a holder of the debt securities.
The prospectus supplement which accompanies
this prospectus will set forth where applicable the following terms of and information relating to the debt securities in respect
of which this prospectus is being delivered (“Offered Securities”):
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the designation of the Offered Securities;
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the aggregate principal amount of the Offered Securities;
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the date or dates on which principal of, and premium, if any, on the Offered Securities is payable;
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the rate or rates at which the Offered Securities shall bear interest, if any, or the method by which such rate shall be determined,
and the basis on which interest shall be calculated if other than a 360-day year consisting of twelve 30-day months, the date or
dates from which such interest will accrue and on which such interest will be payable and the related record dates;
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if other than the offices of the Trustee, the place where the principal of and any premium or interest on the Offered Securities
will be payable;
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any redemption, repayment or sinking fund provisions;
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if other than denominations of $1,000 or multiples of $1,000, the denominations in which the Offered Securities will be issuable;
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if other than the principal amount of such debt security, the portion of the principal amount due upon acceleration;
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if other than U.S. dollars, the currency or currencies (including composite currencies) in which the Offered Securities are
denominated or payable;
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whether the Offered Securities shall be issued in the form of a global security or securities;
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if applicable, a discussion of any material United States federal income tax considerations;
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any other specific terms of the Offered Securities; and
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the identity of any trustees, depositories, authenticating or paying agents, transfer agents or registrars with respect to
the Offered Securities. (Section 2.3)
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The debt securities will be issued either
in certificated, fully registered form, without coupons, or as global securities under a book-entry system, as specified in the
accompanying prospectus supplement. See “Form of Securities.”
Unless otherwise specified in the accompanying
prospectus supplement, principal and premium, if any, will be payable, and the debt securities will be transferable and exchangeable
without any service charge, at the office of the Trustee. However, the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection with any such transfer or exchange. (Sections 2.7, 4.1 and 4.2)
Unless otherwise specified in the accompanying
prospectus supplement, interest on any series of debt securities will be payable on the interest payment dates set forth in the
accompanying prospectus supplement to the persons in whose names the debt securities are registered at the close of business on
the related record date and will be paid, at the option of the Company, by wire transfer or by checks mailed to such persons. (Sections
2.7 and 4.1)
If the debt securities are issued as Original
Issue Discount Securities (as defined in the Indenture) bearing no interest or interest at a rate which at the time of issuance
is below market rates and are to be sold at a substantial discount below their stated principal amount, the other special considerations
applicable to such Original Issue Discount Securities will be generally described in the prospectus supplement.
Unless otherwise described in the accompanying
prospectus supplement, there are no covenants or provisions contained in the Indenture which afford the holders of the debt securities
protection in the event of a highly leveraged transaction involving the Company. Reference is made to the applicable prospectus
supplement for information with respect to any additions to, or modifications or deletions of, the events of default or covenants
described below.
Certain Covenants
Restrictions on Liens. The Indenture
provides that the Company will not, and will not permit any Restricted Subsidiary (as defined below) to, create, incur or suffer
to exist any mortgage or pledge, as security for any indebtedness, on or of any shares of stock, indebtedness or other obligations
of a Subsidiary (as defined below) or any Principal Property (as defined below) of the Company or a Restricted Subsidiary, whether
such shares of stock, indebtedness or other obligations of a Subsidiary or Principal Property is owned at the date of the Indenture
or acquired after the date of the Indenture, unless the Company secures or causes such Restricted Subsidiary to secure the outstanding
debt securities equally and ratably with all indebtedness secured by such mortgage or pledge, so long as such indebtedness shall
be so secured. This covenant will not apply in the case of:
(i) the creation of any mortgage,
pledge or other lien on any shares of stock, indebtedness or other obligations of a Subsidiary or any Principal Property acquired
after the date of the Indenture (including acquisitions by way of merger or consolidation) by the Company or a Restricted Subsidiary
contemporaneously
with such acquisition, or within
180 days after such acquisition, to secure or provide for the payment or financing of any part of the purchase price of such acquisition,
or the assumption of any mortgage, pledge or other lien upon any shares of stock, indebtedness or other obligations of a Subsidiary
or any Principal Property acquired after the date of the Indenture existing at the time of such acquisition, or the acquisition
of any shares of stock, indebtedness or other obligations of a Subsidiary or any Principal Property subject to any mortgage, pledge
or other lien without the assumption of such mortgage, pledge or other liens, provided that every such mortgage, pledge or lien
referred to in this clause (i) will attach only to the shares of stock, indebtedness or other obligations of a Subsidiary or any
Principal Property so acquired and fixed improvements on such Principal Property;
(ii) any mortgage, pledge or
other lien on any shares of stock, indebtedness or other obligations of a Subsidiary or any Principal Property existing at the
date of this Indenture;
(iii) any mortgage, pledge or
other lien on any shares of stock, indebtedness or other obligations of a Subsidiary or any Principal Property in favor of the
Company or any Restricted Subsidiary;
(iv) any mortgage, pledge or
other lien on Principal Property being constructed or improved securing loans to finance such construction or improvements;
(v) any mortgage, pledge or
other lien on shares of stock, indebtedness or other obligations of a Subsidiary or any Principal Property incurred in connection
with the issuance of tax-exempt governmental obligations; and
(vi) any renewal of or substitution
for any mortgage, pledge or other lien permitted by any of the preceding clauses (i) through (v), provided, in the case of a mortgage,
pledge or other lien permitted under clause (i), (ii) or (iv), the indebtedness secured is not increased nor the lien extended
to any additional shares of stock, indebtedness or other obligations of a Subsidiary or any additional Principal Property.
Notwithstanding the foregoing, the Company
or any Restricted Subsidiary may create or assume liens in addition to those permitted by this paragraph, and renew, extend or
replace such liens, provided that at the time of such creation, assumption, renewal, extension or replacement, and after giving
effect to such creation, assumption, renewal, extension or replacement, Exempted Debt (as defined below) does not exceed 10% of
Consolidated Net Tangible Assets (as defined below). (Section 4.3)
Restrictions on Sale and Lease-Back
Transactions. The Indenture provides that the Company will not, and will not permit any Restricted Subsidiary to, sell or transfer,
directly or indirectly, except to the Company or a Restricted Subsidiary, any Principal Property as an entirety, or any substantial
portion of such property, with the intention of taking back a lease of such property, except a lease for a period of three years
or less at the end of which it is intended that the use of such property by the lessee will be discontinued; provided that, notwithstanding
the foregoing, the Company or any Restricted Subsidiary may sell any such Principal Property and lease it back for a longer period
(i) if the Company or such Restricted Subsidiary would be entitled, pursuant to the provisions described above under “—Restrictions
on Liens,” to create a mortgage on the property to be leased securing Funded Debt (as defined below) in an amount equal to
the Attributable Debt (as defined below) with respect to such sale and lease-back transaction without equally and ratably securing
the outstanding debt securities or (ii) if (A) the Company promptly informs the Trustee of such transaction, (B) the net proceeds
of such transaction are at least equal to the fair value (as determined by board resolution of the Company) of such property and
(C) the Company causes an amount equal to the net proceeds of the sale to be applied to the retirement, within 180 days after receipt
of such proceeds, of Funded Debt incurred or assumed by the Company or a Restricted Subsidiary (including the debt securities);
provided further that, in lieu of applying all of or any part of such net proceeds to such retirement, the Company may, within
75 days after such sale, deliver or cause to be delivered to the applicable trustee for cancellation either debentures or notes
evidencing Funded Debt of the Company (which may include the outstanding debt securities) or of a Restricted Subsidiary previously
authenticated and delivered by the applicable trustee, and not previously tendered for sinking fund purposes or called for a sinking
fund or otherwise applied as a credit against an obligation to redeem or retire such notes or debentures, and an officers’
certificate (which will be delivered to the Trustee and each paying agent and which need not contain the statements prescribed
by the second paragraph of Section 10.4 of the Indenture) stating that the Company elects to deliver or cause to be delivered such
debentures or notes in lieu of retiring Funded Debt as provided in the Indenture. If the Company shall so deliver debentures or
notes to the applicable trustee and the Company shall duly deliver such officers’ certificate, the amount of cash which the
Company will be required to apply to the retirement of Funded Debt under this provision
of the Indenture shall be reduced by an amount
equal to the aggregate of the then applicable optional redemption prices (not including any optional sinking fund redemption prices)
of such debentures or notes or, if there are no such redemption prices, the principal amount of such debentures or notes; provided,
that in the case of debentures or notes which provide for an amount less than the principal amount of such debentures or notes
to be due and payable upon a declaration of the maturity of such debentures or notes, such amount of cash shall be reduced by the
amount of principal of such debentures or notes that would be due and payable as of the date of such application upon a declaration
of acceleration of the maturity of such debentures or notes pursuant to the terms of the Indenture pursuant to which such debentures
or notes were issued. Notwithstanding the foregoing, the Company or any Restricted Subsidiary may enter into sale and lease-back
transactions in addition to those permitted by this paragraph and without any obligation to retire any outstanding debt securities
or other Funded Debt, provided that at the time of entering into such sale and lease-back transactions and after giving effect
to such transactions, Exempted Debt does not exceed 10% of Consolidated Net Tangible Assets. (Section 4.4)
Certain Definitions
The term “Attributable Debt”
as defined in the Indenture means, as to any particular lease under which any Person (as defined in the Indenture) is at the time
liable, other than a capital lease, and at any date as of which the amount of such lease is to be determined, the total net amount
of rent required to be paid by such Person under such lease during the initial term of such lease as determined in accordance with
generally accepted accounting principles, discounted from the last date of such initial term to the date of determination at a
rate per annum equal to the discount rate which would be applicable to a capital lease with like term in accordance with generally
accepted accounting principles. The net amount of rent required to be paid under any such lease for any such period shall be the
aggregate amount of rent payable by the lessee with respect to such period after excluding amounts required to be paid on account
of insurance, taxes, assessments, utility, operating and labor costs and similar charges. In the case of any lease which is terminable
by the lessee upon the payment of a penalty, such net amount shall also include the amount of such penalty, but no rent shall be
considered as required to be paid under such lease subsequent to the first date upon which it may be so terminated. “Attributable
Debt” means, as to a capital lease under which any Person is at the time liable and at any date as of which the amount of
such lease is to be determined, the capitalized amount of such lease that would appear on the face of a balance sheet of such Person
in accordance with generally accepted accounting principles.
The term “Consolidated Net Tangible
Assets” as defined in the Indenture means the excess over the current liabilities of the Company of all of its assets as
determined by the Company and as would be set forth in a consolidated balance sheet of the Company and its Subsidiaries, on a consolidated
basis, in accordance with generally accepted accounting principles as of a date within 90 days of the date of such determination,
after deducting goodwill, trademarks, patents, other like intangibles and minority interests of others.
The term “Exempted Debt” as
defined in the Indenture means the sum, without duplication, of the following items outstanding of the date Exempted Debt is being
determined:
(i) indebtedness of the Company
and its Restricted Subsidiaries incurred after the date of the Indenture and secured by liens created, assumed or otherwise incurred
or permitted to exist pursuant to the provision described in the last sentence under “Certain Covenants— Restrictions
on Liens” and
(ii) Attributable Debt of the
Company and its Restricted Subsidiaries in respect of all sale and lease-back transactions with regard to any Principal Property
entered into pursuant to the provision described in the last sentence under “—Certain Covenants—Restrictions
on Sale and Lease-Back Transactions.”
The term “Funded Debt” as defined
in the Indenture means all indebtedness for money borrowed, including purchase money indebtedness, having a maturity of more than
one year from the date of its creation or having a maturity of less than one year but by its terms being renewable or extendible,
at the option of the obligor in respect of such indebtedness, beyond one year from its creation.
The term “Principal Property”
as defined in the Indenture means:
(i) land, land improvements,
buildings and associated factory equipment owned or leased pursuant to a capital lease and used by the Company or a Restricted
Subsidiary primarily for processing, producing, packaging or storing its products, raw materials, inventories or other materials
and supplies and located within the United States of America and having an acquisition cost plus capitalized improvements in excess
of 1% of Consolidated Net Tangible Assets as of the date of such determination;
(ii) certain property referred
to in the Indenture; and
(iii) any asset held by Tyson
Holding Company (which was subsequently merged with and into Tyson Foods, Inc.)
but shall not include any such property or assets described
in clauses (i), (ii) or (iii) that is financed through the issuance of tax exempt governmental obligations, or any such property
or assets that has been determined by board resolution of the Company not to be of material importance to the respective businesses
conducted by the Company or such Restricted Subsidiary, effective as of the date such resolution is adopted.
The term “Restricted Subsidiary”
as defined in the Indenture means any Subsidiary organized and existing under the laws of the United States of America and the
principal business of which is carried on within the United States of America which owns or is a lessee pursuant to a capital lease
of any Principal Property or owns shares of capital stock or indebtedness of another Restricted Subsidiary other than:
(i) each Subsidiary the major
part of whose business consists of finance, banking, credit, leasing, insurance, financial services or other similar operations,
or any combination of such operations; and
(ii) each Subsidiary formed
or acquired after the date of the Indenture for the purpose of acquiring the business or assets of another person and which does
not acquire all or any substantial part of the business or assets of the Company or any Restricted Subsidiary;
provided, however, the Board of Directors of the Company may
declare any such Subsidiary to be a Restricted Subsidiary effective as of the date such resolution is adopted.
The term “Subsidiary” as defined
in the Indenture means, with respect to any Person, any corporation, association or other business entity of which more than 50%
of the outstanding Voting Stock (as defined in the Indenture) is owned, directly or indirectly, by such Person and one or more
other Subsidiaries of such Person.
Restrictions on Consolidations, Mergers and Sales of Assets
The Indenture provides that the Company
will not consolidate with, merge with or into, or sell, convey, transfer, lease or otherwise dispose of all or substantially all
of its property and assets (as an entirety or substantially an entirety in one transaction or a series of related transactions)
to, any Person (other than a consolidation with or merger with or into a Subsidiary) or permit any Person to merge with or into
the Company unless:
(a) either
(i) the Company will be the
continuing Person or
(ii) the Person (if other than
the Company) formed by such consolidation or into which the Company is merged or that acquired or leased such property and assets
of the Company shall be a corporation organized and validly existing under the laws of the United States of America or any jurisdiction
of the United States of America and shall expressly assume, by a supplemental indenture, executed and delivered to the Trustee,
all of the obligations of the Company on all of the debt securities and the Company shall have delivered to the Trustee an opinion
of counsel stating that such consolidation, merger or transfer and such supplemental indenture complies with this provision and
that all conditions precedent provided for in the Indenture relating to such transaction have been complied with; and
(b) immediately after giving effect to
such transaction, no Default (as defined in the Indenture) shall have occurred and be continuing. (Section 5.1)
Events of Default
An “Event of Default,” as defined
in the Indenture and applicable to debt securities, will occur with respect to the debt securities of any series if:
(a) the Company defaults in the payment
of the principal of any debt security of such series when the same becomes due and payable at maturity, upon acceleration, redemption,
mandatory repurchase or otherwise;
(b) the Company defaults in the payment
of interest on any debt security of such series when the same becomes due and payable, and such default continues for a period
of 30 days;
(c) the Company defaults in the performance
of or breaches any other covenant or agreement of the Company in the Indenture with respect to the debt securities of such series
and such default or breach continues for a period of 30 consecutive days after written notice to the Company by the Trustee or
to the Company and the Trustee by the Holders (as defined in the Indenture) of 25% or more in aggregate principal amount of the
debt securities of such series;
(d) an involuntary case or other proceeding
shall be commenced against the Company with respect to it or its debts under any bankruptcy, insolvency or other similar law seeking
the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property,
and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days; or an order for relief
shall be entered against the Company under the federal bankruptcy laws;
(e) the Company
(i) commences a voluntary case
under any applicable bankruptcy, insolvency or other similar law, or consents to the entry of an order for relief in an involuntary
case under any such law,
(ii) consents to the appointment
of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Company
or for all or substantially all of the property and assets of the Company or
(iii) effects
any general assignment for the benefit of creditors; or
(f) any other Events of Default set forth
in the applicable prospectus supplement occurs. (Section 6.1)
The Indenture provides that if an Event
of Default described in clauses (a), (b), (c) or (f) above (if such Event of Default under clause (c) or (f) is with respect to
one or more but not all series of debt securities then outstanding) occurs and is continuing, then, and in each and every such
case, except for any series of debt securities the principal of which shall have already become due and payable, either the Trustee
or the Holders of not less than 25% in aggregate principal amount of the debt securities of each such series then outstanding under
the Indenture (each such series voting as a separate class) by notice in writing to the Company (and to the Trustee if given by
Holders), may declare the entire principal (or, if the debt securities of any such series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms of such series and set forth in the applicable prospectus
supplement) of all debt securities of all such series, and the interest accrued on such debt securities, 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 (c) or (f) occurs and is continuing with respect to all series of debt securities then outstanding, then and in each
and every such case, unless the principal of all the debt securities shall have already become due and payable, either the Trustee
or the Holders of not less than 25% in aggregate principal amount of all the debt securities then outstanding under the Indenture
(treated as one class), by notice in writing to the Company (and to the Trustee if given by Holders), may declare the entire principal
(or, if any debt securities are Original Issue Discount Securities, such portion of the principal as may be specified in the terms
of such Original Issue Discount Securities and set forth in the applicable prospectus supplement) of all the debt securities then
outstanding and interest accrued on such debt securities, 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) occurs and is continuing,
then the principal amount (or, if any debt securities are Original Issue Discount Securities, such portion of the principal as
may be specified in the terms of such Original Issue Discount Securities and set forth in the applicable prospectus supplement)
of all the debt securities then outstanding and interest accrued on such debt securities, if any, shall be and become immediately
due and payable, without any notice or other action by any Holder or the Trustee, to the full extent permitted by applicable law.
The provisions described in the paragraph
above, however, are subject to the condition that if, at any time after the principal (or, if the debt securities are Original
Issue Discount Securities, such portion of the principal as may be specified in the terms of such Original Issue Discount Securities
and set forth in the applicable prospectus supplement) of the debt securities of any series (or of all the debt 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 provided in the Indenture,
the Company will pay or will deposit with the Trustee a sum sufficient to pay all matured installments of interest upon all the
debt securities of each such series (or of all the debt securities, as the case may be) and the principal of any and all debt securities
of each such series (or of all the debt securities, as the case may be) which shall have become due otherwise than by acceleration
(with 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 debt securities of each such series and set forth in the applicable prospectus supplement to the date
of such payment or deposit) and such amount as shall be sufficient to cover all amounts owing to the Trustee and each predecessor
Trustee, their respective agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances made,
by the Trustee and each predecessor Trustee except as a result of negligence or bad faith, and if any and all Events of Default
under the Indenture, other than the non-payment of the principal of debt securities which shall have become due by acceleration,
shall have been cured, waived or otherwise remedied as provided in the Indenture, then and in every such case the Holders of a
majority in aggregate principal amount of all the debt securities of each such series, or of all the debt securities, in each case
voting as a single class, then outstanding, by written notice to the Company and to the Trustee, may waive all defaults with respect
to each such series (or with respect to all the debt securities, as the case may be) and rescind and annul such declaration and
its consequences, but no such waiver or rescission and annulment will extend to or shall affect any subsequent default or shall
impair any right consequent on such default. For all purposes under the 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 described above,
then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original
Issue Discount Securities will be deemed, for all purposes under the Indenture, to be such portion of the principal of such Original
Issue Discount Securities as shall be due and payable as a result of such acceleration, and payment of such portion of the principal
of such Original Issue Discount Securities as shall be due and payable as a result of such acceleration, together with interest,
if any, on such Original Issue Discount Securities and all other amounts owing under the Indenture, shall constitute payment in
full of such Original Issue Discount Securities. (Section 6.2)
The Indenture contains a provision under
which, subject to the duty of the Trustee during a default to act with the standard of care required by law:
(i) the Trustee may rely and
will be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed
by it to be genuine and to have been signed or presented by the proper person, and the Trustee need not investigate any fact or
matter stated in the document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit;
(ii) before the Trustee acts
or refrains from acting, it may require an officers’ certificate or an opinion of counsel, and the Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such certificate or opinion;
(iii) the Trustee may act through
its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care;
(iv) the Trustee shall be under
no obligation to exercise any of the rights or powers vested in it by the Indenture at the request or direction of any of the Holders,
unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or direction;
(v) the Trustee shall not be
liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers
or for any action it takes or omits to take in accordance with the direction of the Holders of a majority in principal amount of
the outstanding debt securities 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 the Indenture; and
(vi) the Trustee may consult
with counsel and the written advice of such counsel or any opinion of counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it under the Indenture in good faith and in reliance on such advice or opinion.
(Section 7.2)
Subject to such provisions in the Indenture
for the indemnification of the Trustee and certain other limitations, the Holders of at least a majority in aggregate principal
amount of the outstanding debt securities of each series affected (each such series voting as a separate class) may 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; provided, that the Trustee may refuse to follow any direction that conflicts with law or the Indenture, that may
involve the Trustee in personal liability, or that the Trustee determines in good faith may be unduly prejudicial to the rights
of Holders not joining in the giving of such direction; and provided further, that the Trustee may take any other action it deems
proper that is not inconsistent with any directions received from Holders of debt securities pursuant to this paragraph. (Section
6.5)
The Indenture provides that no Holder of
any debt security of any series may institute any proceeding, judicial or otherwise, with respect to the Indenture or the debt
securities of such series, or for the appointment of a receiver or trustee, or for any other remedy under the Indenture, unless:
(i) such Holder has previously
given to the Trustee written notice of a continuing Event of Default with respect to the debt securities of such series;
(ii) the Holders of at least
25% in aggregate principal amount of outstanding debt securities of such series shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its own name as Trustee under the Indenture;
(iii) such Holder or Holders
have offered to the Trustee indemnity reasonably satisfactory to the Trustee against any costs, liabilities or expenses to be incurred
in compliance with such request;
(iv) the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(v) during such 60-day period,
the Holders of a majority in aggregate principal amount of the outstanding debt securities of such series have not given the Trustee
a direction that is inconsistent with such written request.
A Holder may not use the Indenture to prejudice
the rights of another Holder or to obtain a preference or priority over such other Holder. (Section 6.6)
The Indenture contains a covenant that
the Company will file annually, not more than 90 days after the end of its fiscal year, with the Trustee a certification from the
principal executive officer, principal financial officer or principal accounting officer that a review has been conducted of the
activities of the Company and its Subsidiaries and the Company’s and its Subsidiaries’ performance under the Indenture
and that the Company has complied with all conditions and covenants under the Indenture. (Section 4.6)
Discharge, Defeasance and Covenant Defeasance
The Indenture provides that, except as
provided below, the Company may terminate its obligations under the debt securities of any series and the Indenture with respect
to debt securities of such series if:
(i) all debt securities of such
series previously authenticated and delivered (other than destroyed, lost or stolen debt securities of such series that have been
replaced or debt securities of such series that are fully paid or debt securities of such series for whose payment money or debt
securities have previously been held in trust and subsequently repaid to the Company, as provided in the Indenture) have been delivered
to the Trustee for cancellation and the Company has paid all sums payable by it under the Indenture; or
(ii)(A) the debt securities
of such series mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory
to the Trustee for giving the notice of redemption, (B) the Company irrevocably deposits in trust with the Trustee, as trust funds
solely for the benefit of the Holders of such debt securities for that purpose, money or U.S. Government Obligations (as defined
in the Indenture) or a combination of money and U.S. Government Obligations sufficient (in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification of such firm delivered to the Trustee), without consideration
of any reinvestment, to pay principal of and interest on the debt securities of such series to maturity or redemption, as the case
may be, and to pay all other sums payable by it
under the Indenture, (C) no default
with respect to the debt securities of such series has occurred and is continuing on the date of such deposit, (D) such deposit
does not result in a breach or violation of, or constitute a default under, the Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound and (E) the Company delivers to the Trustee an officers’ certificate
and an opinion of counsel, in each case stating that all conditions precedent provided for in the Indenture relating to the satisfaction
and discharge of the Indenture have been complied with.
With respect to the foregoing clause (i),
only the Company’s obligations under Section 7.7 of the Indenture in respect of the debt securities of such series shall
survive. With respect to the foregoing clause (ii), only the Company’s obligations in Sections 2.2 (Execution and Authorization),
2.3 (Amount Unlimited; Issuable in Series), 2.4 (Denomination and Date of Securities; Payments of Interest), 2.5 (Registrar and
Paying Agent; Agents Generally), 2.6 (Paying Agent to Hold Money in Trust), 2.7 (Transfer and Exchange), 2.11 (Cancellation), 4.2
(Maintenance of Office or Agency), 7.7 (Compensation and Indemnity), 7.8 (Replacement of Trustee), 8.5 (Repayment by Company) and
8.6 (Reinstatement) of the Indenture in respect of the debt securities of such series shall survive until the debt securities of
such series are no longer outstanding. Once there are no longer any debt securities of a particular series outstanding, only the
Company’s obligations in Sections 7.7, 8.5 and 8.6 of the Indenture in respect of the debt securities of such series shall
survive. After any such irrevocable deposit, the Trustee upon request shall acknowledge in writing the discharge of the Company’s
obligations under the debt securities of such series and this Indenture with respect to the debt securities of such series except
for those surviving obligations specified above. (Section 8.1)
The Indenture provides that, except as
provided below, the Company will be deemed to have paid and will be discharged from any and all obligations in respect of the debt
securities of any series after the period specified in clause (iv)(2)(z) below of this paragraph, and the provisions of the Indenture
will no longer be in effect with respect to the debt securities of such series, and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same; provided, that the following conditions shall have been satisfied:
(i) the Company has irrevocably
deposited in trust with the Trustee as trust funds solely for the benefit of the Holders for payment of the principal of and interest
on the debt securities of such series, money or U.S. Government Obligations or a combination of money or U.S. Government Obligations
sufficient (in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification
of such firm delivered to the Trustee) without consideration of any reinvestment and after payment of all federal, state and local
taxes or other charges and assessments in respect of such funds payable by the Trustee, to pay and discharge the principal of and
accrued interest on the outstanding debt securities of such series to maturity or earlier redemption (irrevocably provided for
under arrangements satisfactory to the Trustee), as the case may be;
(ii)
such deposit will not result in a breach or violation of, or constitute a default under, the Indenture or any other agreement
or instrument to which the Company is a party or by which it is bound;
(iii)
no Default (as defined in the Indenture) with respect to the debt securities of such series shall have occurred and be continuing
on the date of such deposit or at any time during the period specified in clause (iv)(2)(z) below;
(iv)
the Company shall have delivered to the Trustee (1) either (x) a ruling directed to the Trustee received from the Internal
Revenue Service to the effect that the Holders of the debt securities of such series will not recognize income, gain or loss for
federal income tax purposes as a result of the Company’s exercise of its option under this provision of the Indenture and
will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case
if such option had not been exercised or (y) an opinion of counsel to the same affect as the ruling described in clause (x) above
and based on a change in law and (2) an opinion of counsel to the effect that (x) the creation of the defeasance trust does not
violate the Investment Company Act of 1940, as amended, (y) the Holders of the debt securities of such series have a valid first
priority security interest in the trust funds, and (z) after the passage of 123 days following the deposit (except after one year
following the deposit, with respect to any trust funds for the account of any Holder of the debt securities of such series who
may be deemed to be an “insider” as to an obligor on the debt securities of such series for purposes of the United
States Bankruptcy Code), the trust funds will not be subject to the effect of Section 547 of the United States Bankruptcy Code
or Section 15 of the New York Debtor and Creditor Law in a case commenced by or against the Company under either such statute,
and either (I) the trust funds will no
longer remain the property of the
Company (and therefore will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors’ rights generally) or (II) if a court were to rule under any such law in any case or proceeding that
the trust funds remained in the property of the Company, to the extent not paid to such Holders, the Trustee will hold, for the
benefit of such Holders, a valid and perfected first priority security interest in such trust funds that is not avoidable in bankruptcy
or otherwise (except for the effect of Section 552(b) of the United States Bankruptcy Code on interest on the trust funds accruing
after the commencement of a case under such statute) and the Holders of the debt securities of such series will be entitled to
receive adequate protection of their interests in such trust funds if such trust funds are used in such case or proceeding;
(v)
if the debt securities of such series are then listed on a national securities exchange, the Company shall have delivered
to the Trustee an opinion of counsel to the effect that the defeasance contemplated by this provision of the Indenture of the debt
securities of such series will not cause the debt securities of such series to be delisted; and
(vi)
the Company has delivered to the Trustee an officers, certificate and an opinion of counsel, in each case stating that all conditions
precedent provided for in the Indenture relating to the defeasance contemplated by this provision of the Indenture of the debt
securities of such series have been complied with. Notwithstanding the foregoing, prior to the end of the 123-day (or one year)
period referred to in clause (iv) (2)(z) of this paragraph, none of the Company’s obligations under the Indenture
with respect to the debt securities of such series shall be discharged. Subsequent to the end of such 123-day (or one year) period,
the Company’s obligations in Sections 2.2 (Execution and Authorization), 2.3 (Amount Unlimited; Issuable in Series), 2.4
(Denomination and Date of Securities; Payments of Interest), 2.5 (Registrar and Paying Agent; Agents Generally), 2.6 (Paying Agent
to Hold Money in Trust), 2.7 (Transfer and Exchange), 2.11 (Cancellation), 4.2 (Maintenance of Office or Agency), 7.7 (Compensation
and Indemnity), 7.8 (Replacement of Trustee), 8.5 (Repayment by Company) and 8.6 (Reinstatement) of the Indenture with respect
to the debt securities of such series shall survive until such debt securities are no longer outstanding. Once there are no longer
any debt securities of a particular series outstanding, only the Company’s obligations in Sections 7.7 (Compensation and
Indemnity), 8.5 (Repayment by Company) and 8.6 (Reinstatement) of the Indenture with respect to the debt securities of such series
shall survive. If and when a ruling from the Internal Revenue Service or an opinion of counsel referred to in clause (iv)(1) of
this paragraph is able to be provided specifically without regard to, and not in reliance upon, the continuance of the Company’s
obligations under Section 4.1 (Payment of Securities) of the Indenture, then the Company’s obligations under such Section
4.1 of the Indenture with respect to the debt securities of such series shall cease upon delivery to the Trustee of such ruling
or opinion of counsel and compliance with the other conditions precedent provided for in this provision of the Indenture relating
to the defeasance contemplated by this provision of the Indenture. (Section 8.2)
The Indenture provides that the Company
may omit to comply with any term, provision or condition described under “—Certain Covenants,” and such omission
shall be deemed not to be an Event of Default, with respect to the outstanding debt securities of any series if:
(i) the Company has irrevocably
deposited in trust with the Trustee as trust funds solely for the benefit of the Holders of the debt securities of such series
for payment of the principal of and interest, if any, on the debt securities of such series money or U.S. Government Obligations
or a combination of money or U.S. Government Obligations in an amount sufficient (in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification of such firm delivered to the Trustee) without consideration
of any reinvestment and after payment of all federal, state and local taxes or other charges and assessments in respect of such
funds payable by the Trustee, to pay and discharge the principal of and interest on the outstanding debt securities of such series
to maturity or earlier redemption (irrevocably provided for under arrangements satisfactory to the Trustee), as the case may be;
(ii) such deposit will not result
in a breach or violation of, or constitute a default under, the Indenture or any other agreement or instrument to which the Company
is a party or by which it is bound;
(iii) no Default with respect
to the debt securities of such series shall have occurred and be continuing on the date of such deposit;
(iv) the Company has delivered
to the Trustee an opinion of counsel to the effect that (A) the creation of the defeasance trust does not violate the Investment
Company Act of 1940, as amended, (B) the Holders of the debt securities of such series have a valid first-priority security interest
in the trust funds, (C) such Holders will not recognize income, gain or loss for federal income tax purposes as a result of such
deposit and covenant defeasance and will be subject to federal income tax on the same amount and in the same manner and at the
same times as would have been the case if such deposit and defeasance had not occurred and (D) after the passage of 123 days following
the deposit (except after one year following the deposit, with respect to any trust funds for the account of any Holder of the
debt securities of such series who may be deemed to be an “insider” as to an obligor on the debt securities of such
series for purposes of the United States Bankruptcy Code), the trust funds will not be subject to the effect of Section 547 of
the United States Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law in a case commenced by or against the Company
under either such statute, and either (1) the trust funds will no longer remain the property of the Company (and therefore will
not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’
rights generally) or (2) if a court were to rule under any such law in any case or proceeding that the trust funds remained property
of the Company, to the extent not paid to such Holders, the Trustee will hold, for the benefit of such Holders, a valid and perfected
first priority security interest in such trust funds that is not avoidable in bankruptcy or otherwise (except for the effect of
Section 552(b) of the United States Bankruptcy Code on interest on the trust funds accruing after the commencement of a case under
such statute), and the Holders of the debt securities of such series will be entitled to receive adequate protection of their interests
in such trust funds if such trust funds are used in such case or proceeding;
(v) if the debt securities of
such series are then listed on a national securities exchange, the Company shall have delivered to the Trustee an opinion of counsel
to the effect that the covenant defeasance contemplated by this provision of the Indenture of the debt securities of such series
will not cause the debt securities of such series to be delisted; and
(vi) the
Company has delivered to the Trustee an officers’ certificate and an opinion of counsel, in each case stating that all conditions
precedent provided for in the Indenture relating to the covenant defeasance contemplated by this provision of the Indenture of
the debt securities of such series have been complied with. (Section 8.3)
Modification of the Indenture
The Indenture provides that the Company
and the Trustee may amend or supplement the Indenture or the debt securities of any series without notice to or the consent of
any Holder:
(i) to cure any ambiguity, defect
or inconsistency in the Indenture; provided, that such amendments or supplements shall not adversely affect the interests of the
Holders in any material respect;
(ii) to comply with Article
5 (Successor Corporation) of the Indenture;
(iii) to comply with any requirements
of the Commission in connection with the qualification of the Indenture under the Trust Indenture Act;
(iv) to evidence and provide
for the acceptance of appointment under the Indenture with respect to the debt securities of any or all series by a successor Trustee;
(v) to establish the form or
forms or terms of debt securities of any series or of the coupons appertaining to such debt securities as permitted by the Indenture;
(vi) to provide for uncertificated
debt securities and to make all appropriate changes for such purpose; or
(vii) to make any change that
does not materially and adversely affect the rights of any Holder. (Section 9.1)
The Indenture also provides that, without
prior notice to any Holders, the Company and the Trustee may amend the Indenture and the debt securities of any series outstanding
under the Indenture with the written consent of the
Holders of a majority in principal amount
of the outstanding debt securities of all series affected by such supplemental indenture (all such series voting as one class).
The Indenture also provides that the Holders of a majority in principal amount of the outstanding debt securities of all series
affected by such supplemental indenture (all such series voting as one class) by written notice to the Trustee may waive future
compliance by the Company with any provision of the Indenture or the debt securities of such series. Notwithstanding the foregoing
provision, without the consent of each Holder of the debt securities of each series affected by such supplemental indenture, an
amendment or waiver, including a waiver pursuant to Section 6.4 of the Indenture, may not:
(i) extend the stated maturity
of the principal of, or any sinking fund obligation or any installment of interest on, such Holder’s debt security;
(ii) reduce the principal amount
of such debt security or the rate of interest on such debt security (including any amount in respect of original issue discount),
or any premium payable with respect to such debt security;
(iii) adversely affect the rights
of such Holder under any mandatory repurchase provision or any right of repurchase at the option of such Holder;
(iv) reduce the amount of the
principal of an Original Issue Discount Security that would be due and payable upon an acceleration of the maturity of such debt
security pursuant to the Indenture or the amount of such debt security provable in bankruptcy;
(v) change any place of payment
where, or the currency in which, any debt security of such series or any premium or the interest on such debt security is payable;
(vi) impair
the right to institute suit for the enforcement of any such payment on or after the stated maturity of such debt security (or,
in the case of redemption, on or after the redemption date or, in the case of mandatory repurchase, the date of such repurchase);
(vii) reduce the percentage
in principal amount of outstanding debt security of such series the consent of whose Holders is required for any such supplemental
indenture, for any waiver of compliance with certain provisions of the Indenture or certain Defaults and their consequences provided
for in the Indenture;
(viii) waive a Default in the
payment of principal of or interest on, any debt security of such series;
(ix) cause any debt security
of such series to be subordinated in right of payment to any obligation of the Company; or
(x) modify any of the provisions
of this section of the Indenture, except to increase any such percentage or to provide that certain other provisions of the Indenture
cannot be modified or waived without the consent of the Holder of each outstanding debt security of any series affected by such
supplemental indenture.
A supplemental indenture which changes
or eliminates any covenant or other provision of the Indenture which has expressly been included solely for the benefit of one
or more particular series of debt securities, or which modifies the rights of Holders of debt securities of such series with respect
to such covenant or provision, shall be deemed not to affect the rights under the Indenture of the Holders of debt securities of
any other series or of the coupons appertaining to such debt securities. It shall not be necessary for the consent of the Holders
under this section of the Indenture to approve the particular form of any proposed amendment, supplement or waiver, but it shall
be sufficient if such consent approves the substance of such proposed amendment, supplement or waiver. After an amendment, supplement
or waiver under this section of the Indenture becomes effective, the Company shall give to the Holders affected by such amendment,
supplement or waiver a notice briefly describing such amendment, supplement or waiver. The Company will mail supplemental indentures
to Holders upon request. Any failure of the Company to mail such notice, or any defect in such notice, shall not, however, in any
way impair or affect the validity of any such supplemental indenture or waiver. (Section 9.2)
Governing Law
The Indenture and the debt securities will
be governed by the laws of the State of New York.
Concerning the Trustee
The Company and its subsidiaries maintain
ordinary banking relationships with The Bank of New York Mellon Trust Company N.A. and its affiliates and a number of other banks.
The Bank of New York Mellon Trust Company N.A. also serves as trustee with respect to certain other outstanding debt securities
of the Company and its subsidiaries.